Vermonters are concerned about public safety. I have heard from constituents and fellow representatives from around the State, who share stories of individuals who have committed crimes, who are arrested, arraigned, and released, and who proceed to commit additional crimes. Why, I’m asked, aren’t the courts locking these individuals up?

Under our legal system, individuals are considered innocent until the State proves their guilt beyond a reasonable doubt at trial. Or, as happens in most cases, a plea agreement is reached between the defendant and the prosecutor, usually after a trial date has been set. It is after conviction or a plea agreement that individuals face the consequences associated with their crime, including potentially incarceration.

Individuals can only be detained before their trial in limited situations. Chapter 2, Section 40 of the Vermont Constitution provides that “all persons shall be bailable by sufficient sureties.” This means that a judge must release the defendant either on “personal recognizance” (a promise to return for the next court hearing) or on an “appearance bond” (bail). The purpose of bail is not to punish. It is not a method to detain a defendant. If a judge decides to set bail, they may set bail only at an amount that will reasonably ensure the defendant’s appearance in court and not higher. It should be an amount that the defendant can post and that will act as an incentive for the defendant to show up in court. Judges are not supposed to set bail at an amount that will prevent the release of the defendant simply because the person is unable to post the amount. If the defendant does not appear, they forfeit the bail amount.

Under the Vermont Constitution, individuals can be held without bail only in a few circumstances. They may be held if they are charged with an offense for which the punishment is life imprisonment, and the evidence of guilt is great. They may also be held if charged with a felony involving an act of violence against another person, the evidence of guilt is great, and the court finds by clear and convincing evidence that the person’s release poses a substantial threat of physical violence to any person and that no conditions of release will reasonably prevent the physical violence.

Most offenses charged in our criminal justice system do not involve such offenses that allow courts to hold the defendant without bail. So the large majority of alleged offenders will be released pending their trial. They may be subject to conditions of release, such as restrictions on their travel, people they may associate with, or place they can live during the period of release. But they will be in the community. And some of these individuals will commit additional offenses and may violate their conditions of release while they await their trial date.

But that trial date may be far in the future. And this, in my view, is the crux of the problem. The Vermont courts continue to face a significant backlog of cases. Even before the COVID shutdown, the courts had insufficient resources, resulting in delays in cases being heard. This problem was exasperated by the pandemic and the courts are still catching up.

The courts have been open post-COVID for a while now. But with the courts focused on addressing accumulated felony cases, misdemeanors are also not being processed expeditiously.

In the criminal justice area, it is understood that the best deterrent to crime is a heightened risk of being caught and the certainty and immediacy of the consequences. The risk of being caught depends on the availability and visibility of law enforcement. The certainty and immediacy of consequences depends on judicial, prosecutor, and defender resources.

What is needed, then, to help address the community’s concern related to crime is a fully resourced and functioning criminal justice system, including law enforcement, courts, State’s Attorneys offices, and the Defender General’s Office.

Of immediate concern is the fact that of 37 state judge positions in Vermont, seven are currently unfilled. When judges retire, it is taking four to six months on average to fill the positions. In the upcoming session, the House Judiciary Committee will likely consider a bill to expedite the nomination process and expand the pool of applicants for judge positions.

Even with a full complement of judges – hopefully by year’s end – courts will still need additional resources, including yet more judges and court staff, to ensure a speedy process for resolving criminal cases. In the upcoming session, the legislature should ensure that the courts, prosecutors, and defenders receive the necessary resources.

In future columns, I will explain other bills that the House Judiciary Committee will likely consider next session to reduce the pressures on the criminal, as well as civil, justice system. The best way to reduce crime, however, requires solutions beyond the Judiciary Committee’s purview. These solutions involve addressing social determinants of crime including underemployment or unemployment, housing instability, food insecurity, untreated substance use disorder, and poor access to health care. I will continue to support other committees in their work to address these underlying issues.