In this New Thinking podcast, Ann Johnson, an assistant district attorney and the human trafficking section
chief with the Harris County District Attorney’s Office, discusses her office’s strategies for combating
human trafficking, including increased enforcement against traffickers and buyers, and diversion from prosecution
for victims. One of the office’s diversion programs, SAFE Court, gives those aged 17 to 25 who are charged with
prostitution the opportunity to clear the charge from their criminal records by completing a year-long program of
monitoring and social services. SAFE Court was created with support from a Smart Prosecution grant from the U.S.
Department of Justice’s Bureau of Justice Assistance. To learn more, visit the Association of Prosecuting Attorney’s
Smart
Prosecution website.

ROB WOLF: Hi. I’m Rob Wolf, Director of Communications
at the Center for Court Innovation. Welcome to another New Thinking podcast. Today I am speaking with Ann Johnson,
who is an Assistant District Attorney with the Harris County District Attorney’s Office in Texas. She is also
the Human Trafficking Section Chief of that office. For those who may not realize, Harris County is where Houston
is located, very large county. Thank you very much, Miss Johnson, for joining me today.

JOHNSON:
Thank you. It’s an honor to be here. It’s an honor to speak with you on behalf of District Attorney Devon
Anderson and the other folks that are working tirelessly to combat human trafficking in the Houston area.

WOLF: You’re here today and tomorrow to observe what goes on here in New York at some courts that are
also working to address human trafficking.

JOHNSON: Yes, we are very fortunate that our SAFE court
team, which is a prostitution diversion court, our defense attorney, our probation officer, our judges and our research
partner and myself have been able to come up and visit two of your companion courts to be able to work with our peers
and exchange ideas and see about the innovations that are taking place here locally.

WOLF: Well,
as I said when I introduced you, you are the Section Chief for the Human Trafficking Division in your office. You
do have a robust program going on there as well. I wanted to talk to you about that. In particular, I thought we
could focus on what you guys are calling the SAFE court, which I understand stands for Survivors Acquiring Freedom
and Empowerment court. I was hoping you could tell me a little bit about how that court got started and what its
goals are.

JOHNSON: The vision for this court actually started about four years ago when then
District Attorney Mike Anderson hired me to come in as a human trafficking specialist. I had been with the DA’s
Office. I had left for health reasons and I was actually doing juvenile defense work and began representing children
who were charged with prostitution. Through the course of that time in private practice, not only did we challenge
a case of an individual charged with prostitution of which the Texas Supreme Court ruled in the case of IN RE: B.W.,
that children are the victims of child prostitution not the offenders.

Myself and District Attorney
Devon Anderson were actually the two founding defense members of a court called GIRLS court, which is for Growing
Independence and Restoring Lives, which assist children at risk of human trafficking, who are in our Juvenile Justice
System between the ages of 10 and 17. With this background, I came back to the DA’s Office in February of 2013
and the commitment at that time was just recognizing that Houston was well known as a hub of human trafficking and
District Attorney Anderson had this vision to see how we could best combat the issue and reenergize our focus within
the DA’s Office.

At the time, we began looking at cases of individuals charged with prostitution
because we knew from the Texas Human Trafficking Prevention Task Force report that the State Department was estimating
that we identify about 0.04% of victims in existence. We knew that we had hundreds of people being charged with the
offense of prostitution. The commitment was to start with the new vision from the legislature, which was that now
in Texas, if you are a victim of human trafficking, it’s a defense to prosecution for prostitution.

Our office has taken this commitment that that’s a defense that we value and want to assist the defense
bar in identifying. We began this new procedure of reaching out to the defense bar, talking with individuals who
were charged with prostitution and helping them identify and disclose a human trafficking defense. We’re very
proud of those efforts, but what we saw is we began to see a population of young offenders who did not technically
have that defense. Yet they got into the gang when they were 13 or 14. They don’t have high school diplomas.
At this point, they’re of an age where they’re willing, but not reaching the level of force, threat, prod
or coercion. We saw a very vulnerable population that legally we were able to prosecute, but inherently we wanted
to do something more.

District Attorney Devon Anderson sought the smart prosecution grant, with
the vision of being, of us targeting this population between 17 and 25, charged with prostitution with the companion
being that we would be evaluated by Sam Houston State University and have a research component to see if we could
come up with a way to divert these folks out of the life.

WOLF: Just to clarify, this smart prosecution
grant comes through the Department of Justice, Bureau of Justice Assistance.

JOHNSON: Correct.
We were one of the original recipients of that grant. We were very honored to be part of that initial “Smart Suite”
prosecution and glad that we could create and comply with the Department of Justice in trying to combat the issue
of the vulnerability of human trafficking for people that are caught in the Criminal Justice System.

WOLF:
Also, to clarify, you had said the statute had changed, so the other cohort of people you were talking about, if
they do have a defense of human trafficking, their cases … What happens then? They are dismissed?

JOHNSON:
They are dismissed. The legislature in Texas and people always say, because the case of B.W. was a case of first
impression and they say, “Really? All these reforms are coming out of Texas.” I say, “Absolutely.”
These reforms have come from the Texas Supreme Court, the legislature has given us incredible tools and District
Attorney Devon Anderson has been very committed to this process of leading this charge to not only identify victims,
but to better prosecute pimps and exploiters, such as johns and the demand side. That’s what we’ve been
doing in the office for the last almost four years to combat this issue of human trafficking.

If
they are technically a victim of human trafficking, we dismiss their case. They’re no longer in the Criminal
Justice System and we are dependent on those private public partnerships that can provide services. Where they legally
can be prosecuted, we are still offering them the diversion of working through the court process or working through
a pre-trial diversion contract with our office, so that ultimately their case is being dismissed.

WOLF:
Is that what the SAFE court is?

JOHNSON: That’s what SAFE court is and that’s what we
do with other populations. Our District Attorney Devon Anderson has expanded these efforts beyond this age requirement
of 17 to 25. She says in her leadership is that arrest as recovery, not as conviction. She has a vision to make sure
that we are assisting this population that maybe charged as defendants, who have an underlying vulnerability, who
need our help to get out of the game. That’s important because it not only helps the individual and stops that
revolving door in criminal justice that is not only costly to the person, but it’s costly to the community.
By doing this, we are not only helping people, but we are helping community safety in general.

WOLF:
How do you help them? What services are you offering them?

JOHNSON: When those are in our system,
are with our contract or in SAFE court, the assistance is provided for mental health services or drug treatment services.
We work with the Harris County Probation Department. They work with our private partnerships, which we are very fortunate
to have a number of key partners, such as the Houston Area Women’s Center and the Bridge and other organizations
that many other communities might find already assisting domestic violence population.

Basically
where you see other service providers who are helping those who are vulnerable in the community, that’s a key
partnership that your court can set up and establish with.

WOLF: Do you mandate that participation?
Is that how the court works?

JOHNSON: Yes. By being in the court and I’ll tell you when we
started a lot of people looked at us and said, “You guys are nuts. Why in the world would somebody sign up for
a program where they’re going to have to do basically a year-long probation, when they could take time served
and just take their conviction and go about their business?”

WOLF: It’s voluntary. You
offer them, you say, “You could get a conviction or you could do, follow this mandate and it’ll consist
of this in your case. If you do it, the charges will be dropped, but it’s more work.”

JOHNSON:
Correct. We work with the defense bar and that’s an important key component is the buy in from both the prosecutor
and the defense attorney and we give them the option. “Sure, you have the path within the Criminal Justice System
to have a conviction and go on about your business, but you have this new path, which it’s going to be a harder
walk, but the vision is once you make that walk within the year, your case is dismissed. You can seek an expunction
and not only is it like this never happened, but you have the tools that are provided to help you with those basic
necessities of shelter, of education, of drug treatment.”

People didn’t think we’d
have people sign up, but in the first year, we had many more than we thought we’d have. In fact, we’ve
had 43 so far in the court, when we promised that we would have 20 in the first year. We had such an outpouring of
requests from defendants who wanted to become clients of SAFE court that our district attorney expanded the program
to allow for this alternative pre-trial diversion.

Harris County is in a position that if somebody
wants help from our office, District Attorney Devon Anderson has said, “We’re going to find a way to give
it to you.” That it is a new vision that we are finding is allowing people the ability to get on with their
lives.

We recently had a graduation. We have graduations where we reward people and say, “We’re
glad that you’ve made it out of this program.” Our defense attorney, who works on the court was at a local
restaurant getting lunch and all of a sudden heard her name. She turned back and sure enough it was one of the clients
and one of the graduates. Of course, this individual is thriving and doing well and her children are doing well.
She’s been able to put building blocks in place to be incredibly successful. Those are the kinds of stories
that keep us going and those are the kinds of stories that we hope we can expand to a new population, who in the
old days were being convicted for an offense of which now we recognize there’s a vulnerability that we need
to help assist with.

WOLF: It sounds like you’re basically not only part of this movement
that’s redefining what a charge of prostitution means from someone who is a defendant to someone who is more
like a victim. You’re also redefining the role of a prosecutor because you’re trying to help people not
get, people who in theory have met the definition of a crime and you could technically and you do charge them in
some cases, but you’re trying to help them not have a permanent conviction of their record. That’s a very
different attitude, some might say, for a prosecutor to take.

JOHNSON: It is a different attitude
and we are proud of the fact that it is working. When we came back, and I was in a specialist position back in 2013,
you had more than 2,000 individuals that were prosecuted or charged with the offense of prostitution. At the time,
you had some 56, I’d call them pimps or people that are charged with promoting or compelling individuals into
prostitution. The district attorney’s vision has been that we do this three prong approach of identifying victims,
getting them out of the system and prosecuting pimps, exploiters, who are receiving money and those who are the demand
or the buyers.

We’ve had another very important shift, which is the legislature gave us a
tool last session and redefined the offense of prostitution. People would ask us, “How many seller and how many
buyers are you prosecuting?” Under the law, they were defined in the same way, so we didn’t have the ability
to track that.

WOLF: Everyone was charged with prostitution?

JOHNSON: Everyone
was charged with prostitution.

WOLF: Whether you were selling or buying?

JOHNSON:
Correct. We didn’t have the distinction in Texas yet, so last session we’ve had great leadership from Houston
with Representative Thompson and Senator Whitmire and Senator Huffman, who have led the charge on human trafficking
efforts and have given us this tool to say, “Okay, let’s redefine these individuals.” What we saw
last year, once the law changed, we had 90 people who were charged as buyers.

So far this year,
law enforcement has really kicked in their efforts to try to go after that demand and we’ve been very fortunate
to have great connections with the Houston Police Department and the Harris County Sheriff’s Department, who
have upped the investigation side on demand. This year, as of August 30th, we had 644 cases against johns or the
demand. That’s a critical shift and critical component, which helps us further balance out the interest between
those that are being sold, those that are buying and those individuals who are engaged in the offense of pimping.

We also have a wide variety of tools where we can charge individuals and we most often charge, which people
don’t realize, Texas has gotten this right since the 70’s and Texas had a statute of compelling prostitution
of a minor on the books since 1973. It’s a law that has been there to be utilized and we most often charge under
that offense or that crime because it’s got good case law and it’s a good provision that protects individuals
from being compelled into prostitution, whether you’re a minor or an adult.

We also have
other ranges of aggravated promotion or promotion of prostitution. So far this year, as of August 30th, we had 101
individuals that we had charged with promotion or pimping. We’ve seen a steady decline over the or a steady
decline over the last four years of sellers and an increase every year of cases against pimps, promoters for various
levels of offenses and now buyers, which we can track. It has also meant that we have increased the commitment of
prosecution and so our office is not just a specialist, but now I’m the Human Trafficking Section Chief. We
have wonderful district attorneys that work with us from our felony grade prosecutors of Ana Martinez and Chelsea
Honeycutt to our misdemeanor prosecutors that we have working on the demand side and with our overflow populations.
We now have five prosecutors, an investigator and a paralegal and many of us are on call 24/7 for law enforcement.

WOLF: You mentioned an important component of the smart prosecution grant is that there’s a research
component. That’s the smart in the, you know, that’s what makes it smart, I guess, is trying to find out
what works and what doesn’t. I wonder if there’s anything that you can share with me about the research
partner, Dr. Lisa Muftic and what she has found so far. I know her reports haven’t been finalized yet, but I
just wonder if there’s anything you can share as far as what you’ve learned about how the program’s
going.

JOHNSON: The District Attorney’s Office has attempted many reforms and there’s
a key component of recognizing that data is critical. We, as individuals, have all of these stories of people that
we work with, like the circumstance of the individual in the restaurant, who’s doing very well. We hear those
things, but then we have to look and say, “Okay, but what are our numbers? What’s the big picture?”
We are very fortunate that Dr. Muftic is evaluating our data, looking at the information and also evaluating us and
saying are we doing well and where do we need to evolve. The entire team has been open to doing that.

So
far we have had people stay on track for our four phase graduation. Of course, we’ve had people that have not
made it that we’ve had to evolve and work with and try to figure out how to best assist them. Since we’ve
had this overflow population because we’ve had so much interest, we’ve been able to provide an alternate
pre-trial diversion where they’re not getting the same level of assistance. For example, they’re not getting
the monthly interaction with the judge. They’re not getting that monthly interaction with our probation officer
and our defense attorney, who are dedicated to SAFE court.

So far, what Dr. Muftic has found is
that the population that’s in SAFE court is recidivating at about a third. That overflow population who’s
not getting the intensive services, but at the same high risk level is recidivating at about half. She tells me that
that’s a statistically important distinction. We do know which recidivism rates are something important that
people want to see, are you successful. That’s a good indication of where we’re going, but more importantly
the individual contacts that we’re having with the individuals is we see people that are coming back to the
court. We also have people who are in the court, who develop a trust level with the team and then disclose levels
of human trafficking.

When that happens, at that point, we dismiss and divert them out, but we’re
very proud of what we’ve been able to provide with regard to the trust and relationships between our team and
the clients and being able to give them a path in the future to say, “Hey, I need help.” We measure success
on many levels.

WOLF: It sounds like the fact that it’s been such a, I guess, a popular option
that people have been choosing when given that opportunity has allowed you to enhance the quality of your research
because the original, as you explained before, you can accommodate 27 people actually in the SAFE court, so that
overflow is getting not quite as intensive services and you can see that there is in fact a different long term result
in terms of recidivism. The recidivism is higher for people who aren’t getting the same intensity as the SAFE
court participants.

JOHNSON: Not just that, but the change in approach. For example, in the first
year, when we started the grant, we worked with the defense bar and let them know we, as the DA’s Office, wanted
to reach out to their defendant and see if they were an option. In the first year alone, we had 887 people who were
potentially eligible for the court and so by working with the defense bar and saying, “Hey, may I assist you
with your client? May I help you talk to them?” It opened the door to the client reaching out to us who normally
we know that this population’s vulnerable, that they haven’t had the best interaction with authorities,
that they may have had prior experiences through Children’s Protective Services or bad experiences where they’ve
been taken out of their home or put in foster care or their parents have been incarcerated. That’s usually kind
of a turn off to the system.

By being able to have that connection with the defense attorney to
open the door to the conversation, each year we’ve increased the identification of human trafficking victims.
Last year, not last year, but this year to that date of August 30th, even though we had some 1,000 individuals charged
with selling, we were able to reach out to them and so far had identified 264 victims. That’s a significant
increase over what the State Department suggests we’re doing in the normal process, so we know that this modification
in prosecutor procedure is allowing victims to not be prosecuted. We are equally as proud of that and the fact that
we are able to dismiss a case and not convict an individual. Justice takes many forms and so we’re proud that
we’ve been able to identify that and lead that charge within Harris County.

WOLF: Do they
just say, “I’m a human trafficking victim” or what’s the threshold?

JOHNSON:
Yeah. This is, I think, an interesting dilemma for many counties. One, because of what we’ve been able to do
in Harris County, we are often asked to speak with other individuals and so I’ll go to these meetings where
it’ll be state wide and people will say, “Oh, yeah. You guys in Houston, you have this issue, but we don’t
have this issue.” I’ll always say, “Well, do you have prostitution?” They’ll say, “Yeah,
well we have prostitution.”

My response is, “If you have prostitution, you have human
trafficking. It’s just a function of the type of commercial enterprise, that you’ve got to have some level
of exploitation for individuals.” I’ll have people that’ll say, “My client’s not a victim
of human trafficking.” I’ll say, “Well, how do you know?” They’ll say, “I asked, ‘Are
you a victim of human trafficking?’ And they’ll say, ‘No.'” There are many reasons they
may say, “No.” They may say, “No” because they know that they can’t disclose that information
because their pimp has told them that they can’t, but they may also say “No” because they see the
same public awareness that we do, which is usually the idea of a human trafficking victim is an international child
who’s being held in bondage and they think, “well, that’s not me. I’m 22 and I have a college
degree. Surely, I’m not a human trafficking victim.”

