Judge Joseph Gubbay, who presides over one of nine pilot sites of the Adolescent Diversion Program, explains how the initiative is expanding the
justice system’s options for dealing with 16- and 17-year-old defendants, who are currently treated under New
York law as adults, even for non-violent offenses.

Kings County (N.Y.) Justice Joseph Gubbay presides over the Brooklyn pilot of
the Adolescent Diversion Program.

ROB WOLF: Welcome to New Thinking. I’m Rob Wolf, Director of Communication at the Center for Court
Innovation. Today’s podcasts focuses on a special pilot program called the Adolescent Diversion Program. I’m
in the chambers of Supreme Court Justice Joseph Gubbay, who presides over one of nine sites across New York State
where the adolescent diversion program is being carried out. Glad you could join me on New Thinking today.

JOSEPH GUBBAY: Thank you very much. It’s wonderful
to be here.

ROB WOLF: I think
it would be helpful to start with an overview of what the adolescent diversion program is. So what is it and how
did it come about?

JOSEPH GUBBAY:
Let me give you a little background. New York State and North Carolina are the only two states which prosecute 16-
and 17-year-olds as adults. So Jonathan Lippman, the Chief Judge of the New York court of appeals identified this
inequity and recognized that in order to change it, there would have to be legislative change, which is slow going.
So to address the problem on a more immediate basis, he created these nine pilot programs. What are we trying to
accomplish? Three things. Number one, identify services which, if completed by the individual, will stop the behavior
that brought the individual to court in the first place.

ROB WOLF: And just to be clear, what kinds of charges are you handling in this court?

JOSEPH GUBBAY: We’re seeing actually a whole range
of charges. Certainly we’re seeing theft of services cases, which may involve jumping a turnstile, going into
the subway system without paying the lawful fare. We may see trespass, being in a location without permission or
authority, whether that’s a part after hours, whether that’s a housing development on somebody’s roof
or something like that. But we’re also trying to address the more complex cases, so this may involve assaultive
behavior within a family, assaultive behavior at a school. Goal number two, this is about growth and this is about
maturity, and this is about accountability. For this very, very young population, these are qualities that come with
experience, and these are qualities that come frankly with age. And what we’re trying to do is give this young
population, give these young people the tools to make better decisions, to become more responsible, and three, if
the services are performed as set forth by the court, they will end up without a criminal conviction. These three
goals are shared by myself, the chief judge, and this is the underlying policy of the court. Now none of this could
happen unless you have a progressive prosecutor. And we are very fortunate to have Charles Hynes as the district
attorney of Kings County, who recognizes that this young population really needs to be treated a little differently.
And the services and change and growth are ultimately going to be safer for our community, and a better alternative
than jail. And I think it’s critical to recognize the incredible support that we’re getting from the defense
bar as well. Brooklyn Defender Services, the Legal Aid Society, and the private bar have devoted extraordinary resources
to ensure the success of this program.

ROB
WOLF: In the past, those crimes, those offenses that you’ve described, those all would have been handled in
a more conventional criminal court fashion, as a criminal offense?

JOSEPH GUBBAY: Absolutely. In a typical court, the case may be disposed of with a day or two of
community service cleaning up a park, but we’re trying to something much more than that. We’re trying to
provide a more nuanced approach so a lot of effort goes on in terms of an assessment to identify those specific and
particular needs of the individual that appears before us. That just cannot take place in a large all purpose traditional
court, where the volume of cases is crushing.

ROB WOLF: And I know you work closely with the Redhook Community Justice Center, which has an onsite
clinic and had extensive knowledge of community providers, social service providers, and relationships with them.
How, in fact, have they supported the work of the adolescent diversion program?

JOSEPH GUBBAY: It’s actually a two part model. My job is to identify
services and craft an offer and negotiate between the parties, between the prosecutor and the defense to make a deal
that’s going to work. Compliance is monitored by my colleague, Alex Calabrese.

