Introduction: 

Holistic Legal Representation and the Locally Served Model–

The call for holistic, or interdisciplinary, legal representation, such as the well-known model used by Bronx Defenders in New York City, is well-documented.[1] Holistic representation is generally defined as “a legal practice that incorporates professionals into the legal team, including social workers, parent advocates, interpreters, specialized attorneys, experts, and investigators.”[2]  Research shows that law offices that employ a holistic model engage with their clients earlier in the legal process than traditional court-appointed attorneys, and they provide a broader array of services.   For example, a holistic, or interdisciplinary law firm might provide representation in multiple legal forums, such as criminal court and juvenile dependency court, and the firm might provide additional non-legal services such as assisting their clients apply for public benefits, employment training, mental health counseling, substance abuse treatment, transportation, etc.  

Studies that analyze the impact of holistic representation tend to focus on quantifiable data, such as conviction rates, expected conviction rates, length of sentence, days of custodial punishment, recidivism rates, and the tax savings associated with lower incarceration rates.[3] While these data are certainly valuable in assessing the impact of holistic defense, it overlooks perhaps the most important benefit. The most important benefit of the holistic representation model might very well be the role that the holistic defense law firm serves in helping the community, the family, and the client develop a “dose of resilience” as part of a broader “portfolio of strength.”  This paper discusses these concepts in more detail below. The community-based holistic defense law firm would function as part of the community that it serves, rather than as a separate top-down government system imposed upon the community from the outside.

Outline

This paper will first discuss some research on the impact of systemic generational and environmental trauma on public health, with a focus on the health of marginalized communities.  The paper then reviews research that analyzes the capacity of “resilience” to heal the damage caused by systemic trauma.  Next, the paper discusses three well-known systemic problems that create and perpetuate community trauma– the over-policing of black children; the mass incarceration of parents and the placement of their children in the dependency system; and the fragmentation of legal representation.  Finally, the paper discusses the role that holistic representation– through the Locally Served model–  plays in providing a dose of resilience to mitigate the effects of intergenerational and environmental trauma caused and perpetuated by the system itself.

Trauma:

          Not an event itself, but the consequence of the event–

Trauma is

 an inner injury, a lasting rupture or split within the self due to difficult or hurtful events. [It] is primarily what happens within someone as a result of the difficult or hurtful events that befall them; it is not the events themselves. [. . .] [T]rauma is a psychic injury, lodged in our nervous system, mind, and body, lasting long past the originating incident(s), triggerable at any moment.

Maté, Gabor. The Myth of Normal (p. 20). Penguin Publishing Group. Kindle Edition.

Trauma and criminal justice are inexorably connected. Over the past twenty years, a new field of research has developed that identifies and focuses on Adverse Childhood Experiences (ACEs).[4]  The “public health crisis resulting from cumulative adverse childhood experiences is costing ‘hundreds of billions of dollars’ each year”.[5]  The research into ACEs has proven the “associations between childhood adversity and typically adult-onset conditions such as ischemic heart disease, cancer, chronic bronchitis, and emphysema.”[6]  Additionally, ACEs “contribute to many behavioral problems and higher rates of mental and physical disorders.”[7]  For example, trauma affects a person’s “response flexibility”, which is defined as “the ability to choose how we address life’s inevitable ups and downs, its disappointments, triumphs, and challenges. Human freedom involves our capacity to pause between stimulus and response and, in that pause, to choose the one response toward which we wish to throw our weight [. . .].Trauma robs us of that freedom.”[8]  The trauma that a person suffers as a child limits his or her ability to respond effectively to adversity as an adult. This is particularly important in the legal system where criminal conduct is often viewed as a moral or personal failing. 

This research also brought to light the significance of poly-victimization, which is a “stronger predictor of psychopathology than even chronic or severe experiences of a single type.”[9]  Poly-victimization refers to “exposure of multiple types of adversity, versus particularly traumatic or chronic experiences of a single type.”[10]  Poly-victimization is particularly important when discussing the effect of the legal system on marginalized communities.  As will be discussed later, marginalized communities are at greater risk for poly-victimization through persistent systemic multigenerational and environmental trauma.    

Multigenerational Trauma

Trauma is transmitted through generations from parents to children.[11] Trauma suffered by mothers while pregnant affects their children’s “language, BMI [body mass index] and obesity, insulin secretion, [and] their immune system” as teenagers.[12]  A mother’s ACEs “increase perinatal psychosocial risk, which, in turn, is associated with disruptions to mother-infant coregulatory, dyadic functioning”, which is “the ways in which mothers and their offspring regulate each other’s biological, emotional, and behavioral processes.”  Thus, a mother’s ACEs may “compromise maternal-infant didactic functioning through elevations in perinatal psychosocial risk. Dysregulation within the dyad, in turn, has implications for maladaptive maternal and offspring biobehavioral health.”[13]  Put more simply, the “chain of a woman’s stress exposure that begins in (her) childhood and persists into the perinatal period can have lasting negative consequences for mothers and their children.”[14] This research is very troubling because it suggests that a child can suffer negative health consequences from its mother’s trauma before the child is ever born.  Unfortunately, by the time the government intervenes by providing services to a parent and child, the intergenerational impact of trauma has already occurred. There’s even some research suggesting that fathers can transmit their trauma to their offspring through their sperm.[15] 

