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 3 of this candidate's 20 answers include language from the collective response submitted by the Department (questions 5, 8 and 20).
Candidate name: Rory T. Thibault
Campaign mailing address, email & phone:
P.O. Box 4, Cabot, VT 05647
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?
The judge, not the prosecutor, has ultimate control of whether a sentence entails incarceration or not. Whether a sentence is by agreement or is contested, the judge decides acceptance of a plea agreement or the appropriate sentence to impose. This question also minimizes the role of the defense counsel and assumes an inherent hostility between all parties. In Washington County, we enjoy a healthy relationship with the defense bar – collaboration and exchange of information on individuals’ circumstance is the norm, often informing and leading to leniency and sentences that do not result in destructive collateral consequences (e.g. loss of employment, child custody issues, loss of medically assisted treatment, etc.). I believe the rate of individuals incarcerated for misdemeanor offenses and crimes relating to addiction or mental health should decrease, however, the response to violent crimes and other serious felonies must continue to be just and proportionate to the harm done.
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, commitment to a specific goal is incompatible with the interests of justice. Resolution cases should be based upon the merit of the case, circumstances and history of an offender, and victim input where applicable. Notwithstanding this, my office already emphasizes rehabilitative outcomes that minimize or eliminate incarceration and will continue to work in concert with community partners and the Department of Corrections to develop outcomes that make sense for all involved.
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.
I have previously taken positions contrary to the Department’s view, and I believe nearly every other State’s Attorney has as well. For example, on H. 797 (An act relating to unlawful possession of a regulated drug) in the past session, I took a different view than most other State’s Attorneys. This contributed to further discussion on the merits of the bill. The Department of State’s Attorneys and Sheriffs fosters constructive and collaborative dialogue and respects differing viewpoints among its attorneys.
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.
Yes. I believe it is inconsistent with Vermont values to hold an individual solely on the basis they cannot make bail or secure a bond. However, bail is seldom imposed in misdemeanor cases (with the exception of domestic assault cases where individuals have limited ties to Vermont) – only 6% or 23 individuals held due to lack of bail in February 2018 had misdemeanor offense pending, with 10 of those cases being domestic assaults. There is a great misunderstanding of the purposes of bail – in Vermont bail is only imposed for purposes of securing appearance. In the most serious cases, e.g. felonies with the possibility of a life sentence or those that entail acts of violence, a hold without bail may be sought if other conditions of release are inadequate to secure appearance or mitigate the risk to public safety. In misdemeanor cases, bail typically becomes an appropriate tool only after non-appearance of a defendant or a past record demonstrating an unwillingness to participate in the court process. The greatest challenge for prosecutors is often addressing repeated violations of conditions of release – 13 V.S.A. § 7575 continues to set a high standard to hold an individual pretrial.
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. As public servants, prosecutors are bound by ethical rules and guided by the interests of fairness and justice. This question also ignores the role of the Judiciary, the defense bar, and juries in the criminal justice process. All prosecutors are bound by ethical rules, and moreover there are seldom situations where a prosecutor ever has direct contact with a defendant prior to sentencing. Vermont has many zealous private and public defenders, and a judiciary that very cognizant of the stakes for criminal defendants.
With respect to charging, my deputies are empowered to amend or dismiss charges at any time they believe the evidence shifts in favor of a defendant or believe the ends of justice are met through such action. We are not motivated by “wins or losses” in the courtroom, we are guided by principles and outcomes that are just for all involved.
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, however there are many challenges within the restorative justice system that must be addressed before increased reliance is feasible. Perceptions of what programs are or are not “restorative” means there is not a uniform definition or standard. Within Washington County, restorative practices are exercised by the two community justice centers, the Washington County Diversion Program, and Department of Corrections. Restorative processes may be integrated into diversion cases as well as cases that result in a conviction and community supervision. Critical to the success of restorative processes are adequate funding and resources, accountability and control measures, and public confidence – all of these considerations vary by program and by region in the state. Skepticism among victims and survivors in the merit of restorative practices remains an impediment to the broader utilization of these processes, and in most domestic, sexual, or intimate partner violence cases may be clinically inappropriate and incompatible with protective orders.
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.
Enabling the success of an individual reintegrating into the community following incarceration is a significant concern. Expansion of Circle of Support and Accountability (“COSA”) services beyond cases involving sexual offenders, specifically to include individuals with drug convictions or addiction, is a goal of my office. Supervision by the Department of Corrections in the community is critical to risk reduction and community safety – this form of supervision is often preferable to straight “to serve” sentences and in many cases in Washington County, individuals will proceed directly to community supervision in lieu of being incarcerated. The Field Supervision Unit is a program designed to allow people who would otherwise be incarcerated to live in the community – often a preferable outcome.
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?
It's unclear. State’s Attorneys 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.
In my view, race plays no role in charging decisions or recommendations for case disposition: there should be no disparity. Likewise, bias based on gender, gender identity, sexual orientation, religion, ethnicity, or economic status is intolerable. I support study of this issue, but I believe that my office seeks fair and just outcomes irrespective of a defendant’s race.
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.
