Court observation programs around the country send volunteers into courts to observe, collect data, and sometimes
issue reports about what they’ve seen. Their goals include keeping courts accountable to the public and improving
transparency, but not all courts are eager to receive public feedback. CourtWatch of King County, Washington, has
worked closely with its local courts since the program’s founding, trying to build a relationship that is more
collaborative than adversarial. As Laura Jones, manager, and Mary Laskowski, services and outreach coordinator, explain
to New Thinking host Robert V. Wolf, this collaborative approach has allowed CourtWatch to support judges and court
administrators in efforts to improve the court experience for everyone.

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.

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Rikers Island is “a stain on our great city” and should be closed. That’s the headline-grabbing conclusion of the Independent Commission on New York City Criminal Justice and Incarceration Reform. Matt Watkins speaks to the Center for Court Innovation’s Courtney Bryan to learn more about the Center’s role in researching and producing the commission’s report, and the steps needed to carry out its recommendations. We also hear a range of activists and reformers react to the pledge to close the notorious jail facility.

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New York City’s incarceration rates have been dropping steadily, but a new report from the Center for Court Innovation, in collaboration with the Vera Institute of Justice, suggests the city’s jail population can still be brought significantly lower. The report looks in detail at key decision-points along the path from arrest through bail to sentencing and makes concrete suggestions for how to improve the system, especially for those defendants detained awaiting trial. In this New Thinking podcast, Matt Watkins speaks with Michael Rempel, the report’s lead author and the Center’s research director.

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In this New Thinking podcast, Judge Marcelita Haynes of the Los Angeles Superior Court talks with Matt Watkins about Community Collaborative Courts, the county’s new approach to problem-solving justice. Judge Haynes says the courts look for long-term solutions to a range of problems—from mental health issues to homelessness—that can fuel repeated contact with the criminal legal system.

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In this New Thinking podcast, Harvard Law School Professor James Greiner talks with Aubrey Fox about why he
launched the Access to Justice Lab, which has researched topics as varied as how to provide self-help materials to
defendants involved in civil debt collection cases to the effectiveness of commonly used pretrial assessment interview
tools in criminal court. Greiner also discusses what he sees as a strategy for improving the legal profession’s
openness to evidence-based thinking.

AUBREY FOX: So this is Aubrey Fox. I’m today’s
guest host for The New Thinking Podcast, which is the Center for Innovation’s podcast where we interview legal
experts and researchers. And I’m very fortunate to be joined today by Professor James Greiner, who is the William
Henry Bloomberg Professor of Law at Harvard University. Does this mean that you’re connected to our former Mayor
Bloomberg?

PROFESSOR JAMES GREINER: Actually, I think that, if I have it right, the Chair was
named after his father and he established it on his father’s behalf. It’s a rotating chair, so I have it
for another few months before it rotates to someone else. But that is the connection.

FOX: So
you’re not dining with Mayor Bloomberg on a regular basis?

GREINER: I haven’t had the
pleasure yet. I’m sure it’ll be terrific. I’m guessing he probably sets a good table, but I haven’t
had the pleasure yet.

FOX: Among many things, Jim, is the faculty director of something called
the Access to Justice Lab, which is a really exciting new initiative that he started where he’s trying to bring
evidence-based research to the study of criminal justice and civil justice. And so we want to talk to Jim today about
his work with the Access to Justice Lab and also some of his thinking about why it’s important to introduce
this evidence-based approach, and want to talk to him a little bit about some of the particular issues he’s
investigated.

Jim, maybe where we’ll start is just to let you talk about how you got interested
in this area of criminal justice and civil justice, and tell us a little bit about your background.

GREINER:
Sure. So when I graduated from law school, I hadn’t taken any statistics courses or any sort of quantitative
courses in college or anything like that. I just wanted to be a regular practicing lawyer. So I did that for 3 years
for the Justice Department and then 3 years for a private law firm, a law firm called Jenner & Block in DC
and, at the time, I was litigating cases that involved some numbers. So, employment discrimination class actions,
litigation about the 2000 decennial census, whether you could use statistical techniques to try to correct for over-counts
and under-counts according to racial groups. I’d always been interested in social justice issues and criminal
law issues.

When I moved over to the private law firm, I did a couple of pro-bono cases that we
picked up. And basically, through the practice, redistricting was in the area I did, got interested in numbers and
what numbers and evidence-based thinking could bring to the table in terms of social justice issues. And so after
6 years as a practicing attorney, I left the practice of law for 5 years to get a PhD in statistics.

