T.J. Donovan, the state’s attorney for Chittenden County, explains a new initiative in Burlington, Vermont, that mandates community restitution and participation in social services as alternatives to court or incarceration.

ROBERT V. WOLF: I’m Rob Wolf, director of Communications at the Center for Court Innovation and I’m here with T.J. Donovan, the state’s attorney of Chittenden County, Vermont, which includes Burlington. That’s the state’s largest city, is that right?

T.J. DONOVAN: That’s correct.

WOLF: Well, thanks for talking to me.

DONOVAN: Happy to be here.

WOLF: You’re here at the Center for Court Innovation today with about 20 people who are participating in a roundtable to share ideas about community engagement. You guys have spent the morning talking about the different the programs you’ve started or are involved in that actively involve community members. I thought we’d start out by talking to you about the experiences that have helped shape your outlook as a prosecutor.

DONOVAN: Sure. You know, I grew up in Burlington, Vermont, certainly made a number of bad judgments and mistakes as a young person. I was given the opportunity for second chances numerous times—not that I was a child of privilege, but rather I came from a two-parent home with some resources, with a family that had been embedded in the community. And I think that reflecting back on that, I was probably the beneficiary of many second chances for some of my youthful exuberance. And when I became a prosecutor first in Philadelphia, and then in Burlington, Vermont, it was not lost on me that we were prosecuting people, both African-Americans and white people, who came from poverty, who came from places with a lack of resources. They came from marginalized places in the world and I began to realize that we were continuing to marginalize them through the criminal justice system, whether it be for drug prosecution or mental health illnesses that caused criminal behavior, often times those individuals who don’t come from a family of resources, the first time they get that intervention or assistance is through the criminal justice system as opposed to somebody who does come from a family of resources—that intervention is often happening much earlier in time and they are being kept out of the criminal justice system.

So, as we continued to work in the court system, some things weren’t changing. The recidivism rate was extremely high, about 50 to 60 percent in Vermont. The budget for the Department of Corrections kept increasing and we weren’t getting good results. And we kept seeing the same people, and the demographic I saw were mostly poor people, people who had lack of education, lack of job skills or job training, substance abuse issues—both alcohol and drugs—and mental health issues. And where we thought we could engage and make a difference was by intervening earlier in the process to keep these individuals out of the criminal justice system. They were committing crimes that—not that we’re condoning any criminal activity—but they were committing crimes that were low-level misdemeanors. And so the question was, what are we gonna do that’s gonna keep the community safe and enhance public safety? And we started to say we need to address the root cause of their criminal behavior. So we were able to obtain funding for a community coordinator whose job was to bring those community groups into the court system, because in the past what we’ve done is we’ve put people on probation, we load them up with conditions of probation, and then we push them back out into the community and say you’re on your own. Often times they come back on a violation of probation and we lock them up. So the community coordinator was to screen cases as they came in, conduct somewhat informal risk assessments on these individuals, and then link these people with the appropriate social service agency to address the root cause of their behavior in lieu of prosecution. So far the results are good. It’s very early in the process but I think we’re seeing that when given an opportunity, many time this is the first time these people have been given an opportunity. People try to make the most of it.

WOLF: When did you start this project?

DONOVAN: We started it last September.

WOLF: Who is eligible, generally speaking? I mean, you described sort of a broad profile.

DONOVAN: Yeah, let me say who’s not eligible. Obviously we’re not gonna divert any cases that are sex crimes, any cases that are domestic violence, any cases that are serious felonies, any cases where there are weapons involved, drug dealing or drug selling. And really any cases—as I like to say the standard is—does it pass the “straight-face test” for the guy in the street. Because I think the public has to believe in what we’re doing in order to keep the justice system credible. So generally they are low-level misdemeanors. We have diverted some felonies, and it’s really on a case-by-case analysis.

WOLF: And these are pre-charge, right? Is that the idea?

DONOVAN: Yep.

WOLF: So what is the leverage that you have?

DONOVAN: Well, the incentive for the individual is to, number one, get some help and not to be prosecuted. The leverage is: if you don’t do what we ask, you’ll come back for prosecution. You’ll go back on the traditional track.

WOLF: So then there is follow-up?

