BETTER JUDGEMENT
This is the second in a three-part series Produced by The Keene Sentinel, a Member of
⇒ Part 1: In Brattleboro a new kind of police patrol pushes treatment, not jail
When he arrived at the Brattleboro courthouse that day in 1994, David Morey knew he was in trouble.
A 20-year-old from nearby Westminster, Vt., Morey, along with two other guys, had gone down to Connecticut that winter for a snowmobile his friend had been promised. But that fell through, and, as Morey recalled it, on the way back his buddy floated an idea. He’d seen a couple snowmobiles parked on someone’s property.
They took them for a joyride, felt bad and brought them back the next day, Morey said. Then they took them again. They got caught.
That spring, a sheriff’s deputy showed up at Morey’s house with a summons for two grand larceny charges.
“Then the reality hit,” Morey recalled recently. The charges were felonies. They carried the potential for prison time, not to mention the lifelong consequences of being branded a felon. It was sobering.
At the courthouse, Morey checked in with the clerk, then returned to the lobby. He was scheduled for arraignment, the first court appearance in a typical criminal case.
He never made it. Someone from a local nonprofit approached him in the lobby.
“They said, ‘We’d like to talk to you,’ ” Morey recalled. “ ‘We’ve reviewed the case and we’d like to offer you this opportunity to be heard.’ ”
That opportunity was pretrial diversion, a long-running practice in Vermont that steers certain defendants out of the court system entirely. If he completed the program, he could walk away without a criminal record.
“I said, ‘Sign me up.’ ”
Accounting for harm
State courts process huge numbers of criminal cases each year. An estimated 17 million were filed across the country in 2018, the vast majority of them misdemeanors. The crush of cases can burden courts and have lasting repercussions — beyond any formal punishment — for millions of Americans, including reduced job and housing prospects, ineligibility for some public benefits and the lingering stigma of being labeled a criminal.
One way policymakers have tried to stem the tide is through a concept known as pretrial diversion. Essentially, that means referring someone out of the traditional criminal justice system into some kind of alternative — which could be anything from drug treatment to community service for misbehaving youth. Successful completion typically leads to the case being dismissed without a conviction.
Over the past four decades, Vermont’s diversion programs have helped more than 90,000 people avoid criminal convictions, according to the Legislature, while saving taxpayers money by lightening the load on prosecutors and courts. And Vermont’s experience shows how state and local efforts to reform criminal justice can build on one another, growing an idea from a grassroots solution to a statewide program handling thousands of cases per year.
Vermont’s main adult diversion program focuses on people charged with a first or second misdemeanor or first nonviolent felony. Prosecutors make the referral soon after receiving a case, though they always have the authority to keep someone in court whenever they feel diversion is not warranted. A diverted defendant meets with a volunteer board, takes responsibility for the crime and agrees to complete certain actions. Unique to each case, that may include community service, paying restitution or writing a letter of apology.
Within weeks of his court date, Morey walked into a room in the Brattleboro offices of Youth Services, the nonprofit that runs local diversion programs for both juveniles and adults. A half-dozen or so people were seated around a long table, as if in a corporate boardroom.
Morey recalls members of the panel telling him one of the snowmobiles had been damaged — a broken windshield and something wrong with the ignition. Their questions seemed to circle around that fact, prodding him to acknowledge his wrongdoing.
Vermont’s diversion program follows a philosophy known as restorative justice. Rather than a formal inquiry into guilt and punishment, restorative justice involves an open-ended discussion of the harm someone caused, whom that affected and how the offender can try to make things right. Those conversations happen between offenders, trained volunteers and, when they choose to participate, victims.
Advocates of restorative justice say it’s a more holistic response to harm. People victimized by crime can tell their stories, address those who wronged them and talk about what they need to move forward — though in practice they often decline to participate, according to Sally Struble, Youth Services’ director. The people who committed those crimes must acknowledge what they did, while being given the space to talk about their actions in a more nuanced way.
Accountability is a key goal. Confronting how you’ve harmed others, advocates say, can affect you more profoundly than sitting in a courtroom. That’s why a willingness to take responsibility is foundational to restorative justice — as Morey soon learned.
Though he owned up to his role in the thefts, Morey told the board the damage wasn’t his fault. He hadn’t caused it or even known about it, he said. The group sent him out of the room to deliberate.
They denied his case. He was headed back to court.
A long buildup
By the time Morey found himself in that room, diversion had been in place in Vermont for more than a decade.
It took hold in the 1970s, starting with a few counties trying to keep youth out of the system. At the time, there was interest in diversion more broadly, with some states and the federal government exploring versions of the concept. The model caught on in Vermont, prompting the Legislature to enact juvenile diversion statewide. Lawmakers expanded it to adults in the early 1980s.
The state attorney general’s office now funds diversion programs in every county, run by nonprofits or local governments. In fiscal year 2019, according to one estimate, diversion programs handled roughly one-third of the more than 12,000 misdemeanors filed in the state, along with a much smaller number of felonies.
That success is built on the combined efforts of prosecutors, lawmakers, community members and others, said Willa Farrell, who oversees diversion for the attorney general’s office.
As recently as four or five years ago, prosecutors were diverting only about 10 percent of misdemeanors. The rapid growth since is due largely to a 2017 law that expanded the use of diversion in two key ways.
First, it created a presumption of diversion for certain misdemeanors. When someone is charged with, for example, trespassing, petty theft or simple assault, prosecutors now have to offer diversion unless they say explicitly why it would not “serve the ends of justice” — effectively making diversion, not prosecution, the norm.
Second, the Legislature made clear that diversion shouldn’t just serve people coming into contact with the system for the first or second time, but also people with lengthier criminal histories struggling with addiction or mental illness.
