Abstract
This article explores the stress, vicarious trauma, and burnout experienced by judicial officers and their need for protective skills. Compassion is one skill that can be incredibly beneficial. Compassion involves recognising a person’s suffering, and ‘turning towards’ the sufferer. This has been said to be ‘neurologically rejuvenating’. In contrast, empathy alone can lead to distress and generate burnout. There are three pillars of compassionate practice: (1) procedural fairness; (2) judicial engagement; and (3) other therapeutic jurisprudence approaches and court programs. The authors, both experienced judicial officers, have experienced how compassionate practice can inspire offenders to achieve rehabilitation goals. These practices can also be implemented in traditional court lists by judicial officers acknowledging the possibility of suffering of court users and empowering them by judicial engagement and granting them agency. A compassionate approach to justice can improve judicial effectiveness, health, and the fostering of a healthy work environment.
Keywords: compassion, therapeutic jurisprudence, procedural fairness, judicial engagement, judicial wellbeing, specialist courts, courts, mental health, judicial burnout
Introduction
Many people engaged in court processes do not want to be there; do not wish to face orders made by a stranger that can seriously impact their lives. Litigants are often beset by poor problem-solving abilities, few coping skills, limited inner or external resources upon which to rely and meagre role models. When facing court, people are often not at their best, and their behaviour can be challenging, emotional and even aggressive.
On the other side of the bench, judicial officers’ daily lists often consist of distressing subject matter. They are faced with people who are struggling with a myriad of emotional, mental and physical issues and who may lack access to community supports to address these issues. Judicial officers often work in high-volume environments, frequently with limited control over court listings challenging their sense of autonomy.1 In addition, they often work under time pressures which can impede their ability to cogently examine problems, to explore underlying contributing issues and to effectively, much less creatively, craft meaningful outcomes. Judicial officers deal with all these challenges in the ‘fish-bowl’ of open court where everything they say and do is scrutinised.
It is therefore not surprising that judicial officers can experience emotional and physical stress, vicarious trauma and judicial burnout, which in turn can exact a toll on their health and their relationships. Judicial officers are not immune to this daily barrage2 and are in need of protective skills.
With this depressing portrait, why would judicial officers expose themselves to this gruelling diet? What motivates them to rise each morning to yet another day? How do some judicial officers not only remain motivated but continue to find meaning and purpose after many years in the role?
The answer lies in the power of compassion.
Compassion
Compassion in essence involves a person feeling for someone who is suffering and wanting to help.3 Systematic review of the literature has defined compassion as involving:
A recognition of suffering;
An understanding of the universality of human suffering and that compassion is applicable to all people;
Feeling empathy for the person suffering and connecting with the distress (emotional resonance);
A tolerance of uncomfortable feelings in response to the suffering (for example distress, anger or fear) so as to remain open to and accepting of the sufferer; ‘turning towards’ the sufferer rather than ‘turning away’; and
A motivation to act or acting to alleviate suffering.4
Compassion offers the means to confront difficult emotions of individuals and to understand events from their perspective with an ‘attitude of curiosity and care’.5
Empathy, on the other hand, allows the hearer to experience another’s feelings, to share their emotional state, but does not arouse efforts to reduce suffering. Neurologically, compassion activates brain chemistry related to feelings of warmth, concern and calm.6 It stimulates neurological networks associated with reward and motivation to help. Compassion-activated brain circuitry also buffers against negative affect through the active generation of positive emotions.7 Compassion has been said to be ‘neurologically rejuvenating’.8 Connecting with and providing assistance to others expands one’s perspective, promotes positive health outcomes and may counter stress.9 In contrast, empathy can lead to empathic distress, observed in increased activation in brain areas involved in the processing of threat or pain. It can also generate burnout characterised as emotional exhaustion, withdrawal, depersonalisation and decreased sense of personal accomplishment due to work-related stress.10
The value of compassion in a court setting and for judicial officers is well recognised.11 Compassion has been seen as a vital quality for judicial officers.12 A compassionate approach can sit comfortably alongside a judicial officer’s overall duty, as former Australian High Court Chief Justice Gleeson observed:
The capacity of an individual to make an impartial determination of the facts, and to understand and conscientiously apply the law, is the primary requirement of fitness for judicial office. Many of the laws to be applied by judges give them a discretion, and, within the limits of principles governing the exercise of such discretion, they will find that they have the capacity and sometimes the obligation, to exercise qualities of judgment, compassion, human understanding and fairness. Our laws were not made to be administered by computers, and judges have ample scope for exercising qualities of wisdom and understanding without compromising their impartiality.13
A judicial officer utilising compassionate approaches within, of course, the boundaries of judicial office, law and due process, can positively transform the quality and impact of interactions with court users and their own experience of life on the bench.