When we conduct our interviews,
we are asking questions, not that straight forward of “Are you a human trafficking victim?” but we ask
other questions that we know when they answer them and they disclose levels of force, threat, prod and coercion,
that they don’t realize that’s what’s happening. We then identify them as human trafficking victims.
We also have the circumstance where the word can get out on the street and say, “Hey, just tell me you’re
a human trafficking victim and your case will get dismissed.” We know that that happens as well. When we conduct
our interviews, we’re not just getting the information, but we were work to corroborate the information. We
find independent sources that corroborate what the individual’s telling us, as opposed to just having someone
telling a version of events. We work very hard to identify, not only based on what the individual’s telling
us, but other secondary information that corroborates the validity behind that.

WOLF: Sounds like
you’re doing amazing work and cutting edge work. I’ve been speaking with Ann Johnson, who is an Assistant
District Attorney in the Harris County District Attorney’s Office. She is also the Section Chief of Human Trafficking
there and that’s where they have developed this amazing model called the SAFE court, Survivors Acquiring Freedom
and Empowerment. If you want to find out more about the SAFE court, you can visit the Association for Prosecuting
Attorneys website, which is working with them on the Smart prosecution grant as well as the Center for Court Innovation’s
website www.courtinnovation.org. I’m sure they can also visit your website, which is …

JOHNSON:
Actually we are still working on our websites, but for those counties that are wanting to do this or looking for
it, the key partnership is the judge and we are very fortunate to have Judge Pam Derbyshire and Justice Bill Boyce,
who have taken this on. Judges are the key and as Doctor Muftic would say in the surveys that we do with our clients,
“Everybody loves the judge.” That’s an important component. Judges have the ability to make this happen.
The DA’s Office is a critical component as well, but there are many judges out there that could start this initiative
and they’re kind of the tip of the spear to be able to combat the issue and treat individuals in this way.

WOLF: There are some inspiring words there, judges. Thank you again for taking the time to talk with me.

JOHNSON: Thank you.

WOLF: I’m Rob Wolf, Director of Communications at the Center
for Court Innovation. Thank you for listening.

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Tshaka
Barrows, deputy director of the Burns Institute, discusses his organization’s collaborative and community-centered
approach to addressing and eliminating racial and ethnic disparities in the justice system. Barrows spoke with Robert
V. Wolf, director of communications at the Center for Court Innovation, after participating in a panel on Race and
Procedural Justice at
Justice Innovations in Times of Change on Sept. 30, 2016.

TSHAKA BARROWS: We
call it a system, but it really isn’t a system. It’s much more of a grouping of semi-autonomous agencies
that have very little accountability to each other.

ROB WOLF: Hi I’m Rob Wolf, Director of
Communications at the Center for Court Innovation and today I’m in North Haven, Connecticut at the Justice Innovation
in Times of Change conference. Sitting down with me is TShaka Barrows who is Deputy Director of the W. Haywood Burns
Institute, which works to address racial and ethnic disparities in the justice system. The institute is based in
Oakland, California. You’ve come a long way to attend the conference and participate and to sit and talk with
me, thank you very much.

BARROWS: I’m glad to be here.

WOLF: Let’s
talk about the work of the Burns Institute and in particular, how you work with jurisdictions to reduce racial and
ethnic disparities in the justice system. You have a specific approach you take to looking at this issue and trying
to address it. Maybe you could summarize for me what that approach is.

BARROWS: At the Burns Institute,
our approach is to build a collaborative of the different agencies that make up the justice system and I always tell
people, I just told the group, we call it a system, but it really isn’t a system. It’s much more of a grouping
of semi-autonomous agencies that have very little accountability to each other. The whole notion of trying to address
disparities has to be done with that context in mind because much of one agencies decision bump into the next, bump
into the next and the impact is felt by the individuals who are going through it and we see it in the disparity numbers.
To really create a strategy to address it you have to have all those key players from each of those agencies as a
part of your collaboration. We also fundamentally don’t think that just having those kind of traditional stakeholders
is enough. Our process requires that we engage meaningful participation from community stakeholders who’ve had
experience with the justice system, who live in the neighborhoods that our data shows are the target neighborhoods,
where more people are coming from, so that they can both bring that experience from having traveled through the system,
though the various agencies, being passed from one to the other, but also what it’s like living in the community
that is targeted for higher involvement for various reasons, policies, policing policies, could be that there’s
a lack of resources, any number of conditional factors.

This whole notion of creating more fair
notion of procedural justice can’t be done without accounting for that fact that certain neighborhoods are much
more highly representative in the system, our process we really aim for participation with community stakeholders,
which is very different. People are a little bit afraid of that. The idea that you’re sitting in a meeting sharing
data with people who are upset with the agency, who did not feel that they were treated fairly, who are angry about
the realities that folks in their community face, is a threatening notion for most traditional stakeholders who already
a conversation of race in this country, typically is a bit unnerving for people, it’s not like that’s a
regular practice that we have.

WOLF: And you literally bring everyone together in the same room?
That’s the process, it’s like, “Let’s all sit down together.” What does that look like,
how many people are actually sitting around a table or in a auditorium?

BARROWS: That’s a
great question. We build a collaborative and it’s a process to even build it. We don’t try to just come
in with a cookie cutter kind of prescription. We want to understand from the local players. Justice happens locally,
there’s culture. Who do they think are the key people they need to be there and how many? So sometimes we may
get huge representation from one agency, where it’s like, “You guys are kind of dominating the meeting.”
and we may need to adjust that so there’s a need to attend to the actual formation. Typically it’s, I’d
say, between 10 to 20 stakeholders depending on the size of the jurisdiction. We work in very small rural places,
they may not have a huge collaboration. I’ve worked in jurisdictions that have had up to 30 people who meet
every month, but that becomes to be a challenge in and of itself because if everybody just introduced themselves
that would take time. For us to have meaningful dialogue about certain issues in a meeting of that size, it can be
a challenge and so we really want to look for a sweet spot that allows for equal representation across the agencies
and doesn’t leave behind any one particular group.

WOLF: What happens then there, what’s
the process? You said every month, so it’s an ongoing … Are you trying to build a permanent infrastructure
for dialogue or is it a time limited, let’s meet for an x number of times to work on this?

BARROWS:
That’s another great question. Our process would be monthly, we hope as we’re setting the jurisdiction
up to maintain the process without us. We do a whole orientation to really try to help everybody to fully participate.
We don’t people just sitting there and they’re like, “I don’t know what this is, I don’t
know what’s going on,” acronyms are flying over their head. We spend time doing coach ups for the community
stakeholders and we also orient the system folks to what the meeting would be like when they have community members
there who might be more frustrated or going to ask lots of questions. Rarely, our systems stakeholder, is very good
at telling the story of their institution and how they’ve got to this point. We have also started working with
them, they’re telling a story, you’ve got to own this. You didn’t do all this, you don’t have
to apologize for the history but you need to own the fact that there were some practices that were not the best that
we were doing and we’ve been working on trying to address, because that engenders a level of respect for the
process and opens up the community to thinking that, “Okay, you really are serious about doing something different.”

WOLF: And when everyone sits down, have they already accepted the premise that there are racial and ethnic
disparities –

BARROWS: Yeah.

WOLF: Or do you also need to establish that as
the facts on the ground?

BARROWS: We will likely re-visit, lot of times people will say, “Oh
yeah, no we’ve all … We understand we have a problem.” And then it’s like, “Let’s talk
about it.” And then we start asking. “What do you think is contributing to the problem?” It’s
one thing to say, “Yeah our jail or our juvenile hall is full of people of color.” It’s another thing
to say, “And we think we have a responsibility for that, we think we’re contributing to that.” When
we ask the question, “What do you think drives this?” Everything but them usually is the response that
we get which let’s us know you probably don’t realize what this is going to feel like and you’re going
to feel like, “Well why are you guys asking us about what our decisions are?” It’s because you have
control over that, you don’t have control over external factors like Hollywood violence and movies, culture
of violence in music, or just the fact that there is this history of segregation in the country. You can’t just
undo that in your collaborative, you don’t quite have the power to say, “You know what, let’s just
change the zoning and all the ways that the neighborhoods are set up and let’s go ahead and make it so that
job discrimination doesn’t happen anymore.”

It’s like those things aren’t
really in the purview of that particular collaborative but their decision making practices are. You can control who
you violate for probation, do you send out bench warrants before actually reaching out to people in their native
language? Do you know if your court letters are landing on folks who couldn’t understand it in the first place
and so now you’re putting a warrant out for someone who never fully engaged in the information in the beginning.
So we then analyze each decision point by race, ethnicity, gender, geography, and offense. It’s a way to understand
that each decision point, what are we doing, what is the impact of our decisions, where are people going, what’s
happening?

WOLF: How do you know what the impact on all those factors you just said at each decision
point, meaning at arrest, or a decision to charge, or a decision to carry a case forward, or a decision to sentencing
or to plea. All those things are decision points right? Do you just ask people, “What do you do?” Or you’re
looking at actual hard data and numbers?

BARROWS: We first go to hard data and numbers if they
have it, often times they don’t. That is a huge problem. We’re also not researchers, this isn’t a
research project. We’re not trying to prove that our data that we’ve got is super accurate. Basically we
use what you have to try to figure out a way forward. Understanding your data might not be perfect. One issue we
see all the time is the issue of ethnicity around Latinos. Very few jurisdictions have a really great practice for
capturing Latinos within their justice system. Typically they get captured as White, so it skews the White population
up and it skews their Latino population down and it throws all the comparisons that we want to make off. There’s
a set of conditions that contribute to it because it’s an ethnic group, people speak Spanish, maybe they don’t.
There’s a lot of factors, they can be very light skin Latinos. One of the things we ask is, “Who decides?
Is it your staff? Do you ask the person directly? What’s the process for the collection of the data?”

Typically once we start to analyze it and show it back to them in meetings, we’ll start to get some
pushback, “Where did you get these numbers, what is this? This is wrong.” It’s like, “These are
your numbers, we got them from you. They may not be as accurate as they could be but this is what we have right now
so let’s get started.” We don’t want to be in the process of never ending cleaning of data, reviewing
the data, and then getting into this adaeration of the questions and throwing this, “What else do we need to
think about, what else?”, versus “I think we know enough.” There’s a tribe on our … We have
a reservation in our county and 30% of the young people in our justice system or 30% of the adults are coming from
that reservation, I think we can start there. Maybe we want a tribal affiliation and we need to go a bit deeper and
those things are helpful but that’s where we like to begin. Once we orient folks to the process, we’ll
do a history, talk about how this country started, how the justice systems are started, give everybody equal understanding
of the playing field, and then what we like to do is start actually looking at data, looking at what they have.

Like I said, we’re not a bunch of researchers. We take people’s dirty data and use it, we’re
not just going to say, ” We can’t go forward until this is pristine.” It’s like, “Well no,
this is what you have right now.” There’s tiers, so the first tier is if you think it’s not clean
enough, what do you need to do to adjust it and we can try to help with some of that but really that needs to be
owned by the jurisdiction. How do you analyze it? Is this a new practice? If it’s new, they might become defensive
when all of a sudden you’re sitting in a meeting with your peers, other agency heads, looking at data that really
shines a light on your staff’s practice in terms of making decisions and feel like, “Well wait a minute,
why is everyone looking at us?” There’s a first group to get baited scrutiny, usually it’s a little
bit raw, because this is a whole new practice. They may not even look at this data regularly internally and so there’s
not a defense in place to explain away what’s happening, there’s this kind of nervousness. That’s
a process in and of itself.

All of this takes time, none of this is fast. Our main goal is to
get to the point where we can have the group establish a target population for racial and ethnic disparities that
they want to move safely out of their system. We keep looking at the decision points, not going to pick the most
politically challenging, we’re not going to look at armed robbery, if you will. A lot of times people are not
ready to say, “Yeah, let’s move those folks out of the system safely.” We’re looking at bench
warrants, violations of probations, offenses that aren’t about overall safety at all but much more about administration
of services, but totally contribute to disparities in real ways, so you can imagine.

WOLF: So
then you get consensus and you say, “We’re going to target -“

BARROWS: We’re
going to work on these target populations.

WOLF: People who’ve violated probation or young
people or something that -“

BARROWS: We try to show it as a number per month. What I don’t
want to do is say, “Yeah, each year you have 500 violations of probation and 50% of those are Black male and
from these two neighborhoods.” Over the course of the whole year, how do you understand what your work is? What
I like to say is, “Okay, and of that per year how many is that per month? What are we actually talking about
on a monthly basis? Can we dig deeper to understand how these live?”

Now we’re looking
at each month and maybe 25, 30 people were violated. Let’s understand the nature of that, what are the probation
officer’s perspectives on this, what programs were they in? You want to then, we call it peeling back the onion,
you get down to this target. Now you want a focus group, you want to bring line staff, you want to talk to people
directly who have been in that experience and you’re looking for not just a policy change but you’re trying
to understand what kind of innovation or intervention can we come up with to move this.

WOLF:
It sounds though like it’s on a very … I don’t want to say small scale, but you have to target this group
and that group in terms of making a difference. It’s not like, “Here’s a solution.” And it ripples
throughout the whole system and disparities.

BARROWS: No, you have to monitor and track it. It’s
everything you said and you have to monitor and track – Literally we’ve come in and people said, “Yeah
we have disparities. 81% of our inmates are African American.” And it’s like, “Okay, well what else
do you know about it?” “Nothing.”

What could you do? You’re just going to
say, “Oh, let’s just release 81% of the inmates and reduce the disparity.” Nobody’s going to
do that. They get their hands tied. We have all this big picture data, annual shots, none of it helps people to know
what to do to move forward. We’ve developed a strategy and approach that really breaks it down into workable
pieces and we even have a slide that we go through that really shows people if it’s a state law and that’s
the reason why this person is locked up, you can’t change that. But if it’s a policy that you just detain
people for this because you feel strongly, well you can stop that tomorrow. That’s just an internal office policy,
that’s not a state law. Understanding how these things play out is really crucial but it takes time, it takes
that investigative work. You have to include the people who do the work on the day to day, the line staff not just
the supervisors and managers, these are people that are trying to make it work.

WOLF: I want to
ask one more question but I think it’s probably a complicated one that has a long answer. How do deal with the
issue of implicit bias? Everything that you’ve described to me is something you could see on paper and go, “Oh,
look at this number, look at this policy, you put these together and that equals a disproportionate or disparity.”
What about these things that are more intangible yet that we know impact at these decision points. Why someone, they
decide to charge someone with … Give someone a higher charge and someone not a higher charge. If there is bias
involved and it’s happening in the back of their heads and they don’t even know it, how do you address
that?

BARROWS: Well because we can do case level analysis we can could show two similar situations
and say, “Let’s talk about … How did you make this decision here? Why did you make this decision?”
And not try to label someone and say, “We’ve caught you.” We’d rather show them what they’re
doing and see if they themselves can see these patterns. We also bring in community people in the meeting you are
going to naturally see those patterns because that’s their experience. They’ll ask the question very directly
to say, “I don’t think that that makes sense.” You need that person who’s not going to play so
much by the rules to say, “Why do we do that? That doesn’t seem to make sense.” or “Why is that
in this neighborhood?”

I’ll give you an example. In one city we worked in, in a particular
area of town, any Latino kid with a marker was considered in a gang and was writing gang messages on the walls and
creating potential shootings. It was a narrative that turned into an automatic hold for any Latino kid with a Sharpie.
Somewhere there’s bias loaded into that but if you just came in the door and said, “You guys are racists
and you’re picking on Latino males,” you’re going to run into a lot of opposition. It’s another
thing to start peeling it back to say, okay, well this is some of what we’re hearing from your own staff, public
defenders, certain judges see these kids with markers and they think gang membership. Everybody kind of follows suit
but when we’ve actually looked at it, that’s not the case. And try to come at it in a way where people
are going to be able to listen and hear.

WOLF: Absolutely fascinating, sounds like you’re
doing amazing work.

BARROWS: Trying to, trying to.

WOLF: They’re very
difficult and complicated issues.

BARROWS: Yeah.

