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Violence and the Judicial System: Stemming the Tide of Violence in Our Courthouses

By Dianne Molvig

On April 14 of this year a man facing a second drunken-driving charge pulled a loaded shotgun out of a garment bag he'd brought with him to the City/County Building in Madison, which houses the Dane County circuit courts. He planted the gun under his chin, apparently planning to kill himself as he sat in a hallway outside the courtrooms. Bailiffs swiftly surrounded him, guns drawn, yelling at him to put down his weapon.

Judge Gerald Nichol heard the fracas occurring outside his chambers. "You can imagine how my staff felt when we were in here in a hearing," Nichol says. "It just immobilized us all."

The incident ended without injury to anyone. But for Judge Nichol it held a particular irony: It occurred on the very day he was reviewing the final report of the State Bar Commission on Violence and the Justice System, which Nichol cochaired with Milwaukee attorney Joan Kessler.

Previous violent events in Wisconsin courthouses, resulting in far more tragic results, prompted the creation of the commission in 1995 by David Saichek, immediate past president of the State Bar. Five years ago Shirley Lowery was stabbed and killed by her former boyfriend in the hallway outside the Milwaukee County Court Commissioner's office while she awaited an injunction hearing. In January 1988 Aaron Lindh walked into the City/County Building in Madison and opened fire, killing county coroner Bud Chamberlain and one of his support staff, Eleanor Townsend.

Episodes such as these provide vivid examples of the threat violence poses to our justice system and the people who participate in it. Other impacts of violence aren't as immediately horrific or as readily recognized.

For instance, violence translates into more trials and hence more heavily burdened court calendars, as well as severe strain on those trying to manage the load. The potential for violence before, during or after courtroom proceedings stirs fear among participants, be they judges, commissioners, support staff, jurors, attorneys, witnesses or parties. The human cost wrought by living with that kind of fear is impossible to measure.

Violence also becomes a behavior model for many of today's youth. Having been targets of and/or witnesses to violence throughout their childhoods, often they too become violent perpetrators as juveniles and adults, thus multiplying the effect violence has on the justice system for years to come.

In subtle and overt ways, violence has sinister, resource-draining effects upon our justice system. What those impacts are, and what might be done about them, became the subject of the commission's inquiry. Saichek handed the commission a specific task: "The main objective," he says, "was not to cover ground that had previously been covered on the causes of violence and civil unrest, but to study how the increase in violence has affected the judicial branch of government."

He points out that compared to the other two branches of government, the judicial branch is in a peculiarly difficult position in dealing with violence. The legislative branch can pass laws to get tough on violent crime; the executive branch can appropriate funds to enforce those laws. "That puts the judicial branch at a distinct disadvantage," Saichek notes. "The other two branches can say that a certain activity is now a crime, or that the minimum sentence for a crime will now increase from five to 10 years, without any fiscal notes as to what that does to the court system."

Besides examining the myriad ways violence impacts the judicial system, the commission also searched for solutions to reduce the impact of violence. Finding answers requires new ways of thinking, says Judge Nichol. "In the legal system," he notes, "we focus on precedent. We do things because we've always done them that way." But to curb the effects of violence in the justice system, "we have to start looking at the processes and the outcomes," Nichol says. "We can't do business as usual."

As just one example of what he means by processes, Judge Nichol calls upon his fellow judges to pay more attention to how they schedule hearings. "We shouldn't have a 9 o'clock calendar," he explains, "that puts everybody who's dealing with domestic violence injunction hearings out in our hallway or in our courtroom at the same time. All we're inviting is calamity. If we space those hearings, people may feel more at ease. We won't have everybody all together with their agendas and their anger."

That kind of procedural change is a matter of "mechanics," Nichol points out, not capital expenditures, whereas other measures to deter violence may cost money. The commission report contains a wide range of recommendations, divided into five key areas: courthouse security, domestic violence, juvenile justice, restorative justice and alternative programs, and weapons.

Courthouse Security

People commonly assume that violent outbreaks in courthouses can be pinned mostly on two groups: hardened criminals or delusional maniacs. In fact, "it's more likely to be Joe Neighbor, whose wife is filing for divorce," says Gregg Herman, Milwaukee attorney and commission member. "He decides if he's going to lose his wife, his children and his home, he's just going to end it - and take her out with him."

Increased courthouse security can go a long way toward thwarting such tragedies. The commission proposes several suggestions:

1) Reasonable Controls on Courthouse Access. This recommendation deals with the hardware of violence prevention, such as using metal detectors or wands to uncover weapons, limiting courthouse access to one main security checkpoint, installing silent alarms that any court staff person could trigger to summon help when facing danger, and so on.

2) Secure Office Settings. Courtrooms aren't the only potential scenes for violence. District attorneys, intake workers and family court counselors also deal with volatile people and situations, and thus need protection in their work areas.

3) Presence of Uniformed Bailiffs. Bailiffs in the courtrooms, hallways and waiting rooms can serve both to deter violence and to handle incidents that arise.

