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Kindness in court: a novel approach

Victoria Greening is legal counsel and founder of Resolution Chambers

I would like to consider a counterintuitive method of achieving crime reduction and disruption to the cycle of offending behaviour in Bermuda. This is as a follow-up to recent concerns raised in The Royal Gazette between August 4 and 7 when the lack of resources available to vulnerable and mentally unwell members of the community who end up caught up in the criminal justice system was addressed. There has been a recent upsurge in understanding the biological science of the impact of childhood trauma on the developing brain and the adulthood, known as adverse childhood experiences — or Aces. Much of the focus around the world has been on health and education, but increasing attention is turning to its relevance to the justice system. It is important, therefore, that lawyers become aware of Aces. Hearing about this science through my own personal development work, and more specifically at a conference I attended last year at Bermuda Underwater Exploration Institute and an international webinar that I participated in on the subject this year, has allowed me to view my clients, who are almost always vulnerable, often wounded and broken individuals, in an even more compassionate and non-judgmental way than ever. It is commonplace in this profession to observe emotional scars left by trauma, which manifests as an inability to self-regulate and comes with an all-too-common reliance on substances to self-medicate emotional pain. In other words, there are biological reasons for why people behave in the ways that they do. Not every crime committed has a background of Aces, and not everyone with significant childhood trauma commits crime. However, a significant proportion of people with convictions have had high doses of toxic stress from childhood that made it more likely, although not inevitable, that they would enter the criminal justice system. While thankfully only a relatively small number of children end up in care at some point, the proportion of those who have experienced being in care while children that end up becoming inmates at Westgate is grossly disproportionate and shocking. That is not just a coincidence, and research strongly suggests that we are not doing enough for our children in care. For starters we must work collaboratively with the Department of Child and Family Services and other interested stakeholders to recommend ways to reduce that figure and seek to redress this imbalance. Experts in Aces believe that one stable, nurturing adult is enough to rescue a child from such stress and provide a buffer. Adults who have suffered trauma can also be salvaged by such care. The Harvard Centre for the Development of the Child states: “Researchers provide three principles — reducing stress, building positive relationships and strengthening life skills — as the best long-term preventive to combat Aces.” Despite the compelling research, people continue to ask what this really has to do with lawyers and the justice system. If we look at the convicted person through an Aces lens, lawyers may realise the importance of seeing things differently — prioritising help rather than punishment, and starting to think creatively rather than being resigned to the futile revolving door of court and prison. Hurt people often hurt people, but they almost always continue to hurt themselves more. Solutions cannot be found without being informed, or with the continued absence of the appropriate resources or not having suitable frameworks in place. Criminal justice social work reports use terms such as “background”, describing childhood adversity as a “poor upbringing”, without actually referring to Aces or giving a real sense of the misery, despair, trauma and toxic stress experienced by offenders when they were children. These reports almost always fail to connect the impact on the adult defendants that these Aces truly have had. Criminal clients are not always easy to like, but they are the clients in the greatest need of love. Scratch the surface of their lives and you will be told of terrible adversity and tragic backstories. People with high Aces do bad things, but it does not mean that they are bad people. Armed with this awareness and knowledge, it allows lawyers to practise law with a non-judgmental and compassionate attitude with far-reaching, positive results. Asking clients what has happened to them, rather than what is wrong with them creates an opportunity for genuine connection and open dialogue. This in turn helps me to better understand the present situation as well as the person I am representing. This empathetic approach provides hope and encourages perseverance and strength. During the process, I connect clients to professionals and agencies to show recovery and a more fulfilling way of life is possible. If lawyers are going to get anywhere with this model, other professionals that make up the justice system — prosecutors, judges, prison officers, police — need to play their part by becoming trauma-informed. We have to hold each other accountable for the language we use to describe people who commit crimes to curb stigmas and myths that people somehow choose this way of life. For example, prosecutors could look at young persons’ backgrounds and consider their individual circumstances as well as the offence itself, and consider when to divert these young offenders away from the courts, rather than stamping a label on them that will run the risk of preventing them from making progress in life. At the judicial level, presiding with kindness will garner respect not only for the judge, but for the court and the law. It will improve responses and the judge may break the cycle of offending by showing compassion. Why not set a positive example for offenders to look up to rather than presiding by instilling fear and humiliation? One excellent example of this is the Mental Health Treatment Court that was set up a few years ago and has proved to be a huge success with its “clients”. Recent cases have shown that it is time to try something different. Aces research gives a bio-psycho-social platform and evidence-based awareness to develop a new approach in the criminal justice system.Some may look at this approach as being soft on crime. To the contrary, this is “smart justice” and means long-term reduction of crime as well as genuine, long-lasting benefits to all members of our community.• Victoria Greening is legal counsel and founder of Resolution Chambers