Compassion in action
Specialist courts – such as drug treatment and mental health courts – with their combination of judicial engagement, multi-disciplinary teams, holistic programming and community treatment and support – are examples of compassion in action for particular participant cohorts. Reflecting on the definition of compassion, judicial officers in specialist courts are attuned to the suffering that unmanaged substance use and mental illness bring as well as the suffering from trauma that is often underpinning these symptoms. They connect with this suffering, building rapport with the participants. They sit with the uncomfortable feelings that such suffering arouses and ‘turn towards’ the participant rather than ‘turning away’14 and are motivated to alleviate suffering using a range of court craft techniques and treatment and support plans developed by multi-disciplinary teams.
The authors, both experienced judicial officers in specialist courts, have experienced first-hand how this compassionate approach that drives action to relieve suffering contributes to the successful outcomes of the participants and the programmes themselves. We observed how healing techniques and supportive comments inspired offenders to achieve rehabilitation goals. Using numerous therapeutic practices, offenders learned to trust and accept our help to address other concerns contributing to their difficulties. We also witnessed that offenders accepted ownership of negative behaviours, sanctions, court-ordered conditions and other consequences when they were permitted to participate in decisions affecting their freedom either verbally, or with a behaviour contract or plan.15
Driven by a desire to make a difference in the lives of participants and those impacted by their offending, we employed strategies translated from behavioural sciences and shared by the therapeutic jurisprudence community. Specifically, during our specialist court tenures, we honed our communication and rapport-building skills. Our court hearings were characterised by deep listening, two-way exchanges and collaborative decision making. We witnessed individuals actively transform their recovery from entrenched addiction, trauma and unmanaged mental ill health to drug-free, law-abiding citizens. We encouraged participants to achieve their rehabilitation goals. We saw participants accept profound responsibility for their negative actions and the consequences of their behaviour when they felt respected and supported by the court team. We celebrated their decisions to reengage in treatment programmes after relapse; being offence free for a substantial period of time; securing and maintaining housing; reuniting with children; and gaining employment. We acknowledged achievements both small and large, and in turn, we received abundant appreciation, poems and songs and enjoyed broad smiles from participants, family and their little ones – moments of enormous pride and professional satisfaction. Our tenure in specialist courts has been some of the most rewarding, transformative time of our careers and enhanced our approach in other court assignments.16 It is not surprising then, given what we know about the neurological effects of compassionate practice, that specialist court judicial officers are more likely to report being happy in their assignments and believe in its positive emotional effect.17
Exporting compassionate practices into traditional court lists
Not all court users require intensive specialist court intervention, and the mainstay of judicial work is carried out in traditional or mainstream court lists. There are nonetheless substantial opportunities and benefits to engaging compassionate judicial practices in traditional court matters.18 Compassionate practices can be exported to any setting including non-criminal matters which engage individuals and community.19 Traditional criminal court sentencing remarks delivered by judiciary orally in open court in the presence of the person being sentenced, any victim who chooses to attend, the family of those affected, interested members of the public and the press can provide a ‘space for the expression of compassion’.20 In the granting of bail in a criminal court, for example, a judicial officer may enquire ‘what do you need right now to reduce your risk of reoffending?’ and, after hearing from the accused, they may offer bail support services to help meet these needs. In the civil jurisdiction, case mediation may be facilitated when the parties in a housing renovation suit are clearly seeking a tangible alternative to the payment of money. The authors have enjoyed feedback in both civil and criminal jurisdictions to the effect that ‘this judge really cares and wants to help and I’m gonna let her’. One is limited only by imagination.