And
then when I got my PhD in Statistics I started researching in a bunch of areas, but the one I was having the most
fun with, really enjoying and the one that I thought I could potentially do some good with was access to justice
issues, more on the civil side than on the criminal side, but some on the criminal side also. So issues like, how
do you make law work and be accessible for folks who can’t afford to hire lawyers to interface with the legal
system. And on the criminal side, how can we make existing institutions perform what we want them to perform better.
How can we release more people who are not dangerous, how can we reduce the criminal footprint on communities and
still maintain a system of law and order, etc.

So those are the big-picture issues that I found
most interesting.   

FOX: So, having a statistician as a professor
of law. Is that an unusual development, or is that something that’s been going on for decades and decades?

GREINER: No, I think there are only 2 of us still in the legal academy that have stats degrees– stats PhDs.
I know the other person, unsurprisingly. But having someone as a law professor who knows, as we say, “how to
count”, that’s not all that unusual. It’s just folks typically have economics degrees or political
science degrees or something like that. But the hardcore statistics is what I really wanted to get invested in. And
the reason for that was I pretty much knew when I was going into the statistics program that I was a litigator through
and through. I was always going to be a litigator. I was going to care about courts and administrative agencies and
the practice of law at a person by person level.

And so I didn’t feel like I wanted to learn
a lot about the big-picture political science theory and big-picture economic theory that those folks do. And so
I just said let’s go straight into the heavy numbers.

FOX: And so tell us a little bit about
the Access to Justice Lab. What does it do, when did you get it started?

GREINER: We’re talking
in December of 2016. It’s only been in existence since July of 2016, and it is funded by a generous grant from
the Laura and John Arnold Foundation. The foundation itself cares about evidence-based thinking across a lot of different
spheres, and it funded the lab. And basically the lab has 2 overall missions. One is to produce useful, rigorous
evidence that would assist policy makers and judges and lawyers in what they do. Especially with respect, again,
to access to justice related to folks who can’t afford to hire lawyers to interface with the legal system for
them.

And then the second overall purpose is to try to tear down the resistance to rigorous empirical
evidence, especially via the randomized control trials, or randomized field experiment, that resistance that exists
within the legal profession and within the judiciary.

I think that in law, especially with the
practice of law, we are in roughly where the medical profession was in about 1938 or 1940. Basically, we are beginning
to engage in the debate about whether our profession should be evidence-based in the way that medicine was engaging
in a debate about whether drugs and medical devices should have evidence behind them before they are allowed to be
sold to the public.

And there are many folks in law, on both the bench and the bar, who think
that randomization in law is unethical or is unnecessary. Unethical because randomization takes away the professional
judgment about who should get what, and unnecessary because we know that, as lawyers and judges, all of our professional
judgements are perfect, or very, very good and, therefore, we don’t really need to investigate them all that
much. And so the Access to Justice Lab’s second purpose is to try to suggest to folks that scientific-based
thinking and evidence really can bring a lot to the table and it may end up overturning accepted truths within the
bench and the bar.

FOX: I’m glad, in your comparison to the medical world, you didn’t
bring up leaches. So at least we’re… We’re 100 years ahead of where we could be.

GREINER:
Right.

FOX: And, just to follow up for a moment, I kind of want to get your sense of the state
of play on this because I understand that there may be resistance to RCTs, which are the most rigorous form of evidence-based
analysis and require dividing a control group from an experimental group and giving some people something that you
don’t give the control group. But there is a history of doing research into criminological issues. So it’s
not like you’re starting from square one. So I guess in this mix of some history and some resistance, where
would you say we are at the moment?

GREINER: I’d say more resistance than history with respect
to courts and judges and lawyers. So you’re absolutely right that there is a reasonably well developed literature
in the criminology field. And a good portion of it, not as much as many criminologists would like, but still a good
portion of it backed up by randomized studies to try to figure out whether, say, afterschool programs prevent people
from getting arrested, or whether certain types of treatment as a condition for probation are effective in preventing
recidivism. But if you notice in the 2 examples that I gave you, one of them is sort of prior to the involvement,
the intervention is prior to the involvement of the criminal justice system, and one of them is post sentencing,
sort of after the involvement of what we call the lawyer-based or court-based criminal justice system.

And so there has been substantially less in that portion of the criminal justice system where the lawyers
and the judges get involved to the point where, when a co-author and I try to catalog all of the randomized studies
that have been done in United States law, criminal or civil, that involved randomization of a decision that would
otherwise have been made by a judge or a lawyer, so it’s how we defined randomized studies in law. We’re
taking a decision that otherwise would’ve been made by a judge and a lawyer and randomizing it to find out whether
the decision is worthwhile or would be an effective style of treatment or something like that. We could only find
about 50 in the history of the United States, based upon all areas of law, all sorts of settings.