ROB WOLF: So in essence, the young person comes here, appears before you,
their attorney, the prosecutor, yourself work out the plea, and then they’ll go a couple miles away to the Redhook
Community Justice Center where they might actually have onsite services, they appear before Judge Calabrese, who
monitors compliance, offers his words of encouragement, and they don’t come back here until the case is closed?
Or they never come back unless there’s a problem and they need a little shot in the arm to encourage them?

JOSEPH GUBBAY: Exactly, it’s the latter. Hopefully
then never come back to see me again. If they’re coming back to see me again, it’s because there’s
a problem.

ROB WOLF: I had a
wonderful chance to observe you in the court and I found you were very clear, you didn’t use jargon or lingo,
you seemed to really almost want it to be participatory. You asked people to raise their hand, was this their first
time here, were their family members here? Please raise your hand. You spoke directly to the defendants; you spoke
with their family members when they appeared before you did things like encourage the young person to thank their
guardian, who presumably took time off of work, made an effort to be with them. So there was a certain accessibility
there, and I also thought an attempt to really make sure that the young person understood and wasn’t just a
cog. And I wonder, is this how you always are, or is this a reflection of the fact that a young person, as you’ve
said, that they are in fact different than adults.

JOSEPH GUBBAY: I come to the adolescent diversion part having served in a felony drug treatment
court for many, many years. So I have experience in the area of recovery, in the area of providing services, and
in the area of—I want to call it—engagement. Because there are two models at work here. There’s the coercive
element. If you don’t do it, there’s gonna be a punishment. You have to do it, okay. That doesn’t
always work. There has to be engagement. There has to be internal motivation. So what I’m trying to do is, I’m
trying to communicate and get across that this is going to be something that is going to be good for you and your
family, and those you care about the most. I think it is very, very important, whether in adolescent diversion part,
or whether you’re in a conventional, traditional part, that the process is transparent. And in order for it
to be transparent, then it needs to be intelligible, it needs to be understandable, and it needs to be in a language
that’s gonna be accessible.

ROB
WOLF: So what is it like working with young people, versus your experience working, even with adults in drug court?
And what’s your feeling as the pilot moves forward? You know, has it been successful and what have you learned?

JOSEPH GUBBAY: you know, I’m very, very encouraged.
Our rough sense is that we have a very high compliance rate, somewhere around 80, 85 percent which is extraordinary.
And there needs to be some flexibility, there needs to be second chances, there may even need to be third chances.

ROB WOLF: There are nine pilots that are being carried out in different counties, including here in Kings
County, which is otherwise known as Brooklyn, with the ultimate goal, perhaps, of legislative change so that it’ll
become system wide. And I wonder how you feel about the advantages about testing it in these pilot sites before it
goes system-wide.

JOSEPH GUBBAY: The creation of a pilot program before this goes live if you
will, very sound, very prudent. And it’s exciting to be in the middle of it.

ROB WOLF: Well
it’s been exciting talking to you today. I’m Rob Wolf, Director of Communication at the Center for Court
Innovation and I’ve been speaking with Kings County Supreme Court Justice, Joseph Gubbay, who presides over
the Adolescent Diversion Program here in Brooklyn.

JOSEPH GUBBAY: Rob, thanks for having me.

ROB WOLF: To find out more about the adolescent diversion program or hear more of our podcasts, you can
visit our website at www.courtinnovation.org, or you can listen to us through iTunes. Thanks very much for listening.

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While on a visit to observe practices in New York City, Heather Munro, the chief executive of the London Probation
Trust, takes a break to discuss the challenges facing probation in both the U.S. and the United Kingdom and new initiatives,
including experiments in England and Wales with high-intensity community sentence projects (which is also the subject
of a monograph by Centre for Justice Innovation’s director Phil Bowen). November
2012

Judge Joseph Gubbay welcomes observers, including Chief
Executive Heather Munro of the London Probation Trust, into his courtroom in Brooklyn Criminal Court.

ROB WOLF: Hi, I’m Rob Wolf, Director of Communications at the Center for Court Innovation and today
we’re focusing on probation. I’m with Heather Munro, who’d visiting New York City this week from London.
She was appointed Chief Executive of London Probation Trust in 2010, which means she’s in charge of probation
for the whole city—about 70,000 offenders a year. She’s in New York City this week, learning how probation and
justice in general is carried out in the U.S., observing several of the Center for Court Innovation’s demonstration
projects. Thanks for joining today.