Environmental Trauma

Trauma is transmitted through the environment via epigenetics.  “Epigenetic processes act on chromosomes, delivering and translating messages from the environment that “tell” the genes what to do.”[16]  Epigenetics provides “a way of adapting to changing conditions without inflicting a more permanent shift in our genomes.”[17]  In other words, through the epigenetic mechanism, genes receive signals from the environment, and then respond to the signal by turning “on” or “off.”  Essentially, epigenetics modifies the traditional Darwinian understanding of “spontaneous mutations and random selection” because “circumstances themselves can change how genes adjust to the environment.”[18] Id. This research clearly demonstrates that “[a]dversity among both mothers and fathers bear ‘reliable linkages’ to the epigenetic profiles of the children[.]”[19]  For example, “factors such as poverty, racism, and urban blight can directly impact our genetic and molecular functioning.”[20]   The environmental trauma of poverty and racism manifests as

higher rates of inflammation in African Americans than in Caucasians, an epigenetic effect that remained even when comparing those of the same socioeconomic level. “We found that experiences with racism and discrimination accounted for more than 50% of the black/white difference in the activity of genes that increase inflammation[.]”[21]

Scientists can literally measure the impact of environmental stress on a person by looking at the length of his or her telomeres.  “A telomere is a region of repetitive DNA sequences at the end of a chromosome. Telomeres protect the ends of chromosomes from becoming frayed or tangled. Each time a cell divides, the telomeres become slightly shorter. Eventually, they become so short that the cell can no longer divide successfully, and the cell dies.”[22]  Telomeres have been referred to as a “biological clock” because they are “a measure of biological rather than chronological age. Two people, even identical twins, could be the same age computed in years, months, weeks, and days, yet one may be biologically older than the other, depending on how much stress, adversity, or trauma they have endured.”[23]  Unsurprisingly, strong evidence shows that racism makes people old. “The neighborhood deprivation, the crime, the income of the zip code, [. . .] all of that is associated with aging of the cells. That is to me one of the biggest demonstrations that our health is outside of our body.”[24] 

Resilience— Ordinary Magic

The idea that people can simply pick themselves up by their bootstraps and overcome the trauma that they have experienced through force of will or strength of character is simply outdated and inconsistent with the towering weight of scientific evidence.  People cannot control the trauma that triggers epigenetic responses that write diseases into their very genome.  Nor can people control the persistent environmental and social stress that literally ages their cells prematurely or increases their risk for serious medical problems.  Trauma is a systemic problem that requires a holistic, multigenerational, environmental solution.

The research into trauma is not all bleak.  The ACE research has produced promising and hopeful new understanding of how people recover from trauma.  As one researcher explained, “[h]ealth is not simply the absence of pathology[.]”[25]  This led to the emergence of a general theory, or science, of “resilience,”[26] which has been described as “ordinary magic” for its ability to help people recover from trauma [27]  Amazingly, resilience can even reverse the shortening of telomeres caused by environmental trauma.[28]

Resilience is “the capacity of a system to adapt successfully to challenges that threaten the function, survival, or future development of the system.” Furthermore, resilience is not “simply within an individual, or systems within an individual” but it applies to “families, economies, ecosystems and organizations.”[29]   As a result of this research the Center for Disease Control recommends that service providers “shift the focus from individual responsibility to community solutions.’”[30] The concept of “resilience” includes three elements:  adversity, evidence of healthy functioning after adversity, and the protective factor or strength that allows one to rebound from adversity.[31]

Resilience Portfolio Model

The research into resilience demonstrates that “[d]espite the high costs of adversity, many people manage to overcome such burdens and achieve well-being, using individual, family, and community assets and resources.”[32] The “Resilience Portfolio Model” was introduced in 2015 “to provide a more comprehensive understanding of the processes that promote health and thriving in individuals exposed to adversity.[33]    According to this model, “resilience is best considered an ongoing process that will be needed over a lifetime and involves the full social ecology.”[34]  Furthermore, “resilience is not a trait that can be measured directly, but a process that requires assessment of adversities, strengths, and outcomes.”[35] The Resilience Portfolio Model “underscores the need to assess a wide range of resources and assets available to individuals, families, and communities exposed to adversity.” The term “assets” refers to the characteristics of the person that promote healthy functioning.  The term “resource” refers to sources of support outside of the person. Together, a person’s assets and resources represent a person’s “portfolio of strengths.”[36]  A person’s “portfolio of strengths” “has similar or greater impact on current functioning than one’s trauma burden, even in highly victimized samples.”[37]  In other words, a person’s portfolio of strengths might be more impactful on that person’s well-being and ability to thrive in response to adversity than the person’s history of trauma.[38] 