WOLF: I’ve been speaking
with Tshaka Barrows who’s the Deputy Director at the Burns Institute in Oakland, California which is working
to address and diminish and eradicate racial and ethnic disparities in the criminal justice system. Thank you so
much for taking the time to talk with me.

BARROWS: Thank you.

WOLF: I’m
Rob Wolf, Director of Communications at the Center for Court Innovation here at the Quinnipiac University School
of Law for our Justice Conference and thank you very much for listening.

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In this New Thinking podcast, Reuben J. Miller, assistant professor of social work at the University of Michigan,
and his research collaborator Hazelette Crosby-Robinson discuss some of the criticisms that have been leveled against
risk assessment tools. Those criticisms include placing too much emphasis on geography and criminal history, which
can distort the actual risk for clients from neighborhoods that experience an above-average presence of policing
and social services. “Geography is often a proxy for race,” Miller says. Miller and Crosby-Robinson spoke
with the Center for Court Innovation’s Director of Communications Robert V. Wolf after they participated in
a panel on the “The Risk-Needs-Responsivity Framework”  at Justice Innovation in Times of Change, a regional summit on Sept. 30, 2016
in North Haven, Conn.

Reuben J. Miller,
assistant professor of social work at the University of Michigan, and his research collaborator Hazelette Crosby-Robinson
participate in a panel at “Justice Innovation in Times of Change,” a regional summit.

WOLF: Hi, I’m Rob Wolf, Director of Communications
at the Center for Court Innovation and today with me at the Justice Innovation in Times of Change Conference here
at the Quinnipiac School of Law in North Haven, Connecticut are two of the panelists who participated in a discussion
about risk needs assessment tools. They are Professor Reuben Miller, who is an assistant professor of social work
at the School of Social Work at the University of Michigan and his research assistant at the School of Social Work,
Hazelette Crosby-Robinson.  Thank you so much for taking the time after your panel to sit down and talk
with me.

MILLER: Thank you for having us.

WOLF: So, I wanted to
just start off talking about the risk assessment tools and some of the criticisms that have been leveled against
them because, as we heard on the panel from Sarah Fritsche, a colleague of mine at the Center for Court Innovation,
their use has exploded and they’ve been embraced as a decision-making tool in the criminal justice setting.

MILLER: Sure.

WOLF: But you raised some potential concerns about them and some of their
limitations and I wondered if you could share what some of those limitations are as you see them.

MILLER:
Sure, I’m happy to. So, Hazelette is my research associate and collaborator. She’s super modest.

So, I’d like to first preface this by saying, some scholars have suggested that we’ve really entered
an actuarial age. So it’s not just risk assessment in criminal justice, but a whole cost benefits calculus,
a whole risk calculus that’s based on actuarial models that try to predict future harm. So they try to predict,
much like an insurance company would try to predict the future risk of a car accident. In a criminal justice setting,
these risk needs assessments are trying to, one, gauge the needs of incarcerated individuals or people who have been
convicted of a crime to try to figure out where they could shore up deficits in their skill sets or in their general
stability. So for example, they might examine things like housing stability, or whether or not one was employed,
or what kinds of service needs they may have. So for example, if one has a history of substance use and abuse, that
would indicate that they need treatment or some sort of intervention based around these things.

And
at the same time, they’re trying to gauge the risk of re-offense, so the risk that they will commit a crime.
So there are a number of criticisms. The literature that engages this is fairly long. I tend to think about some
of the movers and shakers in this field, Kelly Hannah-Moffat, Bernard Harcourt, Sonia Star, Faye Taxman. Faye Taxman’s
work is actually helping us to think about important ways that we can implement risk assessment that reduce some
of the biases that are sort of baked into it, but just to talk about some of the critiques that have come from this
literature and of course my own, on the one hand there are static factors like where one lives, so geography, their
prior criminal history. These are things that they can’t avoid. And the privileging of recidivism as an indicator
of success. These are all problematic for the following reasons.

So geography is often a proxy
for race. We know that we live in a country that has a pattern of residential racial segregation. And we know that
policing and criminal justice resources of all kinds are overwhelmingly distributed in areas where poor people of
color tend to live. The problem is, people are now being arrested from, returned to, and even given programs designed
to rehabilitate them all within low income communities. Very bounded geographic districts. And so what you get is,
you get the overwhelming concentration of criminal justice resources, and you get a signaling of what that all means.
So if the substance abuse treatment house is located in a neighborhood, then that tells me that there’s substance
abusers there. Right? And so that signals narcotics forces to the community. It says something about the community.
Halfway houses are also overwhelmingly there. And so one must think about what the concentration of these things
do. So now okay, as it relates to risk. Being in a neighborhood like this triggers a higher risk score. It is indeed
one of the measures of risk, and so in that way it’s a proxy for race. Sorry, I know I’m talking quite
a bit, but –

WOLF: No, and just to kind of summarize though, or to recap what you’ve said
so far, the way risk assessment tools work, they place a high value on the location someone’s from. They place
a high value on their history with arrest.

MILLER: That’s absolutely right.

WOLF:
And so, if there’s a preponderance of enforcement there, some people are more likely to have an arrest record
or –

MILLER: The study from Stop and Frisk made this abundantly clear. That even when people aren’t
doing anything wrong they’re being overwhelmingly stopped if they’re black or Latino. And so we know that
criminal justice contact increases the likelihood that one will be arrested. And so anyway, this is a big problem
of using prior arrest records for example and even prior conviction records, so now you’ve got a bunch of arrests.
By the time you get to the prosecuting attorney, they’re going to say, Look, you’ve been arrested 14 times.
“Well, I’ve been arrested 14 times but never charged.” No, but you have a history of arrest, and so
I’m going to now charge you because I see a pattern. This is how statistical discrimination might work, or does
in fact work in practice. So now the prosecuting attorney sees a pattern. Sends it before the judge, who looks at
this pattern and interprets it to make a decision about the length of the sentence when the conviction is read, as
is a jury if it ever goes to trial. 97% of cases never go to trial, but when it goes to trial, juries are presented
with the same evidence of patterns which have more to do with where the police are concentrated than what people
are actually doing.

WOLF: So what do you say to the notion that these instruments are validated?
That they predict? This information, whether there’s a potential bias incorporated into them, they still can
predict six months to a year out whether someone is going to recommit a crime.

MILLER: Yes, with
great reliability. But it’s a population being normed against itself. And so, overwhelmingly concentrate criminal
justice resources in a particular neighborhood, which leads to more arrests, which leads to more convictions, which
leads to more imprisonment. Then I look at those who were imprisoned, and I use that to validate my measures. So
the problem, is this sort of self-fulfilling prophecy, this feedback loop, this is one problem.

Another
problem is that, and Kelly Hannah-Moffat points this out brilliantly, correlation and causation are very different
things. It’s like the standard social science response that any bench chair social scientist gives when they
look at two relationships and people use that as some sort of cause, but likelihood that particular groups of people
are more likely to commit a crime, doesn’t mean that having committed a crime in the past means you actually
will commit a crime. And so what we’re doing is, we’re treating relationship as if it’s a cause, as
if it’s a fact. And so I will sentence you now based on my assumption of your future danger to commit a crime
based on a set of assumptions that I use to justify the overwhelming concentration of police to begin with. Police
aren’t the culprits here. It’s a rationality, it’s a way to approach problems, that I think must be critically
investigated.

WOLF: And you also pointed out in your presentation that perhaps the cultural context,
the environment and the changing policy culture where for instance, marijuana arrest which were so vigorously pursued
several years ago are now considered a low priority, or they’re not even being done anymore. And yet, people
have a record of those arrests and if history of arrest is a factor, someone in the audience also questioned this,
should we drop those particular kind of arrests as a factor because we don’t care about them anymore? Do they
indicate further likelihood of going against the law or are they just something someone did because they like marijuana
and that’s it?

MILLER: That’s right. And this is a part of the rigidity of risk assessment.
This is rigidity of risk categories. So to place one in a category, you are an offender. And in Michigan, where I’ve
done a lot of research and where I’ve worked, habitual offenses … and it’s not like this in Michigan,
but it’s like this in many, many states, most states I would argue … being a habitual offender means more
time, greater risk, more punishment.

CROSBY-ROBINSON: Up to life.

MILLER: Absolutely.
So what does it mean to habituate? What am I looking at? Well, if I’m not being careful about the criminal codes,
if I’m not carefully examining what I considered a crime at a given moment in time, and adjusting my instrument
for that. Which must happen, probably, annually. If I’m not adjusting my instrument for that, if not quarterly. If
I’m not adjusting that for different understandings of what is right and wrong, then what I’ll end up doing
is habituating someone. Giving them longer sentences, giving them harsher treatment, deeper levels of punishment,
or indicating they need deeper levels of intervention.

WOLF: So tell me what recommendations you’d
make. Because you also made a point in the panel that there are some good things about risk assessment. They do take
away discretion form judges or people whose own bias might lead them to make the wrong decisions?

MILLER:
Absolutely. The benefit of risk assessment is to use it to avoid the criminal record to begin with. This one bit
of it. So if you have low risk, low leverages, as my colleague pointed out earlier today, then you are not indicated
for intervention of any kind. And it’s better to just release these folks without intervention of any kind.

WOLF: Right, and that’s what the research supports.

MILLER: The research supports
it, absolutely. So what risk assessment allows … the careful prosecutor, judge, public defender, et cetera to do
is to remove some of the discretion, because much of the decisions that are being made are based on a gut feeling.
So I am reading something in the defendant. They don’t have remorse, or they haven’t shown accountability
for their actions, or they have, as one of the panelists raised, belligerent interactions, let’s say with their
parent or the prosecuting attorney or the defendant. And my assessment is happening divorced from what it means to
actually be in court in that moment in time. How might a child, 17 years old, respond to facing 20 years in prison?
How should they respond? Should they be depressed, sad, angry, avoidant? What are our expectations in this moment.
And so risk assessment, what it allows us to do is say, Okay, let me take a step back, let me look at what actually
happened. Let me get away from my intuition, let me think about a more objective way to assess how this defendant
should be treated.

An interesting note … So here it is. We can use smart risk assessments to
think carefully and critically about how we treat offenders, what level of intervention that we lay out whether that
intervention be prison, or jail time, or a diversion program, or a treatment group. There’s no perfect way to
do this which is why constant reevaluation is necessary. You can’t settle, this is the instrument for me. You
can’t settle. It’s not the instrument for you –

CROSBY-ROBINSON: Continuous improvement.

MILLER: Continuous improvement.

WOLF: And maybe testing … if I understood what Sarah
Fritchey said, my colleague the researcher for the Center of Court Innovation, that you also can test these instruments
within certain populations and see, are they producing more negative outcomes for an African-American population?
And ask these questions that you’re asking to weed out the bias that might be built into that.

MILLER:
Absolutely. The questions that we’re raising are in some ways a set of philosophical questions but they’re
questions about the application, the use of, the embrace of, instruments to determine whether or not someone is a
future danger. Perhaps this is just the wrong approach altogether. Not the risk assessment … not that one doesn’t
need to think about ways that they can help predict behaviors of individuals. I think that’s useful in some
ways, but it certainly needs to be challenged, it needs to be questioned. What am I predicting? Who am I predicting
this for? What are the possibilities for this person once these predictions are made? These are questions that need
to be addressed.

WOLF: So, Miss Crosby-Robinson, let me ask you, as we talk about these kinds
of assessments, you bring to bear your own set of experiences with the correctional system as a researcher and you’re
own past history which you refer to on the panel as someone who had been formerly incarcerated. And I wonder what
insights that had allowed you to bring to bear to this notion? Presumably a long time ago they didn’t have these
risk assessments, I don’t know … when you were initially had your first contact with the correctional system,
the justice system. And now they do and you’ve had a lot of contact and opportunity to interview and spend time
with people are incarcerated and I wonder where you come down on this issue?

CROSBY-ROBINSON:
Well, first of all, I think it’s a good idea to have a risk assessment, as Ruben has said earlier, because it
removes some of this pressure from judges and prosecutors to make these decisions based on their own personal bias
or how they’re feeling at the time. But what it does not account for are all of the little various innuendos
that a person is going through when they come out. Family reunification can create a stressor. If somebody’s
coming out and they have to be paroled to a family address, a suitable relative for placement. So they’re coming
to this family address, but the family address that the parole officers decided that the person can parole to is
not really the best environment, and sometimes the issues that they had that led to their incarceration stem from
the family issues that they were having at the time. Or it’s not in the right environment or they don’t
have really enough support from their family. And things happen because lives are fluid and things change.

For instance, we interviewed a person who was 17 years old and she was pregnant. She had a mental illness,
she’d been in the mental health system since she was 8 years old. She lived with her grandmother. We interviewed
people three times, as soon as they were discharged and then 30 days after they’d been out. Then 60 days and
90 days. And so, following her, by the time we got to her third interview, her grandmother dies. She’s living
in her grandmother’s house. This is the only stable person she’s known in her life. Her grandmother has
raised her since 9 years old. She just had a baby, the baby isn’t even a year old yet. Now she’s 18 years
old, she has a mental illness, and she’s relying on that system to become her support now where her grandmother
was everything. Well, these are things that a risk assessment would just not pick up. Because you never know what’s
going to happen. So now what happens to this individual? We’re at the end of the time that we follow this person
for our study. But you know, the question is in our mind, what happens?

And another thing that
I find frustrating, is no matter what your risk assessment is and if you get it right or not, then when a person
who gets out into the community, whatever the risk assessment decided that they need as a support or an intervention,
there’s no community resource for that.

WOLF: The theme I’m hearing from both of you
is that these risk needs assessment tools cannot be judged or effectively used apart from the environment, whether
it’s the environment that created the measurements of risk, or the needs. Because if you can identify the needs
and say great, but if you don’t have the resources in the community it’s meaningless information.

MILLER: So, Faye Taxman has a great paper. She finds that, on the need side of things, substance abuse treatment
is indicated in about 90% of the folks who were justice involved, but the capacity to provide the treatment, either
in prison or out. Something like 25% of folks in prison were able to actively engage in regular substance abuse treatment
that needed it. And so what this does is it creates another deficiency that one might judge or regard as a part of
the risk of this individual recidivate. Did you complete programming? What was programming available, either in prison
or out?

WOLF: Well, this had been a very vigorous and interesting conversation and I really appreciate
you’re both taking the time to speak to me about your work.

MILLER: Yeah, thanks for having
us.

WOLF: So, I’ve been speaking with Professor Reuben Miller, assistant professor of social
work at the School of Social Work at the University of Michigan and his research assistant and collaborator, Hazelette
Crosby-Robinson and we’re all here today in New Haven at Quinnipiac University school of law for the Conference
of Justice Innovation in Times of Change, which is sponsored by the Center for Court Innovation and the Department
of Justice’s Bureau of Justice Assistance and hosted by Quinnipiac University. You can find out more about risk
needs assessment and criminal justice reform in general at our website, www.courtinnovation.org. I’m Rob Wolf,
thanks for listening. 

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In this New Thinking podcast, Judge Jeffrey Kremers of the Milwaukee County Circuit Court
brings procedural justice to bear on domestic violence. Sharing his insights from the bench, Judge Kremers talks
about the importance of procedural justice for both defendants and survivors as well as their families, and discusses
strategies for addressing the unique challenges posed by domestic violence cases.

This podcast was supported by Grant No. 2015-TA-AX-K023 awarded
by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, or recommendations expressed
in this podcast are those of the speakers and do not necessarily reflect the views of the Department of Justice,
Office on Violence Against Women.

AVNI MAJITHIA-SEJPAL: Hello. You’re
listening to the New Thinking podcast. I’m Avni Majithia-Sejpal from the Center for Court Innovation. Today,
I’m joined by Judge Jeffrey Kremers. He is a judge of the Milwaukee County Circuit Court in Wisconsin, and we
will be talking about the intersections of procedural justice and domestic violence. Judge Kremers, welcome.

JUDGE JEFFREY KREMERS: Thank you. I’m glad to take part in this podcast this afternoon.

MAJITHIA-SEJPAL:
Let’s start with procedural justice, which refers to the experiences of defendants, litigants, victims, and
others within the justice system, and suggests that these experiences have a direct impact on justice. Procedural
justice emphasizes the importance of good communication, clarity, respect, and objectivity or freedom from bias.
Research has shown that when people believe that they were treated fairly, they’re more likely to comply with
court orders regardless of the outcome of their cases.

So, Judge Kremers, why is procedural justice
important to you, and in your experience as a judge, have you witnessed its impact on the people in cases who come
through your court?

