By Jennifer K. Johnson, JD, Principal, J.K. Johnson Advisors, LLC
Over the last three decades, our criminal justice system has witnessed an unprecedented shift in the approach to criminal defendants with unmet behavioral health needs. With the emergence of therapeutic jurisprudence and a focus on procedural justice, treatment courts have proliferated across the country. These courts are based on a collaborative, multi-disciplinary model that differs starkly from the fierce adversarial system that previously defined our criminal justice process.
Treatment courts are likely to grow in number and importance as the country turns its attention to ending the era of mass incarceration. In 2016, the American Bar Association published new standards for justice professionals treating people with mental health disorders in the criminal justice system. These new standards signal a shift in focus from public safety as an end goal to public health as a means of achieving public safety.
Judges and prosecutors should consider treatment alternatives to incarceration for defendants with mental disorders that might reduce the likelihood of recidivism and enhance public safety. [1]
For the most part, judges are not trained to preside over treatment courts. This approach to justice may put judges in novel, unexpected, and challenging courtroom situations that seem at odds with the idea of what it means to be a judge. While being assigned to a treatment court is no longer a foreign concept for a judge, little attention has been paid to what effect these programs have on the judges themselves. In this article, we look at the issue of vicarious trauma. Does an assignment to a treatment court make a judge more or less susceptible to the effects of vicarious trauma? The intent of this piece is not to answer that question, but to raise awareness.
What Is Vicarious Trauma?
Vicarious trauma, often called secondary trauma, is the emotional residue of exposure to traumatic stories and experiences through work in a helping capacity.[2] Vicarious trauma develops slowly over time in response to the content of the work and can manifest in emotional, cognitive, and physical symptoms. Secondary trauma should be distinguished from “burnout,” which refers to a gap between expectations and outcomes where perceived demands are greater than perceived resources. While burnout and vicarious trauma can occur together, they are different syndromes.[3]
Potential Risk Factors for Vicarious Trauma
It is easy to see why judges in the criminal justice system are at risk of experiencing vicarious trauma. They hear stories of human-induced violence, witness family tragedy, listen to difficult testimony, and try to find justice in an overworked system with few resources. This goes along with the job of being a judge. When judges step into a treatment court courtroom, are there risk factors that might make them more vulnerable to secondary trauma? Here we consider two unique features of these courts.
First, at the heart of a treatment court is a simple idea: if the individual charged with a crime is offered treatment for the underlying causes of the criminal behavior, they will have a better chance at reintegration in the community without reoffending. Those root causes may include serious and persistent mental illness, intellectual and developmental disabilities, addiction to alcohol and drugs, extreme poverty, physical illness, childhood abuse and neglect, and exposure to chronic trauma.
Given the vulnerable populations that these courts serve, it is not unusual for participants in a mental health court or a drug court to relapse and disappear onto the streets, to die by suicide, to become a victim of violent crime, or to overdose and die. The opioid crisis in America has brought the drug overdose reality to every criminal court in the country. For judges and other professionals working in a treatment court, just because death and tragedy are commonplace, they are no less impactful.
Second, treatment courts usually have a dedicated judge who communicates directly with court participants when they appear for progress reports. While the judge represents the voice of the treatment team, they engage in an open dialogue with participants about the course of their treatment, including both successes and setbacks. While this is highly unusual in the criminal justice system, in a treatment court, it allows the judge to establish a therapeutic alliance with the client. It also allows a client to have narrative autonomy—a voice in the proceedings, the ability to ask questions, the opportunity to engage with the very person that will determine the outcome.[4]
In addition to the personal interaction between judge and client, individuals in treatment courts may participate for an extended period of time and make frequent court appearances. The journey to sobriety and stability is not linear and can sometimes take years to accomplish. The ongoing conversation that takes place over a prolonged period allows for a different and more profound commitment from the judge to the client and from the client to the judge. As one expert noted, “there is a cost to caring.”[5] Judges are not exempt.
Potential Resilience Factors to Vicarious Trauma
While there is a cost to caring, treatment courts may also provide a respite from the traditional criminal justice system in a way that strengthens resilience and protects judges. Here we look at factors that may enhance resilience to secondary trauma.