The Resilience Portfolio Model incorporates  the concept of “poly-strengths”, which is a “construct that captures the totality (dose) of an individual’s protective factors across three categories of strengths:  regulatory, interpersonal, and meaning making.”  Regulatory strengths refer to a person’s ability to control impulses, manage difficult emotions, and persevere in the face of setbacks.  Interpersonal relationships include family, friends, and neighbors, as well as the personal qualities that sustain the relationships.  This domain also “captures broader elements of a person’s social ecological niche, including features of communities, cultures, and other elements of one’s social network.”  Finally, the “meaning making” domain refers to a person’s ability to explain and understand their experience.[39]  In the context of ACEs, the Resilience Portfolio Model suggests “a dose-response relationship between Positive Childhood Experiences (PCE) and ACE outcomes, finding that they can attenuate or prevent the negative health outcomes associated with ACEs.”[40]    

Another recent study corroborated the evidence that there is a cumulative or “dose” effect of positive childhood experiences.[41] This study analyzed the results of research that examined “community-wide levels of empowerment, with the hypothesis that, if increased, could influence changes in community norms and culture that would increase protective supports for adults themselves and for youths across various social domains.”  One such community-wide protective factor is “social capital”, which is defined as “the trust inherent in webs of local social networks that supported norms of reciprocity and cooperation.  These webs took the form of bonding among friends, family, and neighborhoods, bridging across social divisions in the same community and lining social networks to community leaders.”[42] The study noted that there has been an emerging consensus on how to increase resilience.  Specifically, there needs to be a shift from “deficit-based models that prevent and treat consequences of adversities to strength-based ones that focus on methods to increase positive adaptations and success among affected populations, by creating multilevel strategies across many fields of practice.” [43] The study concluded that there needs to be “a focus on building higher community capacity and increasing contextual resilience” through a “bottom-up strategy to increase social cohesion and collective efficacy and to increase protective factors among youth in schools and in neighborhoods [. . .]” A study  published in 2021 crystalizes this point:

Grounded in the principle that community-based treatment is more effective and cost efficient, the goal is to divert individuals from further penetration into the justice system by providing community-based alternatives.[44]

The emerging research shows that there is a “systemic underestimation of the trauma burden endured by people of color and other marginalized and oppressed groups.” [45] Because of this discrepancy faced by marginalized and oppressed groups “[m]ore attention to racial trauma and other collective, ongoing oppressions is needed too, including investing in community resilience and social justice interventions.”[46]

The Problem:

Part 1– Over-Policing of Black Children:

A good place to start looking at the “systemic underrepresentation of the trauma burden” is the over-policing of black children.  The research shows “significant associations among justice-involved youth between ACEs and a variety of behavioral health and legal outcomes including mental health or psychiatric symptoms, substance abuse, and delinquency, as well pregnancy, victimization, and limited academic achievement.” [47] Furthermore, there are “significant differences with respect to race, ethnicity, and gender in the association of ACEs and behavioral health and legal outcomes.”[48]  African Americans suffer from “increased vulnerability to ACEs” because of an interplay of contextual factors that negatively impacts physical and mental health over time.”  These factors include a “combination of historical-systemic, community (e.g. racism, deep poverty, police brutality, or deficits in child protection) intergenerational, and personal trauma exposure.”[49] 

The Sequential Intercept Model (SIM)–

The Sequential Intercept Model (SIM) “began as a conceptual framework to organize the discussion of overcriminalization of adults with behavioral health concerns and how to identify and divert these individuals to needed behavioral health services while holding them accountable for criminal behavior.”[50]  Further research showed that SIM was “highly relevant to the juvenile justice system given its focus on rehabilitation and community-based intervention.[51]  According to SIM, there are five original intercepts:  Intercept 1– law enforcement, emergency services; Intercept 2– Initial detention, initial court hearings; Intercept 3; Jails, collaborative/ specialty courts, forensic evaluation/ hospitalization; Intercept 4– Reentry; and Intercept 5- Community corrections and supports. After further research an additional intercept was added, Intercept 0, which includes Hospital, Crisis, Respite, Peer and Community Services.[52]  A review of the literature analyzing SIM shows “the importance of developing community-engaged public mental health and juvenile justice partnerships to coordinate efforts for infusing trauma-informed approaches and care across the intercepts.” 