So
if you think about medicine starting from 1938 or 1940, the number would probably be uncountable, be tens of thousands
or hundreds of thousands of randomized studies that have involved replacing a judgment that would’ve otherwise
been made by a medical professional with randomization in order to figure out whether the treatment or the intervention
works. Whereas we could find fewer than 1 per year in law. So again, I absolutely agree with you. Criminology has
much more of a history. It’s a much more developed field. But they’re basically working in their rigorous
evidence prior to the formal legal system or after it in the lifetime of a particular defendant or person or crime.
And where we think the evidence really needs to be focused is, at least in terms of a new effort, we need to focus
on where there isn’t as much evidence right now, which is inside courts and law offices.

FOX:
One of the reasons that I wanted to speak to you, Jim, was the Center for Court Innovation, while we’re known
more for our work on criminal court programs, we also have been developing a civil justice portfolio. And so I’m
curious to hear you talk about some of the work you’ve done on issues, and you’re continuing to do, like
debt collection and the assignment of council in housing court cases. And I guess the framework I have for my question
is, making the case for this kind of research may rest on finding kind of practical implications that flow from the
research. So I’m wondering if you can give us some examples of research you’re doing and what you see as
the things that a practitioner would immediately identify as, well that’s really interesting and useful.

GREINER: Absolutely. So I guess, two examples. And I don’t want to go on for too long, so stop me if
this turns into a monologue, but two examples with respect to financial distress work which you mentioned, the debt
collection work that you mentioned, one of the premises of that work is that there is just never going to be enough
money, there’s just never going to be enough of a social commitment to provide a lawyer at state expense for
every individual who can’t afford to hire a lawyer who has a legal problem. Even if we were to restrict that
set to people who are facing court adjudications that affect basic human needs by some definition, which is the ABA’s
proposed definition. It’s called the Civil Gideon Project, this idea that we can provide lawyers at state expense.
I just don’t think the resources are ever going to be there. Some smart economists have tried to calculate that
and it’s in billions upon billions of dollars would be needed.

With that in mind, it’s
probably going to take a battery of lots of different things to address the access to justice problems that we’re
having in United States society, and one of those things, one of those many things that we need, is going to be self-help.
How’re you going to make complex subjects accessible, complex procedures and complex principles accessible to
folks who can’t afford to hire lawyers for them so they can try to address legal problems they have on their
own?

So the financial distress work that I’m doing is an attempt to try to say, well, if
what we need are self-help materials, and we need basically to educate people about how to solve their own problems,
what sorts of principles can we draw from non-law fields that would help us make self-help materials more effective,
or would we hypothesize that would make self-help materials more effective?

For instance, if we’re
trying to get people to a particular location at a particular time of day and on a particular date to do something
they would rather not do because they decide it’s good for them, how do we persuade people to do that?

Well, if you pose the question at that level of generality, you recognize that… Voting. Political scientists
study how you get people to vote on a particular day at a particular time. Public health officials study how to get
people out to take flu shots, or to get colonoscopies on a particular day. These are all studies that have been run.

But in law, our self-help materials don’t actually use any of the lessons from any of those other fields
about how to get people to a court date. We think that’s bad. We think that if good lessons are learned from
those fields, we should try them in law and see if they work.

Similarly, there’s an entire
field called adult education, or just education period, about how you communicate complex concepts to people who
need to be able to use them. But in law, our self-help materials don’t currently use the lessons from adult
education. And you can see that because if you read the legal self-help materials, they’re word-heavy. There’s
just lots and lots of text. Whereas adult education folks, or education folks generally are saying, no, no, no. You’ve
got to use images. So, in our case, we’re using cartoons.

And so, the idea there is to say,
let’s try to create the best possible self-help materials that, under the state of the art, we currently know
how to create using the lessons from all these different fields. But then, let’s don’t declare victory
there. Because maybe there’s something about law, or maybe there’s something about the way that we did
the self-help materials that would make them not effective, or maybe there’s something they’re not understanding.
Or maybe the best possible self-help materials are just not enough in a system that is so complex that self-help
is just not an option.

So we go test them. We go put them into the field and we do a randomized
experiment. In one randomized experiment, we might randomize people to either get self-help materials or an offer
of representation from an attorney. Or in another experiment, we randomize whether people get self-help materials
versus no further assistance. Our self-help materials versus existing self help materials which, in many cases, just
don’t exist.

