Judge
John Leventhal of the New York Appellate Division and attorney Jennifer White of Futures without Violence describe the misconceptions people have about the
elderly as both victims and perpetrators of crime. This is one of three podcasts produced in collaboration with the
National Council of Juvenile and Family Court Judges.

ROBERT
V. WOLF: Hi, I’m Rob Wolf, director of communications at the Center for Court Innovation and
this is one of several special podcasts that the Center is doing with the support and assistance of the National
Council of Juvenile and Family Court Judges, which is hosting its 74th conference this month in New York City, July
2011.

I’m speaking with Judge John Leventhal, who is currently an associate justice of the
New York State Appellate Division and who, before he was appointed to the Appellate Division by the governor, founded
and served for many years as the presiding judge of the Brooklyn Domestic Violence Court which was, in fact, the
first felony domestic violence court in the country.

And I’m also with Jennifer White, who’s
an attorney with Futures Without Violence, which has recently changed its name from the Family Violence Prevention
Fund. And that organization is based in San Francisco and it’s dedicated to preventing domestic, dating, and sexual
violence.

Thank you both for being with me today.

JUDGE LEVENTHAL:
Thank you for having us.

JENNIFER WHITE: Thank you.

WOLF:
And today we’re gonna focus on elder abuse so I thought—and you’re both presenting on that topic here at
the conference. Elder abuse, I’ve heard a lot about recently. It seems to be in the news more and it’s certainly
a lot more in conversations among judicial practitioners and law enforcement, but I think a lot of people may not
fully understand what the term means and so Ms. White, I thought maybe we could start out by you just defining elder
abuse. What does the term refer to, exactly?

WHITE: Sure. A lot
of times when you hear elder abuse, particularly in the media they’re referring strictly to financial exploitation.
But what we know is that more common is abuse that’s perpetrated usually by somebody with whom the elder has
some expectation of trust, so usually a family member or caregiver. It includes any of several forms of maltreatment,
including physical and sexual violence, emotional and psychological abuse, including also financial exploitation.

WOLF: And do we have a sense of how widespread this is? I mean just
because people are talking about it more, you hear about it more, is that because there’s a greater incidence
of it or a greater awareness of it?

WHITE: Well, for one thing,
because the baby boomer population in 2006 hit 75 million over 60 years old. So I think that there has been a lot
of renewed focused on elder abuse because of that population coming into their senior years. The reality is that
there’s not a lot of really strong, good prevalence data. What we do know, according to the national elder abuse
incident survey is that elder abuse is actually about 85 percent of cases go unreported. We are seeing rising numbers
of cases being reported, but we still have this huge gap of victims who are not reporting.

WOLF:
Judge Leventhal, when a case or an issue involving elder abuse does make it into the court system, does it pose unique
challenges?

LEVENTHAL: Well sure, we have a lot of stereotypes in
society regarding ageism and the elderly, that they’re imagining things, that they don’t know what they’re
talking about. People sometimes confuse lack of good hearing with lack of credibility, and ability to think and be
aware of what’s going on around them. So that’s a challenge not only to the courts, but to prosecutors,
to lawyers who represent them.

It is about power and control. People don’t want to live
alone. People don’t want to be alone. They want to be cared for by family members. So that’s one of the
reasons why it’s less reported. It’s a similar dynamic to domestic violence because there’s another
layer on top of it—people with the fear of living alone or being alone. They want someone to care for them. And the
psychological and emotional trauma of turning in a child who’s taking care of them because it’s their child
and they love them, or grandchild. It’s another dynamic on the overlay of domestic violence.

WOLF:
It sounds like these are complicated cases that sometimes touch on civil, sometimes touch on criminal issues. So
where are you most frequently seeing these types of cases? Which types of judges and in which courts are you seeing
these cases?

LEVENTHAL: There are two components. There’s the
criminal component, there’s the civil component. And the civil component usually would be financial exploitation
or someone needs a guardian to help with their property or their person, to make medical and personal decisions for
them. Then you also have the criminal component where someone is physically or sexually abused.