In the study, researchers systematically reviewed literature on the prevalence of and impact of ACEs among justice-involved youth at Intercepts 1-5.  They recommended “universal screening of ACEs among [justice-involved youth] across the different SIM intercepts”. The study further noted that “probation officers and other system stakeholders [. . .] should consider conceptualizing the impact of trauma on [criminogenic] behaviors as the risk factor instead of viewing youth simply as aggressive, detached, cold or defiant[.]” Furthermore, “[i]ndividuals serving justice-involved youth (i.e. practitioners, police officers) may want to consider becoming more knowledgeable about the consequences associated with ACEs and how trauma might influence behaviors commonly displayed by justice-involved youth.”  Finally, the researchers recommended a “trauma-informed response or creating a trauma-informed environment, should be provided to all staff at each intercept, including law enforcement, judges, probation officers, and treatment staff.”[53]

SIM and the racial inequality of the Allegheny County juvenile justice system

For black children in Pittsburgh, Intercept 1 is particularly important because of the staggering racial injustice that afflicts them. Intercept 1 is “the point at which youth come into contact with the justice system, often exhibiting disruptive behavior at school that could be considered offending (e.g. fighting). Many schools have developed “‘zero tolerance policies’ mandating suspension or expulsion, and at times reporting to the police:  these practices ultimately promote the school-to-prison pipeline.” Of course, the data reveals these policies are disproportionately felt by children of color who are grossly overrepresented in the juvenile justice system.  A report authored by The Black Girls Equity Alliance (BGEA) called “Understanding and addressing institutionalized inequity: Disrupting Pathways to Juvenile Justice for Black Youth in Allegheny County,” poignantly describes the impact of overcriminalization on black children in Allegheny County.[54]  For example, consider the report’s key findings:

• Black girls are 10 times more likely than White girls, and Black boys 7 times more likely than White boys, to be referred to juvenile justice.

• The extreme levels of racial disproportionality in juvenile justice referrals in Allegheny County reflect that Black youth locally are referred at higher rates than Black youth nationally and White youth locally are referred at lower rates than White youth nationally.

• Pittsburgh Public Schools police are the largest juvenile justice referral source for Black girls in Allegheny County.

• Pittsburgh Public Schools students are referred to law enforcement at rates higher than students in 95% of similar U.S. cities. Black girls are referred at rates higher than those of Black girls in 99% of U.S. cities and Black boys at rates higher than Black boys in 98% of U.S. cities.

• The majority of arrests made by Pittsburgh Public Schools police are for minor offenses that are not safety related. In 2019, 54% of PPS police’s arrests of Black girls and 42% of Black boys ultimately resulted in a criminal charge of disorderly conduct, a highly discretionary charge that is frequently affected by racial biases.

• Students with disabilities constitute a large proportion of Pittsburgh Public Schools students referred to juvenile justice by the Pittsburgh Public Schools police. Specifically, of the 57% of PPS juvenile justice referrals for which data are available, 45% of Black boys referred to juvenile justice by the PPS police during academic years 2017-2018 and 2018-2019 had an Individualized Education Program (IEP)/qualified for special education services.

• Black youth are ten times more likely than White youth to be referred to juvenile court for failure to comply with a lawful order, often failure to pay a fine, stemming from a summary citation. Pittsburgh Public Schools police issued the largest number of the original citations resulting in “failure to comply” referrals of youth to juvenile court. Over half of the original citations that resulted in “failure to comply” referrals were for disorderly conduct.

The Problem:

            Part 2– Mass Incarceration of Parents and Placement of their Children in the Dependency System:

There is a direct connection between the incarceration of parents and the placement of their children in the dependency system. Equally important is the connection between a child’s foster care placements and his or her future involvement with the criminal justice system.[55] According to one research study, over half of children in foster care experience some interaction with the criminal justice system by the age of seventeen.[56]  Over 90% of foster children who have been through five or more placements become involved in the juvenile justice system.[57]  Therefore, the decision to incarcerate a parent must be made with a full understanding of the collateral consequences.  These statistics reinforce the obvious conclusion presented in a DHS data report: “the jailing of a parent is a disruptive event associated with significant health, education, and behavioral consequences.”[58] The incarceration of a parent is traumatic for both the parent and the child.  

The people most affected by the dependency and criminal systems are, unsurprisingly, people of color. Currently, 66% of inmates in the Allegheny County Jail are black,[59] yet only 13.5% of the population of Allegheny County is black.[60]  In 2021, across the nation, cases involving allegations of abuse towards black children were opened at 1.2 the rate of cases involving allegations of abuse towards white children.  However, in Allegheny County the “black child case open rate” was 4.7 times higher than “the white child case open rate.”[61] This statistic was reiterated in a DHS research report,

Black children entered care at a rate about five times that of their White counterparts. Black children made up the largest proportion (a range of 48% to 42% throughout the decade) of children entering their first placement, even though Black children comprised only 18% of the county’s under-18 population in 2017. White children made up 37% of first placements, compared to their share of 73% of the County’s under-18 population in 2010.[62]

Many people booked in the ACJ probably should not be there at all, but are themselves the victims of the inequity, unfairness, and unyielding bureaucracy of the system.  Over the past three years, 66% of people booked in the Allegheny County Jail were there for 30 days or less.  11% of people booked in the ACJ were there for two days or less.  A staggering 76% of women booked in the ACJ are there for 30 days or less.[63]  This last statistic reflects the increasing incarceration of women over the past 40 years in the United States, which in turn, is driving even more children into foster care. In fact, women are the fastest growing incarcerated population.[64]  Nationwide, women’s state prison population has grown 834% over the past 40 years, which is double the rate of the growth of the male prison population.[65]  As one might suspect, the incarceration of a mother tends to hit harder than the incarceration of father: when a father is incarcerated, 90% of children remain with their mother, but when a mother is incarcerated, only 25% of children live with their father.[66]

The high cost of incarcerating parents can be shown through Allegheny County Department of Human Services statistics.  According to a data brief published by the DHS,

• Out of 26,641 people booked in Allegheny County from 2018 through 2021, 51% (13,529) had children 18 or under at the time of booking, totaling 25,335 minor children.