KREMERS: Our mantra in the criminal courts in Milwaukee is that every interaction
is an opportunity to reduce harm. If that’s our goal, to not only do justice, but also more importantly in terms
of your question, be perceived as doing justice, then I want to make sure that people have a voice, meaning they
can be heard, that we understand each other, that is they understand what I am telling them, and I understand what
they are telling me or asking me. That the court system is neutral in all respects, that’s gender neutral, race
neutral, wealth-based neutrality, and that everyone from defendants, victims, witnesses, staff, lawyers, the public,
are all treated respectfully. Then, of course, I need to use the tenants of procedural justice.

MAJITHIA-SEJPAL:
Over the years, you have worked extensively with the issue of domestic violence and have presided over a specialized
domestic violence court. What are the typical cases that you see?

KREMERS: I preside in a criminal
court, which means I handle any criminal case from a disorderly conduct up through attempt murder, where the parties
involved have been in a domestic relationship, meaning they’ve either lived together or they have a child together,
and the criminal act is between those two parties. They might be married, in which case there may be a parallel family
court case going on, which seek to resolve the issues of custody or visitation or physical placement of the children.
There might be a civil order of protection or an injunction in place, which will also be impacted by the criminal
case. There very often are children involved, so children’s court may be involved, the Bureau of Child Welfare
may be involved.

All of those other parts of the system may impact what we’re doing, but
in my court, the focus is on whether or not the State can prove the criminal allegations they’ve brought against
the defendant. That also brings into play issues of no contact and the fact that, in many cases, the defendant is
the bread winner in the family, so there are issues of financial support for the victim. There’s emotional support.
All of those things can come into play in the handling of a criminal case.

MAJITHIA-SEJPAL: How
would you say procedural justice can apply to cases like this, especially when there are families and children involved,
and safety is a primary concern?

KREMERS: Safety is always the number one concern in any domestic
violence case, but at the same time, we’re dealing with a very complicated situation because in every other
kind of criminal case, or almost every other kind of criminal case, the victim and the defendant are strangers or
at least don’t have the same dynamics as a domestic violence kind of case. But here, there are very mixed feelings
that the victim comes in with, and sometimes they just want the violence to stop. They really don’t want the
defendant to go to prison or jail. They still love the person. They still want the person to be around for the children.
So there are these kinds of mixed emotions on the part of victims.

In addition, our system of
justice gives out mixed messages. In family court, or even in children’s court, the idea is how do we unify
these two parties or this family? How do we get them back together? Whereas in a criminal case, the push is more
towards how do we separate them safely? How do we get this victim to move on, or the defendant to move on, where
the victim doesn’t want to be in contact with the person anymore? So the messages are kind of mixed between
what they might hear in family court, family unification, and what they hear in the criminal court, no contact. That
is a difficult conversation to have and a difficult path to weave as you handle the case.

It’s
all the more critical that we employ the really strong principles of procedural justice because it’s how you
say it and how you explain it that become so critical to both parties, the defendant and the victim, and anybody
else who’s connected to the case.

MAJITHIA-SEJPAL: When you’re concerned about the safety
of victims in your courtroom, how do you balance the victims against the defendants, particularly with the view of
asserting your neutral position?

KREMERS: The way I would respond to that is to say that I don’t
believe there’s anything incompatible with the principles of procedural justice in addressing both victims’
safety and defender accountability. I think we can do both if we focus on how we address the issues that are before
the court, and keep in mind those principles that I stated before of voice, and neutrality, and understanding, and
respect, and therefore, focus on how we do what we do in court and not so much on the what or the why. Those are
important, obviously. Determining what somebody did, whether it amounts to a criminal violation or not, and why they
did it, in terms of focusing on an appropriate sentence, are all obviously critical to the outcome of the case.

But equally critical is how we go about doing that. The relationships that bring people to our court are
almost never single incident cases, and you cannot address the event that’s in front of you without an understanding
of the relationship that brought the people to you. If you can’t talk to people and get them to tell you what’s
going on in a way that they feel safe telling, they feel like they’re being heard, then you really don’t
understand the context, and therefore, can’t really address the situation no matter what the outcome of the
case is.

MAJITHIA-SEJPAL: Procedural justice is usually framed from the perspective of defendants,
but with domestic violence cases, victims are extremely important to the case. What are some of the challenges that
you think they face within the court system?

KREMERS: One of the biggest challenges that victims
face, for example, is the notion that “Why did she stay with him? Why did she dismiss a protection order? Why
didn’t she cooperate last time he was charged with beating her up? And why should we believe her now? Or why
should the system help her now when she didn’t give us an opportunity to help her before?” It’s almost
paternalistic, and it comes back to them in the form of prejudice or bias.

If I’ve learned
anything about procedural fairness, it is that it really applies to everyone who comes in contact with the court
system, from victims, defendants, lawyers, witnesses, the public, the staff, everyone. We have to develop strategies
that focus on the needs and the import of each of those individuals or groups of individuals, so that signage and
how we treat people when they come in the building to primarily how our staff in the courts treats people.

With respect to victims and their children, we have had problems. Certainly every court that I’ve been
in has had problems with how victims get treated in the courts, and that’s at the clerk’s officer when
they’re filling out paperwork, and the district attorney’s office, and the courts themselves when they
check in. Whether it’s the bailiff or the clerk of court or the court reporter, they all have to understand
that their body language, their facial expressions, the way they answer questions, are all critical events in the
life of that victim. The challenge for us in the system is to treat every single case as though it’s the first
one we’ve ever heard, but with the experience of all the cases we’ve ever heard behind us.

MAJITHIA-SEJPAL:
What about challenges to do with paperwork, technical language?

KREMERS: Within our system, most
of those issues are addressed because the district attorney’s office has a very strong victim advocate program
where every victim in a domestic violence case is assigned an advocate who helps them navigate the court system.
So if there are papers that need to be filled out for victim compensation, for example, or if they want to get a
restraining order or an injunction, there’s another set of advocates. When they come to court, the victim advocate
is there, and they have a separate waiting room where they can wait and not sit in the courtroom in the presence
of the defendant or his family or friends or whatever the case may be. That kind of a support system for victims,
I think is critical.

MAJITHIA-SEJPAL: Do you come across victims who are also dealing with questions
of immigration? How does that complicate domestic violence cases, and particularly the question of procedural justice?

KREMERS: We deal with a number of victims and defendants who have immigration issues. It is a significant
complicating issue in those cases. Victims are very reticent to participate or cooperate because they’re afraid
that they’re going to be deported or held. And that’s just the ones who we know about. There are lots of
other instances of domestic violence where there are immigration issues, and the victim doesn’t even report
it to the police because they’re afraid. And, of course, the victim plays on that, and I’ve seen it in
court. I had a case last week where the victim indicated that the defendant was holding her papers and would not
give them back unless she dropped the charges. So I had to address that by telling him that we were going to have
a bail hearing, and if the victim doesn’t have all of her papers back they then, I would consider that as an
aggravating factor in determining his bail. So it’s a complicating factor.

I think more than
and bigger than immigration issue is cultural competence. It’s one thing to understand the immigration implications
of what’s going on, but it’s even a bigger question for us to understand what the cultural issues are:
Why do they act the way they do in court? Why do they come into the court the way they do? Why do they not come into
court? What is their expectation? It’s particularly heightened in those communities that are very close-knit
and relatively compact. I think it’s incumbent on judges and staff to be culturally competent and to see how
those issues play out not only in the way they act in court, but also what our culture is and how we, therefore,
interpret what they do, or how we see what they do, or how we hear what they say. Because if we’re letting our
culture get in the way of understanding their culture, then procedural justice just goes out the window.

MAJITHIA-SEJPAL: As faculty at the National Judicial Institute on Domestic Violence, you’ve been involved
in efforts to train other judges. Can you talk about what you pass on to judges regarding domestic violence and procedural
justice?

KREMERS: I’d go back to my first answer about making sure they understand what the
principles of procedural justice are in terms of neutrality, and voice, and respect, and understanding, and that
judges understand the context of what’s happening in front of them. That they learn how to listen and not assume.
I think it’s critical to understand that how you talk to a defendant or a victim has a lot of say, I believe,
about whether they’re going to come back in your court. We know that domestic violence is a learned behavior,
so if they can learn it, they can unlearn it, and that starts with how they are treated in court. If I just call
them a name and talk down to them, or be disrespectful to them, you can see it in their eyes. They just shut down.

I watched a judge do a guilty plea one time, and if I gave you the transcript of the guilty plea, you’d
say “That was perfect. He asked every question he should have asked, and he got a ‘yes’ and a ‘no’
answer every place he should.” But I was sitting in that courtroom, and I watched the judge do it. He never
once looked at the defendant. Never once. He was just on autopilot. When that defendant got up and walked past me,
he didn’t know I was a judge, he’s just talking out of the courtroom with some family member, and he said,
“That,” using a profanity, “never looked at me, didn’t pay any attention to me.” That’s
a perfect example of an opportunity lost to try and make a connection with a defendant.

So I always
ask defendants, “Why do you think this happened? What do you think you need to do to change?” I then will
talk to them about what they said to me, and why they did what they did, and what caused it. Now they’re in
a position where they’re willing to listen and to talk about it. That’s the kind of message that I try
and give to the judges at the institute.

The last one, I guess, that I say again and again is
every interaction you have with the defendant and the victim is an opportunity to reduce harm in your community.
Don’t waste that opportunity.

MAJITHIA-SEJPAL: On that concluding note, Judge Kremers, thank
you for sharing your experiences and insights on this very complex subject.

KREMERS: Thank you.
It’s my pleasure.

MAJITHIA-SEJPAL: This is Avni Majithia-Sejpal, and you’ve been listening
to the New Thinking podcast. To hear more of our podcasts, you can visit www.courtinnovation.org. Thanks for joining
us. 

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Private foundations are an overlooked resource for innovative justice programs.  James H. Lewis, senior
program officer and director of research and evaluation at the Chicago
Community Trust, offers insight into how foundations make funding decisions and shares tips for attracting
foundation investments in justice programs. The interview was conducted by the Center for Court Innovation’s
Director of Communications Robert V. Wolf at Community Justice 2016, where Lewis participated in a panel on “Funding
Change.”

JAMES H. LEWIS: Individual foundations generally can be more flexible and
creative in what they’re doing than government can because you don’t have, the accountability is to a much
smaller group of people in a foundation who can make their own decisions, because it is private money and not taxpayer
money.

ROB WOLF: Hi. I’m Rob Wolf, Director of Communications at the Center for Court Innovation
and I am at Community Justice 2016 in Chicago, Illinois where over 400 people have gathered to talk about justice
reform and are sharing strategies for how they can improve the justice system.

Right now I’m
sitting down with someone who participated in a break-out session that focused particularly on funding. James H.
Lewis is the Senior Program Officer and Director of Research and Evaluation at the Chicago Community Trust. And,
James, I thought maybe you could just briefly explain to listeners what the Chicago Community Trust is.

LEWIS: The Chicago Community Trust is the Chicago region’s community foundation and community foundations
are an aggregation of different gifts from families and individuals that are made for the benefit of a specific place.
And we take those together, we manage those funds, and then make grants from them just as any foundation would.

It’s distinctive because the corpus of our money does come from a lot of different families rather
than from a single family, like the Ford Foundation, the Rockefeller Foundation, the Gates Foundation where it’s
a single family that gave. We are about 800 of those combined.

But we make grants like anyone
else. They do need to be for projects that are predominantly to the benefit of residents of Cook County here in Illinois.

WOLF: You do in fact have a geographic focus, Cook County which is where Chicago is located and surrounding
suburbs?

LEWIS: Yeah, yeah. Most community foundations are chartered that way, but a lot of family
ones are too. Chicago has a lot of just what you would think of as conventional foundations that have in their mission
that they serve residents of Chicago or residents of a particular suburb or wherever that family had value.

WOLF: We’re here at Community Justice 2016 so the word community, I don’t think is a superficial
nexus here, community justice programs often have a geographic focus as well. So I wonder, as programs that are activated
by notions of community justice and they are focusing on particular neighborhoods, does it make sense for them to
look and see if there is a community trust or a community foundation that might be servicing the same neighborhood?
Is there a natural synchronicity there and might that be a potentially successful route for them to find funding?

LEWIS: I think they should certainly look to see that. Community foundations in different communities really
vary by how much discretionary giving they have. We’re fortunate to have an awful lot of unrestricted money
that we can use for projects of our own choosing. Many community foundations are much more donor driven, and so the
donors have left instructions with the foundation on how to spend it and in those cases there is less room for creativity
in what you’re going to do. So while I think it’s great for anybody with a project to look to their local
community foundation, I certainly wouldn’t limit myself to that. I would also investigate other foundations
of any sort that had in their mission to serve that neighborhood, community, city, region as a priority.

WOLF: Basically, you’re a foundation like any foundation then. That’s kind of what you were saying.

LEWIS: Yeah, from the grantee’s point of view, from the applicant’s point of view we look like
any other. We have guidelines, we have applications, we make grant decisions periodically through the year. So from
the outside we look like any other foundation.

WOLF: And so do you have any advice or suggestions
for community justice initiatives, many of them are government or court or maybe police or prosecutor lead programs.
They might not necessarily be eligible to obtain grant money, but they may have partners, non-profit partners that
are, and they may be less familiar with reaching out to a private foundation than they are perhaps reaching out to
the government or the Department of Justice to apply for grants. So do you have any advice for them about approaching
a foundation versus perhaps a government agency to obtain or apply for money?

LEWIS: Yeah. I think
the main difference is that individual foundations generally can be more flexible and creative with what they’re
doing than government can because you don’t have, the accountability is to a much smaller group of people in
a foundation who can make their own decisions because it is private money and not taxpayer money. And so those individual
foundations aren’t bound by the same kinds of laws and rules and appropriations and budgets that governments
are. The decisions within the foundation on which projects to make grants on aren’t bound by generally a blind
reading of the applications or a jury decision, those kinds of things that are typical of the way government RFPs
are usually done.

It’s much more about whether in the view of a program officer or an executive
director of that foundation whether something that’s proposed makes sense to them, is something that they think
is going to be impactful, something they think that their board of directors of their foundation will be proud to
have their money on. So I think it’s a place to take, my advice is to take your creative ideas, take the things
that you don’t think the government will fund, take the things that might be a little risky, those kinds of
things are the things the foundations do best.

WOLF: And it sounds like there’s more of a
human touch there you’re saying, rather than there being a blind review process. You’re more directly engaged.
Would you perhaps visit a place before you give them a grant rather than just taking a paper application and making
a decision based on a blind or anonymous information?

LEWIS: Yeah. I think that’s a really
important factor for anyone trying to understand foundations, in fact, is that very much so. And in most instances
for somebody you’re funding you will in fact meet with them, and in most instances with most foundations there’s
an opportunity to negotiate what you want to do with that program officer. And it’s not like the typical government
RFP where you send in the thing and it’s adjudicated and you get one bite at that apple.

With
the foundation, if you send in a proposal and the foundation program officer finds it interesting, maybe it’s
not exactly what they were looking for but it’s interesting, they’ll call you up, you can have a phone
conversation. You might have a meeting. You might go back and forth. You might actually negotiate what’s done.
They’ll say we like this part but we don’t like that. Maybe you could find another funder for component
of this that we don’t really do or aren’t interested in.

I’ve done this many times.
This is really interesting concept. I know there’s two other people who are interested in this too. If you would
just bring all three of them to the table I think we could do something. If you could include this neighborhood,
if you could include that school, so there’s a lot more room to negotiate something with a foundation. That’s
why again it’s good forum for raising money in a creative way, because you really can evolve it and work toward
what you’re trying to do.

WOLF: And it sounds like because there’s a community focus
in it, and in a community foundation in particular and also in a community justice program there’s also perhaps
shared knowledge about, because they’re both knowledgeable about the community, it sounds like that could be
a very productive process where there’s a meeting of the minds where the foundation is bringing their knowledge
and concerns about the community priorities and needs and the community justice program which is looking at it through
a justice lens, also is bringing knowledge and it sounds like there could be a catalyst there.

LEWIS:
Yeah, I think that’s very true. The working in a foundation is not a profession where you typically, where you
go to school in it, you get a first job in it and then … most people who are program officers and particularly
the senior program officers are people who have long histories of their career working in that community in the fields
in which they are funding.

I myself was a professor at a local university. It was a commuter type
university. It was very integrated into the community before coming. Before that, I was with the Urban League here
for ten years, so I came from a position of being very grounded in the types of issues that the trust is interested
in. And I think that’s true of most of my colleagues across different foundations. That they had professional
careers in that field before they became funders in it. And so they’re very grounded in what the issues are
and who the players are and what the specific neighborhood and community needs are.