I
think the new standard could be, if we could combine one judge who was schooled in both of those because just coincidentally,
I did guardianships at the same time as I did domestic violence and I thought that was a great fit. And I think that
really is the future in this, in handling elder abuse.

WHITE: It’s
a really good point because I think that in addition to that, one of the things that we talk about is that these
cases, because they’re not being identified very well yet, they really show up everywhere. So someplace where
they’re showing up a lot is in juvenile delinquency because kids who are living with their grandparent would
be, let’s say in juvenile delinquency court because of various things, but you’ll see that the grandparent
is being abused.

I mean it’s really important, I think, for judges that are presenting with
all different types of cases to learn how to identify elder abuse before them because what we hope really – I mean
and I say hope, but – is that victims are gonna come to a domestic violence type-court like to get an order of protection
or something like that but that’s not really where they’re gonna be popping up. I mean they could pop up
in probate court, you know, as I said juvenile court, criminal court, family court, I mean really anywhere, even
civil or small claims court.

LEVENTHAL: Guardianship.

WHITE:
Guardianship. So it’s really anywhere so it’s important for judges to be able to identify the signs.

LEVENTHAL:
And there’s also another stereotype that we have omitted and inadvertently. People think that the elderly can’t
be sexually abused, besides physically abused, sexually abused, and it happens. I have cases where children have
sexually abused their parents. We have a scenario in our presentation today where a grandson raped his 98 year old
grandmother. And on the other hand, there are cases where an elder can be an abuser or sexual abuser.

WHITE:
It’s definitely sort of a misconception. Some of the things that we deal with at the National Judicial Institute
when we give trainings on elder abuse, which Judge Leventhal has taught at the training, is to really help courts
see that some of these assumptions that you make about elders, you know, one being that because you’re of a
certain age you lack capacity to make decisions. It’s a huge misconception, and the other huge misconception
that’s so common is the idea that because you’re of a certain age that you suddenly lose the ability to
cause harm.

So you have a lot of elder perpetrators that are in the court that maybe just start
abusing a spouse, for instance, or have been abusing a spouse for 50, 60 years and the courts won’t, potentially,
hold that person accountable in the same way they would if the person was 35 years old because they’re 65 years
old and they think, ‘oh, this person can’t do harm.’

The reality is how much strength or
ability does it take to, for instance, pick up a gun and shoot somebody? Not very much. So it is something that we
sort of work to educate the judiciary about.

WOLF: So, you’ve
presented a lot of different, described kind of the challenges, I thought, very, very well and painted a picture.
Have courts been responding effectively? Have they been picking up speed as there has been more awareness and more
of these cases coming to the courts? Have you been pleased with what you’re seeing?

WHITE:
I think that in terms of elder abuse, the entire system is really behind. Most people that practice in this field
will tell you we’re probably 20 years behind the domestic violence fields, child abuse fields.

But
yes, I think there has been more focus on it. There’s been some judicial trainings, law enforcement trainings,
and prosecutor trainings nationally, which have been sponsored by the Office on Violence Against Women to get more
of this on the radar.

There are a couple of courts in the country that have elder abuse dockets.
So I know in California, for example, there is a judge that started an elder abuse docket there. In Georgia there
is a compliance review docket for elder abuse cases. So there are a couple but in terms of it being really common
or sort of on the radar the way that domestic violence is now, definitely not.

There still needs
a lot more focus, a lot more awareness, and I think the best way to start that process is, particularly for judges
to exercise leadership in their court systems to really get these coordinated community response teams started the
way that we have for domestic violence, because that seems to be the most effective way to enhance services and to
get justice for elders.

WOLF: So let me ask you about that in a
second, but let me just remind everyone that I’m Rob Wolf at the Center for Court Innovation and I’m at the
annual conference of the National Council of Juvenile and Family Court Judges, speaking with Judge John Leventhal
of New York, and attorney Jennifer White of San Francisco about elder abuse.

