Abstract

Excerpted From: Samantha Buckingham, Trauma-focused Justice: Recognizing Systemic Trauma, 46 University of Arkansas at Little Rock Law Review 519 (Summer, 2024) (97 Footnotes) (Full Document)

Both the juvenile justice and criminal justice systems have begun to recognize trauma as well as their own potential to traumatize. Trauma, especially childhood trauma, has far-reaching implications for systems--from policing to incarceration--and those impacted by these systems, including victims, defendants, and communities alike. An appreciation of trauma has wide-ranging benefits. Indeed, most victims and offenders are members of the same community. While justice systems must institute a trauma-informed response to each impacted individual and every legal transaction, this Article focuses on the implications trauma recognition portends for those accused of crimes. Trauma-focused justice requires a framework that fully appreciates the complexity of trauma all forms of oppression and bias have induced. In February of 2023, the University of Arkansas at Little Rock Law Review convened a symposium, TRAUMA ACES: Adverse Childhood Experiences and Trauma Informed Justice, to explore the ways trauma has been and should be integrated into the law.

This Article continues this exploration, providing a description of what trauma is, who is impacted by trauma, and how traumatic experiences affect individuals. In addition, this Article situates trauma within the Supreme Court's mitigation framework for adolescents. The framework is based on the developmental research recognized by the Supreme Court in three landmark cases--Roper v. Simmons, Graham v. Florida, and Miller v. Alabama. Youth demand particular attention because most individuals who commit crimes do so during adolescence--the period of time between about twelve to twenty-five years old. In the criminal justice system, late adolescents, or those who are nearing age twenty-five, have historically been categorized and treated as adults. Yet, their adolescence makes them uniquely suited to benefit from reforms designed to leverage their potential for growth. This group is disproportionately comprised of people of color, meaning racism further complicates the trauma analysis. Late adolescents often grow out of their criminal activity. Trauma-specific treatment enhances rehabilitation.

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According to neuroscience and developmental psychology, youth are different from, and therefore less culpable than, adults for three main reasons. First, youth are immature as compared to adults. Youth are impulsive and have difficulty predicting the consequences of their actions. Adolescents tend to underestimate the possibility of harmful and self-destructive consequences while simultaneously overestimating the potential for positive outcomes and rewards. Second, young people are particularly susceptible to pressure and influence. Because they cannot easily remove themselves from their day-to-day environments, they are vulnerable to harm and emotional trauma. For instance, a young person cannot simply leave a home where they experience abuse or leave a community with frequent shootings. Third, youth have tremendous potential to change and grow. Youth possess tremendous capacity to learn from mistakes. Youthful misdeeds--even illegal and serious conduct--do not reflect permanent character flaws. Risk-taking and criminality peak in adolescence, and decline thereafter. Indeed, very few youth with delinquency histories continue offending as adults, even without justice system intervention.

The justice system has a great potential to impact growth, prosocial development, and rehabilitation. Neuroplasticity is the brain's ability to adapt and change based on various stimuli. Neuroplasticity is at its lifetime peak during adolescence, rendering a youth's brain capable of developing new behaviors. Along with the incredible potential for pro-social growth, the plasticity of an adolescent's growing brain also means that young people are vulnerable to harmful experiences that negatively shape their growth.

Resilience is the process of accessing one's personal and external support systems to respond to and “overcome adversity.” Resilience also reflects a capacity to maintain healthy functioning following a negative experience and to rebound afterward. Youth can be particularly resilient. The justice system has a substantial role to play in fostering this resilience by reinforcing and recognizing that resilience is a skill that youth can develop. The justice system can fulfill this role by adopting a strength-based approach, emphasizing the effort an affected individual demonstrates even when the behavior is not perfect. For example, if a young person who had been attacked en route to school continues to show up to school, even if with a weapon, the justice system can emphasize that the young person is in fact trying to go to school. The justice system can further foster resiliency by systematically recognizing that family and community connections can be sources of resilience.

Trauma and resilience impact justice-involved youth, late adolescents, and fully grown adults. There is tremendous potential for rehabilitation and reform when the juvenile and criminal justice systems recognize and respond to all forms of trauma with compassion, accurate accountability, and growth opportunity.

Samantha Buckingham is a Visiting Professor of Criminal Law and Innovation, former Clinical Professor, and the Director Emeritus of the Juvenile Justice Clinic at the Center for Juvenile Law and Policy (“CJLP”) at Loyola Law School.