1. Tucker Jones & Brendan Scherer
Statutory Charging Decision Factors Criminal Justice Reform Proposal December 1, 2016
Tucker Jones & Brendan Scherer

2. The Premise, The Problem
A large number of low level offenses are a poor fit for the criminal justice system.
Addressing alleged harm through adversarial process is often ineffective and inefficient.
Not limited to crimes related to mental health or substance abuse.
Our proposed solution: scrutinize the gateway to the system
Shedding light on prosecutorial discretion.

5. Act 195 (2014) – Vermont Pretrial Services Law
In part, sought to encourage prosecutors to create pre-charge programs to get drug addicts, people with mental health issues, and low level offenders out of the criminal courts and into treatment or alternative justice programs.
Pretrial Services Law did not mandate the creation of pre-charge programs. So, State's Attorneys are free to determine what degree they would opt in and free to ignore the programs.

6. Pre-Charge Predicament
State's attorneys are elected county by county to four-year terms and have control over how cases are prosecuted.
RICC exists only if a prosecutor chooses to create a precharge program for people whose case has not yet gone to court.
1 State, 14 Criminal Justice Systems…

7. Prosecutors need to lead on pre-charge
Oversight of Pretrial Programs transferred by Governor from VT DOC to the VT AGO “It's got to be driven by the prosecutors, because we're the gatekeepers; we have the discretion on whether to charge or not." -TJ Donovan, Vermont Attorney General Elect “Either there needs to be significant prosecutorial leadership…or the legislature has to require pre-charge programs." - Robert Sand, Professor, Vermont Law School

8. Statutory Charging Decision Factors
“In addition to determining whether probable cause exists, prosecuting attorney shall consider the following factors when deciding whether to file a criminal charge for a qualifying offense as defined under subsection (g)(1)-(16) of this statute. . .”

9. The Factors (13 Total)
Directly from National District Attorneys Association’s National Prosecution Standards, third edition, §  
(1) The nature of the offense, including whether the crime involves violence or bodily injury;
(3) The characteristics of the accused that are relevant to his or her blameworthiness or responsibility, including the accused’s criminal, mental health, and substance abuse history;
(4) Potential deterrent value of a prosecution to the offender and to society at large;
(5) The value to society of incapacitating the accused in the event of a conviction;
(8) The status of the victim, including the victim’s age or special vulnerability;

10. Qualifying Offenses (16 Total)
(g) As used in this statute, “qualifying offense” includes:
(1) Unlawful mischief under 13 V.S.A. § 3701;
(2) Retail theft under 13 V.S.A. §§ 2575 and 2577;
(4) Bad checks under 13 V.S.A. § 2022;
(7) Disorderly conduct under 13 V.S.A. § 1026;
(8) Theft of rented property under 13 V.S.A. § 2591;
(9) Operation without consent of owner under 23 V.S.A. § 1094(a);
(12) False reports to law enforcement under 13 V.S.A. § 1754;
(13) Setting fires under 13 V.S.A. § 508;

11. Charge the case? Explain the factors.
“If, after considering the factors in (a)(1)-(13) for a qualifying offense in (g)(1)-(16), the prosecuting attorney decides that a criminal charge is appropriate, the prosecuting attorney shall explain in a written supplement to the charging documents how each factor weighs in favor or against prosecution based on the particular facts of the case, and why the interest of justice is served by a criminal charge.”

12. Don’t charge the case? Pretrial Monitor available for appropriate criminal justice alternative
(c)(1) Ordinarily, if the prosecuting attorney determines that probable cause exists but the factors do not weigh in favor of prosecution, then the prosecuting attorney may direct the alleged offender to meet with the county pre-charge monitor to facilitate the prompt resolution of the alleged harm, including restitution, rehabilitation, victim reconciliation, or other alternate just system response.

13. Brendan Scherer@vermontlaw.edu
Thank You!
Tucker Jones
(860)
Brendan Scherer
(802)
Brendan