• 58% (7,868) of parents who were incarcerated were Black, compared to 12.8% of the county adult population. This means that Black children and parents are disproportionately affected by incarcerations.

• Most parents (65%, 8,794) are in jail for less than 30 days and only 4% of the parents were sentenced to the jail during this period. Most of the parents booked are held pretrial (46%, 6,207) or on a local probation detainer (23%, 3,127).

• In addition to targeted programs, 10,335 of the children of incarcerated parents (41%) were involved in DHS services within a year after parental incarceration

• Early childhood services (such as Head Start and home visiting programs) and behavioral health services (such as mental health counseling) were the most common services used by children of incarcerated parents

• 1,894 children had a home removal or new placement within a year before or after the parental incarceration. Of these, 54% (1,022) were placed with family. 

• 39% (9,760) of children had a mom who was incarcerated. Of these, 8% (776) had a home removal. The largest group of children (194) were removed in the 6 months before the maternal incarceration.

• Examining trends in the 30 days pre- and post- incarceration, there is an increase in home removals in the 5 days before an incarceration. 33% (49) of home removals of children that occurred within a month of a mother’s incarceration occurred in the 5 days prior.[67]

These statistics show the profound and direct connection between parental incarceration and the placement of children in the dependency system. According to DHS data, “1 in 8 children with a child welfare referral have an incarcerated parent.”  The cost of incarcerating parents cannot be overstated:  

Children with incarcerated parents are at higher risk for child welfare involvement for multiple reasons: (1) When parents are removed due to incarceration, children experience unstable housing and may enter child welfare placements and (2) Parental incarceration is associated with substance abuse, mental health conditions, and other negative outcomes that may lead to child welfare involvement in a family.[68]

Furthermore, “33% of removals that occur within a month of a mother’s incarceration occur in the five days prior.”  This suggests that “child removals may cause disruptions in households that lead to maternal incarceration or that similar factors may lead to incarceration and child removal.”[69]

Considering the connection between maternal incarceration and child placement, the stakeholders in the Allegheny County Criminal Justice System must ask if the penological interest in incarcerating a parent for 30 days or less is worth the high cost that is paid by the parent, the child, the family, and the community. 

The Problem:

Part 3: Fragmentation of Representation

“The system is not designed to be run by the public defender's office[.]”

Chief Public Defender of Allegheny County, 2023[70]

The 2023 Allegheny County Criminal Justice budget looks like this (excluding police and emergency services):

• The Court of Court of Common Pleas has a budget of $90,440,911.

• The District Attorney’s Office has a budget of $22,307,763.

• The Department of Human Services has a budget of $234,685,040.

• The Office of the Public Defender has a budget of $11,848,995.

• The Allegheny County Jail has a budget of $103,593,632.

• All told, Allegheny County has a 2023 budget of $1,019,933,000.

Notwithstanding the enormous cost, the present system of government funded court-appointed legal representation does not adequately address the problem of the systemic trauma burden suffered by marginalized communities in Allegheny County.   The Allegheny County court system appoints government-paid public and private attorneys to represent many low-income residents in different types of cases. However, these attorneys are often limited in the scope of their representation.  For example, public defenders can only represent their clients in criminal court or juvenile delinquency matters.  Juvenile Court Project parent advocates only represent their clients in dependency or termination of parental rights proceedings. Neighborhood Legal Services Association attorneys provide a broad range of representation in civil matters, but not in criminal, dependency, or delinquency court.

To summarize, a single episode in an otherwise law-abiding mother’s lifetime might result in the Commonwealth charging her criminally, OCYF filing a petition to remove her children from her care and adjudicate them dependent, and a loss of her housing and public benefits.  Suffice it to say, parents and families facing multiple legal challenges, and struggling to find services to keep their family intact, need consistent, vertical, holistic representation in as many courtrooms as possible. Many families struggle with trauma, addiction, lack of stable housing, lack of stable employment, food insecurity, medical and mental health issues, and disabilities.  These are global, systemic problems. These problems cannot be effectively addressed piecemeal from one court hearing to the next.  

