 Hello. Welcome. This is the Judge Ben Show, and I'm Ben Joseph, a retired Vermont Superior Court Judge. This is a program in which I interview people about issues that concern the Vermont court system. It's my, God knows how many of these I've done. I've done quite a few. I hope I won't bore anybody. This is what I've limited to 30 minutes, and we're going to do our best to keep it, keep it interesting at all times. My guest today is Diane Wheeler, Deputy State Attorney from Franklin County. I've done Diane for a very long time. In fact, my wife once worked with her in the Franklin County State Attorney's Office, and she's done a hell of a job for a long time. We're here today to talk about restorative justice, which is a program that's been going for several years now in the courts, and I think it's important that the public should understand just what it is, and frankly, how effective it is. So Diane, how long have you been in the State's Attorney's Office? Well, I started clerking in the State's Attorney's Office up in St. Albans in the early 90s. Oh. In the 1990s? In the 1990s rather than the 1890s. Good. When now Judge Howard Van Bentheisen was State's Attorney, and he took me on as a clerk. I enjoyed it so much, even though you don't get paid for it, or you didn't back then, and I stayed for 18 months to two years until there was a position available to me. I actually applied for the position the same when your wife applied for Judith, and Judith being more qualified got the position, and I got the one that was followed up that position. And then when Judge Van Bentheisen left the State's Attorney's Office, and Jim Hughes took over as State's Attorney, the monies for the position I now hold came through. So I've been employed by the State's Attorney's since 1995. Wow. Long time. Wow. Luckily, most of the folks in my office are career prosecutors. Wow, that's great. I was thinking today that at least four of the six are career prosecutors. So we have a lot of great deal of experience, but we're all getting to that retirement age. No, you're not even near it. 18 months I can retire. Well, I suspect you'll be there for another 10 years. At least. At least. At least. Well, we're here today to talk about the Restorative Justice Program, and I take it that you deal with this all the time now, is that right? All the time. Restorative Justice is a part of our statutes on diversion, which allows persons who are referred to the program by the State's Attorney to restore the community, to restore victims. And depending on the type of crime it is, it's a way for the community to be a part of the reparations that are made. So there can be a dialogue. There can be some understanding about why it occurred, how it occurred, whether it was a poverty issue or a drug issue, whatever it might be. And this is all done before a trial process. There's no trial process. Correct. So a person gets, a person does something that causes law enforcement, the police, to give them a piece of paper citation to come to court. Our office reviews the paperwork from the officer and sends it, if we believe charges are warranted, then we send it to the court for the judge to find probable cause. That is, there's likely that this person should be held responsible for this. At that time, we also review it for diversion or restorative justice. What has this person done, based on the affidavit of the information from the law enforcement officer, did they take responsibility for what they did? What's their criminal record like? What kind of crime is it? So there's many factors that go into it. And it is possible that we will not refer someone to a restorative justice program based on all the information we have about them. And it could be as simple as they have had four cases in diversion or restorative justice, you know, before and weren't successful. Is this usually then for first offenders? It's for first or second offenders. Some counties might keep going. Franklin County does first and second offenders. Well, I take it each county has got its own program, basically. Essentially, yes, because each county has its own personality and each county has its own state's attorney. While there are guidelines and statute that the attorney general kind of sets up for folks, it's ultimately the state's attorneys of that county, their discretion. And this is a very, very powerful thing to have at your disposal. It is. Our first rule of professional conduct is that we are the ministers of justice. So when we review the information from law enforcement, we not only consider the offender or alleged offender, we consider the victim, the community, whether the offender has supports to get them through the process. So it is looking at it and trying to administer justice in that particular situation. And even though it might be a retail theft or taking a toy from somebody, each and we have another one right after it. They could be very different situations, depending on how they were done. And again, the record and the supports of the person around them. Well, my take on this is that if someone goes through the trial processes found guilty and put on probation, then they're under supervision of a probation officer. And basically the message is, if you screw up on probation, you're going to go to jail. Whereas you start in restorative justice by saying, we're taking away the threat of jail with the understanding you're going to participate in conversations and activities that show that you're you acknowledge your guilt and you're being held accountable. Is that a fair description? That is a fair description. But they still have the possibility of criminal conviction hanging over them and possibility of jail or fine. While the restorative justice program has it has many components. You do contract should meet with community panels. If you fail to follow through, then the case can be sent back to the court. At that time, you are, you might be end up having a trial or resolving it in a way that is not as beneficial to you. Because the biggest benefit to restorative justice and the diversion programs is that at the end of the day and end of the contract, the activities you do, you don't have a criminal conviction on your record. Well, that must mean a lot to some people. It does because we have a great number of LNAs now that people that are getting LNAs, people just just for the audience. A nursing assistant, licensed nursing