McLachlan, K.J. (forthcoming). ‘Raising the age’ of criminal responsibility is a key strategy in providing trauma-informed responses to children. Current Issues in Criminal Justice. (submitted to special issue).
Raising the age is a key trauma-informed strategy to reduce both crime and incarceration. Trauma-informed practice requires that the criminal justice system realises the presence of trauma, recognises its significance, and responds in manner that is informed by this knowledge and seeks to resist re-traumatisation. Most children who are caught up in the youth justice system have been exposed to multiple and chronic adverse childhood experiences (ACEs). By raising the age of criminal responsibility, governments could respond to the traumatic impact of ACEs in a way that is trauma- and evidence-informed as well as culturally appropriate. Raising the age would divert younger children away from the youth justice system. While not all children who offend continue into the adult criminal justice system, most adults who remain in the churn of the criminal justice system have had early and sustained contact with the youth justice system.
McLachlan, K.J. (forthcoming). Trauma-informed sentencing of adults who are life-course persistent offenders. In: C. Malvaso, T.R. McGee & R. Homel (Eds.) Frontiers in Developmental and Life-Course Criminology: Methodological Innovation and Social Benefit. Routledge.
Justice agencies are beginning to use trauma-informed practices when responding to young people who offend. But, for young people who continue to offend beyond childhood into adulthood, how might sentencing judges recognise unresolved and intergenerational trauma, and respond in a way that will promote desistance? Recent research undertaken in South Australia with adult defendants has identified opportunities for judges to use trauma-informed sentencing practices to respond to life-course persistent offenders more effectively. Given judges are bound by case law precedent and legislation, this chapter explores four opportunities to encourage judges to give greater regard to traumatic impacts of adverse childhood experiences when sentencing life-course persistent offenders in the hope they will desist from criminality. The findings are highly transferable, given the parallels in the sentencing calculus across countries that have a Westminster system of law.
McLachlan, K. (2022). Applying a Trauma-Informed Practice Framework to Sentencing. In: M. Florestal, H. Maki, M. McCallum, & J.K. Wright (Eds.) Trauma-Informed Law: A Primer for Lawyers in Practice. American Bar Association.
Forthcoming
McLachlan, K.J. (2022) Trauma-Informed Sentencing in South Australian Courts. Journal of Criminology, 55(4), 495 – 513. https://doi.org/10.1177%2F26338076221113073
Recently the concepts of ‘compassionate courts’, ‘humane justice’, ‘kindness in court’, and trauma-informed practice have emerged in legal theory and practice in the US, England, Scotland and Australia. This article uses a trauma-informed practice framework to examine how South Australian superior court judges acknowledge defendant trauma in sentencing. Trauma-informed sentencing practice requires that judges realise the presence of trauma, recognise its relevance, respond in a way that is informed by trauma and act to resist re-traumatisation. By using this ‘4Rs’ framework to analyse sentencing remarks of 448 defendants published in 2019, the presence of trauma-informed practice was explored. Analysis indicated that judges realised trauma was present in the lives of many defendants, particularly women and Aboriginal peoples, but did not always overtly recognise a link between trauma and criminal behaviour and were unlikely to refer to a defendant’s trauma history or use trauma-informed principles of practice in their sentencing response. Research findings were presented to judicial officers at a Judicial Development Day in 2021. The article reflects on those discussions as well as the primary research, when making recommendations for future sentencing practice primary for the judiciary, but also for legislators and legal practitioners.
https://journals.sagepub.com/doi/full/10.1177/26338076221113073
McLachlan, K. (2021). ‘I cannot dismiss from my mind your traumatic and tragic upbringing’: Judges’ use of defendant trauma in sentencing. PhD Thesis.
The aim of the criminal justice system and the agencies within it is to promote the safety of the community and law-abiding citizens. Sentencing plays an essential role in how the criminal justice system responds to crime; imposing sanctions designed to punish people who offend, reduce future crime, and improve community safety. While opportunities exist for more cost-effective, evidence-informed practice at all stages of the criminal justice process, the focus of this thesis is the sentencing of defendants following conviction. This thesis explores the idea that sentencing outcomes may significantly improve if judicial officers are ‘trauma-informed’. ‘Trauma’ is the impact of adversity on an individual’s functioning and wellbeing. Trauma-informed sentencing requires that judges realise the presence of adversity and trauma in defendants’ lives, recognise trauma’s relevance to criminal behaviour, and respond in a way that is informed by trauma and resists re-traumatisation (the 4Rs). Little is currently known about if, when, and how this occurs.
This thesis reports the findings of an analysis of sentencing remarks for 233 defendants in one Australian jurisdiction. Elements of trauma-informed sentencing were present in terms of judicial decision-making, the sentencing process, and the sanction imposed. However, in most cases, these were poorly conceptualised, judges conflated adversity with trauma, and were often heavily reliant on medical understandings of trauma rather than those that draw on cultural, gendered, and broader understandings. While some sentencing remarks included all 4Rs, trauma-informed sentencing was piecemeal at best. The analysis revealed that judges often realised that trauma was present in defendants’ lives. However, they did not always consider how trauma was relevant to criminal behaviour and the objects of sentencing. For some judges, a ‘trauma-informed sanction’ was a shorter period of imprisonment than might be expected, followed by an extended period of supervision in the community. Often a reliance on deterrence or proportionality made it difficult for judges to impose trauma-informed sentences at all.
