On January 8, the Vermont General Assembly will convene its 79th Biennium. Based on what we have heard while reaching out to constituents, the legislature’s priority will be affordability, primarily as it relates to education and health care. I hope to continue to serve as Chair of the House Judiciary Committee, where we will resume our work addressing concerns related to public safety.

In the last session, the legislature passed several initiatives to address public safety concerns. We targeted crimes that have specifically impacted our state, such as retail theft in Act 128, auto theft and trespass into an auto in Act 129, drug trafficking in Act 125, and the proliferation of ghost guns in Act 120.

We also tackled systemic issues. In Act 138 we established a pretrial supervision program that includes electronic monitoring to ensure that people are complying with their conditions of release as they await resolution of their cases. We re-established community restitution, also known as work crew.

The legislature also provided additional resources to the courts, prosecutors, defenders, and victim advocates so that our criminal justice system will work more effectively. And we passed Act 180 to expand restorative justice throughout the State as a vital part of our public safety package.

The criminal justice system has several important goals: rehabilitation of individuals who have committed crimes, incapacitation of violent individuals who pose a threat to society, and deterrence.

Effective deterrence relies on two factors: (1) the risk of being caught and (2) certain and quick consequences for criminal activity. The consequences do not necessarily have to involve incarceration. They can include probation, community restitution, deferred sentences, diversion, and mental health or substance use treatment. The key is that the consequences for offenders must be certain and swift.

In Vermont, consequences for criminal activity have become slow and uncertain. Deterrence has therefore declined. Why has this happened? There is one major reason. Over the past several years, Vermont State courts, prosecutors, defenders, and victim advocates have lacked the resources to resolve criminal cases expeditiously.

To get to a point where cases can be promptly resolved, the Vermont criminal justice system must address a significant backlog of proceedings, which pre-dated the COVID pandemic. During the pandemic, fewer cases were filed, but those that were filed were not being processed. After the courts fully reopened, a surge in new filings left the courts falling even further behind.

The courts use several metrics to track whether they are making progress on reducing the backlog. One of those metrics is clearance rates – the number of new filings compared to the number of cases the courts dispose of each month. Cases in compared to cases out. If the clearance rate is over 100%, that means the backlog is being reduced. As of the end of October of this year, the courts have achieved a clearance rate on criminal cases of 111%, an improvement over last year’s clearance rate of 106%. But our goal is to achieve a rate of 125%, which would allow the system to substantially decrease the backlog in the next four years.  

Due in part to the court backlog and a lack of resources, criminal cases are frequently not being processed in a timely manner. The Vermont courts track the time from when a case is filed to when the court disposes of it. They set forth disposition goals: for example, 98% of standard misdemeanor cases should be resolved in 180 days and 98% of standard felonies should be resolved in 365 days. Currently, approximately 50% of cases are meeting disposition goals. That means that, for many individuals alleged to have committed criminal offenses, the consequences are far removed from the offense, diminishing any deterrence value.

How do we reach these goals? There are two primary solutions. First, we can provide the resources to the criminal justice system so that cases can be more expeditiously processed. This past year, the legislature provided additional resources to the State’s courts, prosecutors, defenders, victim advocates, and Community Justice Centers.

Second, we need not rely solely on the courts to provide expeditious consequences for criminal activity. A well-functioning, well-resourced restorative justice system can also ensure certain and immediate consequences, often with better outcomes for victims and offenders than the criminal justice system.

Restorative justice is a community-based response to crime that focuses on repairing harm and making amends. It holds individuals accountable for the harm they have caused in a manner that centers on the victim and the community that has been harmed. 

For years, Vermont has successfully used restorative justice through its established court diversion program. Under this program, defendants charged with crimes can be sent to the diversion program as an alternative to being prosecuted. 

Some communities in Vermont also successfully use what is called pre-charge diversion. In these communities, for low-level crimes and first-time offenders, law enforcement or prosecutors can send an alleged offender to a community justice center before they are charged with a crime. They are diverted from the criminal justice system earlier, with better results for victims and the community and quicker accountability for the alleged offender.  

Pre-charge diversion had not been available or uniformly applied across the state. There was no pre-charge diversion program like there is for court diversion.

Act 180 corrected that problem. It establishes a state-wide pre-charge diversion program that will be overseen by the Office of the Attorney General, which currently manages the court diversion program. It sets forth standards for program implementation and access across all counties. It requires uniform data collection that will allow Vermont to more precisely evaluate program effectiveness and overall cost savings. Critically, diverting more cases pre-charge will take pressure off the courts to allow the criminal justice system to take care of the backlog and speed up case processing.

It will take time for the work of this past Session to have an impact on public safety. The pre-trial supervision program will start as a pilot in Orleans and Essex Counties before rolling out to the rest of the State. As to the courts, in May we approved the addition of three judges; in early September the Judicial Nominating Board recommended to the administration twelve candidates for the judgeships; and on November 27 the administration appointed judges from this list. Filling positions takes time, and there will be a learning curve for these new judges and for additional prosecutors and defense attorneys. 

Looking to the upcoming session, the House Judiciary Committee will monitor progress in addressing the backlog and will evaluate additional resource needs, including for the pre-charge diversion program. We will also consider other initiatives to ensure that our communities are safe.