HEATHER MUNRO: Thank you, it’s a pleasure.

ROB WOLF: So probation at its heart is about keeping offenders accountable without sending them to jail
and if things work out well, probation is also about making sure the offender doesn’t return to offending. But
I know in the U.S. that the probation department sometimes has a hard time because of budget cuts, high case loads,
reduced resources. They have a hard time meeting those goals. I understand that in London, you’re going through
an era of change. You’re probably facing quite a few challenges of your own, and I thought maybe we could start
out by you explaining a little bit about what some of those challenges are and how you’ve been addressing them.

HEATHER MUNRO: Okay, yes. Probation in England is slightly different than in New York because we also deal
with offenders who you would normally call on parole. So we’re dealing with both community orders and parole
orders. We call them licensees.

ROB WOLF: So people who have served time in jail or prison and
are returning to the community.

HEATHER MUNRO: Yes. So we have much more of a sort of holistic—we’re
dealing with some very serious offenders, dangerous offenders who are coming out of custody, as well as the lower
level cases. And having observed New York, I think there are lots of similarities about the challenges we’re
facing. You’re right about the economic pressures, having to do more for less is a—we’ve been going through
cuts over the years but there’s also lots of differences. I think we do probably manage to have more contact
with the majority of offenders, although we are about to trial kiosks, which I know is something that’s been
part of the way they’ve managed the large numbers of cases.

ROB WOLF: Here in New York. In
other words, the offender goes to a kiosk and checks in without actually speaking to a human probation officer.

HEATHER MUNRO: Yes, yes. So we’re looking to trial that approach in a different way, I think maybe
as an incentive towards the end of an order or at a different point. So yes, some challenges around how me manage
the cases. What I’ve noticed is that, so the differences are we have probably more use of an assessment tool,
and our staff probably have more intensive training—probably because of the management of these higher risk offenders.
So it takes about 18 months to qualify. So I think it’s slightly different here.

ROB WOLF:
They go through an 18 month training process after they’ve been hired or prior to being hired?

HEATHER
MUNRO: Yeah, well they are hired on the job, so they start off as a probation service officer and then they can be
trained to become a probation officer, and that takes about 18 months on the job and academic, university work as
well. So there’s quite a lot of investment in those people, I think probably because they are managing some
very dangerous and difficult offenders in the community. But otherwise, I think there’s lots of similarities
with New York probation where I think they’re looking at working much more in the community. We are similarly
looking at how can we get our staff much more out of their offices based in the community. So it’s been fascinating
seeing the work that the Center for Court Innovation—all of those, the problem-solving, and how all of that works,
and the real work around community engagement that’s being done. So certainly one of the things we’ll be
taking back is looking at how we can get more buy-in from the community. But also do people really know what we do?
Similar things, I’m sure here, does anybody understand what it is that probation services do? They’ve heard
of us but do they know what we really do?

ROB WOLF: You had actually written an essay where you
said that there isn’t a lot of public understanding, and because of that lack of understanding, there isn’t
a lot of support for community sentences.

HEATHER MUNRO: Yes. Certainly a big thing in the U.K.
around the credibility. And the debate around punishment, and the care aspect, rehabilitation, and there’s been,
over the years, much more of a focus on the punitive elements of order. In fact, only this week there’s been
an announcement from our Ministry of Justice that every community order, probation-type order, will have an element—they
propose to have an element of punishment in there. So we use electronic monitoring, or it could be fines, or it could
be community service, or community payback. So there is a feeling that the public don’t feel that there’s
enough punishment in orders. Now those of us that work in the system probably think that’s not as accurate because
actually doing a community order can, for many offenders, be much more punishing or challenging than going to prison.
They’ve been in and out of prison, it’s very easy, things are on tap, on hand for them. It’s much
more challenging to actually have to change your behavior. So for those of us who’ve tried to lose weight or
stop smoking or whatever, you know, it’s a really difficult process and that’s what we’re often doing
with people is trying to do some difficult work with them about how to change their behavior.