Ms. White, you mentioned
a coordinated community response, which is a term, I think, familiar in the domestic violence world. What is it and
how would that apply as a response to elder abuse?

WHITE: Sure.
Coordinated Community Response—they can be many, many different—there are many, many different kinds. There’s
some that specialize in, for instance, if you have teams that will meet to deal with particular cases, and then some
coordinated response teams are more system-wide.

So it’s really meant to get professionals
from the various systems that impact the case. So let’s say the prosecutor’s office, law enforcement, sometimes
judges will be involved, advocates. For elder abuse cases we hope to see aging services involved, adult protective
services, hopefully geriatric psychologists, psychiatrists are involved so that they can get together and look at
the system and see how they can coordinate, communicate better, to make service delivery smoother and more effective.

LEVENTHAL: And I think, our motto in New York, you can call it a
partnership, you can call it Coordinated Community Response. We have the usual suspects, the D.A.’s office,
parole, probation. We have elder abuse organizations, we have aging –

WHITE:
Services.

LEVENTHAL: …services—adult protective services. We also
have a defense bar and the reason why that’s important is because if the judge is going to be involved, you
have to involve the defense.

And it’s very important when the judges take a leadership role,
these kinds of things happen – parole and probation will be more involved—you’ll get more support than if you
just do it on your own.

So I thought that was very important and I’m really gratified now
that there’s being more attention being paid – not only because I have a 97-year-old mother, but because when
I started doing this thing, you would take elder abuse cases, as you know the domestic violence issues were raised
by the women’s movement and the focus really then was on intimate partner abuse. And elder abuse is kind of
secondarily or an afterthought.

Now you know, everyone has a parent, everyone’s going to
get old, and it’s important. And I always thought that it was important, I always thought there should be more
emphasis on it. And I was not only gratified that we are doing this, I’m gratified that I have an opportunity
to take part in this.

WOLF: Great, well I want to thank you both
for taking the time to talk with me today.

I’ve been talking about the challenges of dealing
with elder abuse in the courts with Judge John Leventhal and attorney Jennifer White. This podcast was jointly sponsored
by the National Council of Juvenile and Family Court Judges and the Center for Court Innovation.

To
find out more about the National Council you can visit their website at www.ncjfcj.org, and to find out more about the Center for Court Innovation,
you can visit our website at www.courtinnovation.org. I’m Rob Wolf, Director of Communications at the Center
for Court Innovation. Thanks for listening.

July 2011

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Theresa Pouley of the Tulalip Tribal Court, Michael Petoskey of the Pokagan Band of Potawatomi Indians, and
William A. Thorne Jr., a Pomo/Coast Miwok Indian appointed to the Utah Court of Appeals, discuss the  advantages
of transferring child welfare cases from state to tribal jurisdiction. This is one of three podcasts produced in
collaboration with the National Council of Juvenile and Family Court Judges.

ROBERT
V. WOLF: Hi, I’m Rob Wolf, director of communications at the Center for Court Innovation, and
this is one of several special podcasts the Center’s doing with the support and assistance of the National Council
of Juvenile and Family Court Judges, which is hosting its 74th conference in New York City this month, July 2011.

Today I’m speaking with Judge William A. Thorne Jr., Judge Theresa Pouley, and Judge Michael
Petoskey, all of whom are judges in tribal courts, and they’re all involved with a lot of important issues like
improving and strengthening tribal judicial systems, and the welfare of Indian children.

So you
all have long biographies so I just thought I’d give a very brief introduction for all of you. Judge Thorne
is a Pomo/Coast Miwok Indian from Northern California, and he has served in the past as a tribal judge for numerous
tribes. He’s also served 14 years as a state trial judge in Utah and in 2000 was appointed a judge on the Utah
Court of Appeals.

Judge Pouley was appointed this year by President Obama to the Indian Law and
Order Commission, and she’s currently the chief judge of the Tulalip Tribal Court in Washington, and an associate
justice of the Colville Tribal Court of appeals and a member of the Colville Confederated Tribes in Northeast Washington.