Judicial officers can demonstrate compassion in traditional court lists by being attuned to the possibility of suffering of those who come before them, by recognising the common humanity and dignity of all, by choosing to ‘turn towards’ and by acting to try to alleviate suffering. To this end, within the boundaries of judicial officer, the law and due process judicial officers can employ some or all of three pillars of compassionate practice: (1) procedural fairness; (2) judicial engagement; and, (3) other therapeutic jurisprudence approaches and court programmes.
Procedural fairness provides the framework for how members of the judiciary communicate with court users and fairly and respectfully conduct court. It is in the manner and method they afford voice, show respect and demonstrate trustworthiness and neutrality.21 In doing so, they improve the experience of litigants, increase compliance with court orders and bolster court legitimacy.22 All court users wish to be treated with respect. They want the opportunity to fully air their grievances and be heard by a judge who gives full and fair attention to their case. This concept was demonstrated by a party who admitted to non-payment of rent, but poignantly said, ‘Judge, I just want you to know that I pay my bills, but this landlord was always so rude and disrespectful, and it was the only way I could fight back. Thank you for letting me speak’. Likewise, respect in criminal court is reflected where a criminal victim’s impact statement is acknowledged by the bench and referenced in sentencing remarks, and the sentence is clearly explained to improve the victim’s understanding of the sentencing rationale. Even where a punitive sentence is imposed for criminal offending, the manner in which the sentence is delivered can reduce suffering by explaining the rationale, acknowledging that the judicial officer has heard and considered mitigating factors and according respect for the offender by denouncing the behaviour rather than the person themself.
Judicial engagement invites judicial officers to consider what they say to build rapport and to stimulate a person’s own agency towards rehabilitation, recovery or resolution and support the alleviation of suffering.23 Judicial engagement utilises active listening, communication and more nuanced techniques such as motivational interviewing to reveal underlying issues and empower the litigant to take steps to address their issues. For example, during a mother’s application to evict her tenant daughter, years of conflict between the parties was revealed. The behaviour did not rise to the level of breach of lease, but a court discussion initiated their agreement to seek counselling to focus upon the underlying issues. During a criminal court sentencing hearing, the judicial officer can encourage and support a defendant’s recovery while on community-based corrections (probation) by using active listening, open questions and motivational interviewing techniques. The goal is to engage the offender in articulating their motivation for change, specify their goals and the actions they wish to take during their sentence period.
Thoughtful and calm judicial engagement can often diffuse disruptive behaviour or strained interactions and lessen courtroom tension. It contributes to the efficient running of the court and creates a less stressful environment for judiciary, court staff, lawyers, prosecutors and court users.
Compassion can also be activated through other therapeutic jurisprudence practices and programmes. Therapeutic jurisprudence promotes adapting legal procedures, the roles of legal actors and court programmes, within the boundaries of the law and legal norms, to improve the wellbeing of people engaged with the court. Therapeutic jurisprudence practices and programmes are drawn from disciplines such as psychology, criminology, addiction and mental health recovery, disability studies and social work, and can be wide ranging.24 Protected persons in family violence protection cases, for example, may be given a choice of how they would prefer to participate in a court proceeding to manage their safety and decrease trauma, eg physically at court, in a safe court waiting area, remotely from a family violence service or their home. In criminal court, a voluntary bail support programme may involve assessment, case management, connection to community supports and regular judicial review hearings before the same judicial officer to motivate engagement in supports and behaviour change.