So that’s one example. I’ve got another one but, again, I don’t
want to go on and on.

FOX: I’ll just cut in for a moment to say the research you’re
doing on self-help or pro se council is relevant to us because we run a program called Legal Hands, which essentially
employs volunteers who are not lawyers. So it’s a bit of a blended model. This is people who are physically
talking to a community member, so it’s not something that you go online to get self-help materials. But they’re
not lawyers. And it speaks to your general point which is, it may not be possible to have a lawyer for every person
on every case of relevance to them.

GREINER: Absolutely. I think what your program is doing is
mixing a partial service-based solution with a partial self-help so it might be a sort of guided self-help. Absolutely.
Again, I think part of the problem, one of the reasons why I find this field so much fun to operate in but also so
frustrating is that we just don’t have any evidence to suggest, to guide us as to when we need a partial service-based
solution, partial self-help, and what settings a total self-help solution is sufficient. Or maybe it’s not the
legal setting, maybe it’s the type of person. Which people can take care of it on their own if guided appropriately
either by self-help materials, or which ones are going to need some service along with it. So absolutely.

FOX: Let’s hear your other example.

GREINER: Another example that comes to mind
is the problem of triage which is basically, whenever there is more of a particular type of case, or another way
to put it, more clients than you have the capacity to provide the highest level of assistance to. So in our particular
study that we’ve been trying to get underway and still in the planning stages for, this setting is victims of
domestic violence who come to a legal services provider and seeking assistance with obtaining civil protection orders
from courts, and the legal services provider has the capacity to assist in terms of providing full representation
to. Around 1/3 of the folks who come to it who are eligible for the help, income and asset eligible, and who are
actively seeking civil protection orders.

Now that by the way, that number, 1/3, would go down
substantially if the legal services provider did more outreach in the community. So we’ve looked in the court
systems where this LSP is operating and in fact a substantial number of people are already in the court system seeking
civil protection orders without council. And so you only see the tip of the iceberg, and you can’t even handle
the tip of the iceberg, in terms of providing full representation, the traditional attorney/client relationship to
these folks, much less the whole iceberg. So what do you do?

And it turns out that in medicine,
again, to use that analogy, there’s been lots of study about how to make these triage decisions. It’s both
an ethical question and an operational question. Ethically, what do you want to do when you’re in that sort
of scare situation, and that comes up both in medicine in terms of something like when you don’t have enough
organs for transplant, it comes up when you have Hurricane Katrina knocking out power in a hospital and you don’t
have enough evacuation capacity to get all of your patients out of your hospital. That was the subject of a recent
Radio Lab episode. So there’s an ethical dimension to that question.

There’s also an
operational dimension. Suppose what you wanted to do was to say, we should use these resources to save the most lives.
Or, in a civil protection order context, we should use these resources to try to get as many people as possible civil
protection orders because that’s what they’re for and that’s best for the community. How would you
do that? How would you go about doing that? And one way you would go about thinking about it, the way that the military
thinks about it when we’re talking about battlefield casualties is, you say, well try to distinguish people
into 3 groups. One is a group of people who are going to be able to succeed on their own. So in battlefield casualties,
these are going to be people who are going to survive the battlefield even if not assisted immediately. You don’t
provide immediate assistance to them. In the legal services provider, people who are going to be able to get civil
protection orders on their own, you don’t offer full representation to them.

For people who
are never going to be able to survive on the battlefield, or never going be able to get civil protection orders on
their own, even if given the full representation, you don’t give them full representation either, because it’s
not affecting the outcome.

The people you do give battlefield assistance to, or full representation
to, are the folks that you can change their outcome. If you give assistance, they’ll survive or they’ll
get the civil protection order. If you don’t give assistance, they won’t survive or they won’t get
the civil protection order.

So that’s one way to think about it. But if you want to do that,
you face the problem of, how do you go about distinguishing those people. Because a lot of study and a lot of different
settings, again, emergency room setting is one example, turns out that’s a very hard thing to do. To figure
out who you can actually change the outcomes for. So we’re pursuing a randomized experiment that’s designed
to try to add to our knowledge of how do you distinguish those folks. And most importantly, whether lawyers, given,
exercising professional judgment, can in fact predict which people really would benefit from the help.

FOX: And I guess what you’re talking about raises a big issue for me, which is, let’s give a concrete
example, in New York city they’re talking about investing potentially $200 million more a year in hiring lawyers
to represent people facing eviction in housing court. So there is actually more money now in areas of the law there
hasn’t been a lot of money in the past.