4) Secured and Separate Waiting Rooms. Making adversarial parties share the same waiting space, especially when they're involved in emotional proceedings, is bound to fuel tensions. Separate waiting rooms may be a space issue in some courthouses. But, points out Herman, "courthouses are rarely static. They're always changing and remodeling. In the course of doing so, it shouldn't be that hard to designate separate areas where parties can wait."

5) Improved Access to Court Information. Many people come into courthouses already feeling agitated. Add any frustrations they encounter while finding their way through the court system, especially if they're without legal counsel, and you have a potential mix for violence. Solutions from the commission include volunteer court aides, such as retired teachers or police officers, to provide guidance for courthouse visitors; advocates to serve as victim representatives in restraining order proceedings; and information flow charts to clearly lead pro se participants through routine courthouse business.

6) Improved Court Scheduling. Reducing waiting times, especially when adverse parties are near each other, could help reduce tensions that can erupt in violence.

Domestic Violence

As the commission gathered research and listened to people speak at public meetings in Milwaukee, Green Lake, Wautoma, Green Bay and Madison, one key theme surfaced repeatedly: Violence in the home has a pervasive effect throughout the justice system. "Whether we were talking to people in family, juvenile, criminal or civil court, all the folks kept telling us that where they see issues arising stems from the problem of family violence," reports Tess Meuer, commission member and staff attorney for the Wisconsin Coalition Against Domestic Violence.

The commission's recommendations include:

1) Controlled Courtroom Environment. Curtailing contact between parties is crucial during hearings involving domestic violence. Even only visual contact can have a chilling effect on the victim. "A victim may enter an injunction hearing," Meuer says, "and the respondent can just look at that person and send a clear message about what he or she expects. The respondent will make contact in overt and covert ways. The legal system often misses that."

Among possible remedies are separate waiting rooms and positioning victims in hearing rooms so they don't have to walk by or have eye contact with the respondent, except during actual testimony. Also, respondents should remain in the courtroom long enough to allow the petitioner to safely get out of the building.

2) Central Information Center. Many people seeking restraining orders are doing so pro se. They're frightened, confused and need help through the legal system. An information center would provide restraining order forms and various kinds of information about domestic violence and where to get further help.

3) On-call Restraining Order Judge. Someone needing a temporary restraining order may be in immediate danger, but may face many hours delay in getting the order. One solution would be to have a judge or commissioner on call for emergencies during extended hours.

4) Availability of Victim Assistance Programs. Victim representatives can help shepherd people through the injunction hearing process.

5) Use of Pro Bono Attorneys. Domestic abuse victims often have no money to pay a lawyer to help them get a restraining order. "The factor to keep in mind," Meuer notes, "is that many victims of domestic violence - regardless of their economic status - are prevented from having access to the family finances." The commission urges bar associations to encourage their members to provide pro bono services at injunction hearings.

6) Domestic Violence Training. Understanding the dynamics of domestic abuse is a critical first step in better handling domestic violence in the justice system. The commission calls for training for all court personnel - judges, commissioners, attorneys, family court counselors, bailiffs, clerks of court - who are involved in domestic violence cases. This could be provided through existing training entities, such as the Judicial Education Office, the State Bar and so on.

7) Permanent Restraining Orders. Currently a victim in Wisconsin obtains an ex parte temporary restraining order, followed by an injunction hearing within seven days. Issuing a permanent order at the outset, now done in some states, eliminates the need to come back for a second hearing, unless the respondent specifically requests it. That's less traumatic for the victim and less burdensome on court dockets. Establishing permanent restraining orders would require legislative action.

8) Federal Grant for Supervised Visitation Centers. The commission recommends that the state seek federal money available for setting up supervised visitation centers. (See the next recommendation.)

9) Supervised Visitation Centers. These centers are safe, neutral places where feuding spouses can exchange their children. The spouses need have no contact, yet the children can continue to see both parents. One spouse drops off the children, who can play in a supervised area until the other parent arrives to pick them up. "There's one in Waukesha called Parents' Place," says Gregg Herman. "It's terrific. Mom and dad can exchange without having to talk to each other, because if they do, they'll start fighting. These problems arise a lot especially in the beginning of a divorce action. The first few months can be horrendous. This is a way to keep the kids out of it." Also, when children might be in danger of parental abuse, the visit can take place at the center, under supervision.

10) Provide Information Regarding No-contact Orders. Court participants need training on the different types of no-contact orders available in Wisconsin. They also need to be aware that none of these offer the same protection as a restraining order.

11) Court Consolidation of Cases. Often violence at home spins off into multiple legal proceedings: a spouse faces a battery charge in criminal court, a teenager who acts out violently ends up in juvenile court, and so on. "The theory is to allow one judge to see the progression in the family," Meuer says, "and to approach it as a family issue."

Juvenile Justice

Juveniles come into the justice system as targets of violence or perpetrators of it - often both. Recognizing the link between these two situations, the commission recommends the following measures to reduce the impact of violence on the juvenile justice system:

1) Victim Restitution Programs. These can be especially effective with juvenile offenders. (See the next section on "Restorative Justice.")