DONOVAN: Yes, and that’s, that’s, frankly, has been a challenge for us, you know? We’ve started on this really limited budget, we got some funding, but the critical piece here is the infrastructure, the capacity to do that, because I think the most important thing is ensuring compliance and then tracking outcomes. And so that’s the part we’re working on right now. We have a couple of interns working on that. It’s tough work, we need more funding, frankly, to build the infrastructure to make this program truly successful.

WOLF: One resource you have in Burlington is the Community Justice Center. And the Justice Center is doing all of these interesting things like restorative justice panels, which involve citizens, and working really hands-on directly with offenders. I wonder if you can explain to me how you take advantage of what the community justice center has to offer.

DONOVAN: Well, we view the Community Justice Center as a partner. So often some of the cases we refer from this program will go to the Community Justice Center. We think that’s the appropriate place in lieu of prosecution. They can go to the CJC and engage in a reparative board, restorative justice type process. So really what we’re looking for on the front end is a menu of options because it does a couple of things. I think we’re gonna get better outcomes that way. We’re going to enhance public safety, and then it’s gonna free up those very scarce resources we, in the prosecutor’s office, to focus truly on the crimes that affect public safety—homicides, sexual assaults, drug-dealing.

WOLF: During the morning session, you used the term “cost drivers,” and I wonder if you could explain what that word means.

DONOVAN: It’s about identifying the population where we think we can make the most impact, and kind of bend the curve in criminal justice system that’s gonna enhance public safety, and frankly save the state money—save the taxpayers’ money. Because with a recidivism rate of 60 percent, and in Vermont a corrections budget that’s second fastest budget item that’s growing, behind healthcare, we can do better. We need to do better because we’re spending a lot of money. And it’s the same people going in and out. And really the demographic, I think, is the cost drivers to all of our systems—you know, the cost drivers in the criminal justice system, the cost drivers in the healthcare industry system because these are the people that go to the ER for their primary care physician, and it’s the cost drivers in the job training field, because these are the people who we want to be trained and these are the services we provide. And so it’s the same population across systems. They’re in the court system. The trick is to identify them. The trick is to conduct an assessment to really understand, what is the root cause of the issue here, and try to address it.

WOLF: Just to remind people that I’m speaking to T.J. Donovan, the state’s attorney in Chittenden County, Vermont. I thought I would just ask you about a question that a defense attorney raised at the morning session, which was really that concern that some of these initiatives are, perhaps, imposing greater penalties on people if they choose to participate in this alternative than they would if they just went through the normal process where they, in fact, might just get time served and they’ll be out in 10 minutes. And the restorative justice process, the alternative might impose what might be viewed as something more arduous. You may get community service, you may have to get a GED—

DONOVAN: Well yeah, you can go through the court system, you can plead guilty, you’ll probably get a fine and be out the door in 10 minutes. But you’re not realizing that criminal conviction’s gonna stay with you the rest of your life and there’s a lot of collateral consequences that go with it. Loss of eligibility for federal student loans and other collateral consequences. So, I think doing a little bit more work up front and thinking long term—again, it’s about enhancing public safety, creating a vibrant community for everybody, giving everybody an opportunity to be successful. I mean I think part of the reason for recidivism is you take away an opportunity from somebody. Well, you know, somebody who is 19 years old and had a bag of marijuana on him and he plead guilty and got a $200 fine, how did that enhance public safety when now he’s 29 or 39 and he’s still answering for that conviction at 19? And that conviction is still preventing him from having gone to school, getting a job. And so the issues of collateral consequences where you can get out of that courtroom really quick, but there’s gonna be long-lasting effects because of that criminal conviction. It may be more arduous up front to do more community service, but we think it’s about accountability, we think it’s about restoring the harm done to the community, but also giving the offender the opportunity to go on to be a productive, law-abiding citizen.

WOLF: We’ve run out of time. Thank you so much for taking the time. I’ve been talking with T.J. Donovan, the state’s attorney in Chittenden County, Vermont, who’s here today participating in a roundtable at the Center for Court Innovation about community engagement strategies for the criminal justice system. I’m Rob Wolf, director of communications at the Center for Court Innovation. Visit us at www.courtinnovation.org. Thanks for listening.

August 2011