PLEASE NOTE: portions of this candidate's response are taken verbatim from a collective response coordinated and submitted by the Department of State’s Attorneys & Sheriffs on behalf of a group of current Vermont state's attorneys. Specifically, at least 15 of this candidate's 20 answers include language from the collective response submitted by the Department (questions 1, 3, 5, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, and 20).   

Candidate Name: Erica A. Marthage

County: Bennington

Campaign mailing address, email & phone:

281 Nottingham Park

Manchester Center, VT 05255

(802) 362-5807

erica@benningtoncountysa.com

 

CRIMINAL JUSTICE PERSPECTIVES & PRIORITIES

1. Do you believe that Vermont should reduce its current incarceration rate? Please give a clear “Yes” or “No” and describe what role, if any, State’s Attorneys play in determining how many people are incarcerated or under some form of criminal justice supervision in this state?

Yes, and Vermont’s incarceration rate has been on a steady decline, which shows that prosecutors, judges, defense attorney and Vermont’s criminal justice system as a whole recognize that incarceration is not the best solution to many crimes. However, I do not believe that Vermont should blindly reduce incarceration rates at the expense of public safety.

I see my role as seeking the best outcome which focuses on:

(1) Individual rehabilitation, so that individuals who have made poor choices in the past can avoid recidivism. This includes crafting a resolution which makes programs available to them to address their individual issues, whether it be substance abuse, educational deficits, the need for stable housing or mental health challenges;

(2) Accountability, particularly through citizen panels and the Reparative Board, so that an individual being can hear and understand how his or her actions have had a detrimental impact on the community. The message from your friends and neighbors is often more powerful than any incarceration; and

(3) Public safety, particularly each citizen’s physical safety, so that people in our communities do not live in fear or continue to be repeatedly victimized.

Judges, not prosecutors, determine the final outcome in every case, including whether to accept a plea agreed to by the prosecution and defense or whether to impose a particular amount of jail time.

Vermont’s prosecutors are looking for the best outcomes in our casework for the individual’s rehabilitation and societal reintegration. To achieve these ends, we work with defense counsel, restorative justice, community justice programs, treatment providers and other social service organizations. Alternatives to incarceration are commonly utilized and effective in misdemeanor cases. Individuals with mental health or addiction issues need assistance and treatment, and incarceration is not always the answer, as it does not provide the medical or support services needed to address the underlying health issue(s) that may have led to the person’s criminal act. In situations of violent crimes and serious felonies, the response must be appropriate to the individual’s past history, risk factors, and the actual harm that has been done to the victim(s) and their families, such as in homicide and aggravated sexual assault.

2. If elected, would you commit to implementing policies and practices that will reduce your county’s incarcerated population by a specific percentage by the end of your term? Please give a clear “Yes” or “No” and any explanation. If “Yes,” please identify your goal and what specific combination of reforms you anticipate will achieve this goal.

No. Committing to an arbitrary percentage of reduction is bad policy. I will not abandon my obligation to consider each case on its individual merits and ensure public safety just to achieve an arbitrary numerical goal.

I am a strong proponent for utilizing community-based, alternative justice resources, programs designed to keep people out of the criminal justice system. Programs like Treatment Diversion to address addiction issues; Court Diversion, all of which help address minor offenses; Pre-Trial Screening, which can address a variety of issues, all combine to help keep incarceration rates down. I am also committed to implementing other innovative programs provided they ensure fair treatment for the defendant and justice for the victim, such as the juvenile pre-charge program I recently implemented in cooperation with the Center for Restorative Justice and the Bennington Police Department.

3. In past legislative sessions, Vermont’s Department of State’s Attorneys and Sheriffs has opposed criminal justice reform measures in the legislature while supporting tougher criminal penalties. Will you commit to speaking out in support of legislation to reduce incarceration, even if it means taking positions that are counter to the Department’s? Please give a clear “Yes” or “No” and any explanation.

This question cannot be answered with a “Yes” or “No” because the premise is false.

