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Public Safety and Access to Justice

lalonde

As I wrote in my November column, Vermonters are concerned about public safety. The following explains what the House Judiciary Committee will be doing in the upcoming Session to address this concern.

Increasing Resources for the Criminal Justice System: In the Judiciary Committee, we have learned that the two most effective crime deterrents are 1) a high probability of being caught and 2) certain and quick consequences for criminal activity. 

The probability of being caught depends on the presence and availability of law enforcement. The certainty and immediacy of consequences depend on a well-functioning, well-resourced criminal justice system made up of the courts, prosecutors, defenders, victim advocates, and community justice centers. The Judiciary Committee will focus on ways to ensure that cases in the criminal justice system are efficiently processed, leaving issues related to law enforcement to the Government Operations Committee.

One of the biggest challenges our court system currently faces is a backlog of cases, which pre-dated the COVID pandemic. During the pandemic, fewer cases were filed, but those that were filed were not being processed. Since the courts have fully reopened, there has been a surge in filings and the courts have been falling further behind.

The legislature’s primary lever to address this issue is the State’s budget. The Judiciary Committee will work with the Appropriations Committee to ensure that all vital elements of the justice system have sufficient resources. This work will enable cases to be heard a timely fashion so that individuals are being held accountable for their actions as soon as possible.

Filling Court Vacancies: When vacancies occur in the courts, it is critical that new judges are expeditiously appointed. That process takes too long. The courts have been down several positions for a good part of the year. Fortunately, the Governor has just appointed five individuals to fill seven of our current vacancies. But it took four to six months for him to fill three positions earlier this year and nearly a year to fill a judge position in Rutland. It took two-and-a-half months to fill four of the most recent vacancies, an improvement but, still, the time it is taking is cause for concern.

A nonpartisan Judicial Nominating Board sends nominations for judicial openings to the Governor. This board is made up of legislators (currently including Democrats and Republicans), members of the Vermont Bar, and people appointed by the Governor. The Governor reviews and appoints judges from the list of nominees.

The House Judiciary Committee will likely consider a bill to speed up the process by which nominations are made to the Governor, to attempt to hold the Governor to a timeframe for appointments, and to expand the applicant pool so the Governor will have more quality potential jurists from which to choose.

Codifying Pre-Charge Diversion: Building on the successful outcomes of pre-charge programs in counties across Vermont, the Judiciary Committee is exploring the creation and codification of a statewide pre-charge diversion program. 

Under such a program, law enforcement or prosecutors can divert certain misdemeanor offenses before they reach the courts, allowing judges the capacity to manage more serious offenses. These misdemeanor offenses are referred to restorative justice entities, such as community justice centers, to hold individuals accountable and develop agreements to repair harm and build skills to prevent future crime. If an individual’s referral is unsuccessful, they are then referred back to the traditional court system. 

Some Vermont counties already offer such a program. By expanding pre-charge diversion statewide, our entire State will benefit from more timely justice interventions, reduced pressure on the courts, and consistent access for community and victim voices in restorative processes, all while creating a uniform system for implementation and reporting.

Expanding Availability of Treatment Courts: The Judiciary Committee will advocate for additional resources for treatment dockets. These dockets provide individuals who have substance use disorders and mental health conditions the opportunity to enter treatment and avoid certain consequences, such as incarceration. The goals of these dockets include keeping communities safe, supporting treatment for participants, and ending defendants’ criminal or harmful conduct. Evidence shows that treatment courts can reduce court costs, and studies have demonstrated that such courts can effectively reduce recidivism, including fewer re-arrests and less time in prison. Reducing recidivism, in turn, can reduce the caseload in our courts.

Addressing Repeat Offenders of Retail Theft:  The backlog our courts are seeing creates an additional challenge that has received a great deal of press. Individuals committing retail theft are arrested, but are then released and committing the same crimes, often in the exact same stores, the next day. The offenses that are being committed are typically misdemeanors because they involve merchandise valued at less than $900 (the felony threshold).

Due to the court backlog, courts are prioritizing felonies and violent crimes instead of misdemeanor offenses such as these retail thefts. An individual can often get arrested several times for such misdemeanor charges before they are even due in court for their first appearance. 

The Judiciary Committee will take up a bill at the start of the legislative session that will combine multiple misdemeanor retail theft charges that an individual has received over a set period. If the value of the total items taken exceeds a certain amount, these combined retail theft charges would become a felony charge, which the courts can process more expeditiously.

Combining retail theft charges will serve two purposes. The first will be to hold repeat offenders more accountable – the consequences they face will be more certain and timelier. Additionally, replacing several misdemeanor court dates with a single felony court date will free up the court’s time to move cases more expeditiously.  The House Judiciary Committee will likely seek solutions to other issues impacting public safety. In addition, work in other committees will help address root causes of crime, including substance use disorder, homelessness, and limited access to mental health services.

Vermont’s Under-resourced Criminal Justice System

lalonde

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.