The Trauma-Informed Defense Team: Creating Safety in an Unsafe Place

Because men and women accused of serious crime are highly likely to have experienced past trauma, developing a trauma-informed approach will improve the effectiveness of the defense team. The crucial first step in this process is to establish an environment in which the client feels both physically and emotionally safe.

Often, people who have experienced trauma do not feel safe anywhere. One of the primary symptoms of PTSD is hypervigilance – an uncomfortable, exhausting, and dysfunctional need to be on constant watch for danger. Unfortunately, in jail or prison, vigilance may very well be functional – dangers do lurk, and a vulnerable inmate may become an easy target for abuse. One of my clients, a juvenile housed separately from the adults in the jail, suffered such severe PTSD symptoms that he only slept when he was completely exhausted. The night-shift COs recognized this, and whenever he did fall asleep, they would scream and bang on the bars to his cell, startling him wide awake for the rest of the night. (Fortunately, after a few weeks, they tired of the game.)

So how does a defense team establish an environment of safety under these less-than-ideal circumstances? With some advance thought, a feeling of safety can be achieved in the client’s interactions with team members, and that feeling may carry over into the client’s daily life.

Team Unity

The unity of the defense team, particularly in the client’s perception, is vital to establishing an atmosphere of safety. The importance of team unity cannot be overstated. Any hint of acrimony instantly diminishes the client’s feeling of safety. The client may feel compelled to align with one side in a conflict, weakening her relationship with the other team members. Or she may fear the entire team will collapse, leaving her without representation.

Although disagreements and frustrations are bound to arise among team members in the course of a lengthy and stressful case, they should be handled quickly, openly, and entirely outside the presence of the client. If issues cannot be resolved internally, an outside mediator might be helpful. Disparaging comments about any member of the defense team in the client’s presence must be avoided, and complaints or concerns expressed by the client should be acknowledged and addressed by the entire team.

Setting Up the Meeting Place to Maximize Safety

Establishing the client’s physical safety is the initial priority. The meeting place should be as private as possible. A private attorney room is ideal and well worth the extra effort to make advance arrangements, if necessary. If people are outside and can see into the room, the client should be seated with her back to the door, so she can speak freely and focus her attention on the meeting. If the meeting must be in a common area, a private spot with the client seated so she will not be facing others in the room will have to suffice, and topics that might evoke strong emotions should be avoided until a private meeting can be arranged.

The Power of Human Touch

The human brain is wired to respond to physical touch. Positive touch has been shown to increase calming neurotransmitters, including oxytocin and dopamine, which activate the parasympathetic nervous system – the system that allows the body to relax. Because PTSD and other trauma-related conditions can lead to a chronic state of “fight or flight,” a soothing touch can provide profound relief.

By contrast, long periods without human contact can have negative effects on physical and emotional health. In most jails, pretrial detainees are permitted no physical contact with friends or family; visits are conducted by telephone through a glass barrier. The only touch our clients may experience is negative – handcuffing, for example – for months or years.

Because defense team members usually have contact visits, it is worth considering how touch can be used to enhance our clients’ feelings of safety. Brief physical contact — a warm handshake when meeting, a compassionate touch to the arm as the client describes a difficult event, or a friendly pat on the back at the end of the visit — can activate soothing physical responses, signal safety, and increase feelings of trust. The team should proceed cautiously, however, because although touch can have very positive results, some trauma survivors may react negatively to touch.

Safety Concerns in the Jail

Before moving to the substance of any meeting with a client, asking how the client is doing, how she spends her time, and whether she is feeling threatened or unsafe signals concern for her well-being. Allowing the client to express difficulties and worries, even if we can do nothing but listen compassionately, can ease anxiety. Although we are often tempted to help solve the problem, it is important not to make promises that can’t be kept. If an issue requires intervention (such as lack of necessary medical treatment or assault concerns), the lawyer should tell the client what measures he or she will take and inform the client of the outcome as quickly as possible.


One of the best ways to create a feeling of safety is already built into the legal relationship. The purpose of confidentiality is to allow clients to speak candidly with their lawyers without fear the information will go further. Many clients do not fully understand confidentiality, particularly within a team. In capital cases, where team members are in contact with significant people in their lives, clients may be concerned that what they say will be passed along to others. Confidentiality should be explained in detail to the client and discussed with those close to her as well, so everyone is aware that all members of the defense team are ethically prohibited from sharing information revealed by the client. Discussing confidentiality thoroughly and often, and with everyone involved, will allow the client to feel safe in revealing difficult information.

