by Martin Green
Since our Crimes and Concerns community forums in Morrisville last August and January, I have been trying to understand and observe how, why, and where our criminal justice system seems to be failing. Why do we have the “frequent flyers,” those serial offenders and arrestees who make up 5% of offenders committing 90% of the crimes?
I have met twice with Lamoille County State’s Attorney, Aliena Gerhard, since January to discuss these issues and ask questions. I have also been attending hearings and trials at the Lamoille Superior Court through Webex since April to see firsthand how this process works so that my perceptions are not based on subjective feelings, rumors, axes to grind, or on the abridged court reports we see in our weekly newspapers, but on my own experiential observations and trying to learn how it all works.
I have come to a few conclusions and propose a few ideas:
It is not the fault of our law enforcement officers. The officers of the Lamoille County Sheriff’s Department and Morristown Police Department put their lives on the line every day to promote public safety and apprehend criminals. How discouraging and demoralizing it must be for them to work so diligently to solve cases and arrest criminals, only to see them quickly released to commit more crimes, violate conditions of release, violate probation, fail to show up for court appearances, continue to steal and destroy people’s lives and property, and show utter contempt, disregard, and disrespect for our laws. I would have to imagine that the situation is similar in every Vermont county.
It is not the fault of State’s Attorney, Aliena Gerhard. She is seasoned, dedicated, tenacious, tough, and passionate about doing an excellent job as part of the incredibly difficult and weighty responsibility she carries as Lamoille County’s top law enforcement official. She has had barely any help in tackling a monumental caseload, and yet she prosecutes and argues her cases diligently and confidently to provide communities, victims, and offenders with the components of punitive, rehabilitative, and deterrent justice.
(On the other hand, there is Chittenden County State’s Attorney, Sarah George, who has publicly declared she went to law school to “dismantle the criminal legal system.” She has also admitted that one of her primary objectives is not to take cases whenever possible, find ways not to charge people with crimes, and eliminate cash bail. She would rather not have to prosecute offenders or put people in jail. Unfortunately, her desire to dismantle the system has only succeeded in greatly undermining public safety. Hopefully, George’s societally destructive agenda is an anomaly among Vermont state’s attorneys who work for us and whose job description is to be where the buck stops in enforcing the laws our elected representatives have made. She needs to be voted out of or removed from office.)
It is not the fault of Judge Mary Morrissey. She is even-handed and fair-minded, and an excellent, humble, and compassionate leader in the courtroom. When offenders are remorseful and repentant and are truly determined to take responsibility for their actions and participate in their rehabilitation and provide restitution to their victims, she takes that into account and gives them the opportunity to change. When they are not, she brings the weight of the law down on them.
It is not even the fault of the majority of the laws we have in Vermont. There are already penalties and sentencing guidelines for nearly every kind of offense. We have habitual offender laws whereby those who are convicted of three felonies may possibly be sentenced to up to life in prison. We have penalties for violating conditions of release, violating probation, and failure to appear for court hearings. And as our judicial system is the best in the world, everyone is presumed innocent until proven guilty and is entitled to his/her day in court. Even these multiple violations of conditions of release and probation will eventually be prosecuted, and sentences will be imposed as part of due process.
Here is where I see the fault and breakdown of our criminal justice system as it relates in particular to serial offenders:
There are certain individuals who are being arrested several times a week and numerous times a month. You know those whose names you see multiple times in the court report and police blotter in the current edition of your local newspaper. They are arrested, cited to appear in court, and then released, only to go right back out onto the streets to offend again, violate their conditions of release, violate their probation, and then fail to show up for their court dates. This is also happening more frequently around the state.
Here are some of my ideas and suggestions which I discussed at length with Attorney Gerhard and am proposing to you. Perhaps these can be referred to in a general sense as bail reform:
If a person is arrested more than once in a week or more than twice in a month, upon that subsequent arrest set a very high bail, say $20K or $50K. Yes, he or she is still presumed innocent and will have his or her cases tried as speedily as possible as part of due process.