WOLF: And
is criminal justice commonly an area of focus?  I know your trust, you described here, is interested in
certain criminal justice related goals like reducing recidivism and disparities, racial disparities in the justice
system. Are you seeing a trend there? There’s a lot in the news about the criminal justice system.

LEWIS: I would say so. The problem of urban violence, I guess it’s been with us for a long time, but
I think really caught the attention of a lot of people more in the 1990s, and then the cost of incarceration across
the country has become a driving force, right? I think a lot more bipartisan, I don’t want to overstate it,
but there is more bipartisan interest now in getting people out of jail and prisons than there would have been 10,
20 and especially, you know 30 years ago. So I think there is a lot more interest on the part of foundations, and
they do it in different ways.

In the Midwest, the Joyce Foundation has a specific gun violence
initiative that they do. MacArthur has been interested in various areas of restorative justice. The Woods Fund here
in Chicago, restorative justice. We’ve been engaged in it, in violence reduction and equity issues. So different
foundations have their own twist on it, but I would say in general there has been increased interest. I think it’s
a fairly fertile field right now.

WOLF: So if you were to give justice practitioners interested
in finding out about trusts that are community focused or just any kind of foundation and applying and succeeding
with their application, are there some bullet points you could share about what they should keep in mind?

LEWIS: Yeah. Well, I think it does. Because there is so much variation across foundations, there isn’t
any single way to know what one wants or how they’re taking applications. There really isn’t any substitute
for getting in the internet and checking out what they’re individual initiatives and programs are, and what
the application process is. And people can send things in that way.

I would also really, really
strongly support though taking the additional step of trying to seek out people like me in forums like this conference
or in various kinds of neighborhood settings. A lot of us are going to those kinds of meetings, and we’re on
different commissions and task forces and committees of local government or community development, all of those kinds
of things. Find those program officers and talk to them about what you’re doing and equally important to find
out what they are interested in. Because it’s partly about what you want as someone creating a program but it’s
also about that program officer needs to take back to their board. And so you want to just enter into that conversation
with them the best way you can.

WOLF: So I suppose it also helps to have an elevator pitch, a
short, concise description of what they’re doing, but one that sounds like you’re saying is customized
to the particular foundation or program officer that they’re speaking to.

LEWIS: Yeah. It’s
certainly helpful to be clear in that way. On the other hand, I will give the other hand. That if you’re at
some conference, you find yourself sitting there at lunch, you find yourself sitting next to a program officer from
a foundation that you think might be able to help you, that program officer does not like to be pitched there at
that table with seven people sitting around where it’s just not a good place.

That’s
the place to just get to know the person, like you would to be able to start the relationship building. Don’t
pitch your idea unless it comes up in the conversation naturally. But just treat it as a relationship building opportunity,
not as a sales opportunity because partly it’s hard for the foundation person to negotiate something like that
in front of others, and partly because they may not be able to tell you exactly what they’re thinking about
it when there are others around and when honesty is important in that negotiation. And, they want to eat lunch.

WOLF: You mean they’re human beings.

LEWIS: Yes. So it’s a good setting to
make friends, but not necessarily the moment to make the actual pitch.

WOLF: All right. Excellent
advice. Thank you so much. I have been speaking with James Lewis, Senior Program Officer and the Director of Research
and Evaluation at the Chicago Community Trust. He has been a panelist here at Community Justice 2016.

You
can find out more about what has gone on here at the conference and listen to other interviews of other participants
and attendees on our website, www.courtinnovation.org. I am Rob Wolf, Director of Communications at the Center for
Court Innovation. Thanks very much for listening.

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Joe Balles, who recently retired as a captain after a 30-year career with the Madison (Wisconsin) Police Department,
discusses restorative justice and police legitimacy with Robert V. Wolf, director of communications at the Center
for Court Innovation. A mentee of Herman Goldstein, considered the father of problem-oriented policing, Balles was
instrumental in the creation of the Dane
County Community Restorative Court, a diversion program based on the Native American principles of peacemaking.
The interview took place during Community Justice 2016.

A panel on Restorative Justice at Community
Justice 2016 features, from left, moderator Erika Sasson of the Center for Court Innovation, Jose Egurbide of the
Los Angeles City Attorney’s Office, Captain Joe Balles (retired) of the Madison (Wisconsin) Police Department,
and Judge Herman Sloan of the Atlanta (Georgia) Community Court.

CAPTAIN
JOE BALLES: One of the reasons I got trained as a peacemaker is because I’m trying to add even more legitimacy
to this work, so that it actually becomes formalized and more ingrained and peer accepted.

ROB
WOLF: Hi I’m Rob Wolf, Director of Communications at the Center for Court Innovation. I am at Community Justice
2016, in Chicago, where hundreds of justice practitioners from various jurisdictions around the country and around
the world, are gathering to talk about justice reform. With me right now is Captain Joe Balles, retired from the
Madison Wisconsin Police Department. We’ve sat down to talk for a little bit about restorative justice. He participated
in a panel here at Community Justice 2016, on restorative justice and he was very involved with that concept in his
work in the Madison Police Department.

You were involved in starting something called The Dane
County Community Restorative Court. So why don’t you explain what that is, and why you wanted to start something
called a restorative court that has this word ‘restorative’ in it?

BALLES: Sure Rob
it would be a pleasure. In 2013 the NEKC foundation funded a study in Dane County, it was conducted by the Wisconsin
Council on Children and Families. And that report, published in October 2013 really statistically laid out what was
the state and the human condition of the African American population in Dane County. And their report in its breadth
covered so many different measures across the spectrum that were just all jumped out and many in Dane County community,
and Madison’s the capital, Wisconsin, 500,000 is the county population, almost 250 is the city of Madison, and
when you look at that it was really pretty telling, and everybody just accepted it as the base-line. There was really
little argument about the data or anything, it was so overwhelming. One number in particular with regards to racial
injustice was that Dane County African Americans represent about 4.8 % of the population, but when you look at the
number of people that we send to prison every year, African American’s in Dane County represent 44% of the people
we send to prison.

Based on that report a Dane County Board African American supervisor, Sheila
Stubbs, who ironically I have known for many years, she brought forward a proposal in November 2013 to the County
Board, and got it stuck in the 2014 budget to create a pilot Community Restorative Court in South Madison that would
look a 17 and 25-year-olds and try to divert them. Those who have been arrested for misdemeanors, divert them from
the formal traditional criminal justice system, to a Community Restorative Court predicated on the ideas of peacemaking
in justice circles. And …

WOLF: And maybe we will just pause for a second. When we talk about
restorative, we’re talking about … I know it’s about restoring both the community, but also …

BALLES: Repairing harm to the victim, and the community.

WOLF: And the offender to an
extent—

BALLES: And really doing an assessment of the offender because, you know Rob, when law
enforcement issues citations, or we arrest young people, 17 to 25 year-olds. For a lot of times it’s these kind
of nuisance level types of crimes, if they be theft, criminal damage to property, disorderly conduct, obstructing
an officer, there are other things that are going on there with that person at that point in time, that they happen
to come on an officer’s radar screen. Because oftentimes when we make an arrest we are not out driving around looking
for them, we get called by the 911 system because we are responding to something that we ultimately end up investigating,
whether it be a fight in progress in a public place, or inside a private residence, we have to deal with what it
is that we walk into. And this was a way to take. And instead of sticking that 17 -25 year-old in the formal system,
where in Wisconsin, something that unlike a lot of states in the country, we have an online court system called CCAP,
and once you get arrested and you then appear and make an initial appearance in Wisconsin Circuit Court, a record
of you starts online on the internet in Wisconsin’s Circuit Court database. It’s totally publicly accessible,
there’s all sorts of warnings about how it’s not supposed to be used for discriminatory purposes, or employment
purposes etc. but everybody in Wisconsin knows about it and once you get something onto CCAP it’s impossible
to get it off, damn near impossible, I won’t say it’s impossible but it’s damn near.

We
find these 17 to 25 year-olds, it hurts them for employment, it hurts them for schooling, hurts them for housing,
many different things.

WOLF: So the Community Restorative Court, they would be … that’s
a total diversion, they wouldn’t have a record in the system?

BALLES: It’s a total diversion.
Right. And the way we have created the diversion is, in the spring of 2015 we worked, together with our Dane County
District Attorney, Ishmael Ozanne, the head of our Dane County Department of Human Services, Lynn Green, Madison
Police Chief, Mike Koval and our city Attorney Mike May, and myself I was involved in this. We created an MOU, and
in the Memorandum of Understanding I outlined the parameters of what we were going to try to do in the pilot, and
it was a 12 month MOU, it actually expires next month in May. Wel certainly expand it, continue on, but we definitely
need to tweak, kind of what we are doing right now, to build some more caseload.

But the important
thing is that over the past year and a half now we have created another option for dealing with this behavior out
in the neighborhoods, that both is victim rights focused, but at the same time focused on the needs of the offender,
where we hired a Community Restorative Court coordinator. That’s a funded position, not through a grant or something
that we could possibly loose, but we actually created a new position within the human services budget for Dane County
where this position lives. And that’s really huge, because now we’ve got that position we don’t have
to fight for it every single year. And what we’re trying to do is, our District Attorney’s office has been
very creative already, they’ve got 700 cases currently in different states of deferred prosecution. And what
we are really hoping to do long term is to take a piece of that deferred prosecution case load that they have right
now, and those cases that go to deferred prosecution are ready and ideal, many of them primed, for a peacemaking
process.

WOLF: And so peacemaking, as I understand, we have a program in Brooklyn, The Center
for Court Innovation runs through the Red Hook Community Justice Center is based on traditional Native American practice,
bringing people together in a circle, and people solving the problem and the issue collectively. So is that the model
that you are using?

BALLES: Yeah it is the model. And what happened was, is that after we were
looking around in the spring, or in 2014, once we had that money funded to create the coordinator court, CRC coordinator
position, we got a hold of the Center for Court Innovation.

And they, and with the help of some
BGA Technical Assistance money, they brought our team, seven of us, out to New York where we were up in Harlem at
the Community Court up there, we went down met with Judge Calabrese in Red Hook and got to see the phenomenal work
he’s done. He is nothing short of an American Hero in terms of what he’s done out there. And then lastly
we went over Brownsville, where at the time we were there it hadn’t started yet, but we talked with the folks
and we looked at the building. I think it was an old catholic church if I’m not mistaken, or something to that
effect, or maybe an old school that they were looking at setting up, but we were out there in Brownsville and talking
to them too. So we left New York with a lot of great ideas that we brought back to Madison to figure out how we wanted
to set this up.

 And we went to work, doing community meetings where we brought the community
in and told them we were looking for volunteers. We worked with Johnathan Scharrer, a person I haven’t mentioned
enough. Johnathan Scharrer is a professor at DW Madison Law School that teaches the restorative justice training
at the law school. And Johnathan was solicited by us to help us teach and train our peacemaker program, which is
now a 16-hour class. We’ve got over 40 trained, and myself, just a few weeks ago I went through the two-day
training myself.

WOLF: And has it started, the restorative—

BALLES: Yes. Last
July we started actually making referrals from the south police district. Again we are just focused on my old district
where a new captain is at right now, because I left in January. But we are going through every arrest that we make,
and we make probably 60 some arrests every month, and we are looking for those cases that we can divert. But right
now our MOU is focused on, really kind of looking at first offenders 17 to 25 of age, but what we are realizing and
our challenge is, we need to get into more complex cases, because some of the things that we heard at this conference
for instance, is that you don’t want to be doing interventions on low risk populations, okay. And generally
in our model that we have right now, those are our first offenders, they don’t have a lot you know; the 21 year-old
that gets drunk and stole a coffee cup at the convenience store at 2 o’clock in the morning, who is on his way
to a graduate degree in engineering at Wisconsin, probably isn’t the guy that really needs to go through the
Restorative Court.

And so we are now trying to look at really the more complicated cases and get
some of those individuals offenders, respondents, as we call them, diverted to peacemaking.

WOLF:
So get me a little bit into your head as a police officer. Although there are police officers who’ve been involved
in all kinds of innovative strategies, community policing and engaging the community. I think it’s probably
less common, this notion of restorative justice engaging the police. So what attracted you to this? Why were you
drawn to this idea of restorative justice?

BALLES: Great question Rob. For me it just was a logical
extension of my journey and my career and 30 years in policing. I did my graduate work at Wisconsin in the early
80s, where I was able to have met great mentors like Professor Herman Goldstein, who is the godfather of problem
oriented policing. And in the late 80s early 90s I happened to be part of some of the early efforts at defining what
community policing is in this country. I was a neighborhood officer myself in the city of Madison, where we identified
13 kind of high crime little pockets in the city of Madison. And I was one of 13 neighborhood officers in the late
80s that went out into those neighborhoods and built relationships with people, and really tried to find alternatives
to arrests, and other ways of dealing with crime and the crack dealing, and the gang behavior and things like that,
that we had out in those neighborhoods.

That to me was a very unbelievable moment in my career
as a law enforcement officer, because it really defined me, and really set in place my core values in terms of the
need for police in the community. It really had this very, very close partnership and understanding with the community
that you were trying to police. Because policing isn’t something that police do, but policing is something that
we do collaboratively with the community, and the community shares a big part of that.

So for
me, when I look at restorative justice, quite honestly it’s like a graduate school version of community policing
as we knew it, but it brings more formality to it. And the peacemaking process, and just the respect and dignity
of how everybody participates equally in the process, it’s so different, it’s so radically different than
the traditional adversarial justice system as we know it today. It’s really, what we are talking about here,
is changing the culture of the justice system, and I think that restorative justice really hit. I am excited about
it. I think we are just literally just scratching the surface and we get many, many, kind of, laboratories going
on. Much like we experimented 20 plus years ago with community policing in Madison, now I see a lot of communities
around the country experimenting with different models of community justice.

One of the reasons
that I got trained as a peacemaker, because I’m trying to add even more legitimacy to this word, so it actually
becomes formalized and more ingrained and peer accepted. I don’t want it just to be the tree-hugging people
who are out there being trained as peacemakers that ….

WOLF: The hippies.

BALLES:
The hippies, you know …. But here’s a 30-year veteran of law enforcement, recently retired captain, very involved
in this community through rotary, The United Way, coaching basketball, whatever it might be, but I also see that
people like me also need to become peacemakers because we’re part of the community, and we need to be part of
that restorative justice process.

WOLF: Well let me ask you just one final question. Which is,
with all the concerns that everyone is aware of, their assisted police, a report about Chicago police released this
week, there is a lot of concern that there’s a culture among some police officers where there is antagonism
between the community they serve. There is institutional racism, I mean there’s all kinds of things, and you
just spoke about a very personal journey that you took and, you know, 30 years down this road, although it didn’t
take you 30 years, but you evolved to a position where your eyes have been open and you’ve embraced new ways
of doing things, and you’re talking about restorative justice. And I also know, you had mentioned before we started,
that you have been advising someone who is working with the task force, the President’s task force, on 21st century
policing. You are very involved nationally, now that you’ve retired, in helping police jurisdictions think differently.
What advice or insight do you have into how maybe restorative justice or other tools can be used and how can you
get police officers interested in them, who haven’t walked in your shoes specifically?

BALLES:
Right, great question Rob. I mean I think we are at a …with regards to policing I think we are at a kind of crossroads
in this country very similar to where we were when UCR part one crime was at its highest in the early 1990s. I mean
a lot of the initiatives that led to President Clinton’s 100,000 officer initiative when he was first elected
and the 1994 crime bill. I think today we are similarly situated. But interestingly we don’t have the same amount
of crime that we had back then, but how our police interact with our communities. And I think we’re really struggling
with this whole nature of the increasing diversity of our country, particularly in our larger urban areas. Any community
50,000 and over, okay you are really starting to see some very changing demographics.

One of the
areas that I am working in right now is out in King County, Seattle, and I happened over the past year meet Sue Rahr,
who was a former King County Sheriff, that is now the executive director for the Criminal Justice Training Commission
for the state of Washington, and she was on President Obama’s 21st century policing task force. And Sue penned
the piece that Harvard published a few years ago, questioning are we training our police officers to be guardians
or warriors. And when you look at the President’s task force report and what Sue and the colleagues that were
on the task force, they identified six pillars that put forth a road map for police chiefs and communities all over
the country, to really internally look at themselves to see and measure themselves to see how they are doing and
where they could improve. And that first pillar is all about trust in legitimacy, and in that part of the report,
and it’s not a very long report, it’s only 30 pages long, there’s a lot of reference to procedural
justice both internally and externally. Because one of the things we know, and we’ve found many years ago in
Madison, is that you can’t put police officers into an organization where good work is not recognized, where
they have abusive supervisors, where there’s no systems of accountability. When you have internal cultures like
that you’re going to get bad policing on the backside of it. There’s just no way. You might get some good
policing by accident, but if you’ve got inside those police organizations that are so dysfunctional, you can’t
expect any better result.