Full Client Participation

Finally, and most important in establishing an atmosphere of safety, is ensuring the client is treated as a vital member of the team. This involves explaining legal issues as many times and in as many ways as necessary until the client understands completely. It includes listening to her ideas and theories, following up on reasonable leads, and explaining why other ideas are not realistic. It requires explaining all possible options and allowing the client to be a full participant in planning the case strategy.

Although this is good policy in general, it is particularly important to trauma-informed practice. One who has a history of trauma, by definition, has been powerless in situations in which others have made decisions that have caused her harm. Knowing she will be fully informed and will have input on all important aspects of the case assures the client of a position of power, and therefore safety, in her relationship with the defense team.

The Trauma-Informed Criminal Defense Team: Introduction

In just a few years, the term “trauma-informed” has drifted from the mental health sphere into our mainstream lexicon. Health systems were first to recognize the wide-spread experience of trauma in their clientele and to begin establishing and adopting trauma-informed practices. Social service providers and schools soon followed, and in almost every public service context, trauma-informed service has become the gold standard.

Almost every context, that is, except the criminal justice system.

Considering the life circumstances of many people caught up in the system, this seems surprising. Trauma informed practices in jails, prisons, and even in the courtroom have been developed, and their use has been strongly encouraged. Yet, in my practice, which has taken me to courts, jails and prisons throughout Pennsylvania, I have not seen evidence of any effort to incorporate those practices into the day-to-day functioning of any aspect of the system. I suspect that those recommendations may be viewed by some as coddling people who do not deserve such sensitive treatment, but that is a blog post for another day.

One set of players in the system, however, should embrace trauma-informed practice. The criminal defense team – attorneys, investigators, mitigation specialists, and everyone who has contact with clients accused of crime – will see immediate and tangible benefits, for their clients and for themselves, when they employ a trauma-informed approach.

Why adopt a trauma-informed approach?

The assumption underlying the trauma-informed approach is that those we encounter have experienced life-altering trauma. The numbers support that assumption. According to the National Institute of Mental Health, over half of all adults in the United States have or will experience a traumatic event in their lifetimes. About 52% of adults experienced one or more severe or chronic stressors during childhood (such as experiencing abuse, witnessing domestic violence, losing a parent). In any given year, about 7-8% of the population meet the diagnostic criteria for post-traumatic stress disorder.

By contrast, in the 10 years I have practiced as a capital mitigation specialist, every single one of my clients – 100% — had experienced trauma, and most had multiple, severe, and chronic traumatic histories. Research in this area supports my anecdotal observations. People on death row almost universally have significant histories of childhood trauma – one study estimated a rate four times higher than that of the general population.  A substantial majority of incarcerated women, by some estimates 90%, have histories of physical or sexual assault, and approximately 60% of incarcerated men show signs of moderate to severe PTSD.

Given those statistics, it only makes sense for defense teams to adopt a trauma-informed approach when dealing with clients facing serious criminal charges.

What is trauma-informed practice?

Many of our clients come from difficult circumstances, and their daily functioning and coping skills are not ideal. Add to that the stress of arrest and incarceration, and it should not be surprising that our interactions do not always go smoothly. Changing our own expectations — understanding that clients may be emotionally overwhelmed – can make all the difference. The most successful encounters happen when we “meet clients where they are” rather than where we want them to be. This is the essence of trauma-informed practice.

“Trauma-informed” simply refers to the understanding that many people we encounter have experienced life-altering trauma; engaging in trauma-informed practice just means that we conduct our interactions with that realization in mind. It is not treatment, or therapy, or something that should be left to the mitigation specialist. It is a set of simple, research-based procedures designed to help us identify and navigate obstacles before they interfere with our ability to work effectively with our clients. Trauma-informed practice works best when every member of the team is knowledgeable and committed to intentionally employing the approach in every interaction with the client and with anyone who plays a significant role in the client’s life.

Trauma-informed, step-by-step

Regardless of the context, a trauma-informed approach always includes several crucial components: (1) creating an atmosphere of safety; (2) establishing trust; (3) promoting collaboration; (4) empowering informed decision-making; (5) encouraging outside support; and (6) understanding the influence of cultural, historical, gender, and environmental factors.  The next article in this series will explore, in detail, each of these components, as they can be adapted to fit the circumstances and further the goals of the criminal defense team.