During the course of a criminal case in Allegheny County, most clients represented by the Public Defender will be assigned at least two attorneys– one attorney assigned at the pretrial stage before the formal arraignment and a new attorney assigned at the trial stage after the formal arraignment.  In many cases, a client will have more than two attorneys before the case is closed.  During the course of a CYF/dependency case, a client will  have no fewer than three parent advocates. So, a client facing parallel criminal and dependency cases– arising from the same incident– will likely have no fewer than five different attorneys through the course of her two cases. Then, add in the Neighborhood Legal Services attorney who might represent the client in an eviction or protection from abuse proceeding, and we’re up to at least 6 different attorneys in three different forums.  Each time the client gets bounced from one attorney to the next is a potential for the client to "slip through the cracks."  It is a formula for clients to lose faith in, and become distrustful of, the system.  

The system can, and very often does, tear apart families. Criminal cases can take well over 15 months to resolve especially if the parent chooses to fight the charges.   However, once a child has been in care for fifteen of the last twenty-two months, the Adoption and Safe Families Act requires OCYF to file a petition to terminate a parents’ rights. This creates a heartbreaking dilemma: a parent might choose to plead guilty to a crime that she did not commit in order to strengthen her position in the fight to retain her right to raise her children.  Obviously, this is a choice that no parent should make in a system that purports to honor the principles of Due Process of Law.  This dilemma is exacerbated by the fragmentation of representation.  The way the system currently operates, each attorney necessarily focuses on a single, discrete area of the law.  So, the criminal defense attorney focuses on getting the “best” outcome for the client in the criminal case without considering the potential consequences for the dependency case, and the dependency attorney has the opposite perspective.     

A Dose of Reslilience:

Holistic Representation— The Locally Served Model:

The top-down patriarchal government-funded criminal justice system doesn’t work– at least not for the people who are most afflicted by it.  This fact is self-evident from the statistics that describe the over-policing of black children, the mass incarceration of parents, and the placement of their children in the dependency system.  In order to solve– or at the very least, begin to solve–  the systemic generational and environmental trauma that afflicts low-income and marginalized communities in Allegheny County, a new approach is needed. 

The research into trauma and resilience provides a solution.  A holistic representation model of legal representation recognizes its role as part of the social capital of the community– the web of local social networks that support norms of reciprocity and cooperation. Whereas the system is imposed upon the people, the holistic representation model of representation serves the people.  The holistic representation model of representation provides a dose of resilience to the community at every stage of the criminal justice system.  Most importantly, an independent community-based holistic firm can intervene at Intercept Zero, before criminal charges are filed, and before children are adjudicated dependent.  Through early intervention, the holistic law firm can help to reduce the community member’s further penetration into the criminal justice system, thereby limiting system burden and systemic trauma.

Consider the results of Locally Served, a holistic representation community member that represents parents in the dependency system who also have pending criminal charges, as well as “special needs” clients with autism spectrum disorder and intellectual disability.  While only operating for around 5 months, Locally served successfully negotiated the closure of four OCYF intake cases without any further court activity.  In three of the cases, parallel criminal charges were withdrawn at the magistrate court, and in the fourth case, charges were threatened, but never filed.  Out of four “special needs” cases” two were resolved without the filing of any criminal charges, and two cases are currently pending.

The impact of Locally Served is hard to quantify with raw data.  For example, Locally Served is able to intervene before the client is technically eligible for court-appointed counsel– that is before OCYF opens an investigation and before the Commonwealth files criminal charges.  Then, through early remediation, Locally Served is able to reduce the trauma burden by preventing further penetration into the legal system.  Even if a dependency petition and criminal charges are filed, the parents know they can trust and rely on the Locally Served team to help them navigate the legal eddies before they become tidal waves.  By remediating the problems that led to OCYF opening an investigation and with the help of other community service providers, parents are in a much stronger position if a dependency petition or criminal charges are filed.  The timeline to successful resolution is much shorter, thereby reducing the trauma of a protracted legal battle in multiple courtrooms.      

Consider the following case example:  OCYF opened an investigation into a family based on allegations of deplorable conditions. OCYF filed a dependency petition, and the case was scheduled for an adjudicatory hearing.  Locally Served helped the mother remediate the conditions that led to the initial OCYF investigation sufficiently that OCYF was prepared to withdraw the petition.  However, three months after the incident, the Commonwealth filed felony criminal charges against the mother based on the same conduct that led to OCYF investigation.  The pending criminal charges prevented OCYF from withdrawing the petition.  Locally Served represented the mother at the magistrate court and successfully negotiated a complete withdrawal of the criminal charges.  OCYF withdrew the dependency petition shortly afterwards.  Through vigorous, holistic representation in multiple courtrooms, Locally Served was able to reunify the family without a dependency adjudication and without a criminal conviction.  If Locally Served had not intervened, it is likely that the criminal charges would have been held for court by the magistrate and the reunification of the family would have been delayed for months. Even if the criminal charges would have been dismissed eventually without Locally Served’s intervention, the children would have been in foster placement for months while the criminal case meandered through the system.  In other words, Locally Served’s early intervention in both the juvenile dependency and criminal systems saved the family months of trauma, and prevented further penetration into the legal system.