Many years ago a guy name of David Couper, the police Chief of Madison
at the time. He led Madison on a 20-year kind of culture revolution that transformed our department where he hired
the first women. Today over 30% of officers in the Madison Police Department are women. 90% of us have, at least,
a four-year degree, 20% of the department are people of color, for a 455 officer department in a community of 250,000
we are doing pretty dam good in terms of trying to at least recruit, retain individuals that we can take and put
out there on the streets every day as police officers, and with the proper training and guidance. There is a lot
of police departments in this country that, quite frankly, are really struggling to do that.

I’ll
end Rob with something in terms of the need for police departments in communities to think futuristic about how they
build police departments. Chief Cooper once said many years ago, “If you want to see what your community is
going to look like 15 years from now, walk into a kindergarten classroom.”

WOLF: Makes sense.

BALLES: Absolutely. And if you’re not trying to build and recruit and prepare your police department in
terms of this diversity, to what that kindergarten classroom looks like today, your losing ground already. So I think
we’re at a unique opportunity here, I think restorative justice is quite frankly really the next evolution here
of the conversation. We’ve got some tough problems that we are dealing with in this country, but I really feel
optimistic. I think about the tools that we have, the evidence based practices, and a lot of great organizations
like the Center for Court Innovation, that are helping agencies and police departments all around the country and
justice systems, help is good there.

WOLF: Well that’s a very nice and positive note to end
on. So thank you. I’ve been speaking to Captain Joe Balles who retired just this past January from the Madison
Police Department, and is now very involved in a number of things both in Madison and nationally regarding innovations
in policing. And we’ve been speaking this afternoon at Community Justice 2016, the international conference
that’s being held here in Chicago. I’m Rob Wolf, Director of Communications at the Center for Court Innovation.
To find out more about restorative justice and about the conference and about the work the center does, visit our
website at, www.courtinnovation.org, and thank you for listening.

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Mike Lawlor, Connecticut’s under secretary for Criminal Justice Policy and Planning, discusses Governor
Dannel P. Malloy’s Second Chance Society, a series of justice reforms (including dramatic changes to bail and
juvenile justice policies) that seek to reduce crime, lower spending on prisons, and help rebuild relationships between
criminal justice professionals and the communities they serve. This New Thinking podcast was recorded in Chicago
in April 2016 after Lawlor participated in a panel on “Jail Reduction and Public Safety” at Community Justice 2016.

Mike Lawlor, second from left,
who is Connecticut’s under secretary for Criminal Justice Policy and Planning, participates in a panel on “Jail
Reduction and Public Safety” at Community Justice 2016.

MIKE LAWLOR:
People gradually buy into the fact that, after all, the whole point of the criminal justice system is to reduce crime,
and if that’s what’s happening, everybody’s doing a good job.

ROB WOLF: This is
Rob Wolf, Director of Communications at the Center for Court Innovation in Chicago at Community Justice 2016 where
there’s a lot going on, a lot of panels talking about justice reform, people from all around the country and
even around the world sharing ideas. One of those people with some interesting and cutting edge ideas is with me
right now. His name is Mike Lawlor. He is the Chief Criminal Justice Advisor to Connecticut Governor Dan Malloy,
and he just participated in a panel on jail reduction and public safety.

A lot of interesting
things are going on in Connecticut around justice reform, Mike, and I thought maybe you could explain a little bit
about what the governor’s agenda is. I understand it’s something called the Second Chance Society.

So what’s it all about?

LAWLOR: So yeah. My boss, Governor Malloy, talks extensively
about his goals for what he refers to as a “Second Chance Society.” And really that covers all of the ground
of the criminal justice reform initiatives we’re seeing around the country. He also articulates this with clear
goals, and goal number one is to reduce crime. Goal number two is to reduce spending, and goal number three is to
restore confidence in the criminal justice system, confidence among victims of crime who often come away thinking
that they did not get justice, confidence among African Americans and Latinos who thinks the system is just not fair
to them, and confidence among all citizens who see, every day, these examples of wrongful convictions or corruption
or misconduct by police or prosecutors or probation officers or corrections officers or even judges sometimes even
state legislators and governors, from time to time.

All of this undermines confidence in the criminal
justice system, so restoring people’s confidence and at the same time reducing crime is our goal. And we think
that by making a variety of changes across the board, we will continue to see a reduction in Connecticut’s crime
rate, which is at its lowest point in 48 years, and we’ll see we won’t have to spend as much money running
prisons, because for the immediate past 20 years or so we’ve spent more money running prisons in Connecticut
than we have running colleges, which is kind of crazy.

Gradually we can rebuild these relationships,
mainly between the criminal justice professionals and the community, and what you call community policing or something
else. It’s very important to build up that level of trust.

WOLF: Well those are really ambitious
goals. So what are the actual policies that are being proposed to achieve these goals to reduce crime, reduce spending
on the criminal justice system, and build confidence in the justice system?

LAWLOR: Okay, so let’s
start with what Governor Malloy has actually proposed this year, which is currently being considered by our state’s
legislature. It has two components. Number one is bail reform. Number two is raising the age of juvenile jurisdiction.

On the bail reform initiative, a number of states, most recently New Jersey, New Mexico, the New York Supreme
Court, have acknowledged that bail is a real problem. In other words, people sitting in jail because they can’t
afford to post what oftentimes are relatively low amounts of bail. The governor this year has proposed that we not
have money bail for people charged only with a misdemeanor, with an exception for cases involving violence, for example
family violence cases are often charged only as misdemeanors, but there is a very high risk that something bad is
going to happen.

He’s asked our state sentencing commission to look at a comprehensive reform
and report back next year so that potentially the legislature could enact comprehensive reform, as was the case in
New Jersey and New Mexico, Connecticut has a state constitution that guarantees bail to all offenders.

But many states, and the federal government have an option for what is know as preventive detention. So,
if there is an evidentiary showing that someone actually is a danger to the community, they can be held without bail
at all.

In Connecticut, at the moment, the governor’s concerned that the people who really
should be locked up pre-trial are not. The high-risk, career criminal gang-banger types, bcause they have frequent
flier points with the bail bondsmen and things like that, it’s easy for them to get out if they get arrested,
even if there’s kind of a high bail.

On the other hand of the spectrum are the people that
don’t need to be in jail, but they’re sitting there for months on end, waiting for their cases to get resolved
because they can’t come up with, in some cases, a few hundred dollars to get out the door.

So
that’s a big priority for us, and we think over time that will have a big impact on our jail population, but
more importantly …

WOLF: What’s the actual proposal?

LAWLOR: So the
proposal is no money bail for misdemeanors, and allowing all offenders who actually have a money bail that’s
been set for them, to have an option of posting 10% in cash that they would get back at the end of their case if
they show up for all their court appearances and that is the case in many states.

In Connecticut,
it’s actually an option that judges have pursuant to rules of court, but it’s not in statute, and we think
that by putting it into statute, it’ll be used more extensively.

Also, part of that proposal
is that whatever money is accrued, because this cash will be sitting in a savings account while the court process
plays out, all of that money that’s earned through interest will go to our legal aid operations in the state.
So it wouldn’t be going to the state. It would be going to help fund legal assistance for the poor. And any
money that is captured because people do not show up in court and we forfeit their money bail, that would also go
to legal aid.

So we’re trying to create a system that has no incentive to have higher bail
just to raise money, and at the same time, make it more of an option to actually get out, especially for people who
are poor.

WOLF: And you would presumably be saving money because fewer people would be held in
jail unnecessarily pre-adjudication.

LAWLOR: Right. We know about half the people in jail right
now in Connecticut, because they can’t post bail, are in there on relatively minor charges. So, now, obviously
on a case-by-case basis, there may be very high risk factors involved, but, in general, there’s way too many
people being held just because they can’t come up with enough money to post bail.

And we’d
like to get to the point where money bail is just not used at all. If you’re really dangerous, prosecutors would
have to put on an evidentiary showing, and you could potentially be held as a public safety measure, but the vast
majority of cases that really don’t meet those criteria would not sit in jail while their cases are pending.

WOLF: What if someone repeatedly doesn’t return to a court date?

LAWLOR: Well, the
proposal we have this year says that even if it’s a misdemeanor where no money bail is allowed, if the new misdemeanor
is in fact a failure to appear, that would allow for money bail to be set. But we know that, we’ve done a lot
of deep dives into our data that we have and the rate at which people fail to appear is actually higher if a bail
bondsman has posted bail for them.

Connecticut is the only state in the country— Now, keep in
mind we do not have any county courts, everything is run by the state. We have no county jails. We have no elected
prosecutors. We have no elected judges, and all courts are state courts, so it’s easier for us to make changes.
But we have the only statewide accredited pre-trial services agency in the country. It’s run in the judicial
branch. It’s very well staffed, and they are very good at sorting out offenders by risk and monitoring defendants
in the community with non-financial conditions of release.

So we have the infrastructure to really
expand this a lot, and to the extent that we can save jail bed days, we can save a lot of money and at the same time
get better outcomes, because all we know for sure is that putting somebody who’s really a low-risk, high-needs
person in jail, even for a short period of time, you’re actually increasing the odds that they’re going
to recidivate once they get out. So we’re trying to not do things that make it worse.

WOLF:
And it sounds like you have the infrastructure in place to do what bail supposedly does, which is to encourage someone
to come back to court, but you have a non-bail, non-monetary means to monitor compliance with that. And so, what
were some of the other …

LAWLOR: The juvenile … so I think the more ambitious goal the governor
has for this year is to raise the age of juvenile court jurisdiction from what it is now, 18, up to 21. So, if we
do it, we’ll be the first state in this country to do it. Other places do it. For example, Germany, which the
governor visited last year, you might have seen it on 60 Minutes. They did the piece a couple weeks ago.

In Germany, if you’re under 21 and you get arrested and go to court, the judge makes an immediate decision
whether the case will be handled pursuant to juvenile rules or adult rules and apparently 80% or 90% of the cases
are dealt with as a juvenile case, in effect.

So, the governor said, “Since we have gotten
some very good outcomes with our juvenile justice reforms that date back about 10 years, we’ve seen a dramatically
reduced number of young people getting arrested. We have historically low number of juveniles in juvenile detention
or in our juvenile prison-like facility, that if we’re getting these good outcomes by the earlier reforms, maybe
we can get those similar outcomes for 18, 19, and 20 year olds going forward.”

We’re
beginning a process where we’ll gradually phase this in. We’re also going to make changes in the way we
handle offenders under the age of 25. So, we want to have specialized parole and probation supervision for people
under 25 so that the officers involved, that’s their specialty, dealing with younger people. We’re going
to have a special correctional facility just for offenders under 25. We already have one for offenders under 21.
We want to have another one for the next age cohort there.

WOLF: And the rationale is because
they have different needs and are more amenable to rehabilitation?

LAWLOR: Exactly. And on top
of that, mixing a 21 year old kid whose got all sorts of problems that have landed him in jail with some 40 year
old career criminal guy’s probably not a good idea, and I think any person with common sense would understand
that that’s probably the case.

I don’t think it’s done by design that all these
people are mixed together in our prison system, but why not change it? We don’t have to build a new prison,
we just allocate one for the next age cohort and put in staff that specializes with that.

All
of this … the recent developments in brain science has really informed criminal justice policy planners like myself.
I think people now, for the first time, are realizing that you need to have a special approach to younger offenders,
meaning under 25.

If we are successful in getting some of these young people off this trajectory
towards career criminal status or lengthy terms of incarceration, we’ll need a lot fewer prison beds in this
country.

So, earlier I referred to our juvenile justice reforms that have already taken place
in Connecticut. First and foremost, Connecticut was one of three states in the country that used to treat 16 year
olds as adults all the time. So it was Connecticut, New York, and North Carolina. Back in 2007, the legislature voted
to increase the jurisdictional age up to 18, but to do it gradually, in increments, and establish a very robust planning
process to get there.

So we spent two years figuring out how to do this. Starting on January 1,
2010, we went from 16 to 17. Then on July 1, 2012, went from 17 to 18, and added all of that to the juvenile courts
and subtracted all of that from the adult courts.

It would be fair to say, “So how did that
turn out?” And now we know. It’s 2016, we have all the data. First of all, people had predicted, when we
did this, the juvenile courts would be overwhelmed with new cases, and actually today there are fewer cases coming
into the juvenile court than there were before because there’s are a lot fewer young people getting into trouble
that lead them to court in the first place.

Second, we know that we have an all-time low number
of kids in juvenile detention, and that has to do with a lot of different policy changes, not just raising the age.
But don’t forget, it used to be that on your 16th birthday you were automatically an adult. You never could
be in juvenile detention. Now we’ve added all 16 and 17 year olds, and even with that we’ve got a historic
low.

We have three juvenile detention facilities in our state. One of the three has closed. The
other two are about one-third full, and we’re probably going to close one of those two shortly. We’re closing
150 bed juvenile prison-like facility altogether. We’re just gonna close it. It’s down to 40 kids right
now.

So all of this has to do with fewer younger people getting into trouble and getting arrested
and ending up in court and ultimately incarcerated. We see that this effect is playing out now for already 18, 19,
20, 21, 22, 23 years. It’s like a trough moving through the arrest statistics.

And for example,
17 year-olds … the last year we have complete data for is 2014, there was 60%, six zero, 60% fewer arrests of 17
year-olds statewide in 2014 than there were in 2008, and it’s dropped in equal increments every single year.

In the adult system, we measure the number of kids in jail 18 to 21 years old who are actually incarcerated
on a particular day. That number has dropped from 2062 on January 1, 2008, down to 960 on January 1, 2016.

WOLF: You know the numbers right off the top of your head, don’t you?

LAWLOR: These
are important numbers.

WOLF: … recite them a lot. But lowering the age, it sounds like it’s
easier to do because the population is smaller, but it didn’t create fewer arrests. There are other factors.

LAWLOR: Right. Definitely. So, it’s the raising age, actually … we went up to 18, now we’re
proposing to go to 21.

See, juvenile court works differently and has a different triage mechanism
for new cases coming in. Not everybody ends up in front of a judge, and don’t have all the formal proceedings
with mandatory court dates, et cetera, which kind of sets up people for failure. You get charged with failure to
appear if you don’t show up on time, and go to your probation officers … there’s a lot of chutes and
ladders that kind of get you into trouble.

The juvenile system is much less formal. Much focused
on needs-assessment and hooking people up with appropriate interventions without an overlay of let’s say, court
appearances, a guilty plea, a probation officer. We are convinced that approaching young people differently will
get you better outcomes.

The reason I’m citing these statistics is, 10 years ago, when we
first started talking about this stuff people said, “If you make these changes, you’ll get these outcomes.”
So here we are, fast forward ten years. We’re getting those outcomes. Maybe it’s a complete coincidence,
but I don’t think so.

Other examples of changes have been in school systems themselves. We
know now that there’s a very high correlation between suspensions and expulsions, even in younger grades, and
ending up in prison down the road.

There’s an extensive study in the state of Texas, which
actually has very good data going back a long time, for every single kid in their public school system, and that’s
clearly shown that schools with the exact same type of kids and type of issues which tend to suspend and expel a
lot of kids, versus schools which are very similar but suspend very few kids, it’s the high suspension schools
that end up with the high incarceration rate down the road.

So, there’s something about not
ostracizing, jettisoning, younger people but trying to deal with their issues up front that means that they’ll
be much less likely to end up in the criminal justice system down the road. So it’s this kind of thinking, which
is really a complete re-thinking of schools, justice, service provision, everything else that gets us to where we
are today and sustains the momentum we hope to continue for the next few years.

The goal at the
end of the day is reducing crime. If crime’s going down, that’s good. If crime is going up, something is
wrong.

WOLF: And you said this, you thought, was the bigger task. The more challenging component
to implement of the Second Chance Society, the raising the age is this requiring how you have to persuade the legislature.
Are they on board?

LAWLOR: Well, it’s a lot easier to talk to legislators and ordinary citizens,
even journalists, editorial boards, about why we think this would be successful because we can cite the success of
earlier, similar initiatives.

