 Welcome back. This is the 18th show in the series Rehabilitation Coming Soon, where we have been discussing a massive incarceration in Hawaii and throughout the United States and addressing other issues that are important in our community with respect to our correctional system. I'm Bob Merce, and I'm going to be the host for today's show and for the shows on the next two weeks to give our usual host, Aaron Wills, a little bit of a well-deserved vacation. Our guest today is retired Circuit Court Judge Michael Town, and we're going to be talking about restorative justice. Before we begin the conversation, I'd like to give you a little bit of background on Judge Town. He holds degrees from Sanford University, from the Hastings College of Law, and he has a Master of Law degree with a special emphasis in constitutional law from Yale University. He's a former Peace Corps volunteer in Columbia, South America, in the early days of the Peace Corps, 62 to 64, when it was just being formed under President Kennedy. As a lawyer, he has a long and distinguished career in Hawaii. He was a law clerk for Associate Justice Bernard Levinson a number of years back. He was a supervising attorney and litigation director of the Legal Aid Society of Hawaii. He was a district court judge then. He was a family court judge in the First Circuit for many years, where he developed a well-deserved reputation of being a cellist advocate for children. He then became a criminal on the criminal bench in the First Circuit Court and presided over a lot of cases until he retired in 2010. He retired in 2010, but he didn't have much of a retirement because very shortly thereafter, the next year, Governor Abercrombie appointed Judge Town to the Hawaii Paroling Authority to a four-year term. That term expired and he was reappointed for another term by Governor E. Gaye and is presently one of the five members of the Hawaii Paroling Authority. He also has a very active alternative dispute resolution and mediation practice DPR or Dispute Prevention and Resolution here in Hawaii and is very sought after as a mediator. Judge Town has lectured and written extensively on restorative justice. I've heard him called by some people the father of restorative justice in Hawaii. He's trained many of the practitioners he's talked and lectured both nationally and internationally on the subject of restorative justice and we're very, very pleased to have him. Welcome, Judge Town. Thanks, Bob, for having me on the show. I'm excited to be here. Many of our viewers probably know something about or have heard about restorative justice but aren't really clear as to what it is and how it works. I wonder if we could just begin with you giving us kind of an overview of what restorative justice is. Without being a law professor just as a kid playing in the backyard community justice it's the way that neighborhoods solve their problems. It's the way that families should solve their problem. It's about helping the victim if there is one to become whole again and how to repair that by an apology, by restitution, by maybe getting some services and also accepting the fact that somebody may have made a mistake. If you take this sort of community justice and you expand it, it's swept around the world many times informally in First Nation communities and just cross America in our neighborhoods. So it's basically a way of just getting TS, building sustainability and helping victims get by into the process rather than this adversary system that can butt heads and nobody wins. If I was a victim of a crime and I wanted to participate in restorative justice what would I be looking forward to? What would happen with me, what would happen with the person who harmed me, stole my material or whatever it is that they did? How would this work as a practical matter? There's informal types. In a school setting it might be with the teacher or the vice principal or restorative justice professional. We have restorative justice in the misdemeanor courts and the family court. They meet with the probation officer. People don't have to buy into it. Victims may want nothing to do with the perpetrators, the offenders. Others really want to know why was I targeted, what's going on here and what do I want from my perpetrator to make this whole? Usually it's an acknowledgement, maybe an apology and if somebody, let's say, a kid rips off their car or rips off the house how to make that right? They can go out and earn some money, make them whole. So the person who committed the offense tries to make up for what they did in some way by restoring the balance between the two of them. Yes. To a state of equilibrium kind of. Yes. We have an initiative in the judiciary that Chief Justice Moon put in a while back. It's called Pono Kaulike means restorative justice. It's righteous equity. It's happening already and we all know this instinctively. It's not some fancy new program with bells and whistles and it happens around the world. Is it a new idea, an old idea? What are the origins? Where does it stem from? It's an old idea. In Europe the victim is actually a party to the situation and it comes out, as I said, first communities. I went to New Zealand. They have family group circles up in Alaska and in Canada. They have sentencing circles. People talk about it. Now ultimately the judge has to make a decision. Is this the right thing to do? As a judge sometimes I didn't always, let's say the victim wanted to forgive the person, wanted to get off scot-free. I'm not going to accept that usually as a judge. But at least gives the victim input and it lets the offender hear the harm because sometimes they're in denial. So how long does the process take? Let's say we've scheduled a restorative justice session with somebody who's committed a misdemeanor and let's say it's a shoplifting and somebody from ABC stores is there and somebody in the young, let's say it's a juvenile who's stolen some sunglasses. How would that work then? Well the probation officer usually or the sentencing official and the judge