Criminal Defense-Based Forensic Social Work

Ashley Ratliff, Maren Willins, Ashley Ratliff, Maren Willins

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781315410159
• Topic: Psychology
• Subtopic: Social Work
• Index: Psychology

This book draws upon the Colorado Model of Criminal Defense-Based Forensic Social Work – a holistic, client-centered, collaborative approach that uses a trauma-informed care framework – to outline the numerous roles and skills of a forensic social worker. The comprehensive, developmentally informed model employs a past (e.g., mitigation themes and life history compilation), present (e.g., client contact and current functioning support), and future (e.g., reentry services) framework to provide mitigation narratives for defendants and to create a comprehensive approach to service.

The text starts with an overview of practice standards, ethical considerations, and legal frameworks. Next, chapters examine the unique roles that a forensic social worker must take on and the skills they need to possess. These include using clinical interventions with clients in nonclinical settings, working with clients of different identities and backgrounds, assisting with reentry planning for incarcerated clients, and collaborating with experts outside of the defense team. Finally, the authors provide strategies for practitioners to engage in their own self-care.

Interwoven with four case studies using the Colorado Model, this book will be valuable reading for graduate schools of social work, law school programs which have clinics or direct practice components to legal studies, and at defender agencies who contract with or employ social workers on staff.

1
INTRODUCTION AND OVERVIEW

Ashley Ratliff and Marty Beyer

Each of us is more than the worst thing we’ve ever done.

Bryan Stevenson

All individuals charged with crimes are more than their worst acts. A myriad of factors in a person’s life at various points in time contribute to their life course trajectory. Courts must be informed about the numerous developmental and historical factors contributing to an offense. This complex developmental story is essential to address the unmet needs of clients in juvenile and criminal court systems to achieve rehabilitative outcomes instead of purely punitive sanctions. To reveal the mitigating circumstances surrounding a client and their case, in addition to identifying the resources and supports necessary to help that individual move beyond their worst act, a client-centered holistic team approach to criminal defense is critical. The Colorado Model of Criminal Defense-Based Forensic Social Work is the approach of practitioners who came together to represent our most vulnerable clients and is a launching place for anyone working with clients in the juvenile or adult criminal court systems.

This introduction provides an overview of the principles that guided the authors to develop a model of holistic defense. The discussion will include the importance of trauma-informed developmental assessments and how forensic social workers are well suited to put together the critical narratives to inform decision-makers in achieving developmentally sound justice. The introduction will conclude with an overview of the chapters of this book as well as summaries of the case studies that bring the concepts of the book to life through fictional client examples.

Constitutional Jurisprudence—Framework for Inclusion of Developmental Science into the Law

Representation of children facing adult prosecution as well as young men and women serving unconstitutional sentences is a unique and specialized area of practice that led the authors to design this model of criminal defense-based forensic social work. The infusion of developmental science into criminal cases began most distinctly when the United States Supreme Court abolished the death penalty as a punishment for children in Roper vs. Simmons, 543 U.S. 551 (2005). Here, the Court acknowledged three distinct attributes of youth that mitigate culpability: (1) developmentally; the hallmark features of adolescence/youth involve risk-taking, impetuosity, and a failure to appreciate risks and consequences; (2) youth are more susceptible to outside pressures—such as from peers or family members—and have limited ability to remove themselves from the settings which may contribute to an offense; and (3) youth’s identities or characters are not yet formed and thus have a tremendous capacity for change (Steinberg, 2014). Brain development research suggests that development is ongoing until the mid-20s (American Psychological Association, Amici curiae brief, Miller v. Alabama, United States Supreme Court, 2012). In 2010, the Court took the principles of developmental research further and reaffirmed the critical differences between youth and adults based in brain science to abolish the sentence of life without parole for juvenile offenders who were convicted of “nonhomicide” crimes. In Graham v. Florida, the Court held “that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole” (Graham v. Florida, 2010). Specifically, the Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders” (Graham, 2016). Because youth matters under the Constitution, individualized sentencing that considers youthfulness and other mitigating factors is required by the Eighth Amendment.

For over a decade, the United States Supreme Court has validated and confirmed in the cases of Roper, Graham, and Miller that young people are different from adults, that youth is always a mitigating factor, and that youth matters in determining culpability and disposition in court. Developmental research, neuroscience, and behavioral considerations guided these important cases. In the wake of these critical Court decisions, a more specialized field of practice evolved nationally around representing youth facing life sentences and for practitioners to use in resentencing hearings for those now serving unconstitutional life sentences imposed upon them as children. At the same time, in Colorado, significant changes to the laws surrounding the prosecution of youth in adult courts were also occurring. Legal frameworks were being developed at the legislature as well as provided through case law, and in order to best develop the necessary evidence for these legal factors, inclusion of a forensic social worker on the defense team was essential. While legal standards were evolving, the authors of this book—practitioners in the field working with clients facing resentencing hearings after decades in prison with no hope for release and representing juveniles at risk of adult court prosecution—developed this model of holistic client-centered representation with inclusion of forensic social workers. Criminal defense-based social work has led a movement toward developmentally sound justice around the country.