However, you’re no doubt correct that there
isn’t enough money to cover every case at every moment. And so I guess having an RCT or a research study is
great progress towards this habit of thinking in a kind of, I would use the term problem solving way. But how do
we get to more fundamental change? What’s the way to inculcate this way of thinking in a legal services organization
in a more fundamental fashion?

GREINER: It’s a really hard question and one that we’ve
been scratching our heads about in the Access to Justice Lab about. Because that’s our overall mission. One
way of thinking about this is, if the Access to Justice Lab is going to be one of the few institutions around the
country that’s going to be doing randomized studies in the law and we’re going to depend on those few institutions
to produce evidence, we should stop. We’re never going to be able to produce enough evidence. Even as a lab
and even as an institution, 1 or 2 institutions are never going to be able to do it. Just the same way one center,
Johns Hopkins can never produce enough randomized experiments in medicine to make progress in medicine possible.

So we have to start a movement. We have to get people to think this way and to demand this evidence. In
terms of the strategies we’re pursuing in the Access to Justice Lab, we’re, first of all, going to try
to produce studies and try to educate folks about, hey, this evidence from this study can be useful in your practice,
it can get you to think about ways other than the way you were thinking before, or ask new questions about what you
should be doing to be more effective.

We’re in the process of producing a short course so
that folks who, either want to do these studies as researchers or to form partnerships with researchers to get the
study done, so these field operators will know more about what’s required and how to do them. We will be doing
persuasion in terms of just appearing at conferences and giving speeches and talking to anyone who will listen to
us about why this is so critical and, quite frankly, we think that there’s an ethical duty to do these studies.

Because if you think about it in the civil protection order context, our view is that if we triaged more
effectively, more people would have civil protection orders than currently do with no additional injection of resources.
When you think about it that way, there may be an ethical duty to do these studies, as opposed to, oh, well they’re
just curiosities. We think ultimately that we’re going to need to persuade funders to demand evidence. Maybe
not demand the evidence, show it to me right now or I’ll cut your funding, rather say, if you don’t have
the evidence, I want you to, this is a funder speaking to a legal services provider, I want you to engage in an evidence
gathering study. And sure, I’ll fund your efforts, your services as long as you are gathering evidence about
whether those actually work.

FOX: Well, this is fascinating work. And thank you so much for agreeing
to speak with us. Again, I’m Aubrey Fox. I’m the guest host of the New Thinking Podcast for the Center
for Court Innovation and joined today by Professor James Greiner who’s a Professor of Law at Harvard University
and the Faculty Director of the Access to Justice Lab. They have a great website that you can go online and take
a look at some of the studies that they’re participating in. Thank you so much, Jim.

GREINER:
My pleasure, thanks for the opportunity. 

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In this New Thinking podcast, Raymond H. Brescia, associate professor of Law at Albany Law School, speaks with
Aubrey Fox and Robert V. Wolf of the Center for Court Innovation about the role lawyers can play in addressing poverty
and eviction, why New York City has been dramatically expanding funding to provide lawyers to respondents in Housing
Court, debt collection cases as the next great issue for public interest attorneys, and how a good lawyer is like
a patronus from a Harry Potter book. 

ROB WOLF: Hi. I’m Rob Wolf, Director
of Communications at the Center for Court Innovation. Joining me today is Aubrey Fox, who was my colleague here at
the Center for Court Innovation for about 15 years, where he helped set up a number of innovative programs that we
run, including Bronx Community Solutions, and he is now helping out in various capacities as a consultant. Today,
he and I are going to do a podcast together. Aubrey, let’s tell listeners who we’re speaking with today.

AUBREY FOX: We’re interviewing Ray Brescia, who is a Associate Law Professor at the Albany Law School.

WOLF: Why are we speaking with him?

FOX: Rob, as you know, the Center for Court Innovation
is known for our work on criminal court programs and we operate criminal courts and partnership with the New York
State Court system all over the city, but people may know a little less is that we also have some new experiments
in the civil justice space.

WOLF: Specifically, civil refers obviously to noncriminal. That’s
family, housing, that sort of thing?

FOX: Exactly. Two of the programs that we’re running
now, one is called Poverty Justice Solutions, in which we assign recent law school graduates to nonprofit civil justice
firms around the city, and they work mostly on housing court cases. We also have new program called Legal Hands,
where we employ volunteers and train and equip them to give advice to people who are facing issues, in hopes that
it can help them keep out of court in the first place.

