Prof. Buckingham's New Scholarship: Trauma Informed Juvenile Justice

Professor Samantha Buckingham published "Trauma Informed Juvenile Justice" in the American Criminal Law Review.

ABSTRACT

The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.

The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.

This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.

Read or download "Trauma Informed Juvenile Justice."

Ripe for Resolution: Ending Taxpayer Expenditures on Pointless Litigation

By Adjunct Professor Paula Mitchell

This post originally appeared in the Courts and Procedure section on Verdict by Justia.

When the Supreme Court decided Ryan v. Gonzales earlier this year, it created an interesting dilemma for federal courts in death-penalty states.  The Court held that federal courts are not required to stay habeas corpus proceedings for death row inmates who are mentally incompetent and unable to assist counsel in their post-conviction proceedings.  "Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State's attempts to defend its presumptively valid judgment."  Whether to grant a stay was left to the discretion of the district court.

Typically, a defendant who has been sentenced to death spends decades on death row challenging his conviction and sentence in direct appeals and habeas corpus proceedings, in both state and federal courts.  During that time, it is not uncommon for a condemned inmate to experience a decline in his or her mental competency due to any number of factors, including the mental deterioration that comes with years of living in harsh conditions or in solitary confinement.  Before Gonzales, when capital habeas proceedings were pending before a federal district court, and the inmate (or, "petitioner") was unable to assist his counsel in those proceedings, the district court would frequently "stay" the proceedings to provide the inmate with an opportunity to seek mental health care intended to return him or her to competency so that the petitioner could assist his or her counsel.

After Gonzales, however, federal courts are directed to deny requests for stays in state capital cases where there is "no reasonable hope of competence."  This leads to an absurd result.  Petitioner's counsel will now have to continue pursuing costly habeas corpus litigation of the merits of their mentally incompetent clients' constitutional claims.  If the petitioner's claims are successful and his conviction or sentence or both are reversed, the state will be unable to retry the case in most cases, due to the inmate's lack of competency.  In most states, those petitioners will remain on death row, even though their convictions or sentences were found to be constitutionally infirm and they are entitled to a new trial. And if the state prevails and the federal court upholds the conviction and sentence, those seriously mentally ill inmates will remain on death row, even though the state will in many, if not most, cases never carry out those death sentences because the inmates will not, in all likelihood, ever regain competency and become eligible for execution.  (SeeFord v. Wainwright, where the U.S. Supreme Court held that "the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.  Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.").

Treating America's Drug Use Outside the Prison System

By James Gilliam, Guest Alumni Blogger

Eric Holder's recent announcement at the American Bar Association's Annual Meeting that he is taking steps as Attorney General to tackle the bloated federal mass incarceration crisis comes at a crucial, and welcome, time. Indeed, preventing the use of the most severe federal drug penalties for people convicted of low-level drug offenses represents an important first step toward a fairer criminal justice system and will begin to curb the overcrowding issue that most every prison in the United States faces.

Now is the time for California -- a state the United States Supreme Court already ordered to reduce its prison population -- to follow Holder's lead. As in the rest of the nation, far too many people are locked up in California for far too long -- people we don't need to keep behind bars to ensure public safety. Rather than base our criminal justice system on knee-jerk, one-size-fits-all reactions like incarcerating people for offenses that could be better dealt with through substance abuse treatment, it is time for California to shift toward solutions that will create safety for California families and communities, while enabling those who have paid their debts to become productive citizens. There's no question that attempting to re-integrate into society is much easier to do without the lifelong barriers that follow a felony conviction, including obstacles to housing, employment, and even public support.