At the heart of all therapeutic jurisprudence approaches is the importance of a person’s agency where judicial officers can empower parties who are before them. Judicial officer Dr. Michael King discusses how such approaches can deepen the activation of compassion:
Arguably the form of compassion exercised in taking a solution-focused approach to court practice involves a deeper and more meaningful form of compassion than can be expressed in conventional judging. Instead of feeling concern for a party’s suffering and the court taking action such as making some accommodation in court process, orders or reasons in an endeavour to improve the party’s situation, it involves empowering, encouraging and supporting parties to take responsibility for changing themselves, addressing their underlying issues and thereby removing the basis for their suffering.25
A way forward – judicial education
Mental and physical health risks to judiciary from traumatic court exposure are amply documented, highlighting the need for self-empathy or care26 and the employment of strategies to confront stress and channel emotions. Compassion provides a way forward. Judiciary can be supported in developing their compassionate court craft. Compassion training could cover:
The science of compassion;
Techniques to support compassion in the courtroom such as mindfulness, reflective practice and peer support;
Compassionate court craft based on the three pillars of compassionate practice: procedural fairness, judicial engagement and therapeutic jurisprudence.
Studies regarding compassion training have measured changes in brain functions which reflected increased abilities to help others while serving as an emotion-regulation strategy.27 It may reduce stress-related immune and behavioural responses,28 boost personal wellbeing by broadening perspective beyond self and strengthening resilience.29 Compassion training benefits both the receiver by protecting against burnout and the giver by increasing helping behaviour.30
The science of compassion neurology is fairly new but quickly emerging. Research regarding the direct link between compassionate judging and judicial wellbeing is ripe for study to demonstrate this important connection and to scientifically support what the authors and therapeutic court jurists already know intuitively – that the many benefits offered by a compassionate approach will positively affect judicial effectiveness and health and foster a healthy work environment.
Closing reflections
The compassionate court has the power to transform the quality and effectiveness of court interactions with court users. It regards matters that cause conflicts, including behaviour, disabilities, community and societal influences from a wide perspective. It encourages alternative therapeutic solutions to resolve these issues by improving the quality of human interactions in a supportive and healthy court environment. The compassionate court reflects a humanistic judicial process for each matter regardless of the severity of the case or personalities involved.31
The compassionate means by which judicial officers earnestly and respectfully communicate with the public will improve their court experience, the quality of justice and public confidence in our institutions. This should be the standard for all court interactions and should be promoted by all who work in the court system – security, staff, lawyers and external supporting agencies.
Compassion is also a powerful means to enhance judicial wellbeing of all who work in the court. It may well be the secret to transforming lives, self-care and fulfilling careers.
Notes
Carly Schrever, Carol Hulbert and Tania Sourdin, ‘Where Stress Presides: Predictors and Correlates of Stress Among Australian Judges and Magistrates’ (2022) 29 Psychiatr Psychol Law 290, 314.
Carly Schrever, Carol Hulbert and Tania Sourdin, ‘The Psychological Impact of Judicial Work: Australia’s First Empirical Research Measuring Judicial Stress and Wellbeing’ (2019) 28 J Judicial Admin 141.
Richard Lazarus, Emotion and Adaptation (OUP 1991).
Anthony Hopkins and others, ‘At the Heart of Sentencing: Exploring Whether More Compassionate Delivery of Sentencing Remarks Increases Public Concern for People who Offend’ (2023) 30 Psychiatr Psycholo Law 459, 461; Clara Strauss and others, ‘What Is Compassion and How Can We Measure It? A Review of Definitions and Measures’ (2016) 47 Clin Psychol Rev 15.
Boris Borneman and Tania Singer, ‘A Cognitive Neuroscience Perspective – The ReSource Model’ in Tania Singer and Matthias Bolz (eds), Compassion: Bridging Practice and Science (Max Planck Institute for Human Cognitive and Brain Sciences 2013) 183.
Ibid 278.