WOLF: I know Poverty Justice Solutions
is focused particularly on working with people who face evictions.

FOX: Yeah, I mean a lot of
the nonprofit civil justice law firms in the city focus on eviction and housing court cases, and there’s an
immediately obvious reason why. A lot of New Yorkers face issues with their housing, and we know now that there are
some very direct links between housing and poverty. People who struggle to pay their rent, if they get evicted, there
are all sorts of negative consequences that accrue from that. The city is paying a lot more attention to try and
intervene, and at the very least provide legal representation to people who are facing eviction in housing court.

WOLF: It’s both a more humane approach, trying to prevent people from losing their homes, but there’s
a practical aspect too, that it’s going to cost the city, and impact the quality of life for both the tenants
and people who live in the city if they don’t prevent these evictions.

FOX: Yeah, I mean
there’s one estimate just produced by the city council that you could save about $300 million dollars, the city
that is could save about $300 million a year if it kept around 5,000 families out of shelters. It costs about $43,000
per family per year to put someone in a shelter. Obviously, if there is an appropriate way to keep them in the housing
that they currently have, and thus keep them from going into a homeless shelter, then it would seem that everyone
would be better off.

WOLF: I guess the rationale is that without representation, they may be losing
their homes, their tenancy unfairly, because they don’t have the right advocate. Legally, if someone was articulating
their position and their rights, they hopefully would be able to stay in their home.

FOX: Yeah,
I mean the housing eviction cases are often very complicated, and sometimes the existing rules and laws aren’t
applied because in this case, the defendant who’s facing eviction doesn’t know their rights, doesn’t
have legal representation. It’s an issue that the city is really directly focused on, and as you say, not just
because losing a house, your home is a huge personal crisis, but because the consequences of losing your home end
up being faced by the city quite often.

WOLF: Well so let’s get Professor Brescia on the
phone. Just so people understand, I’m actually in our office in Manhattan, you are in your special studio in
New Jersey, also known as your home. Now we’re going to be joined by Professor Brescia, who we’re calling
in his office.

FOX: In Albany.

WOLF: In Albany, there you go.

FOX:
Yes, all right.

WOLF: Okay, let’s get him on the line. Ray Brescia, welcome to the podcast.

PROFESSOR RAY BRESCIA: Thank you very much, thanks for having me.

FOX: Ray, where we
wanted to start was just to get you to tell us a little bit about how you got involved in public interest law.

BRESCIA: Well, it goes back to being a young person and being very concerned about politics and the world,
and being very excited about things that were happening around me. I was a child of the 70’s, and so there was
a lot of politics that went on in the 70’s. Some of my earliest memories were of the end of the Vietnam War,
and then Nixon’s resignation. I just have always been interested, I think it comes from a family that’s
very interested in political issues, and over the years as I was growing up, I realized that a lot of people about
whom I was reading in the newspaper were lawyers and involved in the issues that I was interested in. That really
sparked my interest in becoming a lawyer.

WOLF: You’ve been deeply involved now in the civil
side of the law and civil justice, so you’ve observed recently how there’s been growing interest in civil
justice. In fact, the city created recently an office of civil justice, and now there’s talk of what’s
being referred to as “civil Gideon”, and Aubrey and I were curious, you know if you could maybe explain
what civil Gideon means. Obviously Gideon refers to the 1963 Supreme Court decision that gives people right to counsel
in criminal cases. What does that mean on the civil side?

BRESCIA: On the civil side, it would
mean the same thing in civil cases as you see in many criminal cases, not all criminal cases. Lower level offenses,
you don’t have a right to counsel, but on the civil side, just like on the criminal side, when people talk about
civil Gideon, they mean a right to counsel in cases where fundamental human rights are at stake, shelter, loss of
benefits, things like that. If you look at sort of what the consequences are of not having counsel in a criminal
case and in a civil case, in many of the more impactful civil cases, the outcome can be the same. Someone could be
institutionalized, someone could be incarcerated, someone could be, you know their freedom could be restricted if
they become homeless, if they have to move into a shelter.

If the consequences are similar in
certain civil cases as they are in some criminal cases, then the importance of counsel is similar as well. I think
a lot of people don’t understand, they think that there’s legal aid, and so people have a right to counsel
in an eviction case, but they just don’t. The number of people in a place like housing court in New York, which
evicts 25,000 families a year, low-income tenants who can’t afford an attorney, most of them do not have access
to counsel, even though we do have phenomenal legal aid programs that can provide services to low-income people and
to help them prevent eviction.