Now, consider a case with the opposite outcome.  OCYF opened an investigation into a family with a mother and father both of whom had intellectual disability.  Criminal charges were filed against both of them.  The father’s charges were withdrawn at the preliminary hearing.  The mother’s attorney was unavailable for personal reasons, and for some reason, the charges were waived at the magistrate court and sent to the court of common pleas.  Ultimately, the criminal charges against the mother were withdrawn, but it took an extra nine months.  OCYF could not return the children until the criminal charges were resolved.  Thus, for want of effective advocacy at the magistrate, the family suffered an additional nine months of separation and government interference.  

These two anecdotes demonstrate the difference in outcomes that can be achieved when one client has access to community-based holistic representation, and the other does not.  Statistically, the outcomes might appear similar– both families were reunified, and no parents were convicted of any crimes.  However, in the latter case, the family was forced to endure an extra nine months of system burden and trauma that could have been avoided.  

Conclusion

Community-based holistic legal representation is obviously not a panacea for all the problems caused by systemic generational and environmental trauma. However, it is a step in the right direction insofar as it reflects the scientific evidence developed over the past 20 years. Furthermore, the current system is simply not working. This is not an opinion, but a statement of fact based on the data. There is no single cure for systemic multigenerational and environmental trauma. But, the evidence strongly suggests that if a cure exists, it will come from within the communities themselves, not imposed on them from the government.        

Notes

[1] Gerber, Lucas, et al., “Effects of an interdisciplinary approach to parental representation in child welfare,” Children and Youth Services Review, Vol. 102, 42-55, July 2019; Anderson, James, et al., “The Effects of Holistic Defense on Criminal Justice Outcomes, Harvard Law Review, Vol. 132, January, 2019. 

[2] Gerber, 2019. 

[3] Anderson, 2019;  According to a study by the Rand Corporation that was funded by the Department of Justice titled  “The Effects of Holistic Defense on Criminal Justice Outcomes,”over a 10 year period, the Bronx Defenders “helped clients avoid 1.1 million days of incarceration, reduced incarceration rates by 16%, cut pretrial detention by 9%, shortened sentence length by 24%, and saved New York taxpayers an estimated $165 million on housing costs alone.”

[4] Grych, John, et al., “The Resilience Portfolio Model: Understanding Healthy Adaptation in Victims of Violence.”, Psychology of Violence, American Psychological Association, Vol 5, No. 4, 343-354, 2015. 

[5] Longhi, Dario, et al., Community-Wide Resilience Mitigates Adverse Childhood Experiences on Adult and Youth Health, School/Work, and Problem Behaviors, American Psychologist, American Psychological Association, vol. 76, No. 2216-229, 2021. 

[6] Hamby, Shery, et. al.,  Recognizing the Cumulative Burden of Childhood Adversities Transforms Science and Practice for Trauma Resilience, American Psychologist, American Psychological Association, vol. 76, no. 2, 230-242, 2021.

[7] Longhi, 2021

[8] Maté, Gabor. The Myth of Normal (p. 29). Penguin Publishing Group. Kindle Edition. (footnote, internal quotations omitted).

[9] Hamby, 2021

[10] Id.

[11] Roubinov, Danielle, et al. “A Prenatal Programming Perspective on the Intergenerational Transmission of Maternal Adverse Childhood Experiences to Offspring Health Problems, American Psychologist, American Psychological Association, Vol. 76, No. 2, 337-349, 2021.

[12] Maté, Gabor. The Myth of Normal (p. 64). Penguin Publishing Group. Kindle Edition.

[13] Hamby, 2021

[14] Id.

[15] Maté, Gabor. The Myth of Normal (p. 64). Penguin Publishing Group. Kindle Edition.

[16] Id. (p. 61).

[17] Id. 

[18] Id.

[19] Id. at (p. 64)

[20]Id. at (p. 59).

[21] Id. at (p. 65)

[22] National Human Genome Research Institute, available at bit.ly/3MJmggb.

[23] Maté, Gabor. The Myth of Normal (p. 65). Penguin Publishing Group. Kindle Edition.

[24] Id. at (P. 66).

[25]  Hamby, Sherry, et al, “Resilience Portfolios and Poly-Strengths:  Identifying Protective Factors Associated With Thriving After Adversity, Psychology of Violence, American Psychological Association, Vol. 8, No. 2172-183, 2018.

[26] Longhi, 2021

[27] Hamby, 2021

[28] Maté, Gabor. The Myth of Normal (p. 67). Penguin Publishing Group. Kindle Edition.

[29] Longhi, 2021

[30] Id.

[31] Hamby, 2018.

[32] Hamby, 2021.

[33] Hamby 2018.

[34] Hamby, 2021.

[35] Id.

[36] Hamby, 2015.