Katrin Preckel, Philipp Kanske and Tania Singer, ‘On the Interaction of Social Affect and Cognition: Empathy, Compassion and Theory of Mind’ (2018) 19 Curr Opin Behav Sci 1.
Trisha Dowling, ‘Compassion Does Not Fatigue!’ (2018) 59 Can Vet J 749.
Michael J Poulin and others, ‘Giving to Others and the Association Between Stress and Mortality’ (2013) 103(9) Am J Publ Health 1649.
Laura W McCray and others, ‘Resident Physician Burnout: Is There Hope?’ (2008) 40(9) Fam Med 626; Dowling (n 8).
Hopkins and others (n 4) 460; Anthony Hopkins and Lorana Bartels, ‘Paying Attention to the Person: Compassion, Equality and Therapeutic Jurisprudence’ in Nigel Stobbs, Lorana Bartels and Michel Vols (eds), The Methodology and Practice of Therapeutic Jurisprudence (Carolina Academic Press 2019); Sharyn Roach Anleu and Kathy Mack, ‘Judicial Authority and Emotion Work’ (2013) 11 Jud Rev Selected Conf Pap J Judicial Comm N S W 329.
Michael King, ‘Compassion and the Courts: The Evolution of an Institution’ in Michelle Brenner (ed), Conversations on Compassion (CreateSpace 2015) 218–19.
The Honourable Chief Justice Murray Gleeson AC, ‘Judicial Legitimacy’ (speech delivered to the Australian Bar Association Conference, New York, 2 July 2000).
Hopkins and Bartels (n 11).
David B Wexler, ‘Robes and Rehabilitation: How Judges Can Help Offenders “Make Good”’ (2001) 38(1) Court Rev 18.
Jamey H Hueston and Kevin Burke, ‘Exporting Drug Court Concepts to Traditional Courts: A Roadmap to an Effective Therapeutic Court’ (2016) 52 Court Rev 44.
Peggy F Hora and Deborah J Chase, ‘The Best Seat in the House: The Court Assignment and Judicial Satisfaction’ (2009) 47 Fam Court Rev 209.
Pauline Spencer, ‘From Alternative to the New Normal: Therapeutic Jurisprudence in the Mainstream’ (2014) 39 Altern Law J 222.
Hueston and Burke (n 16).
Hopkins and others (n 4) 460, 462.
Tom R Tyler, ‘Procedural Justice and the Courts’ (2007 – 2008) 44 Court Rev 26, 30–31.
Ibid 26.
Jamey H Hueston, ‘The Compassionate Court: Reforming the Justice System Inside and Outside’ (2021) 57 Court Rev 108.
David B Wexler, ‘Therapeutic Jurisprudence: An Overview’ (2000) 17 Thomas M Cooley Law Rev 125, 128.
King (n 12).
Helen Riess, ‘The Science of Empathy’ (2017) 4 J Patient Exp 74.
Preckel, Kanske and Singer (n 7).
Thaddeus W W Pace and others, ‘Effect of Compassion Meditation on Neuroendocrine, Innate Immune and Behavioral Responses to Psychosocial Stress’ (2009) 34 Psychoneuroendrocrinology 87. Utilising compassion may also reduce stress-related immune and behavioural responses: 32.
Olga Klimecki, Matthieu Ricard and Tanya Singer, ‘Empathy Versus Compassion: Lessons from 1st and 3rd Person Methods’ in Tania Singer and Matthias Bolz (eds), Compassion: Bridging Practice and Science (Max Planck Society 2013) 284.
Ibid 279.
Jamey H Hueston and Miriam Hutchins, ‘The Power of Compassion in the Court: Healing on Both Sides of the Bench’ (2018) 54 Court Rev 96.
Ethical standards
Declaration of conflicts of interest
Pauline Spencer has declared no conflicts of interest.
Jamey Hueston has declared no conflicts of interest.
Ethical approval
This article does not contain any studies with human participants or animals performed by any of the authors.