Short of the funding that recently came down from the city of New
York, when I was practicing in housing court in New York City, a very small fraction of low-income tenants had counsel.
That meant that they faced eviction without a lawyer, and eviction cases can be very complicated. I think what the
de Blasio administration is doing and what city council is proposing is really going to expand access to justice
in housing court, and hopefully in other settings as well, at least in New York City, to ensure that in really important
cases on the civil side, like in the criminal side, people have access to a free lawyer.

WOLF:
Let me just throw out some numbers too related to what you said. The office of civil justice said that in 2013, only
1% of tenants in New York City housing court were represented by attorneys, but they project that with their investment
of, I think $100 million, the city’s investment in fiscal year 2017, 27% will be represented, one in four basically,
of tenants will be represented. That would represent a dramatic shift, and would you anticipate that that would then
dramatically change outcomes, you know fewer people would in fact be evicted and have to move into shelters and that
sort of thing?

BRESCIA: Certainly. It’s going to do two primary things: One, it’s going
to ensure that many thousands of tenants have a fighting shot in housing court. Once you do, if you have a fighting
chance, most of the time a lawyer can make a huge difference in raising important defenses, negotiating viable solutions
that don’t require the tenant losing his or her home, dismissing cases because the landlord’s case is weak.
In the first instance, many tenants who, with representation, are going to avoid eviction, period, full stop.

I think a second consequence of the increased number of tenants with counsel is that landlords are going
to bring fewer cases. A lot of landlords now don’t have to worry about their tenant being represented, and they
can bring trumped-up cases, they can bring cases that are weak. They know at the end of the day, many tenants won’t
even show up to fight the case because they think that there’s no hope in fighting the case, because they don’t
have a lawyer, they don’t know their rights. Many move out when they get the eviction papers, or simply sit
back not knowing what they’re supposed to do, and don’t defend themselves. I think landlords count on that
for at least a percentage of cases, and if they know that tenants are going to be represented, not only are they
only going to bring the strongest cases that they can, but they’re not going to bring the cases that they think
they can get by on weak claims.

FOX: One thing I find really interesting is you have the city
investing a lot more in this area, but I guess I’m curious about the context here. What do you think is driving
this idea that we should take a second look at the relationship between poverty and housing? Is it driven mostly
by practical conditions on the ground, is there an intellectual momentum that has developed that is starting to reframe
these issues?

BRESCIA: I would like to think that there are two main drivers of seeing this issue
as an access to justice issue, that is an issue that centers around the low-income people’s lack of access to
a lawyer. One is moral, and it’s based in our fundamental belief that in our democratic system, people should
have a right to defend themselves adequately in a court of law when legal claims are made against them, so that’s
the moral case to be made for access to justice. I think more practically that there’s a fiscal case that can
very easily be made for the investment of counsel.

Counsel in a housing case is usually provided
by a nonprofit for roughly about $3,000 a case. They’re reimbursed for the number of cases that they handle
for about $3,000 a case. A family that is evicted that goes through the shelter system costs the city about $30,000.
If you can, by the provision of a lawyer, you can prevent that family from becoming homeless, you’re saving
the city and the people of the city of New York and any other jurisdiction that takes this view, you’re saving
them lots of money. There’s an absolute moral case, but also a practical fiscal case.

WOLF:
It’s interesting that you say the lawyer only gets $3,000, which makes me think about the attractiveness of
going into civil justice law for law students today. I mean, there is a trimmed down market on the corporate or the
money-making side, so to speak, of the legal profession. Is it more attractive? Are you seeing a shift? Are more
law students interested in civil justice, especially as there’s more interest and more need for lawyers, as
there is at least a little more money to pay for them?

BRESCIA: I think a lot of people go to
law school, a lot of law students go to law school because they want to make a difference, and they want to do work
that is meaningful that makes a real difference in people’s lives. Too often, law school debt, practical reality,
economic realities drive students away from those reasons that they went to law school to begin with. The more that
funding is made available as the de Blasio administration is making such funding available for nonprofits to represent
low-income tenants in housing court and hopefully in other settings, there’ll be more opportunities for students
to get back to the reasons they went to law school in the first place.

FOX: We’ve talked
mostly about housing court, but there are other types of civil legal cases. I just wonder if you want to bring up
another example of the kind of case where a good attorney could really make a difference in the lives of somebody
in a particular type of case.