[37] Hamby, 2021

[38] Hamby, 2018.  According to this study, “a portfolio of protective factors accounted for a substantial amount of variance in all three indicators of well-being:subjective well-being, posttraumatic growth, and mental health symptoms.  Participants’ strengths accounted for more variance that their history of adversity or their social position as represented by the demographic characteristics of gender and age[.]”

[39] Id.

[40] Hamby, 2021.

[41] Longhi, 2021. 

[42] Id.

[43] Id.

[44] Folk, Johanna, et. al., Adverse Childhood Experiences Among Justice-Involved Youth: Data-Driven Recommendations for Action Using the Sequential Intercept Model, American Psychologist, American Psychological Association, Vo. 76. No. 2, 268-283, 2021.

[45] Hamby, 2021

[46] Id.

[47] Folk, 2021.

[48] Folk, 2021.

[49] Hampton-Anderson, 2021.

[50] Fok, 2021 

[51] Id.

[52] Id.

[53] Id.

[54] BGEA report, available at https://www.alleghenycountyanalytics.us/wp-content/uploads/2020/10/20-011-BGEA_JuvenileJustice-BlackYouth_v4.pdf

[55] Juvenile Law Center. (2018, May 26). What is the foster care-to-prison pipeline?   available at https://jlc.org/news/what-foster-care-prison-pipeline

[56] Palcheck, T. (2021, March 24). Child welfare and the criminal system: Impact, overlap, potential solutions. Georgetown Journal on Poverty Law & Policy.   https://law.georgetown.edu/poverty- journal/blog/child-welfare-and-the-criminal-system-             impact-overlap-potential-solutions/

[57] Miriam Aroni Krinsky, Disrupting the Pathway from Foster Care to the Justice System-A Former Prosecutor's Perspectives on Reform, 48 Fam. Ct. Rev. 322, 325 (2010),

[58] https://analytics.alleghenycounty.us/wp-content/uploads/2023/01/Children_of_incarcerated_parents_2023.pdf

[59] https://tableau.alleghenycounty.us/t/PublicSite/views/AC_JailPopulationManagement_Final/JailPopulationOverview?%3Aembed=y&%3AshowVizHome=no&%3Ahost_url=https%3A%2F%2Ftableau.alleghenycounty.us%2F&%3Aembed_code_version=3&%3Atabs=yes&%3Atoolbar=yes&%3Adisplay_spinner=no&%3AshowAppBanner=false&%3Adisplay_count=no&iframeSizedToWindow=true&%3AloadOrderID=0

[60] https://www.census.gov/quickfacts/alleghenycountypennsylvania

[61] https://tableau.alleghenycounty.us/t/PublicSite/views/RacialDisproportionalityinChildWelfare/OpenedCases?%3Aembed=y&%3Adisplay_spinner=no&%3AshowAppBanner=false&%3Aorigin=viz_share_link&%3Aembed_code_version=3&%3AloadOrderID=0&%3Adisplay_count=n&%3AshowVizHome=n

[62] https://www.alleghenycountyanalytics.us/wp-content/uploads/2019/12/19-ACDHS-11-ChlidPlacementDynamics_12.11.2019-final.pdf. 

[63] https://tableau.alleghenycounty.us/t/PublicSite/views/AC_JailPopulationManagement_Final/BookingReleasesandLengthofStay?%3Aembed=y&%3AshowVizHome=no&%3Ahost_url=https%3A%2F%2Ftableau.alleghenycounty.us%2F&%3Aembed_code_version=3&%3Atabs=yes&%3Atoolbar=yes&%3Adisplay_spinner=no&%3AshowAppBanner=false&%3Adisplay_count=no&iframeSizedToWindow=true&%3AloadOrderID=0

[64] Sawyer, Wendy, “The Gender Divide: Tracking Women’s State Prison Growth”, Prison Policy Initiative, available at https://www.prisonpolicy.org/reports/women_overtime.html#:~:text=And%20although%20women%20represent%20a,of%20the%20growth%20among%20men.

[65] Id.

[66] Palcheck, Tressa, “Child Welfare and the Criminal System: Impact, Overlap, Potential Solutions, Georgetown Law Library, Georgetown Journal on Poverty Law & Policy, March 24, 2021.

[67] Data Brief, Children of Parents Incarcerated in the Allegheny County Jail, available at https://analytics.alleghenycounty.us/wp-content/uploads/2023/01/Children_of_incarcerated_parents_2023.pdf

[68] https://analytics.alleghenycounty.us/wp-content/uploads/2023/01/Children_of_incarcerated_parents_2023.pdf

[69] https://analytics.alleghenycounty.us/wp-content/uploads/2023/01/Children_of_incarcerated_parents_2023.pdf

[70] Rosenfeld, Jordana,  “District Attorney challenger Matt Dugan calls for more collaborative, preventative approach to public safety”, City Paper, Jan. 19, 2023, available at https://www.pghcitypaper.com/news/district-attorney-challenger-matt-dugan-calls-for-more-collaborative-preventative-approach-to-public-safety-23188297