The Developmental Approach

Youth and young adults in juvenile and criminal courts are significantly impacted by their immaturity, most are shaped by trauma, and at least half are affected by disabilities. Their offenses, their peer connections, their relationships with family, their participation in school, their substance use, and their contact with professionals cannot be understood without appreciating their immature thinking, reactions to maltreatment and loss, and comprehension problems. A developmental approach is necessary to represent a client facing criminal charges. Systematically putting together the pieces behind a young person’s actions is important in every case. The developmental factors that contributed to who the person was at the time of the offense are also the framework for rehabilitative services that address community safety. A developmental assessment weaves together immaturity, disabilities, and trauma to understand the young person’s behaviors, relationships, and emotions to design effective rehabilitative services (Beyer, 2011).

For the incarcerated adult with an unconstitutional sentence, the application of a developmental framework retrospectively can contribute to assessment of readiness for release.

Developmental assessments began decades ago as a result of questions from courts that recognized that a young person cannot be defined simply by their offense. Courts wanted to know what unique combination of services would fit each young person developmentally and would provide effective rehabilitation. This question could not be answered by traditional court evaluations that rendered a diagnosis or presented the results of intelligence quotient (IQ) and personality testing. While psychological and psychiatric evaluations may summarize a young person’s history, in recent years, it has been forensic social workers who have taken the lead in comprehensive developmental assessments. The biopsychosocial and ecological perspectives in the training and experience of forensic social workers make them uniquely skilled at telling a young person’s story in a developmental context:

• Who was this young person at the time of the offense?
• What were his/her family relationships, school experience, and peer connections?
• What were the specific effects of past trauma, disabilities, and immaturity on his/her behavior at the time of the offense?
• What is required for her/him to be successful and give the community confidence in his/her minimal risk of reoffending?

Justice systems in the past utilized linear stage-based theories about adolescence. This outmoded view of development did not include the effects of trauma or the impact of learning difficulties on a young person, or the unique family and peer contexts of his/her behavior. Furthermore, recent teen brain studies have demonstrated that

adolescents behave differently than adults because their minds operate differently, their emotions are more volatile, and their brains are anatomically immature…their brains are physiologically underdeveloped in the areas that control impulses, foresee consequences, and temper emotions. They handle information processing and the management of emotions differently from adults… Cognitive experts have shown that the difference between teenage and adult behavior is not the adolescent’s inability to distinguish right from wrong… Rather, the difference lies in what scientists have characterized as deficiencies in the way adolescents think, an inability to perceive and weigh risks and benefits accurately… Adolescents are inherently more prone to risk-taking behavior and less capable of resisting impulses… Stress, emotions and peer pressure affect everyone’s cognitive functioning, but they operate on the adolescent differently and with special force.

(American Medical Association, Amici curiae brief, Roper v. Simmons, United States Supreme Court, 2005, pp. 4–20)

Overlooking this broader adolescent perspective, both in understanding the young person’s behavior and in designing rehabilitative services, resulted in court decisions that often were not developmentally sound.

There is substantial research on the lasting effects of both disabilities and trauma on youth, and these are not compatible with the simplistic view that offending is a bad choice by a teen.

What may be perceived as fixed personality traits in juveniles may in fact result from malleable factors such as present maturity level or social context, rather than ingrained or enduring aspects of personality or worldview. Research has shown that personality traits change significantly during the developmental transition from adolescence to adulthood.

(American Psychological Association, Amici curiae brief, Miller v. Alabama, United States Supreme Court, 2011, pp. 19–20)

The notion that youth should control their actions does not recognize that teen behavior is reactive to past victimization and/or results from processing and executive function difficulties and/or immature thinking. Traumatized youth may not be able to make rational decisions when memories and anxiety from past maltreatment and loss are triggered. Youth with disabilities may not comprehend the choices in a stressful situation, especially when they are following others.

That maturity should be assessed as a distinct developmental characteristic has long been recognized by researchers but only recently considered in juvenile and criminal courts. Immaturity of thinking, planning, accurately seeing risks, and decision-making is characteristic of teenagers in general, often leading to consequences the young person did not anticipate and regrets. Studies over many years have concluded that adolescents think less maturely than adults, but justice systems treat teenagers as adults in many ways. Clinicians and educators recognize that each young person develops uniquely, with maturity, comprehension, and trauma recovery happening at a different and uneven pace for each individual. Traditional one-size-fits-all services—whether community-based or residential—are not likely to be effective, given the unique development of each teenager. Developmental assessment is a response to the interest of juvenile and criminal court judges in having a full picture of what was behind a young person’s offense and what services are necessary to reduce the risk of reoffending and enable him/her to contribute to the community.