The utility of county level statistics may be limited, given the potentially small sample sizes of individuals for certain offenses. While I believe this is a policy decision of the Department of State’s Attorneys and Sheriffs, I support transparency and note that our charging decisions, diversion referrals, and bail arguments are all part of the public record and take place in open court (except for juvenile proceedings, where confidentiality applies).
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.
It depends. Racial – or other discriminatory profiling – is an abuse of power and wholly inconsistent with Vermont values, policy, and law. A critical skill of all prosecutors is to weigh and assess evidence – in determining whether to file or not I would consider, at a minimum: (1) the strength of the evidence indicating racial bias, (2) whether other evidence independently corroborates the criminal offense, and (3) whether there is a victim in the case, and, if so, his or her views on prosecuting the matter and the degree of harm. Racial profiling and bias do not have a place in the justice system.
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?
There is no issue more complicated than coordinating the best response from the public health and criminal justice systems to addiction. If there were clear “yes” or “no” answers this crisis would have been abated years ago. Likewise, the public health and criminal justice responses are not siloed or mutually exclusive from one another.
I supported the core of H.797, proposing to reduce all possession charges to misdemeanor offenses, reserving felony exposure for situations of actual sale or distribution, or where an individual had the intent to sell or distribute. The criminal justice system offers one advantage over the public health system in combating addition – treatment may be mandated as part of a sentence or contract as part of a court diversion program. My office has adopted a model of prosecuting that emphasizes treatment and rehabilitation – however, flexibility in responses, whether through a public health and criminal justice, is critical to ensure successful outcomes 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. There is no methodology available to collect such information, and some individuals elect to withhold this information from the public record, the court, or even their defense counsel. In Washington County, our contract public defender does not support client utilization of pretrial services and pretrial monitoring, meaning we have little formal documentation of whether addiction is an issue – unless it is apparent from the context of a charge, content of affidavits, victim impact statements or voluntary disclosures. Further, there are individuals within our system who have demonstrated substantial criminogenic behavior before addiction – put simply, there are criminals who happen to be addicts and, likewise, addicts who find themselves committing crimes to sustain their habit. Understanding these factors is critical to reaching outcomes that make sense.
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, because we already have done so in Washington County. In 2016-2017, I developed the Washington County “Behavioral Health Accountability Program” – a pilot program that utilized deferred sentencing and leveraged existing mental health and community support resources, in conjunction with the Department of Corrections, to create the equivalent of a mental health treatment court in the absence of dedicated grant funding or program coordination. Likewise, our office sends a significant number of cases to the “Tamarack” program to address misdemeanor and felony offenses where there is a clear mental health concern.
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. There is no methodology available to collect such information, and many individuals may elect to withhold this information from the public record, the court, or even their defense counsel. In Washington County, our contract public defender does not support client utilization of pretrial services and pretrial monitoring, meaning we have little formal documentation of whether mental health conditions are present. We often infer such from the content of affidavits, victim impact statements or voluntary disclosures. We are cognizant of these challenges, and addressing mental health concerns as part of a case outcome is important for both rehabilitation and community risk reduction.
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. I believe the existing system of independent review by the local State’s Attorney and Attorney General’s Office is adequate. Under normal circumstances, the Attorney General’s Office would be responsible for prosecution of an officer, as that office has the resources, jurisdiction, and independence to fairly and effectively prosecute.
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.
Vermont law already requires a conviction, and civil forfeiture is rarely if ever used in practice. I am unfamiliar with any actions initiated by my office within the past three years.
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. Central to my prosecutorial approach is the reality that most criminal defendants are members of our community, during and after criminal proceedings. My office has adopted policies to ensure alternatives to fine only outcomes. A fine as an outcome is radically different to an individual with wealth versus another living in poverty. In Washington County, we offer community service, credited at a liveable wage, in lieu of fines for individuals. Likewise, we refer many cases to diversion which eliminates the stigma and consequence of a conviction.
The justice system can and should be an opportunity for an individual to make positive changes and amends for wrongdoing. Contrarily, outcomes that reinforce existing poverty, disrupt employment, or disrupt housing are inconsistent with reducing risk in the community. In Washington County, we actively assess sentence outcomes to minimize disruption and work with defense counsel to develop resolutions that make sense and preserve, to the extent possible, employment, housing, medically assisted treatment, and other community supports. Ultimately, outcomes must make sense in the short and long term.
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.
Yes. This has been longstanding policy and philosophy in my office. Avoiding the unnecessary destabilizing families is not only humane, it promotes the success of rehabilitative outcomes and reduces risk of re-offense. Coordination between family court (i.e. CHINS) proceedings and criminal court is common in Washington County. Prosecutors and counsel for defendants and children will frequently work together to reach outcomes that protect children, support the goals of family reunification or family unit preservation, and recognize that children should not suffer for the misdeeds of their parents.
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.
While I do not support implementing formal guidelines, my office remains cognizant of the collateral consequences of a conviction for individuals who are noncitizens. We are highly sensitive to the potentially disproportionate consequences that may result from relatively minor interactions with the criminal justice system and assess all cases carefully.
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 will commit my office to operate in compliance with Section XI of the Vermont Criminal Justice Training Council’s Fair And Impartial Policing Policy, dated December 2017, and operate in a manner consistent with any policy guidance provided by the Governor or Department of State’s Attorneys and Sheriffs.