And the process that the governor has recommended is gradual and
incremental with a lot of planning built into the front end. It’s really more about re-allocating resources,
because everything you add to the juvenile system, you subtract from the adult system, so we think it’s very
workable.

But people, appropriately, are apprehensive, skeptical, because it’s new. It’s
a completely different approach to this. It’s worth noting that we are making provisions to … it wouldn’t
be 100% of the people under 21 go to juvenile court. Obviously, murders and very serious crimes, very high-risk kids
of kids, there would be an option, with discretion, informed by specific standards or findings that need to be made,
to deal with a case in adult court.

So it’s not one-size-fits-all, at all. It’s very
focused on risk assessment, needs assessment, with the stated goal up front of reducing crime, reducing recidivism
among kids who are actually coming in to court.

We think, based on our experience, that just talking
about these things as the actual goals, talking about the fact that we now have the capability to measure all this
data, make it very transparent so everybody can see what’s going on, that affects behavior of everyone on the
front lines: the cops, the prosecutors, probation parole, corrections, everybody. They know what the goal is, they
know that you’re able to figure this stuff out, and I think people gradually buy into the fact that, after all,
the whole point of the criminal justice system, one would think, is to reduce crime. And if that’s what’s
happening, everybody’s doing a good job.

WOLF: Well, thanks for explaining all that, and
good luck with all your exciting stuff going on in Connecticut.

LAWLOR: Thank you.

WOLF:
I’ve been speaking with Mike Lawlor, who is Connecticut Governor Dan Malloy’s Chief of Criminal Justice,
well, the Chief Advisor to the governor, right?

LAWLOR: Policy stuff.

WOLF:
Your exact title is, Undersecretary, Criminal Justice Policy and Planning Division.

LAWLOR: That’s
the job. I’m a bureaucrat.

WOLF: Well, we need bureaucrats to get this done, right?

LAWLOR: There you go.

WOLF: I’m Rob Wolf, Director of Communications at the Center
for Court Innovation, and Mike and I have been speaking outside of the rooms where Community Justice 2016 is occurring
here at the Hilton in Chicago, where for two and a half days, people from around the country and even a few visitors
internationally have been discussing justice reform. To find out more about the Center for Court Innovation and about
justice reform, and about community justice, visit our website, www.courtinnovation.org. Thanks for listening.

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Joe Perez, the presiding judge of the Orange
County Community Court, discusses how the principles of procedural
justice inform both design and process in his courthouse. Perez is a lifelong resident
of Orange County whose father was the first Spanish-speaking attorney and judge in the county. The interview with
Robert V. Wolf, director of communications at the Center for Court Innovation, took place while Judge Perez was in
Chicago to speak at Community Justice 2016. Wolf interviewed Judge Perez’s predecessor and the
founding judge of the Orange County Community Court, Wendy
Lindley, in 2008.

Judge
Joe Perez speaks during a panel on race and legitimacy at Community Justice 2016.

The following is a transcript.

JUDGE JOSEPH PEREZ:    The words, “I’m proud of you,” go so far
with this population because no on in the criminal justice system has ever said that.

ROB WOLF:        
I’m Rob Wolf, director of communications at Center for Court Innovation here in Chicago at Community Justice
2016 where people from all around the country and even around the world have come to learn and discuss justice reform,
new strategies, new ideas, new programs, and research. Lots
of topics have been discussed and are being discussed during this two and a half day conference. With me right now
is someone who presented and also practices community justice, Judge Joseph Perez, who is the presiding judge of
the Orange County Community Court. He has presided there for the last two years, but he’s in fact been a judge
for the last nine years. Today we were
going to talk a little bit about procedural justice. PEREZ, could you tell me a little bit about what procedural
justice looks like at the Orange Country Community Court?

PEREZ:  Well,
to start with, we’re unique in that we are a standalone court in the middle of Santa Ana where what we’ve
tried to do is have a one-stop shop where people who don’t even have to be charged with crimes can come in to
get services. Who do we have there? We have the Healthcare Agency of Orange County, which can provide healthcare
services.  Once a month during our homeless courts,
we bring in a nurse practitioner with a line of nurses to assess and treat the homeless. We have Social Services
Agency of Orange County there which also provides assistance. Food stamps, cash aid if they qualify to assist them
in that regard. We also have vocational rehab from the state to assist people in getting jobs.  We have the Veteran’s Administration there and they are
there because unfortunately in my county, Orange County, California we have a large population of homeless that’s
in fact there was a study that was recently done that specifically targeted Orange County, which is a fairly high
socio-economic status county, and it came out and it said virtually every veteran that is discharged into the county
of Orange would have been homeless by for family or friends. It’s
an extraordinary issue. We have Veteran’s Administration Office there. We also have legal aid that comes in
several times a week that can assist people with civil legal actions. We have a place where people can bring their
children to be watched while they go into court or seek out these services. All of those kids get to go home with a book. This is an extraordinary opening and inviting
court. We have a sandwich board outside that says, “Visitors are welcome. This is not just for people that are
charged with crimes.”

WOLF:   That’s a key tenet of procedural
justice that you are open and welcoming, and I suppose transparent about the services you offer, and make it easy
for people to come and go. I suppose it’s not a confusing place as someone comes in and they aren’t there
particularly for a court purpose, but they want assistance in one of the areas you’ve just described. That’s
easily accessible.

PEREZ:  Yeah. The whole environment of our collaborative court is
to defuse and deescalate the intensity of the criminal justice system, frankly. We have pews in my courtroom instead
of seats. I can’t take credit for it. My predecessor, Judge Lindy Linley, she built that place from the ground
up.  You walk into our court, we get people from all
over the United States, all over the world, come into our court and say, “Wow, this is an extraordinary place.”
This is not like you would think of a courtroom. It’s an inviting place. It looks like a church for crying out
loud with really nice chandeliers. It’s
a beautiful place. With an open area, we don’t have bars that separate our inmates. We have a glass panel and
the reason why she did it, it’s brilliant. So they can see out. They feel a little bit close and connected to
those that are not in custody and they can also see visually and hear auditorily what these folks are doing to stay
out of trouble.

WOLF:   This is in the courtrooms?

PEREZ: 
This is in the courtroom.

WOLF:   That is in the courtroom where they have access
or they can hear everything that’s going on.

PEREZ:  Yeah, and they can see everything
that’s going on. We don’t try to separate them like many do. We want them to be able to see and hear what
we’re doing for those that are in custody because it’s a learning experience. A lot of what we do in our
court is teach and provide the services necessary to keep them from coming back. Procedural justice, in my opinion, making people feel comfortable, and making them feel like they’re
heard. When a judge cares and they see it, and they feel it, and I do care very much, and my caring is to keep them
from ever coming back. To stay out of the system, to provide them whatever services are necessary that we can provide
and keep them from coming back. Really
celebrating with them as they move theirselves along. The fact that you care and if they see that, it’s an extraordinary
thing because all of a sudden, they want to be able to tell you, and impress you, and say, “Look, I’m doing
this, judge. Take a look at what I’m doing.” The words, “I’m proud of you,” go so far with
this population because no one in the criminal justice system has ever said that when you think about it.

WOLF:   In fact, it’s probably a lot of judges or it’s in the traditional mode
the way people thing of judges, they don’t think of a judge saying to a defendant, “I’m proud of you.”
It’s not like that’s something you do naturally. It also has been substantiated by research that one of
the components of procedural justice is in fact the relationship between the judge and the defendant. It’s allowing them to have the voice, the understanding of the procedures, a sense
that they’re being treated fairly. In fact, speaking that way to a defendant embodies those principles that
research has shown have had positive results/impacts on defendant compliance and acceptance of sentences, and long-term
success.

PEREZ:  It has to be sincere. The interesting thing, and this is
mentioned this week, that the personality of the judge is pervasive throughout the court. The staff, the bailiffs,
everybody in my courthouse really comes back to you. I’m a second generation judge. My father, he was the first Spanish-speaking attorney in Orange County and then from there, he became
the first Spanish-speaking judge. I remember being a toddler running around my father’s court and there was
this sense of peace. I don’t know how to explain it, but it started with my dad. He was a very generous, kind,
caring judge, and it had a heck of an impact on me. 
I remember lawyers coming in and saying, “That’s your father?” “Yes.” “Let me just
tell you something. We love coming to this court because we are all treated so fairly. Everyone’s listened to.”
There is not a person that walked into that court that wasn’t treated with respect. I don’t care whatever
you were charged with and that’s the way it should be.

WOLF:  
That’s remarkable. It’s interesting because you talked about somebody being handcuffed, but being treated
nicely. Procedural justice doesn’t mean that the court is in any way abdicating security. There’s metal
detectors and there’s accountability. None of those things are being abdicated when when you do engage in procedural
justice.

PEREZ:  Not at all. It’s how you do it as far as I’m concerned. You
make reasonable boundaries. Everything we do in our court, and I say this to defendants all the time, “Everything
we do is geared for one reason and that’s to graduate you and see that you never come back.” Look around. I have them look around and I say, “Look at everyone here
including the prosecutor. All of us want you to succeed.” Have you ever heard that in any other courtroom? The
answer is no. The prosecutor wants to send you away and there’s this adversarial environment where people are
arguing. Our is not that way at all. Quite the opposite. Setting
up these courts is another issue and I’ve talked about it. There is a lot of abrasiveness in setting these courts
up. I’ve mentioned previously that my predecessor, she was told, “You continue on this path, someone challenges
you on election, we may not support you,” and she said, “I’m doing it.” I’ve had people
call me the Clappy Court. Perez’s Court is the Clappy Court.

WOLF:  
Because you applaud?

PEREZ:  Yeah, exactly. Social worker with a robe I mentioned.

WOLF:   A hundred times.

PEREZ:  I’ve had probation officers
say, “So you’re going to hug a thug?” The interesting thing is those folks that make those statements
have never been a collaborative court and they certainly have never been in mine. There has not been one person that
has walked into my court and has seen what we do and walked out and said, “This is a waste of money or time.” In fact, we’re saving money. Since 1995, we got a yearly report that
goes out talking about our statistics. Since 1995, when the court began, the number is somewhere around 110 million
dollars that we have saved in costs for jail. When I go in front of the legislature, I go in front of those that
want to shut us down, it’s not necessarily legislature, but when I try to speak about what we do, all I do is
I say, “We’re saving lives and money.”

WOLF:   Very
expensive.

PEREZ:  Does anybody have a problem with it? Seriously, we have the data to
back it up. These people are not coming back. Some do of course, but the recidivism rate has basically been turned
upside down. I’ve told the legislature that, “I wish you guys had a camera in our court to see what we
do. After you watch and you see what we’re doing here and you have a problem with it, then talk to me, but don’t
throw stones from outside without knowing what we do.”

WOLF:   I just want
to ask you one more thing and it’s something that you mentioned when you participated in the panel yesterday
on race, legitimacy, and community justice. You said something to the effect that it was, “Important for a judge
to look like the people in the community the courthouse is serving.” I wonder if you could just say a little
bit more about that. Explain why you think that.

PEREZ:  Well, I think what they need
to do is understand the community that they’re in and if possible, come from that community. Like I said, my
father grew up blocks from where we were. It’s heavily Hispanic and you can see when people come in, they see
the last name of Perez and they think, “Oh, this is someone that may understand what I’ve gone through.”

WOLF:   Well, thank you so much for taking the time to talk with me and sharing with me
some of the work you’ve been doing at the Orange Country Community Court.

PEREZ: 
It’s been a pleasure. Thank you.

WOLF:   I’ve been talking to Judge
Joseph Perez of the Orange County Community Court, and we are both here at Community Justice 2016 in Chicago. If
you want to find out more about what happened at the conference on The Center for Court Information website at www.courtinnovation.org
and you can listen to more podcasts, including one I did a few years ago with Jude Linley, who founded the court.
Thank you very much for listening.

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Judge Steve Leifman, associate administrative judge of the Miami-Dade County Court Criminal Division and presiding
judge of its Criminal
Mental Health Project, has worked at the intersection of mental health and the criminal justice system
in Miami-Date County for decades. In this podcast, he
outlines the challenges of addressing the high occurence of mental illness in Miami’s courts and prisons, the
fraught history of incarcerating those with mental health needs, and ways in which the justice system can change
its response to those living with mental illness.

AVNI MAJITHIA-SEJPAL:
Hello and welcome to the New Thinking podcast. This is Avni Majithia- Sejpal from the Center for Court Innovations.
Today, I’m joined by Judge Steve Leifman who is the Associate Administrative Judge at the Miami-Dade County
court in Florida and the presiding judge of Miami’s Criminal Mental Health Project. Welcome to our podcast,
Judge Leifman.

JUDGE STEVE LEIFMAN: Thank you very much.

MAJITHIA-SEJPAL: I
wanted to start by talking about Miami. The statistics say that Miami has a very large population of people dealing
with mental illness, almost 10%, which is more than any other urban community in the U.S. You have said that the
county jail serves as the largest psychiatric facility in the state of Florida. Why do you say that?

LEIFMAN:
Miami-Dade County has a very high prevalence of mental illness, as you’ve stated, with any urban area in the
United States. That really comes from a couple factors. One, we start with our own norm of mental illness such as
probably 3 to 5%. Then we pick-up a couple percent from our weather. A lot of times family members or people with
mental illnesses, they don’t want to be in Chicago or New York during the cold winters and so they end up coming
out to south Florida to escape the bad weather.

Then also during the Mariel Boatlift in the ’80s,
Castro literally emptied all the psychiatric facilities onto the boats, so the people that were actually fleeing
for political freedom from Cuba. Between the other factors and our own norm, it’s a very, very high prevalence.
Unfortunately, Florida also is very poor in its funding of mental health issues depending on the data anywhere from
48 to 50th per capita in mental health funding.

Only about 1% of the people in the county who
actually need services get access to the services that they need and so there’s a large unmet need. Many people,
unfortunately, will end up in the acute systems of care which sometimes means the Dade County jail.

MAJITHIA-SEJPAL:
When we say mental illness, what are we talking about?

LEIFMAN: We are not talking about sociopaths.
We are talking about people that have been diagnosed with an organic brain illness such as schizophrenia, bipolar
disorder, or major depression.

MAJITHIA-SEJPAL: Then I wanted to ask you about the 11th Judicial
Circuit Criminal Mental Health Project which you helped to establish in the year 2000. What’s the history behind
it, why was it created, and what does it do?

LEIFMAN: It actually started as a result of a case
that I had in 2000 where I had a defendant who turned out to be a Harvard educated psychiatrist who had an onset
of schizophrenia and had become homeless, and was recycling through the criminal justice system. It was really pretty
traumatic for all of us involved in the case. He had a full blown psychotic episode in my courtroom and it was an
eye-opener into how inadequate our community mental health system was as well as the court’s response for people
with mental illnesses.

If you had a serious mental illness and you were arrested on a low-level
misdemeanor charge, the court on the vast majority of cases, we were just releasing people back to the street telling
them to go see a psychiatrist for competency restoration. We are putting people who are very ill back out on the
street without any access to treatment and so I was able to bring together a meeting of all the traditional and non-traditional
stakeholders. We literally mapped out how our criminal justice system intersected with our community mental health
system and frankly it didn’t.

I think once we had mapped it out and realized how poor of
a response we had, we had an obligation and a responsibility to make some significant change. It was for everybody’s
sake to improve public safety, to spend our tax dollars more efficiently, and equally important to help people who
have illnesses have access to recovery.

We decided we needed a two-part approach. We needed to
stem the flow of people coming into the system that were coming in unnecessarily and we also needed to have an approach
where people that did penetrate the criminal justice system so that we could get them out if it was an appropriate
thing to do. We created a very expansive, what’s called, Crisis Intervention Team Police Program.

Over the years, we have actually trained over 4700 police officers including every single agency in Miami-Dade
County and it has made a startling difference. Between 2010 and 2015, we handled 48,669 mental health calls and only
made 109 arrests. It had a significant impact on the reduction of our jail. It actually helped us close one of our
jails.

We also realized that we also needed to set-up post arrest diversion program. We initially
set-up a misdemeanor diversion program whereby any individual with a serious mental illness who’s arrested for
a misdemeanor, if they meet criteria for involuntary hospitalization, generally within 3 days, we have them diverted
from our jail into one of our community crisis stabilization units.

We reset the case for a couple
weeks. During that period, A, we allow them to become more stable, but at the same time my team is working on lining
up their benefits, finding them housing, getting all these supports in place that people need for recovery and it’s
been phenomenally successful. Our recidivism rate dropped from over 70% to about 20% today. Our state attorney allowed
us to expand it to our non-violent felony cases.

