Forget being hard or soft on crime – be smart instead – Iain Smith

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If we truly want to reduce offending within our communities in Scotland then we must move beyond tokenistic, meaningless terms like being “hard” or “soft” on crime. We need to be cleverer.

‘Smart Justice’ offers a chance to stand back from the crime (the “what”) and focus on the person committing the crime (the “who”). At present the focus on the crime and its punishment leads to a revolving door of imprisonment. This is not only futile, it is expensive. Keeping someone in prison costs on average £35,000 per year.

Scotland not only tops the league table for the highest prison population in Europe but shamefully also boasts one of the highest drug death rates in the world, over three times that of England. In 2019, 1,264 drug-related deaths were recorded in Scotland. While some may think “so what?”, and characterise those in prison or dead as “neds”, “junkies” or “scum”, this othering and stigma belies the true nature of those we choose to marginalise in society. 

In March 2018 I had the great opportunity to meet a former policewoman, the late and great Tina Hendry. She was racing around the country with her colleague, Dr Suzanne Zeedyk, the UK’s leading attachment specialist and psychologist, teaching those willing to listen about the science behind adverse childhood experiences (ACEs). Examples of such trauma include sexual and physical abuse, neglect and bereavement. Dr Robert Anda & Dr Vincent Felitti produce research findings in 1998 basically setting out the horrific impact childhood trauma has on the developing brain, with numerous poor physical and mental health outcomes, including poor self-regulation, hyper-vigilance, suicidal ideation and depression. Again – so what? What has that got to do with the criminal justice system? Everything. 

I have 25 years of experience navigating the courts in a busy criminal law practice where I have met literally thousands of participants in this justice system. I previously believed that all my clients chose their paths and that they were rightly held accountable for electing to take part in violence and enjoying drugs. What I failed to realise and see was the devastation caused by childhood trauma and the pivotal role it plays in shaping not only a person’s brain but their destiny. For many of my clients their battle for justice begins at birth. Those young people removed from family homes because of the damage being done to them end up floating seamlessly through the care system, to the justice system and on to the prison system.

Education about ACEs may well encourage a reduction in and prevention of harm inflicted on children – a good start. This awareness cannot begin too early for parents and professionals. In the criminal justice setting it may allow those otherwise hell-bent on retribution to see the “who” behind the label of offender and to think creatively in order to halt that revolving door.

As a criminal defence lawyer I meet people daily who do bad things but very few who are bad or evil. Understanding the damage some people suffer in childhood and how this can affect their ability to self-regulate, how drugs and alcohol become the necessary tools needed to disassociate from a life that feels too painful to live, gives space for empathy, compassion and repair. People cannot be punished out of their addiction, pain or trauma. Rather, let’s provide long-term solutions which are neither “soft” nor “hard”, but are instead Smart Justice. 

Recognising that trauma has an effect on capacity is key. The system currently holds all people who commit crime to be responsible for their actions, but many are not response-able due to toxic stress impeding their development in childhood. A 13-year-old victim of sexual abuse does not make a reasoned choice to consume heroin to self-soothe and disassociate, at least not in the true sense of choice. I recognise it is not always easy to be empathetic, particularly when the offence committed has left another victim in the aftermath. But victimhood runs deeper than what we see on the surface of a crime. Only through compassion, hope and perseverance can we even flirt with the prospect of repair.

As has been said by others, the real test is to be kind to unkind people. By shifting the lens directed towards people caught up in the justice system, we have an opportunity to shift the system from retribution to reparation. Educationalist Stuart Shankar writes “See a Child Differently, See a Different Child”. The justice system, with all its wigs, gowns and traditions, is slow to change. But to ignore the impact of childhood trauma is not only ignorant, it is a professional failure to do what is right: morally and financially. 

It is understandable that we hate to talk about systemic problems such as childhood sexual abuse, torture and neglect, but we cannot now ignore its effect on those who have suffered it. We have a collective responsibly for failing young people in childhood. Court may provide an opportunity for help rather than punish. Going to the source of the problem may be hard, but ignoring it is expensive and irresponsible. 

Not only do we struggle with the causes of crime steeped in trauma, but we also fail on the solutions. There is no magic wand to cure the pain of a traumatised person suffering addiction. All too often we simply replace one illegal opiate, heroin, with a legal one, methadone. I often hear judges refer to my clients’ drug or alcohol problem, when in fact that is their solution to their trauma problem. Scratching the surface of someone’s life will often reveal their pain – that is often the can of worms the decision-maker fears. It is a complexity that overwhelms judges, social workers and even doctors. Yet we must try to repair and persevere otherwise our crimes will continue to rise along with our prison numbers and drug deaths. 

Addressing the causes of crime rather than simply the consequences is smart and will reduce offending. Treating drug addiction as a health issue rather than a criminal justice matter would also be wise. Judges clumsily navigate a drug treatment and testing order, often reverting to futile threats to punish someone when they miss two of their 20 monthly appointments. Einstein recognised the madness of repeating these same mistakes and expecting different results. 

Part of the First Minister’s command to her new Drugs Minister, Angela Constance, was to “ensure a humane and responsive justice system”. Recognition of the impact of trauma is fundamental to achieving such a change. Repair over retribution all day long. 

Iain Smith is a criminal defence lawyer and partner with Keegan Smith Defence in West Lothian. He is the co-founder of Trauma Aware Lawyers, a member of Aid & Abet, a mentor with ICAN and a core group member of West Lothian Adverse Childhood Experiences Hub. He speaks regularity at justice events about childhood trauma and justice and hopes to embed trauma training in the education of the next generation of. In 2020 he won Scottish Lawyer of the Year at the Scottish Legal Awards.