And Judge Petoskey Is the Chief Judge of the Pokagan Band of Potawatomi Indians in Michigan.

So I just want to welcome you all and thanks for taking the time out of the conference to chat
with me.

I thought we’d focus today on children and families and I thought we’d start
off with the Indian Child Welfare Act, which is a pivotal piece of federal legislation. What are the problems that
it’s intended to address?

JUDGE THORNE: It’s a piece of federal
legislation that was intended to remedy the problem of Indian children being taken out of their homes way too often
and unnecessarily. And it takes a couple different tacks to try and solve the problem of removing kids too often.

It raises the standard of proof that’s necessary. It gives an opportunity for extended family
to become the first option for surrogate care, and you remember this was back in the ’70s when most states didn’t
do that. And it provided a mechanism to transfer the decision point to tribal judges, who were more likely to understand
the families in context, and therefore more likely to help them heal and be able to take care of their children.

WOLF: Okay, so that was Judge Thorne. Thank you very much for that
explanation. So it was enacted in ’78 and its 2011 now, and I wonder If Judge Pouley or Judge Petoskey wants
to talk about, a little bit about, if they feel state and tribal systems have a grasp of what the Indian Child Welfare
Act Is and how to apply it.

JUDGE POULEY: Well the Indian Child
Welfare Act really is about making state courts engage in some particularly culturally relevant behavior when dealing
with Indian children. It isn’t a restriction or a requirement on tribal court judges.

Interestingly
enough, most of the recent studies that have been done—and this is true in Washington State—indicate that the Indian
Child Welfare Act, whose goal is to place Indian children in Indian families, to decrease the number of times and
the length of time they’re in foster care, to increase relative placements, that those policy goals are being
profoundly met in state court systems.

So that Indian children actually, in Washington State,
for example, end up in foster care four times more often and four times longer than non-Indian children. That Indian
children in Washington State, for example, are more likely to end up in detention more than children from any other
race, even though their primary issue, of course, is being abused and neglected.

So it’s actually
a little alarming that given the length of time that the Indian Child Welfare Act has been in place, that we still
have so many Indian children who are not placed within their families and within their communities.

With
that said, I think Washington State does a pretty good job of trying to transfer those cases to a local tribal court.
Tribal courts always have a preference for placement of kids in relative families. So, for example, we have probably
150 dependency cases active in our tribal court and of those, about 80 percent of those kids are living either in
their own homes or with relatives in their community.

So that sort of consistency and ability
to place kids with their family really strengthen when you get them back to their community. So I think as more judges,
state court judges become educated about how tribal court judges can help facilitate placement of kids in the home,
I think they’ll see those statistics numbers change.

WOLF:
And Judge Petoskey, are you seeing something similar in Michigan as well, in terms of the number of Indian children
who aren’t in placement, and some of these challenges of educating state judges about the Indian Child Welfare
Act?

JUDGE PETOSKEY: Well I think the nature of the beast is that
education is ongoing. It’s not a one-time kind of thing.

We, as Indian people, carry the
burden of making sure that others understand who we are, so that we can alleviate any fears, any misconceptions they
might have about what a cooperative kind of relationship looks like.

I would agree with Judge
Pouley. We have many advantages in tribal courts and as people become more aware of us being the village. You know,
you hear, ‘It takes a village’; well we are the village.

You know, we’re members
of the community, we’re members of those families, and so the stake that we have as tribal officials working
in those tribal communities is as much like a family.

WOLF: This
Is Rob Wolf. I’m talking with Judge William A. Thorne Jr., Judge Theresa Pouley, and Judge Michael Petoskey
here at the Annual Conference of the National Council of Juvenile and Family Court Judges.

We’re
were talking about tribal courts, and we’re talking about child welfare in particular, and maybe I thought we
could take a step back. Judge Thorne, if you could explain, where does the legal authority come from for tribal court?

JUDGE THORNE: Most kids are taught in school about the two different
governments that impact their lives: the federal government and the state government. But what the instruction often
leaves out is that there is a third leg of the stool in that family of governments, and that’s the tribal governments.