Since its inception, I have been a strong proponent of “youthful offender” status which allows an individual to be treated in juvenile court beyond age 18, thereby avoiding a permanent criminal record. I have personally traveled to Montpelier to testify before the Legislature on juvenile justice reform, including supporting the increase in age for juvenile court jurisdiction.

The Department of State’s Attorneys and Sheriffs has a long history of supporting criminal justice reform and alternative justice programs, including: extending family court jurisdiction to 18 and 19-year olds; expanding expungement eligibility and automating the process; reducing pre-trial detention; and sentencing reform.

FAIRNESS IN CHARGING, BAIL, PLEAS, AND SENTENCING

4. Do you support a policy to reduce the use of money bail as a condition of pretrial release to ensure that no one is incarcerated solely on the basis of their inability to pay? Please give a clear “Yes” or “No” and any explanation.

Under Vermont law, no one is incarcerated solely on the basis of their inability to pay bail, so this question assumes that judge’s are not following the law, which is not a valid assumption in my experience.

Not only can no one be incarcerated solely because they cannot pay bail, but “Vermont has one of the most restrictive bail statutes in the country, meaning that prosecutors can only rarely push for alleged abusers to be held in jail pending trial.” Domestic violence: Convictions are hard and the safety net has many holes, Burlington Free Press, June 6, 2018.

5. Would you commit to developing and implementing written guidelines for charging and plea bargain practices to ensure prosecutors do not overcharge or unfairly pressure defendants into pleas? Please give a clear “Yes” or “No” and any explanation.

This question inappropriately assumes that prosecutors overcharge and unfairly pressure defendants into pleas.

A judge is required to find the facts support the charge, so “overcharging” cannot occur.

Most defendants have attorneys which safeguard their interests and aggressively represent them before the court. No defense attorney I know would allow his client to be “unfairly pressured” into a plea agreement. As public servants, state prosecutors are bound by ethical rules and guided by the interests of fairness and justice. As written, the question ignores the role of the Judiciary, the defense bar, and juries in the criminal justice process.

Furthermore, charging and plea decisions are based on the specific facts of a case including the seriousness of the offense, the criminal history of the defendant, and the risk to the public, among other factors. These complex considerations do not easily lend themselves to simple guidelines or algorithms that can be applied fairly across the board.

Ironically, the type of approach suggested by this question was one of the fundamental flaws with the Federal Sentencing Guidelines, which led to harsh sentencing practices, racial disparity in sentencing and failure to consider individual circumstances. I do not believe Vermont should make the same mistake.

6. Do you support increasing reliance on Vermont’s restorative justice system? Please give a clear “Yes” or “No” and any explanation and if you answer yes, please say what would you do to increase participation in that system for the benefit of victims and survivors as well as offenders.

Yes, and I have worked hard to make a variety of restorative justice programs available to the people of Bennington County. Enrollment in these restorative justice programs in Bennington is very high, which engages an individual who has committed an offense in restorative justice while safeguarding the rights of the victim. In my opinion, they are also successful in reducing recidivism.

I believe implementing innovative community-based alternative justice programs will continue to help meet the needs of Vermont. My office in cooperation with community partners recently instituted a juvenile pre-charge program which bypasses the court process to quickly get juveniles involved in support services. This gets them back on track more quickly. The Treatment Diversion program we have in Bennington is unique because my office along with a group of community partners there were able to create this program from existing resources rather than through financial support from the Legislature. This allowed us to confront the

opiate issue head on, but also helps make sure the program is viable in the long term.

7. In assessing sentencing options, would you consider alternatives to the Field Supervision Unit (F.S.U.) form of post-release supervision that do more to reduce reincarceration rates for technical violations? Please give a clear “Yes” or “No” and any explanation.

The Field Supervision Unit is a program designed to allow people who would otherwise be incarcerated to live in the community. We believe it is appropriate that there be close supervision of these individuals, and we are not aware of inappropriate re-incarceration based on technical violations as suggested by this question.

