To: Vermont ACLU
From: State’s Attorneys, (see list)
Date: July 6, 2018
Re: Survey Response
Thank you for inviting the Vermont State’s Attorneys to participate in the ACLU Survey.
In response, several of the State’s Attorneys have responded independently to your survey, and others are choosing to submit this collaboratively-authored response to your survey.
Please feel free to follow up with any of the respondents as you deem necessary.
State’s Attorneys/Contact Information
SA Jennifer Barrett
Orleans County, Newport, VT
SA Lisa Warren
Caledonia County, St. Johnsbury, VT
511 Hudson Road Waterford, VT 05819
SA Douglas E. DiSabito
Grand Isle County, North Hero, VT
Campaign to Re-elect Doug DiSabito
11 Border Road, Alburgh, VT 05440
SA Will Porter
Orange County, Chelsea, VT
SA Tracy Kelly Shriver
Windham County, Brattleboro, VT
SA Jim Hughes
Franklin County, St. Albans, VT
SA Sarah George
Chittenden County, Burlington, VT
PO Box 71
Hinesburg VT 05461
SA Paul Finnerty
Lamoille County, Hyde Park, VT
CRIMINAL JUSTICE PERSPECTIVE AND 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, as appropriate to the crime and circumstances.
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.
It is important to note that in those cases that result in a conviction, the judge, not the prosecutor, determines the final outcome, including acceptance of a plea or amount of jail time.
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.
Yes and No.
Yes: The implementation of practices that reduce incarceration are already in place, such as directing most misdemeanor cases, and cases relating to addiction and mental health, to appropriate community service, diversion and treatment programs. Examining and adopting other methods to reduce incarceration, following effective models, and adopting best practices will all be deployed in the goal of ensuring fair treatment for the defendant and justice for the victim.
No: Committing to a specific percentage of reduction would, be inconsistent with our obligation to consider each case on its individual merits and ensure public safety.
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. 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. Each State’s Attorney, as an independently elected official, can determine his/her own position on any legislative proposal; and reducing incarceration, when appropriate, is a position that the State’s Attorneys and Department support.
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.
It is already current policy that no one is incarcerated solely on the basis of their inability to pay. In Vermont, bail is imposed for purposes of securing appearance, and seldom imposed for misdemeanor cases. It is sometimes imposed if other conditions of release are inadequate to secure appearance at court proceedings. These are appropriate reasons; not lack of money.
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.
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.
This question inappropriately assumes that prosecutors overcharge and unfairly pressure defendants into pleas. As public servants, the state prosecutors are bound by ethical rules and guided by the interests of fairness and justice. The question ignores the role of the Judiciary, the defense bar, and juries in the criminal justice process.
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, with appropriate means to ensure participation and compliance, and the safety of victims.
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 re-incarceration 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. 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.
Possibly, as racial – or other discriminatory profiling – is an abuse of power. However, the prosecutor must critically examine the merits of the case, including the seriousness of the offense; whether other evidence independently corroborates the offense; and if there is a victim in the case who has been substantially harmed.
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?
Generally, it is most appropriate to direct persons involved in substance abuse and suffering from addiction issues, to treatment. Today, most individual possession charges are reduced to misdemeanors and referred to Diversion, reserving felony charges for situations of sale or distribution. The criminal justice system can be helpful in addressing addiction issues in that treatment can be mandated as part of a sentence or court diversion program. The State’s Attorneys have adopted a model of prosecution that emphasizes treatment with the goal of successful outcomes for the individual, and risk reduction in the community.
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 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 should work 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. 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. This year, the 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 noncitizens 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; 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?
The State’s Attorneys will operate 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.