assistant, people who work in usually nursing homes, places of that nature. And they might have something happen where they've, you know, you know, picked up a retail theft or something of that nature. And they want to keep their license. So this is a way that we can work that out. Or because we need people in the medical profession now, and licensed nursing assistants, they might be working on that in that program and they get something, we'll send it to the restorative justice program so that they can get certified. Now, there are some cases we absolutely won't. But if you are working with vulnerable people, you use their credit card or take money from them or treat them in a bad way, then we won't send those to a restorative justice program because we are concerned about exploiting vulnerable people in the future. What about hard to put this? Are there some cases that you would not put into restorative justice? Just as a matter of your own principle or as a matter of, well, in part statute, the some of the listed what they call listed crimes, those are the crimes that are under Title 13 that not the ones in the juvenile statutes that are designated as ones that are so violent or have such an effect on a victim or the community that they they have a special place, they have a very high priority. So those we will not refer generally speaking. And but the ones we absolutely will not refer nor will the restorative justice programs take in Franklin County are any crime having that is a sexual offense, any crime involving child abuse, child physical abuse or child sexual abuse. They won't take domestic violence cases into personal domestic violence. So there are several what about DUI's? We do not send them to diversion. The other counties do that. I that is a question I asked yesterday. Jim Hughes did not know. Oh, but Jim Hughes is our state's attorney and he's the as I like to say he's the boss of me. But he has certain things that if they could result in a points on your license, he's not going to send. Also, DUI's are case cases where if you've got another one, and you eventually got a third one, unfortunately, that's a felony. So what these numbers one in two are called predicate crimes and works its way up. He won't send a number of those. And even for instance, DLS is driving with license suspended are a huge part of our caseload. Huge. And the D the driving with license suspended that are the result of too many traffic tickets or never having a license. We've had a few of those. Those Jim will send or the state's attorney will send to diversion and diversion will accept them. Actually, they have a restorative justice program and diversion just for those kinds of cases. The goal is to get their license back. We all want them licensed and insured. But we will not. That's a very important consideration. It's a huge consideration for the everyone in the community. But the ones that the driving with license suspended cases that are the result of DUI's are driving under the influence, whether it be alcohol or drugs, we do not send to diversion. Well, that's understandable. So we do have some criteria for even what people might consider a simple misdemeanor. But there's there are reasons behind that. And ultimately, the state's attorney does have that discretion. Now, I was thinking about this. And throughout my career, I've been approached by defense attorneys. A case wasn't referred to diversion for whatever reason. Defense attorney asked me to take a look at it. Is it something that you think could be referred? We will always reconsider. And that is reconsider sending it many times. And I was thinking, I don't think there's been a time where I haven't referred it if the restorative justice program was willing to take it. But that decision is made by by you attorney. Yeah. But so if we miss something, or we didn't consider a factor, we didn't know about a certain factor. If somebody brings it to our attention, we'll check with our restorative justice panel or director and see if they'll take it for that. So there's always a possibility, except for some, as I said, those special cases that are just so victim centered, it wouldn't be appropriate. It would be dangerous, actually. Well, the thing that I think the restorative justice program is by and large, it's a great idea. It really does help a lot of people. It not only helps the offender or the alleged offender or the victim, it helps everybody to have some really personal contact between someone working within restorative justice and the person's been referred, that they can establish kind of a relationship, a positive thing where the person who's working for the restorative justice program is trying to help this person be accountable and avoid the courts in the future. And I think this numbers bear that out and look doing some research and although the numbers seem to be a few years old, it looked as though 81% of persons who are sent to diversion never come back to the criminal justice system again. Now, by diversion, is that separate from restorative justice? No. Okay. Diversion is a type of restorative justice or the other way around. Restorative justice is the type of diversion. Right. And by diversion, you mean the cases and going to go to trial, it's going to go to some kind of supervision by probation or the restorative justice people. Right. And in fact, what's the difference between probation and restorative justice? Well, in what happens is that restorative justice and in our case, diversion or the DLS program, we have a sexting program that we wish we could expand because that has taken off in the juvenile... By sexting, what are you referring to? Where mostly teens that we're seeing are sending intimate pictures of themselves to others and then it goes around. And while technically it could be child pornography and there are statutes around that, really what we want to have them understand is that these images don't go away. Yeah. That and it's usually a school situation. So we have had a four week session, but there's so many of them, we need more of them available. But the cases come in and before they see a judge, they go to a program, meet with the community members panel. They come up with a contract to make reparation to restore the community or the victim whole. And that could be writing a letter of apology. If they've done graffiti, cleaning up the graffiti. If they've broken something. One case, they took the