2) Training for Juvenile Court Personnel. Many juvenile offenders come into court proceedings with an "attitude," sometimes masking fear. "Court personnel can be more or less effective in dealing with a juvenile depending on how they respond to that defensive posture," Meuer says. "Adults interacting with the juvenile can cause a situation to escalate or de-escalate. A kindly response from a caring adult can make the difference."

3) Court-appointed Special Advocates (CASA) in CHIPs and Other Proceedings. CASA volunteers work closely with CHIPS families at risk for additional violence or neglect in cases when the court does not remove the children from the home. These volunteers supplement, but don't replace, guardian ad litems representing children.

4) Designated Hold-over Rooms for Juvenile Intake Hearings. Less populated counties usually have no juvenile detention facilities, and thus must hold a juvenile offender somewhere until he or she can be transported to the nearest facility. A hold-over room could provide a calm setting for the wait. The key is having a trained volunteer to staff the hold-over room. "That person can be very helpful in calming things down," Meuer says, "and in helping the juvenile move out of a defensive posture."

5) Conflict Resolution/Parenting Skills in the K-12 Curriculum. What children learn they later do. Our schools can help teach children that violence isn't the way to handle problems.

6) Safety Education Classes in the K-12 Curriculum. Children often get caught in the crossfire of domestic violence. They need to know what to do to be safe during a violent episode at home.

7) Telephone/Closed Circuit Television Appearances. The risks posed by transporting violent persons to juvenile proceedings (such as juvenile offenders or incarcerated parents in CHIPS proceedings) could be eliminated by using telephone or videoconferencing. (See related feature article)

Restorative Justice And Alternative Solutions

The commission examined various programs that can help reduce acts of violence, including the following:

1) Restorative Justice Programs. For centuries Western society has viewed crime as a violation against the state. An older, more fundamental concept in human history is that of crime as a violation against an individual and his or her family and community. This is the idea behind restorative justice. "I see it as restoring a community's sense of wholeness in itself," says David Lerman, commission member and an assistant district attorney in Milwaukee County. "We talk about the social fabric being torn asunder; this is a reversal."

In restorative justice programs, offenders must accept responsibility for their actions and face their victims as human beings. In turn, victims gain the satisfaction of being heard and having their needs met in a concrete way. Skilled facilitation between parties is crucial; poorly run programs can do more harm than good. Victim participation must always be voluntary.

Even in a time of widespread calls for getting tough on crime, Lerman sees restorative justice gaining favor. "It's not a left or right issue," he says. "It's about accountability, about moving on. It says to the defendant that, yes, you have your constitutional right to trial, but if you come forward to accept responsibility and go through this process, which is a struggle emotionally, you'll be better off." He adds that these programs can be especially effective with juveniles as a prevention strategy. With young offenders, there's still a chance to turn them around before they head down a path of committing increasingly serious crimes.

2) Charging Conferences. These involve a district attorney meeting with parties and witnesses to get an initial feel for the strength of a case. Ultimately this step can save judicial resources. The commission warns, however, that charging conferences are inappropriate in domestic violence cases.

3) Community Policing. Police on the beat in neighborhoods come to be regarded as information resources or even on-the-spot dispute settlers. They also involve neighborhood residents in preventing violence.

4) Deferred Prosecution in Proper Cases. Education and counseling of violent offenders can reduce the chance of recidivism and keep people out of overcrowded jails and prisons.

5) Drug Treatment Courts. The commission recognizes that much violent crime is drug-related. To reduce recurrence of violent acts, drug treatment often is a better answer than punishment.

Weapons

The commission's recommendations on weapons, specifically handguns, are proving to be the most controversial part of the report, eliciting three hours of debate when the Bar's Board of Governors voted to approve the report. Some felt the commission didn't go far enough; others questioned whether it should have delved into handgun issues at all.

The commission maintains that any report detailing the impact of violence on the justice system - and suggesting ways to curtail that impact - would be lacking if it did not grapple with the handgun question. Still, the commission chose not to advocate an outright ban on all handguns, but recommends that the Board of Governors take a legislative position on the following:

1) Weapons Legislation. Legislation could require that handguns sold in Wisconsin have special safety features. "Only the purchaser would be able to use the gun," explains Judge Nichol, "so it would not be an attractive thing to steal, which is how a lot of people get handguns." Such safety mechanisms also would prevent handgun accidents involving children.

2) Firearm Injury Tracking Survey. More data is needed to know the true impact of guns on public health and safety in Wisconsin. A legislative mandate could require the State Department of Health and Family Services to collect this data.

3) "Junk" Gun Legislation. The commission advocates legislation that would ban the sale of junk guns, such as "Saturday night specials," which are cheap and easy to use in violent interchanges.

4) Prohibit Concealed Weapons. The recommendation calls for support for the current law on carrying concealed weapons.

The Next Step

Implementation of the report's recommendations is now in the hands of a 12-member committee. Chaired by Nichol and Kessler, the implementation committee will meet with local bar groups and community leaders, help create training programs, draft legislative proposals and seek grant funds to set the report's recommendations in motion over the next three years. "Demand for the report (beyond the mandated copies already sent out to many interested parties all over the state) has been unprecedented," Nichol points out. "We think that's a good sign."

Wisconsin Lawyer