ROB
WOLF: Such as what? Stopping abusing drugs or—

HEATHER MUNRO: Absolutely. Abusing drugs, thinking
differently, domestic violence.

ROB WOLF: And you do have the resources then, because that does
sound—I mean it is called intensive probation. Do you have the resources to be so intensively supervisory?

HEATHER MUNRO: Yes, we do do a lot of the intervention, so there’s a lot of work going into it. So
we run a lot of programs—cognitive behavioral programs, but what we do very much is we base our resources on risk
and need principles. So the higher the risk, and the higher the need, the more resources would go into that, so the
more intensive the work we’re doing. So we also do have people that we’re seeing less often, doing less
intensive work.

ROB WOLF: And then that ties back into your saying that you do an assessment initially,
and that’s how you determine the level of risk and the level of need?

HEATHER MUNRO: Yes.
The assessment is usually done pre-court and it is the basis of all of our work. We call it OASIS and it’s an
assessment system.

ROB WOLF: I noticed you were honorary visiting professor at the University
of Lestor, where you wrote about your interest in research and basing practice on real evidence. And I wondered if
you have been able to incorporate research into the way London Probation conducts business. It sounds like this assessment
tool is an evidence-based practice.

HEATHER MUNRO: Yes it is. I think we’ve found that at
a local level, particularly, it’s been hard to have the resources to do the research that’s needed around
the ways we work. So the one thing we’re doing is trying to build up a greater research capacity within the
trust, but also it’s looking to the evidence that’s done by academic institutions and trying to make sure
our practice is aligned with that. So we’ve done a lot of work around cognitive behavioral groups. We’re
delivering those, but the latest research around assistance theory talks about the importance of the one to one relationships
of offenders being able to see themselves as non-offenders. And so therefore what we’ve done is try to bring
in more peer mentors, more work with people who are ex-offenders so they can see role models there, and try to do
work with our staff around the importance of that one to one relationship.

ROB WOLF: One thing
that I’ve heard about from a colleague of mine, was you were looking at an intensive community order for young gang-involved
individuals. And I know that it builds on the intensive alternative to custody pilots, which our own Phil Bowen,
who directs our London office wrote about—and I’ll link to the paper that he wrote with this podcast, but I
wonder if you can tell me a little bit about why the focus on gang-involved individuals and how that works, how that’s
customized to them.

HEATHER MUNRO: Yes. I mean I think we, first of all, being entrusted in doing
something which is more responsive and different for the younger age group. We deal with people over 18, but the
18-24 year olds, having something that looks different, not that one size fits all approach. When you’re 18
you become an adult and you get the typical adult sentence. And in London the whole problem of gangs is an issue.
It’s a priority for our mayor and the police and for us. So we wanted to help with that, so that’s what
we’re hoping to do, and we’ll start talking to sentences shortly.

ROB WOLF: You started
off a little bit referring to some of the lessons you think you’ll be taking back from New York with you, about
community engagement, for example. Are there any other lessons that come to mind?

HEATHER MUNRO:
Yes. We feel that there’s a lot here around, that’s being done around immediacy, doing things much quicker,
and so we want to look at how we can try and speed up some of the ways in which we are picking people up at court,
working with some very impressive things—like in Brownsville—and others where we’ve seen, where people are seen
quickly and dealt with. So that’s one aspect. I think a more flexible approach, so that it was interesting how
certainly the judge at Red Hook was able to give very flexible sentences.

ROB WOLF: At the Red
Hook Community Justice Center? Judge Calebrese?

HEATHER MUNRO: Yes. And that was great. I really
enjoyed that visit. Also, I think this accountability bit. I think what we’ve seen here is the focus on holding
offenders or clients to account for what they’ve done, and coming back regularly, the reviews, it doesn’t
happen so much. We have some work around that with our drugs courts, but it’s not a routine as I think we could
make it, particularly with the intensive alternative to custody. That’s an option we’ve now thought about
looking at how can we hold people to account at regular intervals.

ROB WOLF: Well great. It sounds
like you’ve had a productive week.