The Department supports the work and values our partnership with the Department of Corrections. We would look to more dialogue with DOC and other interested stakeholders to address this issue if it is a problem.

ADDRESSING RACISM IN VERMONT’S CRIMINAL JUSTICE SYSTEM

8. Do you believe prosecutorial practices contribute to racial disparities in Vermont’s criminal justice system, including disparities in charging decisions, bail recommendations, diversionary program placements, and plea bargains? Please give a clear “Yes” or “No” and any explanation, and if you answer yes, what if anything would you do to address those disparities?

No. Vermont State’s Attorneys and their staff are very cognizant that our actions and decision-making must be free of bias and discriminatory motives. We strive to ensure that our work, and that of our staff, is bias-free, and have provided training to our staff by professionals in the subject of implicit bias.

9. Will you commit to collecting and making publicly available relevant data and statistical information on bail and charging decisions, pleas, convictions, and placements in diversion programs, while accounting for race, gender, disability, and other characteristics? Please give a clear “Yes” or “No” and any explanation or other measures you would implement to promote transparency in your office.

Yes, to the extent that our IT system can reliably collect and report such data, and verify its accuracy by cross-matching with the appropriate partner agencies such as judiciary, defender general and law enforcement. We would examine the issue of aggregated vs. disaggregated data so that individuals who have been involved in the criminal justice system are not adversely impacted by publicly-reported data. Much of our work (charging decisions, diversion referrals, and bail arguments) is already open to public review.

10. Would you decline to file charges where evidence indicates that a police officer engaged in racial profiling or other racial bias? Please give a clear “Yes” or “No” and any explanation.

Racial profiling and racial prejudice is wrong and has no place in our criminal justice system. If there is a possibility of discriminatory profiling, my office must critically examine whether the case can proceed based on evidence which does not arise from discriminatory policing before making any decision.

PUBLIC HEALTH APPROACHES TO ADDICTION

11. Do you support a public health-centered approach to substance use and addiction that emphasizes decriminalization and harm reduction, increases access to treatment, and does not involve prosecution for drug possession? Please give a clear “Yes” or “No” and any explanation, and if you answer yes, what specific strategies would you support, both inside and outside the criminal justice system, to implement that approach?

I believe that drug-addicted individuals should be given access to treatment, voluntarily or through the criminal justice system, in a manner which does not saddle them with a permanent criminal record.

Bennington has limited resources for addicts, particularly medical-based treatment resources and substance abuse counselors. I am now working with members of the treatment community, Southwest Vermont Medical Center, and other local partners to create a community-wide network of support for people suffering from addiction. I have also implemented a model of prosecution that emphasizes treatment with the goal of successful outcomes for the individual, their families and the community as a whole.

12. Do you know how many people prosecuted in your county are currently incarcerated post-conviction for an offense in which addiction was the driving factor? Please give a clear “Yes” or “No” and any explanation.

No, as there is currently no system in place to collect such information, and individuals may elect to withhold this information from the public record, the court or their defense counsel. We are cognizant of these challenges, and helping the person address addiction issues as part of a case outcome is important to prosecutors.

TREATMENT FOR PEOPLE WITH MENTAL HEALTH ISSUES

13. Would you commit to enacting policies to divert defendants with mental health issues away from the criminal justice system and into treatment and support services in the community? Please give a clear “Yes” or “No” and any explanation.

Yes, and I and the other State’s Attorneys are doing that today in partnership with state and community partner organizations – all of which need greater financial supports to ensure

availability of resources.

14. Do you know how many people prosecuted in your county and currently in DOC custody have a mental health issue, including but not limited to a serious mental illness or other mental health condition? Please give a clear “Yes” or “No” and any explanation.

No, as there is currently no system in place to collect such information, and individuals may elect to withhold this information from the public record, the court or their defense counsel. We are cognizant of these challenges, and helping the person address mental health issues as part of a case outcome is important to prosecutors.