And the authority for the tribal government, the sovereignty, actually predates the U.S. Constitution.
And while the Supreme Court has said that Congress has plenary authority, Congress has the ultimate say on whether
tribal governmental existence continues or not, the policy of the Congress, the policy of the Supreme Court has been
that tribes have a legitimate government, and particularly have an important tool, an important voice in taking care
of their children.

And that’s what founded, or was the underlying cause of the Indian Child
Welfare Act. It was a recognition by Congress that tribes had a vested interest in the outcome of their children’s
cases.

And so now the federal law recognizes that parents have a role and have rights in any
state court proceeding involving tribal children, and tribes do as well. They have a separate voice that’s recognized
as being valuable and legitimate about the health and welfare of their children.

WOLF:
Give me a sense of how many tribes, in fact, have their own court systems.

JUDGE
THORNE: There are roughly 565 Indian tribes in the country. There are a little over 300 tribal courts.

WOLF: Tell me, with the existence of these 300 or so tribal courts,
what can be done to improve the understanding between these various legs of the stool, as you’ve described?

JUDGE POULEY: Education, education, education.

It
doesn’t make any difference if you do it with a grade school child, a child in kindergarten, a high school student,
or a judge who’s been sitting on the bench for 20 years. They have to understand that tribal courts have been
in existence. They are absolutely competent to adjudicate the matters in front of them. They just need to be considered
as sort of the equal of state and federal court systems, which they absolutely, positively are.

In
terms of providing long-term solutions for persons in their community, they really are the experts. So just an ongoing
recognition that they are a co-equal branch of the government, that they are someone who should be respected and
maybe more important than that, solicited for input.

Because the statistics for tribal court
and the outcomes in tribal court are the exact same outcomes that federal and state court judges aspire to. We want
healthy children. We want to reunify kids with their families. We want to stop substance abuse in families, and we
have the tools and the resources in our communities, which can help not only our clients, our clients of the tribal
court system, but clients of the state court system as well.

So equality and communication is
sort of the key.

WOLF: Thank you, Judge Pouley.

Judge
Petoskey, there’s been money from the federal government over the years at various times. Is it going to the
right places in terms of helping the courts strengthen their capacity to handle child and family cases?

JUDGE
PETOSKEY: It seems to me that, you know, under the trust responsibility, tribes have always, sadly,
just received a pittance of what they need to function and operate.

Being a tribal member and
having been a chief judge of my own tribal community for 16 years, I realized that I wasn’t going to allow money
to be a barrier, that we would put our heads together and collaborate and come around the table and do what we can
for our own children, because if we didn’t, nobody else was.

I would like to go back to
something Judge Pouley mentioned and it is in Michigan when the former chief justice and current Justice Michael
Kavanaugh first brought tribal court and state court judges together over 20 years ago, so that they could first
meet each other and develop strategies for avoiding jurisdictional conflict and strategies also for cooperation,
one of the very first things he said to us, to us tribal judges was, “We will learn more from you, probably, than
you will learn from us.”

JUDGE THORNE: Historically, tribal welfare
systems have not had access to the federal support systems available to the states. The biggest has been 4-E which
is a $5 billion pot of money. Congress just recently authorized tribes to have access to that. There is also a separate
fund that the federal government makes available to every state to improve their juvenile court systems. They’re
called Court Improvement Funds and tribes don’t have access to those.

And so tribal courts
have historically been underfunded. In the last 20 years the training money for tribal courts has basically dried
up. As Judge Petoskey said, they’re doing a good job of doing a lot with very little. But just a little bit
more resources would help them start innovative practices, find new approaches, find new ways of helping, because
they’re already masters of stretching the dollar.

WOLF: I hope
people who see this podcast can exert some Influence and help expand the resources for the incredible work that you
guys are doing.

Thanks so much for talking with me today. I’ve been talking about tribal
justice and the Indian Child Welfare Act with Judges William A. Thorne Jr., Theresa Pouley, and Michael Petoskey.