HEATHER MUNRO: We’ve had a great time.

ROB WOLF: I’ve been speaking with Heather Munro, who is visiting New York from London. She is the Chief
Executive of London Probation Trust. I’m Rob Wolf, Director of Communications at the Center for Court Innovation.
Download our podcasts from our website at www.courtinnovation.org and from iTunes. Ms. Munro, thank you so much for
taking the time.

HEATHER MUNRO: Thank you.

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Phil Bowen, co-author of Payback
with a Purpose and director of the Centre for Justice Innovation in the U.K.,
discusses what good “community payback” (“community service” in the U.S.) should look like, comparing
the experience in the U.K. with New York City. The debate about what community payback ought
to be comes at a crucial time for probation services in England and Wales, where the Government is committed
to encouraging non-state organizations to provide community payback.

SARAH
SCHWEIG: Hi, I’m Sarah Schweig of the Center for Court Innovation and today I’m talking with Phil Bowen. Phil Bowen
is the director of the Centre for Justice Innovation in London, and international project of the Center for Court
Innovation that works to promote thoughtful criminal justice reform in the United Kingdom. Phil has just written
a new paper called Payback with a Purpose, about community service, or as it’s called in the U.K., community payback.
And so today he’s here in our New York office and will be discussing some new thinking about giving back to the community
and what it can mean for offenders and communities here in New York and overseas. Thanks for speaking with me today.

PHIL BOWEN: It’s my pleasure.

SARAH SCHWEIG: So just to start off, I think many people
would consider community service or community payback a good thing for the community, but can community payback benefit
both the neighborhood as well as the offenders, and how can it do that?

PHIL BOWEN: Sure. I mean,
I think community payback, when it’s done well, focuses on local issues of concern to a neighborhood, local problems,
whether that be gang graffiti tagging or streets that sort of feel unsafe at night. So payback should be a place
where local law enforcement agencies and local neighborhoods come together to figure out how they can use unpaid
labor to solve problems in their communities. For offenders, it’s about getting them to reflect on what it feels
like to do a good day’s work in that community and put something back on the table for the crime and the harm they’ve
caused. So I think good payback should work at both those levels, looking at how to solve problems for neighborhoods
but helping offenders to move away from a life of crime.

SARAH SCHWEIG: In this paper, Payback
with a Purpose, you mention that the community payback system is sort of at a crossroads in the U.K. Can you speak
a bit about this and maybe what led up to that, and sort of where it is now?

PHIL BOWEN: Sure,
there’s been a government policy since the election of the coalition government 2010 to look at how they can open
up statewide services to other providers, and how that’s kind of played out in the criminal justice field has been
looking at community payback in particular and thinking about, well how can we get other people to provide the service,
rather than it just being provided by the Public Health and Probation Trust. So in July the first big contract was
awarded, it was awarded to a private firm called Circo, who have partnered up with London Probation to deliver community
payback. So it is at a sort of crossroads. You’ve got opportunity where new providers can come in and maybe deliver
it a bit differently, and I guess the theory of change is, can they reduce the costs, reduce recidivism, and provide
something that’s maybe more meaningful to communities.

SARAH SCHWEIG: And I would imagine like
organization of these projects can be very complex logistically and in terms of, you know, the kind of bureaucracies
that are in charge. How do you think, considering that, considering how kind of the delivery on that level can be
kind of complicated and politicized, how do you think community payback practices can ensure that projects remain
or maybe even become more meaningful to the community? Help them be more meaningful based on the sentences that are
being fulfilled?

PHIL BOWEN: Well I guess part of the purpose of writing the paper was to reflect
on, like what’s the really important thing here? The important thing is having payback that works for communities,
that’s engaged with neighborhood associations and civic groups, and that is really driven by local needs. Part of
the point of the paper was to remind people of that because a lot of the discussion in the U.K. has been about contracts
and how the money flows, and who’s getting commissioned. So we have a concern that in that discussion about how payback
will be commissioned, people might lose the picture on what actually really matters to the victims and communities.