HOLDING LAW ENFORCEMENT ACCOUNTABLE

15. Would you commit to assigning special prosecutors authorized to investigate and prosecute officer-involved shootings and other use-of-force cases, and cases of police misconduct? Please give a clear “Yes” or “No” and any explanation.

No, unless the circumstances would clearly justify such an assignment. The independent reviews by the (affected county) State’s Attorney and Attorney General’s Office have been effective and fair. Furthermore, the Vermont Criminal Justice Training Council has been granted broader authority in very recent years to decertify law enforcement officers who engage in improper actions, and the media has won cases for greater information disclosure and transparency. With these partners, and increased oversight, the system is working effectively to protect the public from abuses.

16. Do you support a policy requiring a criminal conviction before forfeiting property, including for third parties’, and regular reporting on all civil assets seized by law enforcement, including how seized assets were spent or used? Please give a clear “Yes” or “No” and any explanation.

Yes. Vermont law already requires a conviction, and civil forfeiture is rarely utilized.

MINIMIZING COLLATERAL CONSEQUENCES OF INCARCERATION

17. People with a criminal conviction can face long-term barriers to housing and employment among other collateral consequences as a result of having a criminal record. Would you commit to implementing policies to mitigate collateral consequences? Please give a clear “Yes” or “No” and any explanation.

Yes. I and the other State’s Attorneys are critically aware that a person’s engagement in the criminal justice system will likely have adverse effects on their options for employment, housing, and family relationships. The goal of successfully reintegrating the person back into their family supports, community and society is critically important, and reduces recidivism.

I have always worked with individuals seeking expungement and have filed multiple petitions for expungement in the past several years. This year, in cooperation with Vermont Legal Aid and the Bennington County Sheriff’s Department, I have already held two successful expungement clinics in my community. During these clinics, my office assisted more than 25 individuals with the documents and information necessary to file for expungement of their records.

I have personal experience with a number of people who have had collateral consequences of convictions which negatively impact them, often from criminal convictions which are decades old. I therefore also favor expanding the availability of expungement proceedings. In addition, this year, the State’s Attorney’s Department supported a bill automating the expungement process so that qualifying individuals no longer have to hire an attorney or pay court fees in order to have their record cleared.

18. Would you commit to requiring prosecutors to consider the potential collateral consequences to children and families in making prosecutorial decisions—especially the decision to seek a prison sentence for a parent or a minor—and to use their discretion to avoid adverse consequences for children and families whenever appropriate? Please give a clear “Yes” or “No” and any explanation.

State’s Attorneys already consider the potential collateral consequences of conviction to children and families when exercising their prosecutorial discretion. However, prosecutors must also avoid discriminating against defendants solely on the basis that they happen to be childless.

19. Would you commit to implementing guidelines for prosecutors to consider immigration-related consequences of prosecutorial decisions and to use their discretion to avoid adverse immigration-related consequences for non-citizens whenever appropriate? Please give a clear “Yes” or “No” and any explanation.

No, to formal guidelines, but yes, to requiring staff to be aware of the potential adverse impact that prosecution may have on non-citizens.

In my normal practice now, I consider the impact of charges on a person’s immigration status in order to avoid unnecessarily harsh collateral consequences. I have declined prosecution of some cases for this very reason. However, in cases with violent crimes and serious felonies, such selective prosecution and/or leniency does not serve the public’s interest.

20. Vermont's Fair and Impartial Policing Policy prevents law enforcement agencies from contacting federal immigration authorities except in limited circumstances, though under statute these policies do not extend to the State’s Attorneys’ offices. Will you commit to limiting communication between your office and federal immigration authorities to instances where your office is presented with a criminal warrant or subpoena?

I operate my office in compliance with Section XI of the Vermont Criminal Justice Training Council’s Fair and Impartial Policing Policy of December 2017; and operate in a manner consistent with any policy guidance provided by the Governor or Department of State’s Attorneys and Sheriffs.

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