The main contribution made by this thesis lies in the application of a framework (SAMHSA’s 4Rs) to understand the logic underpinning sentencing in Australia. This thesis identifies how the judiciary may use its discretion when trauma-informed approaches are preferred. Methodologically, the thesis demonstrates how sentencing remarks provide a rich and meaningful source of data when working to understand the different ways in which defendants’ backgrounds are considered relevant to sentencing. Sentencing remarks serve to inform and educate stakeholders (i.e., the defendant, the victim, and the wider community) about why a particular sentence is handed down. As such, it is concluded that the adoption of trauma-informed sentencing practices can play a significant role in strengthening confidence in the criminal justice system and arriving at consistent and effective sentences.
Currently embargoed.
McLachlan, K.J. (2022). Using a trauma-informed practice framework to examine how South Australian judges respond to trauma in the lives of Aboriginal defendants. Journal of Qualitative Criminal Justice & Criminology, 11(2), 181 – 210. https://doi.org/10.21428/88de04a1.04778d50
This article uses a trauma-informed practice framework to examine how South Australian superior court judges acknowledge defendant trauma when sentencing Aboriginal defendants. Trauma-informed sentencing requires that judges realise the presence of trauma, recognise its relevance, respond in a way that is informed by trauma and act to avoid re-traumatisation. By analysing sentencing remarks of 42 defendants identified as Aboriginal, the presence of trauma-informed practice was explored, in terms of judicial decision-making, the sentencing process and the sanction imposed. While not holistic summaries of judges’ reasoning, sentencing remarks are intended to enable the parties and the community to understand sentencing logic. Analysis indicated that judges realised trauma was present in the lives of many Aboriginal defendants but did not always overtly recognise a link between trauma and criminal behaviour and were unlikely to refer to a defendant’s trauma history or use trauma-informed principles of practice in their sentencing response.
https://www.qualitativecriminology.com/pub/kerdfaac/release/1
Day, A., Ross, S., & McLachlan, K. (2021). The Effectiveness of Minimum Non-Parole Period Schemes for Serious Violent, Sexual and Drug Offenders and Evidence-Based Approaches to Community Protection, Deterrence, and Rehabilitation. Report prepared for the Queensland Sentencing Advisory Council.
This review presents a summary of research that is relevant to the implementation of the serious violent offences (SVO) scheme in Queensland. This scheme requires a person declared convicted of a serious violent offence1 to serve 80 per cent of their sentence (or 15 years, whichever is less) in prison before being eligible to apply for parole. Three separate but related questions are considered. The first relates to conceptualisations and stakeholder (i.e., community, victim and professional) perceptions of crime seriousness, risk, and harm – and how these influence determinations about the appropriate length of imprisonment and setting of non-parole periods. The second concerns current empirical evidence about the effectiveness of mandatory or presumptive minimum non-parole period schemes; and the final question considers what is known about the impact a range of other sentencing or programmatic approaches that might also be used to achieve community protection, deterrence, rehabilitation, punishment, and denunciation. These questions are answered with specific reference to those who have been convicted of Schedule 1 offences and who therefore may be subject to the SVO scheme, including those convicted of sexual violence, non-sexual violence, and serious drug offences.
Day, A., Ross, S., & McLachlan, K. (2021). Technical Report: Scoping Review Methodology and Results of the Report on the Effectiveness of Minimum Non-Parole Period Schemes. Report prepared for the Queensland Sentencing Advisory Council.
This report describes the methodology used to identify relevant sources that provide the basis for understanding the effectiveness of the Serious Violent Offences (SVO) scheme in Queensland and similar schemes. The report lists eligible sources and provides summaries of those studies, reports, and other publications that were identified as of particular relevance for the Queensland Sentencing Advisory Council (QSAC). It is recommended that this technical report is read in conjunction with the main report.
McLachlan, K.J. (2021). Same, same or different? Is trauma-informed sentencing a form of therapeutic jurisprudence? European Journal of Current Legal Issues 25(1), 1.
The fundamental purposes of therapeutic jurisprudence and “trauma-informed” criminal justice practices are similar: to recognise the importance of therapeutic (trauma-informed) interactions in promoting recovery and desistance from crime, while also avoiding anti-therapeutic outcomes caused by interactions with the criminal justice system. This paper will examine the similarities and differences between therapeutic jurisprudence in sentencing and trauma-informed sentencing to explore whether trauma-informed sentencing should be regarded as a form of therapeutic jurisprudence. While therapeutic jurisprudence, as a legal construct, gives a high priority to working within the existing law to achieve therapeutic outcomes, a trauma-informed approach, emerging as it has from social science and allied health origins, may challenge the veracity and efficacy of current laws and focus instead on how law reform could achieve more therapeutic outcomes.
http://webjcli.org/index.php/webjcli/article/view/738
I have included the file here as the Journal website is currently not functioning: https://katherinemclachlan.com/wp-content/uploads/2022/11/McLachlan_Is-TIS-a-form-of-TJ.pdf
McLachlan, K. (2021) “Whether the victim wishes the offender to be released or not is unimportant”: Australia and New Zealand Parole Board members’ views of the role of victims of crime Criminal Law Journal , 45, 122-133.
Victims have participatory rights to have their views and concerns presented to Parole Boards regarding the release and parole of offenders. These rights are embedded in legislation across Australia and New Zealand. However, there is little research on whether victims’ views and concerns influence the decision-making of Australian and New Zealand parole board members. This article examines the weight and importance given to victim submissions by 24 members of Australian and New Zealand parole authorities. The findings were mixed, with very few members indicating an awareness of victims’ statutory rights. Recommendations to strengthen the role of victims in parole board processes are discussed.
http://sites.thomsonreuters.com.au/journals/2021/05/31/criminal-law-journal-update-vol-45-pt-2/
If you want to access any of these publications, please contact me via Twitter @katejmclachlan or email katherine.mclachlan@flinders.edu.au