However, for those demonstrating a flagrant disrespect for the rule of law and public safety, the new law is going to make it very difficult for them to keep on committing crimes and racking up tremendous caseloads for our prosecutors and judges, not to mention the burden on our law enforcement officers who must continue to track them down and arrest them, often times at great peril to their own lives.
If those frequent flyers can post a bail that large, well then, they are going to have to think twice about jumping bail and being on the hook to someone for $2K or $5K. If they can’t post bail, they must wait in jail and will not get the opportunity to get arrested every day because they pose a risk of flight and are considered under a new category of serial arrestee.
If a person charged with a misdemeanor violates conditions of release, that violation is considered a misdemeanor. However, if the person charged with a felony violates conditions of release, that violation will be considered a felony instead of a misdemeanor. In other words, the penalty for these violations will match the class of offense with which they’ve been charged.
In addition, even if the offenses for which a person is charged are misdemeanors, more than one violation of conditions of release on those charges now bumps that second violation into the felony class.
The point is to make it extremely tough for serial offenders to keep breaking the law and being so easily released to offend again. The catch and release structure of the laws we now have does not help the offender, and it sure doesn’t protect the community and promote public safety, especially for those who are victims of thefts, assaults, or other violent crimes.
Greatly increase penalties for convictions of DUI greater than DUI #1. Once persons are convicted of DUI #2, #3, #4, #5, #6, they have proven that treatment and recovery programs have not helped them. They have proven that they do not care about the law, you, me, our spouses, our children, our grandchildren, our friends, their neighbors, or anyone else who has the misfortune of encountering them on our roads or highways.
Just last week, I witnessed a Lamoille court case in which a man was charged with DUI #6. Like Teddy Farnham—who had 533 encounters with police over the course of his criminal career, 19 felony charges and 11 felony convictions before he allegedly murdered Richard Cote—this man charged with DUI#6 should have been punished much more severely much earlier.
The laws for stern sentencing for DUIs greater than DUI#1 are already on the books, but I rarely see the maximums imposed. This is not justice. There is never an excuse for DUI#1, and it is still egregious, but its severity (providing no one is injured or killed) is less than those who continue to drive under the influence. Let’s advocate for enforcement of maximum rather than minimum penalties for these offenses. Otherwise, there are no deterrents, no punitive justice, and the public is left unprotected from irresponsible lawbreakers who have proven they cannot be trusted.
All of these proposed laws are not intended for the person who breaks the law once and is never seen in court again. They are not intended for the person who had a misdemeanor in 1978 and is arrested tomorrow. These proposed new laws are expressly for those who keep breaking the law, are arrested more than once in a week or twice in a month, and need to be taken off the streets until their cases are adjudicated either by trial or by entering a guilty plea, and sentencing is then imposed by the judge.
I realize that when bail is set, it must fit within the parameters of the Eighth Amendment. Furthermore, it must not be issued to protect the community or as a means of punishment. However, there are several conditions and charges under which persons charged with crimes are detained without bail, or have a very high bail set. I merely suggest that our legislators work to create laws which expand some of those conditions and charges to include this class of serial arrestee.
As legislators are running for election, the issue of public safety and bail reform are on the front burner of public awareness right now, especially in the wake of high profile cases such as Teddy Farnham and those who are beginning to rack up lengthy records like his. My hope is that if they address and propose legislative changes with teeth in them, perhaps along the lines of what I have suggested, and place them as foundational planks in the platforms of your campaign, it will resonate very strongly with voters and constituents and create a groundswell of enthusiastic support.
This is a great opportunity for everyone to work together, regardless of party affiliation, to provide justice for victims, stronger consequences and deterrents for offenders, and safer and more peaceful communities in which law and order are restored and respected.
The author is a Morristown resident.