We put into play about five years ago, a felony
diversion program and that program has a recidivism rate of only about 6% for those that complete the program which
is about 70%. The program alone has saved the county between 35 and 40 years of jail bed days. When we set-up the
third program, that diverts people from competency restoration hospitals and keeps them in a local facility. Instead
of just [inaudible] on the restoring competency, we actually focus on reintegrating them back into the community.

MAJITHIA-SEJPAL: Would you say that deincarceration is the way forward?

LEIFMAN: I think
jail should be the last resort for people with mental illnesses. It shouldn’t be the first entry point for people
with mental illness, which it has become. Our jails have become the de facto mental health facilities all around
the country and it’s really not fair. Most of these individuals have serious trauma issues and arrest often
re-traumatizes them.

Their lives are generally so fragile to begin with that even a day in jail
can help further the stigma against them, sever ties from employment, from housing, from family, and make it even
that much more difficult for them to reintegrate. Now there are some people that do commit crimes that are offensive
enough or dangerous enough that need to be in bars, so the program really is about identifying the people that don’t
need to be in jail and making sure that we get them out.

One of the things that we do now is we
use a risk assessment tool. We evaluate everybody that comes to our program and line-up the right services for each
individual. The key is to really understanding what the individual needs, doing our best to line-up the right services
for that particular individual, and then help reintegrate, reassociate them back into the community. If you do that
with all the supports and services that they need, this population can do very well.

In fact,
what most people don’t understand is that, number one is, people with mental illnesses are no more dangerous
than the general population and on medication they’re actually have a much lower propensity for any violent
crimes than people without mental illness. Sadly, they’re much more likely to be victims of violent crimes than
perpetrators.

The other thing I don’t think people understand is that most people with mental
illnesses have much better recovery rates than actually people with diabetes and heart disease. The key to these
illnesses just like most illnesses is identifying them early and treating people early. I think the problem arises
when we ignore the problem and we see people who have been sick for many years, and have had many psychotic episodes.

What we’re trying to do in our community as well is working with our school system now to educate all
of our teachers so that they can do a better job identifying kids that are showing signs and symptoms of mental illness
so that we don’t wait for them to grow-up in our system to try to get them access to treatment at a much earlier
stage. We look at this as not as a court problem or a court solution, but really a community problem that requires
a community solution.

It really requires a community to come together and to make the structural
changes that are necessary that help access treatment for people.

MAJITHIA-SEJPAL: Within the
courtroom, how do you balance responding to the treatment needs of defendants with the need for public safety?

LEIFMAN: If somebody commits a violent offense, now that is not someone that’s probably a good candidate
for our program. The people that we accept in our program are, A, generally charged with committing low-level non-violent
offenses nor do they have histories of committing violent offenses. There are very good risk assessment tools on
whether or not that they’re going to commit further crimes in the future and so we do use those.

It
may sound counterintuitive, but the people that are scoring moderate to high risk are the ones that we want in the
program because those are the ones you want to wrap your arms around, get them the right services, follow them more
closely and monitor them so that they’re not picking up new offenses. The people with low-risk don’t need
that kind of court supervision. They’re going to be absolutely fine back in the community and the chances of
them reoffending are very, very, very low.

I think as communities look to set-up these programs,
the key is to take the moderate and higher risk people who are going to get out of jail anyway, and make sure that
we’re appropriately monitoring them, and helping them change their ways, getting them housing, getting them
case management, getting them peer specialists so that we know that they are going to stay out of trouble and stop
committing offenses.

By doing that, you get better outcomes, you spend your dollars more wisely,
and you have a bigger, better impact on improving our public safety.

MAJITHIA-SEJPAL: In your
experience in dealing with mental illness in the justice system over the decades, have you seen a change in the justice
system response to mental illness?

LEIFMAN: That’s a great
question. Yes. There have been [inaudible] in how the courts are beginning to approach and deal with people with
mental illnesses. There’s a lot of initiatives that are going on and particularly since prevalence is just so
high in the criminal justice system.

We started several years ago, an organization called the
Judge’s Leadership Initiative and we created a parallel group called the Psychiatric Leadership Group. We now
go around the country training judges on how to identify people with mental illnesses, how to respond better in court,
and how the judge can be the community facilitator to bring people together to make the structural changes that are
necessary to have a better improved response.

There’s a national movement going on right
now. We’ve begun this initiative called Stepping Up. More than 250 counties in the United States representing
more than a third of the American population have passed these resolutions agreeing to step up to reduce the over
representation of people with mental illnesses.

The jails are now spending almost $70 billion
a year to partially deal with this problem and it’s enormously expensive. It cuts into infrastructure projects,
it affects our tax base, and it’s such an unnecessary waste of money because we don’t get good outcomes
from what we do today.

MAJITHIA-SEJPAL: I also wanted to talk to you about a very interesting
book called Crazy by the reporter, Pete Early, which was personal, but also investigative look at mental illness
in the justice system. He got access to the Miami-Dade County Jail for research. Were you involved in that decision?
Was it an easy decision to give him access or were there reservations about it?

LEIFMAN: Yes.
I felt that it was incredibly important for someone to tell the story. While the focus was on the Miami-Dade County
Jail and some of the horrors that went on there, we could have been any jail in the United States. He did a brilliant
job documenting what goes on and I think it really was illuminating for a lot of people in the country, and helped
us take a critical look at our own system. We’ve been able to almost use his book as a blueprint on how to improve
our system.

The difference between today and when he wrote that book are night and day. We closed
down the horrible 9th floor that he highlights in his book. We opened up 2 jail floors that are just for people with
mental illnesses. Instead of sticking our heads in the dirt and resisting what was going wrong, we fixed it.

MAJITHIA-SEJPAL: Would you say that opening up the jail to scrutiny from a reporter has actually benefited
Miami?

LEIFMAN: There is no doubt. It wasn’t just Pete. We also opened it up to our local
CBS affiliate. Inevitably the Justice Department came in and took a hard look at our jail, and all those things helped.
Since that day, we have special training for our corrections officers. There has been a significant reduction in
violence on those floors since we’ve made those changes and we’re getting people out of the system, and
not keeping them so long, so it’s less of a burden on the justice system and the jail system to begin with.

MAJITHIA-SEJPAL: I wanted to ask you about the state of mental illness in the justice system today, what
you think the challenges are, and what the future can perhaps look like.

LEIFMAN: I think we’re
turning a corner. We have a long way to go, but we have finally acknowledged and recognized that we have a problem.
It’s also interestingly pleasantly enough one of the only non-partisan issues that we have seen in my legislature
as well as in congress. Part of the problem that we have today is, aside from inadequate community resources to handle
some of these and the capacity to handle some of these problems, all of the laws regarding both treatment and financing
for mental health were really written 40 and 50 years ago.

These laws were all written at a time
when most people with serious mental illnesses were still in state hospital. It really requires a modernization of
the laws so that they better reflect the science, research, and medicine of psychiatry and mental health. As we begin
to do that, I think we’ll start to see this great change.

MAJITHIA-SEJPAL: On that note,
I think we will conclude this podcast. Thank you so much for your time, Judge Leifman.

LEIFMAN:
Sure. Thank you for doing this.

MAJITHIA-SEJPAL: I’m Avni Majithia-Sejpal and you’ve
been listening to the New Thinking podcast. To hear more of our podcast, visit our website at www.courtinnovation.org.
Thanks so much for listening.

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Judge John Leventhal is the author
of “My
Partner, My Enemy,” a book chronicling his experiences presiding over the Brooklyn
Domestic Violence Court, the first felony domestic violence court in the nation.
In this New Thinking podcast, Judge Leventhal discusses memorable
cases from his tenure, the domestic violence court model, and why he felt it was important to write a book about
domestic violence. Judge Leventhal presided over the Brooklyn Domestic Violence Court from its opening in June 1996
until 2008. Since 2008, he has served as an associate justice of the New York State Supreme Court in the second department
of the appellate division.

RAPHAEL POPE-SUSSMAN: Hi, this is Raphael Pope-Sussman
of the Center for Court Innovation. In today’s podcast, we’re joined by New York judge, John Leventhal
of the Second Judicial Department, Appellate Division in Brooklyn. From 1996 to 2008, Judge Leventhal presided over
the nation’s first Felony Domestic Violence court, based in Brooklyn’s Supreme Court. He has chronicled
this experience in a new book, My Partner, My Enemy, from Rowman and Littlefield. My Partner, My Enemy presents vignettes
of some memorable cases Leventhal heard in Domestic Violence court, as well as Leventhal’s reflections on how
the justice system can best serve victims of domestic violence. Judge Leventhal, thank you for speaking with me today
and welcome.

JUDGE JOHN LEVENTHAL: Thank you. It’s my pleasure to participate in this podcast
on a very important subject.

POPE-SUSSMAN: Why did you write this book?

JUDGE
LEVENTHAL: Well, I was taken by all of the cases that I had and there were some that stuck out to me as very, very
unusual, which was emblematic of the types of cases that judges and people experience in their lives. I thought that
it would be helpful, not only to talk about the cases, but to bring it to dramatic attention, but also to make suggestions
as to how to better protect the victims, the scope of the problem, how the problem has somewhat abated since the
court was established in 1995, and also why we should have specialized courts to deal with domestic violence issues.

POPE-SUSSMAN: Can you describe to our audience, some of whom may not be familiar with the concept of a domestic
violence court, how that court operates?

JUDGE LEVENTHAL: We started out as a pilot project in
the aftermath of a very celebrated domestic violence case, the Galina Komar case and, after that, this was really
the project of former Chief Judge Judith S. Kaye, who was really the innovator and mother of all problem-solving
courts in New York and the Center for Court Innovation who came up with all these good ideas and protocols for problem-solving
courts.

What we learned at the very beginning is that people continually come back in domestic
violence situations and we were trying to pretty much break the mold and we started the domestic violence court as
a pilot project. It eventually became a model court where the justice department was sending judges and administrators
from all over the country to come watch our court and, eventually the state department was sending judges, administrators
and lawyers from all over the world to watch the court.

POPE-SUSSMAN: What happens in domestic
violence court?

JUDGE LEVENTHAL: Well, one judge handles the case from the arraignment, on the
indictment, to motions, to pleas, to either trial and sentencing. What happened was that, one of the things that
I learned when I visited Quincy, Massachusetts when I first started, in Quincy, misdemeanors are punishable up to
2-1/2 years for a misdemeanor and the judge had great power over them. What I was struck by that there was a great
violation of probation calendar.

What I sought to do was to reduce the violation of probation
calendar. I would bring my probationers back. Those who were lucky to get six months in jail plus five years’
probation and they didn’t get state prison time, I would bring them back every two or three months for a year,
year and a half, and what we discovered is that the violation rate was less than half of the general probation population,
which is remarkable when these people were so intimately involved and knew one another.

What had
happened was, that even those who I sentenced to state jail time, when they came out of jail, parole saw the success
that we were accomplishing with probation and they asked me to bring the parolees back when they were released from
jail within one month, so that I would read them the Order of Protection, the conditions of parole, and reinforce
that the judge is still watching them. That’s why this was such a successful court because the judge was involved.
There was intensive judicial monitoring and the defendants were always reminded that the judge is watching them.

POPE-SUSSMAN: You’ve taken a very unique approach in this book with each chapter, a vignette, based
around a character or two characters. How did you select these stories out of all the cases that came before you?

JUDGE LEVENTHAL: When I decided to write the book, I went back to my notes. I didn’t actually ask for
the transcripts of the pleas or the trials or the hearings, but I went back to my notes on the number of cases and
I picked the cases that were emblematic of the types of situations, attorneys, prosecutors, and judges would see.
I picked two cases on same-sex violence and each case had another aspect of domestic violence in it. Of course, there
was heterosexual violence as well, the prototypical domestic violence situation. I tried to pick out cases which
would add to the dialogue, which would add to the discussion, and to bring more awareness to the problem.

POPE-SUSSMAN: Why did you select this approach?

JUDGE LEVENTHAL: Because I thought that,
after OJ Simpson, after Galina Komar, and even after Ray Rice and these celebrated cases, they go back into the background
and I didn’t want domestic violence to be the flavor of the month, the fad of the day, and I didn’t want
it to disappear. I figured if I wrote this book, that it would be out there, people would read it and realize that,
number one, this problem existed before OJ Simpson. This problem continues to exist and this is a problem that started
out and was only brought to the attention, first by the Women’s Movement and then it went from a private matter
to a women’s issue to a societal issue and that we should keep it in the forefront and remember it and it shouldn’t
be forgotten just because it’s not a celebrated or a case that gathers the public attention.

POPE-SUSSMAN:
I think there’s so many heart-wrenching stories in the book. I was particularly affected by the story of someone
you called Deadly Dave. I know these are pseudonyms but, who was Deadly Dave?

JUDGE LEVENTHAL:
He was a fellow who was actually the head of a domestic violence accountability group, or Batterer’s Intervention
Program, who would actually be in charge of the men and he would come in every week and report to the court, but
the thing which was so interesting about Dave is that he would tell me that, “Oh, these knuckleheads don’t
get it.” If anyone could talk the talk it was Dave and I thought if anyone could walk the walk, it was Dave.

Then the program really wasn’t doing well, so I stopped dealing with that program about a year or two
before but then, when I read on Christmastime two years following that he had killed his girlfriend and her boyfriend,
I was shocked that it was him. What made this more outrageous, they were looking for him, and that he went to a precinct
and told the police, “I’m the one you’re looking for,” and right in front of the police, he shot
himself in the head.

It was a real eye opener for me. It really reinforced that domestic violence
cuts across all strata of society. You can’t have any true assumption that someone is not going to be a batterer,
no matter who they are.

POPE-SUSSMAN: Domestic violence cases are so complicated and I think the
title of your book alludes to that. The perpetrator is also the partner of the victim. How can the justice system
protect victims of domestic violence?

JUDGE LEVENTHAL: The police are never in the home, but there
are certain aspects where we can do. For example, in England and in New Zealand, they have a procedure where you
can call the police and find out if your boyfriend has been convicted of a domestic violence crime. I think that
would really be a wonderful, wonderful thing. A suggestion that I made years ago, when I was starting out with this
through the police department has been effectuated, where they have digital cameras in the police cars, where they
can take pictures of the victim immediately, so when the woman says, “I wasn’t hit,” or, “It
wasn’t that bad,” and then you show the pictures at the arraignment, would be a big deal.

I
envision also improvements where the judge can have access to the emergency room records at the arraignment, whereby
we would know, number one, it would result in more pleas. Judges are in the position of convicting people but, if
you eliminate the cases that shouldn’t be dismissed, which are dismissed in domestic violence cases, then you
can concentrate and have trials on the cases that should be trialed. Also, you would have more discovery both for
the prosecution and for the defense at an earlier stage in the proceeding.

Other things that we
can do, we can have, every college campus should have an orientation about sexual violence and harassment. We should
have programs on teen dating violence in high schools. There are many things that we can do. Another thing that we
can do, we can make sure that shelters, which are needed, if a woman is to leave her abusive boyfriend or spouse,
we should make shelters more available to the women and not preclude women who have adolescent, teenage male children.
A lot of the shelters do not allow them into those shelters. The woman is then faced with the choice of either staying
with her abusive husband or giving up her teenage child, which you shouldn’t have to do.

POPE-SUSSMAN:
Any final thoughts?

JUDGE LEVENTHAL: My final thought is that, anyone who thinks they know everything
about this problem is clearly mistaken. We’re not interested in just processing the cases. We’re interested
in protecting the complainant while the case is pending and even after it is over. We’re interested in forming
a partnership by all of the agencies, including the defense bar. We are interested in having a coordinated community
response so that everyone’s on board. The only way a judge can participate in this is if they get the defense
bar on board. Success for this court should be measured that any of the defendants who appear before a judge in the
domestic violence court should never commit another violent crime in the future. That’s how I judge the success,
which is pretty much unobtainable, but that’s the only way I can judge success.

POPE-SUSSMAN:
Thank you so much for taking the time to speak with us.

JUDGE LEVENTHAL: It was – I always think
that dealing and speaking on domestic violence issues is really a duty. You’re very welcome.

POPE-SUSSMAN:
This is Raphael Pope-Sussman of the Center for Court Innovation and I’ve been speaking with Judge John Leventhal
about his new book, My Partner, My Enemy, now available on Amazon. For more information about the Center for Court
Innovation, visit www.courtinnovation.org.

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