but sometimes people don't show up. The victims don't want to show up. They want anything to do with them. Others want to know why was I targeted? Why'd you pick on my house, my car? Why'd you pick on my kid? Why did you take my kid's cell phone? That kind of thing. Juvenile courts real good. In schools it's real good. Misdemeanors is better sometimes too. I've seen it in felony courts and I've read nationally like in Minnesota. They do it in homicide cases. The person's locked up and then they bring in the family and the family, it has to be voluntary. So they don't force people and they want to hear what happened. In the circuit court if you are a crime victim does somebody talk to you about the option of trying to have a restorative justice session with the person who is the perpetrator? I don't know if they have them in our circuit court anymore. I retired in 2010. I got re-inspired to do mediation and work in the parole board but we sure like to hear from the victims in the parole board. I think that's important they have a say. I want to look to see if the offender really is ashamed of what they did in a constructive way. Are they going to just come up with a bunch of pathetic excuses or are they going to sort of man up, woman up if you will? Does restorative justice have any sort of antecedents in native Hawaiian culture or in indigenous cultures throughout the world? Yes, we've read a lot about that. Much is written. If you look on God forbid Google, you'll read a lot about it. In New Zealand we saw that with family group circles. In Hawaii and then certainly in Canada and in Alaska there are these sentencing circles they're called. They're a serious business. The ones I saw at least videos of, sometimes there's 10 or 15 people. Everybody who cares about this, let's say this kid that violated the law and they let him know but he also has to take responsibility. I think part of the key is accountability. So there's three parts really. Accountability and then competence, building competence in the offender and then is the community safe? I want to make the point, public safety is critical. If we're not going to put the public at risk just because of this program. What do you hope is the outcome, let's say, for each of the two parties? Let's say it's a theft case. What do you hope that will happen psychologically to the victim and what do you hope will happen to the person who committed the offense when the whole process is over? I wrote an article, it came out in the advertiser 16 years ago about restorative justice helps the victim become whole again. I don't know, it's fact intensive, it's discretionary. This is a process if you will, it's not an event and so it's driven by the needs of the parties and they're going to trust it that way. If they think we have some new fancy program, they're not going to buy into it. So it's very voluntary and it's upfront and sometimes in your face. What kind of training does someone need to go through in order to be a facilitator in one of these restorative justice sessions? That's a great question. I went to public school and you have some common sense and you've played a lot of sports and you develop a sense of common sense and then you've got to be alert, you've got to be empathic, empathy for different people's positions and not have this thing of I'm straight law and order, I'm straight forgiveness, you have to blend in all these different needs and there are trainings for it. And I've engaged in those trainings as a judge because we were pretty much this false dichotomy of punishment versus rehabilitation and that's a false dichotomy. There's this areas of gray if you will in between. Okay. I was reading some articles before today to sort of read up on restorative justice and I read one that I thought was kind of interesting where a boy took a cell phone that a girl had abandoned for a few minutes to go somewhere and he sent some really awful text messages to her friends and to her mother and she found out about it and she was really, really upset and she had a lot of work to do with the people who received these messages and say look it wasn't me and the boy really didn't understand what he did and just to the article though was that one of the text messages went out to her mother and said I hate you. And so the mother came and she told the boy look maybe it was a joke for you but this is how it affected me and then the friends said this is how it affected me and they had everybody who got the text messages everybody was there and it appeared that for the first time the boy understood the real serious consequences of what he did and that seemed to me to be a lot more important than suspending him from school for three days and not really understanding how you hurt people when you do those things. I agree. Do you want a robust take on what really happened and whether that child or that adult understood what they did, the harm they did. I know in our court system today we have what they call therapeutic courts. Yes. We have a mental health court, a drug court, a veterans court. How are those related if they are to restorative justice? It's a parallel collaborative process. I always kid people it's not collaborative or we force them in as collaborative so it runs parallel. There's an ethic of care. If I go down to the ER and I've got a sore toenail I want to be treated properly, patiently, timely, therapeutically and that's the same ethic of care in the court. Instead many times people go to the court system and they're marched around like automatons and that doesn't work and they're often treated in tough ways. So it's therapeutic justice. It's wonderful and there's national conferences and books on it now. About time for a break. We'll be back in a few minutes. This is Bob Merce with Judge Town and this is Rehabilitation coming soon. Hi, I'm Keely Akina, president of the Grassroot Institute. We're here to join us every week Mondays at 2 o'clock p.m. for Ehana Kako. Let's work together. We report every week on the good things going on in our state