Furthermore, in presenting who the person was at the time of the offense, the forensic social worker includes family-, school-, and neighborhood-level risks and protections (the ecological approach). The client’s current functioning, such as work and school achievements, daily living experiences, current social support, and other activities, are also presented. This information will contribute to the conclusion of the developmental assessment regarding what rehabilitative services will be effective so the client can be successful in reentry or toward remaining within the community.

The main components of a developmental assessment are immature thinking, immature identity, the effects of trauma, and the impact of disabilities.

Immature thinking: Young people have immature thought processes, including minimizing risks, not anticipating, reacting to stress, and seeing only one option. Their thinking is less mature when they are influenced by peers and/or under the influence of substances and/or not receiving sufficient adult supervision. Young people gradually develop mature moral reasoning but may be incapable of applying their understanding of right and wrong, and responsibility when they are under stress or influenced by others.

Immature identity: Becoming good at something is the foundation for developing a strong, positive identity, which is a crucial task of adolescence. Many youth involved in the justice system have not experienced success and feel marginalized: Having an unformed identity makes them more vulnerable to involvement with delinquent peers and substance abuse. Furthermore, the development of a stable identity takes time, during which a young person needs approval from family and positive peers that justice-involved youth often do not receive.

The effects of trauma: Trauma—defined as not only sexual and physical abuse but also loss; disrupted caregiving; neglect; exposure to domestic and community violence; or being rejected due to race, ethnicity, sexual orientation, or gender identity—has lasting effects on child and adolescent development. Many youth involved in the justice system have not had effective trauma treatment, despite their known background of trauma. The continuing impact of past trauma on behavior has historically been underestimated. Teenagers with a history of trauma typically overreact emotionally, abuse substances, and have problems forming trusting relationships. Too often, symptoms of trauma have been blamed on the young person or misinterpreted as part of his/her character rather than a guide to what is behind behavior that can be changed.

The impact of disabilities: As many as half of the juvenile delinquent population, in comparison to less than 10% in the overall child population, have learning disabilities, including a variety of problems in listening, remembering, prioritizing, and strategizing as well as reading and math. Comprehension and executive function difficulties are common in delinquents and contribute to poor decision-making under stress leading up to an offense. Distractibility and impulsiveness evident in learning disabled young people may make them less able to stop behavior, which plays a role in delinquent behavior, especially when coupled with comprehension problems and immature thinking. Truancy in response to perceived criticism from teachers, bullying by classmates, and frustration with poor academic progress can begin early in learning disabled youth, and not attending school can lead to delinquency.

A developmental framework is not only crucial to understanding adolescents in juvenile and criminal court but also applicable to adults incarcerated for offenses when they were juveniles who are now eligible for resentencing as well as young adults facing charges in criminal court. Putting our clients’ lives in a developmental context and identifying what is behind their behavior is crucial in advocating for their legal interests in every case. Forensic social workers are well qualified to thoroughly explore who the young person was developmentally at the time of the offense and provide that context to the defense team and the decision-makers—the state prosecutor, the jury, and the judge. Explaining their unique immaturity, effects of trauma, and disabilities can help the court understand their offense, assess future risk, and design rehabilitative services. Forensic social workers whose training and background stem from core principles of social work, systems theory, and the ecological perspective have the expertise critical to putting together a thorough developmental assessment and are invaluable members of any criminal defense team.

Forensic Social Workers on a Criminal Defense Team—A Critical Collaboration

Social workers can assist the defense team in understanding the context of immaturity, trauma, and disabilities behind the young person’s relationships, success at school, and behavior prior to and during the offense. As criminal defense-based forensic social work has evolved, the social worker has been able to provide the defense team with a developmental framework for understanding the young person and presenting his/her story in court. In order to work together toward the best outcome for a client that addresses unmet needs and rehabilitation services, and provides a developmental history to the decision-maker, collaboration is a key factor for success at any level.

Criminal defense-based social ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Preface: Colorado Model of Criminal Defense-Based Forensic Social Work
• Acknowledgments
• About the Contributors
• 1 Introduction and Overview
• 2 Guiding Principles of Practice: A Critical Interdisciplinary Approach Toward Effective Client Representation and Advocacy
• 3 Roles of the Forensic Social Worker
• 4 Skills
• 5 Cultural Humility and Special Populations
• 6 Work Product (Written, Demonstrative, Oral)
• 7 Forensic Social Work and Collaboration with Expert Witnesses
• 8 Self-Care
• Index