Quotes
from Commission Members
Violence
By the Numbers
Download Commission Report
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
Societal violence impacts the justice system in
multiple ways. The State Bar Commission on Violence and the Justice
System sought answers to a serious problem.
|
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."
Dianne Molvig operates Access
Information Service, a Madison research, writing aand editing service.
She is a frequent contributor to area publications.
Wisconsin Lawyer