BRESCIA: Well, you know there’s another area that’s gotten
a lot of attention lately is consumer debt. Consumers, which are everybody, people, can mount up consumer debt from
an old credit card, from an old cell phone bill, maybe they move, they don’t get the last bill, and penalties
can accrue, and the consumer can face a lawsuit in court for a $200 bill with fines and penalties can quickly become
something that escalates and grows into a two, three, $5,000 bill that the filing of a lawsuit against them alone
will impact their credit score. They find that their wages are garnished, their bank accounts are frozen, they can’t
pay their rent, they can’t buy things like medications or food.

Another area where lawyers
can make a real difference, I mean it’s hard to say that fewer defendants get represented in consumer debt cases
than in housing court cases, because in 1% of housing court cases, the tenant has representation, but it’s actually
less than 1%, at least in New York City, according to research that the Urban Justice Center did years ago, less
than 1% of tenants have representation. That can have a real impact on people’s lives, and can spiral into an
eviction case if they can’t pay their rent, or a hospitalization if they can’t get medication to keep them
out of the hospital.

That’s another area, and these are very straightforward cases, they’re
often very strong defenses, that a pro se person, someone without a lawyer, doesn’t really know how to raise
such defenses, but with a lawyer, that defendant can easily raise very strong defenses and often get the cases dismissed.
Our experience has been, and lawyers who do this work, that the mere presence of a lawyer in a case is enough to
get the plaintiff to simply withdraw the case, that they don’t want to fight it because they know that there
are so many strong defenses that will be raised by a lawyer who is worth his or her salt. It’s like in Harry
Potter, it’s like the character, you know they can call out their character that helps them defeat the evil
beings, it’s not a Horcrux.

WOLF: Their patronus.

BRESCIA: Their patronus,
exactly, thank you very much. You know it’s like a patronus, you can call forth your lawyer and the plaintiff
just runs away.

WOLF: Well, it sounds like a situation that is also ripe for abuse then, that
as you said with housing cases, if people bringing these consumer cases, these debt cases, knew a lawyer would be
there, they’re less likely to even bring the case because they know that there maybe isn’t a lot of substance
to it. I wonder, what about the Center for Court Innovation, in collaboration with several partners also has a program
called Legal Hand, which basically gives advice to pro se litigants. They can go to a community walk-in storefront
situation and get some advice, and I wonder, short of providing an attorney, and perhaps in some cases where an attorney,
there isn’t enough money to give everyone an attorney yet, but at least giving them some legal advice, how useful
is that, do you think? Does that also have a practical impact?

BRESCIA: I think it does. You have
to do what we call in the legal services world “effective triage”. You have to identify cases where they’re
relatively straightforward, where advice alone is enough to arm the tenant with the information, or whoever the party
is, the party seeking the information, that it’s a straightforward case where simple information would be enough
to prepare him or her to defend him or herself in court or in an administrative proceeding like a welfare hearing
or the DMV, wherever it is. It depends on a number of factors, I think the first factor is the complexity of the
case.

Is it a case where straightforward information that’s easy to understand is enough,
so the person can defend his or her rights? Then it will depend also on two other things, I think, what’s at
stake, and then the ability of the individual in the context he or she finds him or herself in, to use the information
obtained effectively. Things that are, where there’s high risk, you know Warren Buffet doesn’t deal with
issues, billion dollar deals without a lawyer, someone who’s facing an eviction or the loss of a child or the
termination of welfare benefits, given what’s at stake, it’s very difficult to say to that person, although
we do it every day, “You don’t get a lawyer.”

With what’s at stake, I think
that’s another factor to think about because of the risk of loss of what’s at stake. Then, is this individual
someone who can manage the case with a little bit of information, or is it someone because of disability or because
of the complexity of the case, can’t handle the issue on his or her own? You sort of have to go through a series
of questions to triage each case to determine, is this a case where a little bit of information is going to be enough
so that person can protect his or her rights, or are there enough of these variables that say, “Wait a minute,
this is a person who needs full representation.”?

WOLF: Well, thank you so much for taking
the time to talk with Aubrey and me today.

BRESCIA: Thank you for having me.

FOX:
Thanks Ray.

WOLF: We’ve been speaking with Ray Brescia, who’s an associate professor
at Albany Law School, and he’s been speaking with us about trends in civil justice and some of the exciting
things that have been happening here, particularly in New York City. To find out more about the Center for Court
Innovation and some of our civil justice programs, and in fact all our programs, you can visit us at our website
at www.courtinnovation.org. I am Rob Wolf, director of communications, and my cohost today is Aubrey, you want to
say who you are again?

FOX: I’m Aubrey Fox, and I’m going to try to find a patronus
after this interview’s over. They sound useful.

WOLF: Thanks everyone, and thanks for listening.

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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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