This podcast was jointly sponsored by the National Council of Juvenile Family Court Judges and
the Center for Court Innovation. To find out more about the National Council, you can visit their website at www.ncjfcj.org
or you can learn about the Center for Court Innovation at the Center’s website at www.courtinnovation.org.

I’m
Rob Wolf, director of communications at the Center for Court Innovation. Thank you for listening.

July
2011

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Jim Henderson, a trainer and lecturer on domestic violence, discusses probation group conferencing, motivational
interview techniques, and the importance of community collaboration.

SARAH
SCHWEIG: Hi. I’m Sarah Schweig at the Center for Court Innovation and today I’m speaking with Jim
Henderson. Jim provides technical assistance as a trainer and lecturer to courts, probation offices, and other criminal
justice agencies to help them improve their responses to domestic violence as part of the Federal Office on Violence
Against Women Battered Women’s Justice Project. Jim also acts as a consultancy team member for the Family Justice
Center Alliance, the Battered Women’s Justice Program, and the Center for Court Innovation. Thanks for speaking with
me today and welcome.

JIM HENDERSON: Thank you.

SCHWEIG:
So what are the biggest challenges probation offices face when working with domestic violence offenders and how does
the court monitor compliance?

HENDERSON: I think probably the biggest
challenge is figuring out how to do an adequate assessment: you know—are we getting police reports that are well-written
and well thought-out? Did the detectives do an appropriate investigation and questioning? Do we have access to 911
tapes? Do we have access to prior personal protection orders, prior police reports, calls to the home? So are we
really looking at domestic violence in the whole context of what’s really going on. Then if we’re doing that, are
we then able to collect that information in a way, disseminate it to the judge where it makes a meaningful impact
for sentencing. Hopefully, if everything goes well, we’re able to assess who truly is the batterer, who is the true
victim in context, look at what type of intervention we feel will be most helpful as far as enhancing victim safety
and holding the offender accountable.

From there, it’s trying to make sure that the judge is adequately
informed about what are we doing? How’s the program operating? Do probation officers have the training they need
to be able to talk to those who are victimized by the violence? That’s another challenge because we’re trained so
much to really investigate a case and kind of be a little hard-nosed at times. And when we talk to a victim, if we
investigate it appropriately and she’s 100 percent honest, sometimes that can result in collateral consequences to
her or retaliation that we get frustrated with when we are trying to talk to her and we feel she’s not being forthcoming.
And trying to get probation officers to understand that it might not be in her best interest to be forthcoming and
why she may recant or change her story, or why she might take him back. In looking at that entirety and helping probation
officers really kind of come to that realization has been difficult.

SCHWEIG:
You’ve utilized probation group reporting to gain better compliance. Can you talk a bit about what it is exactly
and how that works?

HENDERSON: What happens, when we came into the
domestic violence field it actually fit very well with my training as a social worker in the sense that we really
look at systems. So saying okay, if we’re really going to address domestic violence it has to be a community process.
So, you know, are police on board? Are the prosecutors on board? What are the messages they’re sending to those victimized,
to the community, and to the assailants? You know, how—what’s the judge doing? What are the victims’ services that
are in place? What are children’s services that are in place? So as a probation agent, I was trying to figure out
how do I better collaborate and learn from my partners? What training can I get from the shelter? How can I incorporate
their voices or their experiences into our policy so that we’re not creating policy or engaging in practices that
actually hurt or hinder the people we say we’re there to protect, right? And that takes a lot of time, going to the
CCR meetings, watching the batterers in a bunch of programs to make sure they’re actually doing what they say they
do, doing home visits, contacting victims.

When I’ve seen defendants in a traditional manner,
in individual sessions, it seems like every single client had the exact same road blocks to success. They do the
same kind of threats or you know, accountability plans, they did the same pep talks, and it was a waste of time.
There was one day I had seen every client back to back to back. I had like 14 clients. At the end of the day, at
5:00, I finally get to listen to my messages. Three victims called, the judge called twice, and I wasn’t able to
get a hold of any of those people because it was after 5:00. And so I’m like, this isn’t working because every defendant—I
could have put them all in one room, played a tape, and said listen to the first guy I talked to, and it would have
got accomplished the same thing. And so I said well then why don’t I do that?

