I have framed this issue as one of wanting the criminal justice system to be an escalator that lifts people up and out of the system and not a revolving door. I used to be the treatment court prosecutor in Chittenden County. I helped to develop the Rapid Intervention Community Court (RICC) program which enabled police to directly refer cases to treatment programs and later became codified across the state. I firmly support what we used to call alternative justice programs (direct referrals, diversion, treatment court, deferred sentencing, etc.), which can be broadly defined as utilizing the sequential intercept model to leverage the criminal justice system to get people in the system the treatment and services they need. The data I have seen shows taht when done correctly these programs all lower the recidivism rate. The key is that to be done correctly there needs to be both an incentive for completing the program (e.g., dismissal), and a potential consequence for not completing (e.g., a conviction).

It is important for us to be transparent and honest about how we are implementing these programs and tracking data to see if they are working. Again, there needs to be a potential consequence built in for not completing these programs. Right now in Chittenden County, by prohibiting cash bail requests, the SA is not even advocating for consequences for not showing up in court, let alone not participating in one of these programs. Without consequences, these programs collapse into a revolving door, because they become merely invitations to participate in treatment. There also does not seem to be any real data tracking the outcomes of these programs. The only report I could find on recidivism rates in Chittenden County says up front that the report is incomplete because the expungement statute prevents us from getting at the full universe of cases. The only report on the treatment court in Chittenden County I have seen indicates that it increases the arrest rate of its participants, which is the opposite effect we want to see. So, I would be vigilant that these programs were being done properly and would track better data on the outcomes.

I address every case on its own merits and weigh all the relevant factors in determining what the best outcome is for the community. That involves the offender’s need for treatment, the harm to the community, the culpability of the offender, etc.  For pure possession cases, my policy is always to prioritize treatment. SUD is  unquestionably a medical condition and should be treated as such. However, many possession cases involve other criminal conduct, such as theft or sale of drugs, and those may require additional responses from the system.

I think it is important for the SA to understand the full tapestry of services available in the community and to have some idea of how effective they are. We are not, however, treatment experts and I would defer to experts like you on how effective an overdose prevention center could be in addressing SUD and how it would fit into the other available services. I do think that, in any event, we should be tracking data to see whether safe injection sites are helping to address the problem.

We should be honest about what solutions we can find in the courtroom and what solutions we need to look to the legislature for. We need an effective public housing system, a more robust treatment regime for SUD, and a functional mental health system in Vermont. I would advocate for all of those things as SA. We should be taking better care of each other and all three would greatly reduce the number of criminal cases by preventative care and services. 

However, we still need to be able to hold each other accountable for criminal behavior. In order to have a functional criminal justice system, there needs to be a mechanism to ensure people show up in court and, presently, cash bail is the only tool we have to do that. I would support a legislative effort to replace cash bail with a different mechanism, but I think it is irresponsible for an individual SA to unilaterally throw out the only tool we presently have. Likewise, it is irresponsible to preemptively declare every non-public safety traffic stop to be unconstitutional, regardless of the circumstances of the individual case. We can try to address iniquities on a case by case basis and, if we find we need a broader solution, we should explore a thoughtful legislative one.

In regards to the specific SA policies you mentioned: no cash bail and no criminal charges arising from non-safety traffic stops, I would point out that after years of these policies being in place, we have never been provided with any measures of success, let alone data to show that either policy has made the impacts of the system more equitable for BIPOC or underresourced individuals. In the meantime, we have experienced the collateral damage of these policies in the form of a less effective criminal justice system and repeat, unchecked, criminal behavior. If an SA is going to institute policies that fundamentally impact the efficacy of the criminal justice system, we should at least be tracking data to see what the actual impacts of these policies are, not just for people charged with a crime, but the collateral impacts on the the rest of the community as well, which includes BIPOC people and underresourced people who are victims of crime and are negatively effected by criminal behavior.