First, treatment courts are, by definition, non-adversarial. Prosecutors, defense attorneys, and judges put aside the instinct to argue, object, overrule, and fight in favor of finding common purpose and working together. While this may not come naturally to these lawyers, it may be key in reducing the stress that leads to vicarious trauma.
The adversarial system can cause stress reactions in our body. Disputes put the nervous system into a high state of alert, causing neurological and chemical stress reactions to become activated. Over time, this response can become generalized so that we begin to look for and see a threat where it does not exist. This negative cycle becomes ingrained and can erode our problem-solving communication and conflict-resolution strategies.[6] According to national expert and traumatologist, Dr. Lee Norton:
Singular exposure to the adversarial process is noxious—to oneself and others. Humans are pack animals, intended as much for collaboration as competition. Indeed, humans require interaction, positive feedback, and empathy. [7]
Second, collaborative courts function best when team members are free to share information about the health, mental health, criminal history, substance use history, and general social history of participants, victims, and witnesses. Under normal circumstances, this information is not shared between the parties in a criminal case. Lawyers are bound by a strict set of rules around privacy and confidentiality and are never to reveal that information regardless of the circumstances.[8] Judges are privy to sensitive information learned from the parties but not exchanged between them. While these rules are obviously in place to protect the privacy of victims and witnesses and to honor the constitutional rights of a criminal defendant, they can take an emotional toll on the keepers of that information.
The essential information-sharing component of a treatment court may unintentionally provide relief for attorneys and judges who bear the burden of knowing very intimate and sensitive information about clients and witnesses. The ability to process that information with the other members of a collaborative court team allows for a measure of closure not otherwise possible in the regular criminal justice process.[9]
Conclusion
Treatment courts make up a small but growing part of our criminal justice system. They emerged in response to the unprecedented influx of people with social service needs into our criminal justice system. Treatment courts serve the most traumatized, marginalized, and vulnerable citizens in our communities. Judges in these programs sign on to preside over an intense, sometimes emotional process for which they have little preparation or training.
These same judges also sign up for a process that is infused with hope, possibility, and forward progress. Collaborative justice is about potential, not pathology. For every tragedy a treatment court judge can point to, there is an equally powerful narrative of triumph in the face of tremendous odds. That fact alone may provide the resilience a judge needs to come to work every day and take the bench in a treatment court.
[1] American Bar Association. “Criminal Justice Standards on Mental Health—7.15” August 08, 2016. https://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/mental_health_standards_2016.authcheckdam.pdf
[2] Teri Ann Sartor. “Vicarious Trauma and Its Influence on Self-Efficacy.” American Counseling Association’s VISTAS Online 27 (2016). https://www.counseling.org/docs/default-source/vistas/article_2721c024f16116603abcacff0000bee5e7.pdf?sfvrsn=bfd6442c_6
[3] Lee Norton, Jennifer Johnson, and George Woods. “Burnout and Compassion Fatigue: What Lawyers Need to Know.” UMKC Law Review 84, no. 4 (2016): 987.
[4] Elizabeth Kelly, ed. Representing People with Mental Disabilities: A Criminal Defense Lawyer’s Best Practices Manual (Chicago: American Bar Association Publishing, 2018), 189.
[5] Charles R. Figley, ed. Compassion Fatigue: Coping with Secondary Traumatic Stress Disorder in Those Who Treat the Traumatized (New York: Routledge, 1995).
[6] Lee Norton. “Burn Out and Compassion Fatigue in the Legal Profession.” Webinar from Johnson Woods Education, March 26, 2014.
[7] Norton, Johnson, and Woods, “Burnout and Compassion Fatigue: What Lawyers Need to Know” 995. See generally, Kim Hill. “Altruistic Cooperation During Foraging by the Ache, and the Evolved Human Predisposition to Cooperate.” Human Nature 13, no. 1 (March 2002): 105-28. https://doi.org/10.1007/s12110-002-1016-3
[8] Norton, Johnson, and Woods, “Burnout and Compassion Fatigue: What Lawyers Need to Know,” 995.
[9] Ibid.