Dan form sign. It's a little metal yellow guy in front of the Dan form stores. And we made the decision to, part of the contract was that they put it back. So that the story didn't have to incur any cost to have it put up. And sometimes it's restitution that is paying back the victim from whatever they might have taken from them. Whether they broke a Nintendo system or they took checks and took money. They make restitution to the person or the bank. So they come up with a contract. And the best part of it is, is the person that the offender gets, is part of that contract process. They can make decisions about and help say, you know, I can't really do this. So they're really, it's meant to engage them in the process. It is. And to make it so, the victim in some cases is a part of it. And that's where we really find a number of some difficulties. Is that sometimes the victims are too traumatized and too scared. But in a number of cases what the victims want to know is why them. Were they targeted? If so, why were they targeted? Or some of them angry? Some of them are angry. They feel violated, betrayed if it's someone they know. But the number of times they learned that it was an opportunity for the offender. That they weren't targeted because of, but it was just that was their house. There was no one home. It wasn't because they were Joe so-and-so. So once they make this, the offender makes a contract with the panel, they then complete it. We're looking at about 90 days. If so, their case gets dismissed. And in two years, if they don't have another conviction and their rehabilitation is successful in the court's determination, then their record gets sealed or expunged. So they can answer the question honestly, have you ever been convicted of a crime? No. Well that's tremendous. That's tremendous. And it does a great deal of good for the community to help figure out what is it in our community that we're lacking? Is there a resource that we're missing that could have helped this individual? It helps the individual see that there are resources available. And it helps the victim to see, to understand sometimes that they weren't a targeted individual. Sometimes- Does that make a big difference to the victim? It makes oftentimes a very big difference. And sometimes it just allows the victim to get their anger out. It's interesting. But the board has to be careful of those interactions. And luckily our victim advocates in my office will work with the victim on that. So but I just say, as I said, 81% never come back again to the criminal justice system. And as Judge Cooper Smith used to say, we see 80% of the people, 20% of the time. And 20% of the people, 80% of the time. And it bears out in the diversion numbers. And the restorative justice numbers. But it's really, I just think it's such a positive thing. I mean, there's nothing perfect. It's always going to be somebody who screws up. But you're really sparing a lot of people a lot of trouble. We're sparing court costs. We're sparing trials and the trauma that victims and even other witnesses, law enforcement time to come in. So it really is a way to make, as I said, reparation to the community, to the victim so that the offender can understand the impact it's had on others. What do you find the, is there a typical experience with defense counsel faced with these choices? Yes. I think, unless the offender says, I didn't do it. It wasn't me. I want a trial. The defensive folks, defense attorneys are very much willing to have their clients participate. So they urge them to do that? I think they do. They know that it's a positive thing for folks, particularly if they don't have the criminal conviction at the end of the day. So I think everybody in the community of Franklin County is very much in support of it. We have some great panels that work with the offenders, people who volunteer but are trained. It is a confidential proceeding. So that's a plus. Oh, that's a big deal. That's a big deal. So if they're admitting things, it's in there, it's understood they're going to have to admit that they did this in order to participate in the program. Yes. They have to take responsibility. Yeah. Okay. And do some of them apologize? Some apologize. Sometimes it's interesting with the juveniles who get referred to diversion because their parents are there to help them through the process. But many juveniles, kids, teens, myself included when I was one, we will tell our parents certain things, but we don't tell them everything. And we've had a couple situations where the juveniles didn't want their parents to know everything. And sometimes parents being protective of their juvenile, of their child, tend to minimize some of the behaviors. So that can present some difficulties. But once they understand it's confidential, there'll be no record. Even police records will be sealed. We can get a greater cooperation. So if they finish this and then commit another crime, then this disinformation is available to the prosecution. Well, I think within two years. Yeah. Well, I just think the understanding that this can cause trouble if you commit more offenses is a deterrent, which is part of the common law. I mean, I think it's well, so it serves rehabilitation deterrent. And it does have some punitive aspect if they're doing community service. Community service is always a good thing for the community. But being given that as a contract requirement, you know, some they sometimes consider that a punishment. Well, I want to thank you for what you're doing. I think this is a terrific program. It is. And as I said, the Franklin County program, the one that I'm familiar with, the folks there have just been so wonderful about working with us, trying to develop different types of restorative justice programs. Community citizen volunteers should be should be praised. They're giving over their time. They really help. It's wonderful. If we didn't have the citizens were on these panels, this would not be possible. And they do. They deserve a great deal of appreciation and thanks from the community for what they're doing to help the community be a better, safer place. Well, Diane, thank you very much. Thank you. Thank you. Thank you very much. Thank you for looking in on this. I hope that you will support restorative justice if it ever comes to something you can have an influence on. I think public support for something like this is very significant. Thanks. Thank you.