as well as the better things that can go on in the future. We have guests covering everything from the economy, the government and society. See you Mondays on Ehana Kako at 2 o'clock p.m. Until then, I'm Keely Akina. Aloha. Hi, I'm Donna Blanchard. I'm the host of Center Stage on Wednesdays at 2 o'clock here on Think Tech. On Center Stage, I talk with artists about not only what they do and how they do it, but the meat of the conversation for me is why they do it, why we go through this. A lot of us are not making our livings doing this and a lot of us would do this with our last dying breath if we had that choice. And that's what I love to talk to people about. I hope you enjoy watching it and I hope you get inspired because there's an artist inside G2. Join us on Center Stage at 2 o'clock on Wednesdays. Bye. Welcome back. This is Bob Merce again and we're here discussing restorative justice with retired Supreme Court, I said retired circuit court judge, Michael Town. When we left off Judge Town, we were just talking about some of the very basic principles. I take it that one of the things that we want to happen when we have restorative justice is for the perpetrator of the offense to understand the harm that they cause and to get the victim of the offense to have some sort of satisfaction about what's been done to them and that the other person does understand it. Yes. Is it difficult to... I'm thinking if you're the victim of a serious crime or you've been beat up and it's a physical crime, is it difficult for people to face the person who did it and try and work out a sort of a mutual coming together and mutual understanding? I think it takes preparation and if there's a good facilitator, that will work and everybody's different. I had one woman who lived by herself. I think she'd lost her husband. She'd been burglarized and she wanted this young adult to understand how that broke her heart, reached her privacy. The stuff he took was awful but she also wanted to be able to forgive him if she could hear that he was contrite and ashamed and so she came into court and she spoke to him and to me and said that happened and she needed this for quote-unquote closure so it's a process again. Other people want nothing to do with it. They'll just say we're done. You know, we trust the judge to... they'll say hammer him. I've also had other people say we're over this. We know the family, cut him slack. Ultimately it's up to the judge and people come in in all different ways, Bob, and that's what's interesting about it. There's no one size fits none or one size fits all. And I take it not everyone is a success. I mean, you try to get people back on the same page to understand each other, to restore it but probably, you know, sometimes it works and sometimes it doesn't. Well, they have to reflect and take accountability and be ashamed. I want them to be constructively ashamed. That's very important but usually people get that but if they don't, then we've got to be worried about public safety. It's just going to happen again and again. So it varies. I think generally it's constructive. Okay. Are there criticisms of restorative justice? Are there a downside to it or have scholars who have looked into it said, yeah, it's good in these ways but, you know, it's got some problems. What is the take on that? Oh, absolutely. There's plenty written and so the people that are interested can, again, Google it and read the different things. I don't know if there's one on Wikipedia on restorative justice. There probably is. But I've heard people say, I'm very, very dissatisfied. I didn't get my pound of flesh. I want this to be way more punitive. I've heard people, I had a homicide case where a kid was driving too fast. He ran over a kid by the road, killed a young kid, and the family forgave him. But we needed to hear out that guy and he clearly put on probation with some additional jail time or maybe prison time. So each one varies. And ultimately the judge has to make the final call. And that's another training thing. I hope that more judges learn about restorative justice. I had a call, gee, last week about restorative justice in the federal courts and I know Judge Kobayashi understands it, which is what I told the attorney. This attorney never heard of restorative justice. I thought it was a newfangled project. You mentioned the word forgiveness. Is that a key element of the whole restorative justice process? I think so. If people are contrite and they apologize authentically and genuinely, then sometimes there's forgiveness. But again, the judge has to make that call. Okay. I know in South Africa they had a long process following the restoration of the new government there and it was called the Truth and Reconciliation Commission. It sounded like that's part of the restorative justice process too. Would that be right? Absolutely. That's like exhibit A of how to do it. Bishop Tutu was one of the conveners. He heard the victims and the victims' families, how much they suffered. And then also he heard the perpetrators and apartheid, racist perpetrators that had finally seen the light. They'd heard the shame that went on. They'd heard what went on. And at some point Bishop Tutu put his head under the table because the pain was so much. So that raises the question whether we as judges or mediators or restorative justice professionals can bear hearing all this hurt. And is that empathy too much? Are we suffering from compassion fatigue or secondary trauma? And some people don't want to hear that. Other people I think they should welcome it. So we need justice professionals that embrace that. As I understand you actually have talked all across the country to judges about burnout and being overtaxed with all of the trauma that you see every day and have to hear every day. Particularly in family court but domestic violence cases, homicide cases. And we see it in the parole board. You've got to take a long hot shower when you go home and you've got to take a long hot walk and hug your families and realize that I