We created a probation
group reporting really as a time-saving mechanism so I would have more time to reach out to victims and work with
community partners. What happened was, almost overnight, our compliance rate rose through the ceiling because we
started being able to break down barriers to successful completion of probation by using other offenders experience
who had successfully achieved that. So an example would be if you’re not able to make it to AA so that’s your excuse
because you don’t have a driver’s license. So then we talk in the group, well how are other people getting to AA?
And people are brainstorming all these different options. People are telling the guy about meetings he might not
have known about; people are offering to pick him up; people are talking about their sponsor who lives two houses
down from the offender and are willing to give him his number. So all of a sudden he had all these new resources
opened up to him that I couldn’t do individually. And he’s also seen that some of his excuses were lame. That other
people had accomplished, with larger road blocks, were being compliant.

And so it just ended up
not being just a time-saving mechanism. It ended up being our batterers intervention compliance went right through
the ceiling. People who were violating probation dramatically decreased because now—let’s say you’re skipping meetings:
we’re going to violate you and take you back to court and a judge is gonna give you one day of jail for every day
you missed of the batterers intervention program. Well now instead of me even doing that, I can go around the room
and say, ‘Okay, George, I understand you haven’t gone for the program, you don’t have time. Has anybody else not
gone to the program?’ Five guys raise up their hand. We say, ‘Okay, so Tom, what happened to you?’ ‘The judge gave
me one day jail for every day I missed.’ ‘Michael, what did the judge do to you?’ ‘She gave me one day jail for every
day I missed.’ ‘Thomas, what did the judge do to you?’ he gave me one day jail for every day I missed.’ Now I can
go back to defendant A and say, ‘Okay, when I violate you, what do you think the judge is gonna do?’ He already knows.
‘Well, it sounds like she’s gonna give me one day of jail for every day I missed.’ ‘Is that what you want?’ ‘No,
that’s not going to be helpful to me.’ So I say, ‘Okay group, what do you think we can do to help Thomas so he doesn’t
go to jail?’ And they will tell him a variety of ways that he can get compliant before we go back to court. So then
the other guy who’s sitting in a room who hasn’t screwed up yet is thinking about it, already has been taught ‘Oh,
this is what’s gonna happen.’ So really, all of a sudden, less people were skipping, more people were going, more
people were dealing with their resistance, and it ended up being a helpful tool.

SCHWEIG:
It sort of offers all different kinds of perspectives in that system. That’s really interesting. Um, so you’ve also
worked with changing the dynamics of you know, interviewing the domestic violence offenders as well as victims. Can
you talk a bit about the motivational techniques used with domestic violence offenders? It sounds like you sort of
addressed that a little.

HENDERSON: In motivational interviewing,
the whole thing is rowing with the resistance. We’re helping a client identify what their needs are and pointing
out discrepancies. So let’s say Client A who hasn’t gone to the batterer’s intervention program who says that he
doesn’t have time. He has a wife and three kids to take care of. So then we’ll talk, you know, how many people have
a wife and multiple kids. ‘How are you guys able to juggle that?’ So we have some clients who have five kids, some
who have six, some whose wife just had twins. So they can talk about how they’re juggling that. We can also talk
about pointing out the discrepancy: ‘Okay, you heard from all these guys that it sounds like the judge is gonna give
you one day jail for every day you missed. Is that gonna be consistent with your desire to spend more time with your
family? Do you think your wife and kids are gonna go to jail with you for those eight days that you’re gonna be in
there, or do you think those are gonna be eight days you’re not gonna have any access to them and not be earning
any income to help support your family that you say you care so much about.’ ‘So maybe I understand you don’t want
to give up that two hours a week to go to class, but you tell me which is going to be more advantageous to your goal?’
He gets to—I don’t tell him—what to do. I don’t tell him what to think. I help him assess where he’s at in his life
space, and what’s going to be the best role for him. And we don’t really argue with him. We just kind of point out
what’s gonna happen.