SARAH SCHWEIG: So you’ve been listening to some lessons learned from community service practices in New
York City. Can you speak a little about maybe some things that stood out for you, and also how they’ve helped potentially
inform the new thinking about community payback in England?

PHIL BOWEN: I mean in many ways what
the paper’s done is it documents about eight or nine key principles that should be in any good community payback
program. Some of those, in fact most of those won’t be used to practice in England, Wales. I think in many really
good projects that’s what’s happening in England and Wales. What we wanted to do is remind people of those principles
and to make sure that however the new contracts and the new providers come aboard, that has to be the core of what
they do. There’s a great opportunity for building on those principles. They can deliver something that’s even better.
I think one of the things that is striking about the New York practice, which is maybe a bit different than what
we have in England and Wales, is a lot of the Center for Court Innovation projects are based around courthouses.
So there’s a real priority on getting people right after they’ve been sentenced, putting them into an intake office
and set them up for a mandate, and that mandate is worked as quickly as possible. So the sort of idea of swift and
sure justice is one that is actually delivered here. It’s one that I think in England and Wales people embrace and
they get, but whether they’re actually able to deliver it at the moment, I think that’s in question.

SARAH
SCHWEIG: Right, right. There were some—

PHIL BOWEN: Yeah, there’s a sort of classic anecdote that
people would do one day of community services every week and it would stretch on for months and months, and then
it would take two weeks to get them started. No, I think that’s a bit of a myth these days, but I think like all
myths, there’s some truth in it.

SARAH SCHWEIG: The paper does a great job highlighting lessons
from New York and specific cases, and sort of talking about the larger picture too. So, you know, New York and London
are obviously both large urban areas. But I assume that while similar in that way, they also share many differences.
What do you think, in general, are some of the things to keep in mind about applying lessons learned from, you know,
one city to another, or one location to another?

PHIL BOWEN: I think this is a really good question
and something that we’ve struggled with on a daily basis of, you know, looking at particular projects in New York
that are in our field, how do we deliver those in London, or in the U.K. more generally? And I think, you know, one
of the key things to do is to sort of move up a level of instruction and think okay, what are the key ingredients
of making, say, the Redhook Community Justice Center work so well? It’s not necessarily about exactly following a
detailed play book. It’s thinking about, well these guys are really engaging very well with their communities, so
that’s what the core of the values should be, but part of the particularity of communities is understanding that
they’re all different and that you need to respond to those differences. So when we’re advising practitioners about
how to come up with new ideas, we always try to make sure that we’re clear about grounding, the circumstances, the
assets of your community. I mean one key difference, for example, between London and New York is we’ve got a much
bigger state sector. You’ve got National Health Service provides centralized medicine, you know? Those kinds of things,
and they are big things. So you have to always ground whatever you’re trying to do in the circumstances that face
you, rather than try to think that there’s a sort of blueprint that originated in New York and all we have to do
is follow it exactly.

SARAH SCHWEIG: Right. And so just as sort of a take away, since your paper
really addresses this sort of crossroads that’s taking place in the U.K. about public and private services being
utilized, what do you see as some of the potential advantages coming about in the future, from that partnership?

PHIL BOWEN: Well I think one of the takeaways from the New York experience is to, you know, tell a practitioner
in the U.K. that this doesn’t necessarily have to be a scary thing, that it can lead to great renovation, it can
lead to sort of dynamic partnerships with community groups and volunteer sector organizations that maybe you haven’t
worked with before. So it can actually really add value. But it’s about being really clear about what the values
and vision should be, and having that collective vision. And that’s certainly my take away from the New York experience—has
been over 15 years, has been this commitment to a particular vision of payback that’s allowed New York to go from
a position where, frankly, community payback was a bit of a neglected service to something that’s really vibrant
and dynamic. So I guess our message is embrace the change, but embrace the right circumstances.

SARAH
SCHWEIG: That’s great. Thank you so much for speaking with me today. I’m Sarah Schweig and I’ve been speaking with
Phil Bowen at the Center for Justice Innovation in London, about community payback. To find out more about the Center
for Court Innovation or the Centre for Justice Innovation, visit our website at www.courtinnovation.org. Thanks for
listening.

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