think this is the right work to do. And if it isn't you may have to look for something else to do. I just had a thought that it seems like sometimes when a criminal is convicted and sentenced they say community service. But the community service that they perform isn't necessarily in any way related to the offense they committed or to the person who was harmed. And I'm wondering might it be smarter justice for us to try and if the victim is willing to realign that so that the community service would in some way confer a benefit on the person who was harmed and thereby make both parties feel a lot better because you've really tried to restore the status quo. Absolutely. It should be tailored and targeted. Double T, T2. And if that's done then the community service really makes a difference. And it's not again just another bureaucratic program that has no sense. Yeah, that seems... Great point. Has the Hawaii courts formally recognized restorative justice as a way of resolving disputes? Yes, I have right in front of me signed by my colleague Ronald T. Waimoon, Chief Justice of State of Hawaii and the date is October 10, 2000. Resolution concerning restorative justice and the concept of Pono Kauliki. And he recognized it, it's a resolution and he wanted it to continue and it is. It's part and parcel of the Hawaii judiciary. You mentioned Pono Kauliki, what does that mean? Well, my law clerk, Kilipak Yvonne, figured that out together. It means righteous equity, literally. But it means restorative justice. Many of these terms, they have 14 different kauna. I like Pono Kauliki. In a way that it's making the relationship between the two people Pono. Right, and we want sustainability because people, thank God we don't have the death penalty in Hawaii. And so people are going to get out and they're going to get out broken or they're going to get out better out of the system. And the community feels that this person has learned. And with this mass incarceration movement is being stopped and hopefully halted around the country. President Obama, Attorney General Lynch and even in Hawaii, we're addressing crazy mass incarceration. That is not the answer. Do we know if, let's say, somebody is found guilty and they go through a restorative justice session? If the people go through these who participate in restorative justice if we have a lower recidivism rate for those people or have we not collected that data yet? It may be there. I don't know it. I was Chief Judge of the Family Court when I got the worst cases and these family cases once they settled voluntarily and there was entered into an order. Those orders lasted way longer than ones that were judicially imposed. If a judge forces a solution versus the parties agree to one the forced solution will fall apart faster than they agreed upon one. For obvious reasons everybody's bought in. If I can chime in on my own experience as a civil attorney if you go to trial you have a big battle with the other side. One side wins, the other side loses. Once the jury gives its verdict the case is over basically and you don't see the other side again and it's not a very good resolution. I mean money is paid or whatever but it's just, it's not but if I contrast that with the cases I've settled where everybody sits around the table we reach an agreement and everybody shakes hands or hugs and says you know this is a good solution then I think everybody feels better about how the case was resolved. It's party driven not attorney driven and in family law internationally I think the clergy and the community non-adversarily sorted these out not in the courts. So we have this adversary system in America one-size-fits-none or all and in commercial situations same thing a committee would handle them not the attorneys but in America everything's adversary and expensive and time-consuming. I think we're just about running out of time here. We have a couple more minutes. Do you think we're using restorative justice enough here in Hawaii or do you think that there's room to expand its use both in the courts let's say and in schools for example it seemed to me to be a great setting for it. I don't think we use it enough but I can't prove it but it needs to these will grow informally formally I know that there are universities that have restorative justice majors particularly in Europe and I know that there are prisons that have restorative justice like in Norway where you went our first show is about that. That works. People are dressed in a therapeutic way in a personal collegial way inmates are and the staff so the more we train and treat each other better in the long run the better community we're going to have. Granted there are needs to have some people locked up a while but those are few and far between. A lot of the people in these shows have talked about trauma and it seems like what you're talking about here is a way that you can really reduce that trauma or make it less traumatic for everybody concerned. Yeah and the legal system shouldn't increase trauma that's called they call it a medicine isogenic harm caused by the care I call it jurogenic. Okay. Okay. Judge Town has been great having you on the show I think we've learned a lot I wonder if you have any last comments here on restorative justice for us before we go. Yeah but I wrote my article talk about it at your dinner table see if it makes sense truth test it see if it's authentic and transparent and see if it works and in your church your school your workplace sort things out informally. Sounds like a great idea thank you for being with us and taking your time out of your busy schedule to join us here today. Thank you. So that ends the show for today and we hope you'll join us next week and coming up next on think tech Hawaii is sustainable Hawaii with Kristen Turner. Thank you all for tuning in today. Hi my name is Aaron Wills you are watching think tech Hawaii dot com I am the host of the show rehabilitation coming soon you can catch us live on think tech Hawaii dot com at 11 a.m. on Tuesdays I will see you there.