And you can also tap into the strengths of the other clients who have done
well. Clients who you never thought would make it and never graduated high school, now all of a sudden they’ve got
their GED, they’re finishing this program, and you can compliment them and their successes. We’re not gonna compliment
them and say they’re not a batterer, because I don’t know. But I do know he made it through his batterers intervention
program, he got his GED, he completed his drug testing class—he hasn’t ever tested positive in two years, you know?
There’s a lot to be proud of and just identifying that and letting him be able to brag and tell other clients how
they can, too, be successful.

SCHWEIG: So you’ve also worked on changing
the focus of the victim interview as well. Can you talk about the importance of playing the role of an information
provider to the victim rather than an information gatherer, and why the shift is so significant?

HENDERSON:
Probation officers are trained really well on how to gather information, right? And so we set somebody down and we
almost interrogate them, right? We ask them all these questions about very intimate, personal, shameful experiences
that they’ve had. And then sometimes we get frustrated when people aren’t forthcoming with that information. We talked
a little bit about sometimes if people are forthcoming with it—so let’s say I make you feel very comfortable and
very safe; you give out more information than you really would have been in your best interest.

And
now as agent of the court, I have to provide it to the court, the assailant gets to read it and hear what you told
me, and now there’s retaliation against you. I’ve accomplished nothing. So really, what I want to do in my interviews
is ask you questions in a way that even if you aren’t honest, even if you can’t be honest, when you leave my room,
if you’re a victim of domestic violence you understand what that means. If you’re a higher risk than the general
population, you understand what risk factors are. That you understand what community resources are in place that
would be more advantageous to you than the court. So maybe I’m not the best person to tell, but maybe knowing that
Theresa Johnson at the shelter specializes in sexual abuse and trauma, then you can go talk to her 100 percent confidential,
would be life-changing for you. That’s what we mean.

So it’s really a way for probation officers
to ask questions. If a victim feels empowered enough or safe enough to disclose, she can, but if she doesn’t it doesn’t
mean I’m not successful. I think sometimes probation officers felt like they were non-successful: ‘I just spent a
half hour or an hour with this person and I got no goods.’ Well you know what, if you got no goods and her life is
safer, she knows what resources are available, she knows what the system can and can’t do for her, you were 100 percent
successful and you should be extremely proud of the time you spent.

And so that’s kind of what
we mean by it’s less about gathering and more about providing. I even start out the interviews now—I tell, when I
meet with an individual who’s been victimized, I say, ‘You know, I’m gonna ask you very personal questions that are
probably none of my business, other than the fact that I want to make a recommendation to the court that’s gonna
make your life safer, um, and better help the offender change his behavior. However, if you think answering any questions
are gonna endanger you, you are not on probation, you are not required to answer anything. What you can do is just
say, ‘Jim, I prefer not to answer that question and I will never document that.’

So I’m trying
to work to bridge that gap, instead of giving that victim our card and saying, I think you should call this person—which
she won’t because it’s too shameful, it’s too difficult—I’m gonna say, ‘We care enough about you to reach out to
you at a time that’s convenient and safe for you.’ And I have a good enough relationship with my partners that I
believe they’ll do that. They’ll never come back and tell me they did because they have confidentiality, but I trust
them as individuals that if I say, ‘Theresa will you please call Mrs. Johnson? Here’s what I’m concerned about; here’s
what happened in our meeting today,’ I have faith that somebody will call her that could assist her.

SCHWEIG:
Excellent. Well thank you for letting me ask you the questions today. I’m Sarah Schweig and I’ve been talking to
Jim Henderson about probation group conferencing, motivational interviewing techniques with domestic violence offenders,
and the importance of collaboration within the community to address domestic violence. To find out more about the
Center for Court Innovation, you can visit our website at www.courtinnovation.org. Thank you for listening.

July 2011

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