According to Farrell, the latter provision was inspired partly by prosecutors in the Burlington area, who’d had success diverting such individuals. The attorney general’s office launched a statewide version called Tamarack, with more intensive case management to meet defendants’ underlying needs.
Prosecutors have also increasingly diverted cases in which driving on a suspended license has progressed to criminal charges. The Legislature has found that people often lose their licenses due to unpaid tickets, then get trapped in a cycle of unaffordable fines.
Completion rates for license-suspension cases are lower than in other forms of diversion, partly because of costs unique to regaining one’s license, according to the state. Still, said Windham County State’s Attorney Tracy Shriver, it’s often an improvement over business as usual, since the program can help people get their driving privileges back.
“It’s much better than what we used to do, which is just give someone a fine for driving with their license suspended,” Shriver said.
Despite the strong state role, local prosecutors have wide discretion, and some state’s attorneys use diversion less than others. On the other hand, Farrell said, that flexibility lets prosecutors experiment with new ways to meet local needs — some of which, like the Burlington-area program, later serve as models for the rest of the state.
“Legislators locally, prosecutors locally, defense attorneys, law enforcement have seen that these community programs do good work, that people who come to them or are referred to them are primarily successful,” Farrell said. That in turn makes politicians and prosecutors more willing to try new things, she noted. “I think success breeds success.”
In New Hampshire, state law requires police and prosecutors to consider diversion for juveniles before charging them. Pretrial diversion is less widespread for adults, though some counties, including Grafton, Strafford and Merrimack, operate their own programs. In Cheshire County, volunteers working with local officials have fielded a handful of cases since 2019, when they launched a restorative justice-based diversion program for several low-level offenses.
‘An integrity thing’
Morey came away from that meeting in 1994 frustrated. “I went home, mulled it over and felt like I didn’t get a fair shake at the hearing,” he said. “I felt like I was already guilty.”
He also knew he’d screwed up.
Morey begged the program’s director for a second chance. A week or two later, he reappeared before the panel with a suit, a fresh haircut and a new tone.
“I said I didn’t cause the damage, but I understand that I’m responsible for it, and so I’m willing to pay for whatever damage was done,” he recalled.
That was good enough for them. Morey agreed to write an apology letter and perform 100 hours of community service, in addition to paying restitution. Unsure where to volunteer, he asked the Bellows Falls police chief. The town put him to work cleaning toilets in the fire department and repainting part of the police station, which was in the same building.
When a dispatcher told him he’d gotten his 100 hours, Morey wasn’t quite done with the paint job. He returned to finish up.
“It was an integrity thing, and that’s how I was raised,” he says now. “Not, you know, to be stealing snowmobiles.”
Another trajectory
When they enter diversion with a clean record, few Vermont defendants seem to re-offend.
A state-commissioned analysis of about 900 first-time defendants who completed diversion in Vermont from 2013 to 2016 found that fewer than 1 percent were convicted of another offense over the next several years. By contrast, the rate was about 9 percent for defendants who faced similar charges but were not diverted — though it’s not clear that diversion, rather than some other factor, caused the first group to reoffend less. (An earlier study found about 15 percent of diverted first-time defendants reoffended, but didn’t compare that to those prosecuted in court.)
The recent study also looked at the much smaller number of people who entered diversion with a criminal record, finding that 90 percent were later reconvicted. The study suggested more research into how diversion could better serve that group — or whether they were dealing with challenges beyond what a straightforward diversion program can address. (Tamarack, the statewide program for defendants with addiction or mental-health treatment needs, hadn’t yet been founded.)
But reducing recidivism is not necessarily the most important goal for a court diversion program, said Michael Rempel, the jail reform director at the Center for Court Innovation in New York, who was part of a team that researched diversion programs around the country several years ago.
That finding is informed by the history of diversion in the U.S. The programs of the 1970s and ’80s had a narrower focus, aiming largely to reduce recidivism, according to a report the center published in 2018. By that metric, the results were disappointing. One criticism of those early programs, Rempel and his colleagues wrote, was that they often focused on extremely minor cases that might have been dismissed anyway — burdening participants with more requirements than they would have faced otherwise.
Today, many diversion programs try to avoid those pitfalls by ditching one-size-fits-all programming, taking somewhat more serious cases and framing their goals differently, the researchers found.
“With the contemporary programs, the two foremost goals are not about rehabilitation and reducing re-arrest,” Rempel said. “They’re about helping individuals with collateral consequences of a conviction, as well as efficiencies and cost savings for prosecutors and for the system generally, which in turn allows prosecutors to really focus on the very most serious felony cases.”
In Vermont, diversion is estimated to save taxpayers hundreds of dollars per case because prosecutors, defense lawyers and court staff spend less time on it. (Participants also pay into diversion, though the fees can be waived based on need.) And thousands of Vermonters have been able to move on with their lives without a criminal record.
That can have tangible benefits, at least in felony cases, according to research published last year in the Review of Economic Studies.
Two academic economists studied a pair of natural experiments in Houston — a legal reform in 1994 and the failure of a 2007 jail-expansion ballot initiative — that caused abrupt changes in the frequency of deferred adjudication, which lets defendants avoid a conviction if they complete a probationary period.
For people facing their first felonies, diversion cut recidivism in half, increased employment by 50 percent and boosted earnings by $60,000 over 10 years. The authors concluded that was largely due to averting the stigma of a felony record.
“Individuals are just put on a completely different trajectory in terms of their lives,” one of the authors, Kevin Schnepel, said in a 2019 podcast interview.
‘One choice’
The year after his brush with the law, Morey joined the Army National Guard, serving nearly two decades. He likely couldn’t have enlisted with a felony record.
Now 47 and still living in Westminster, Morey struggles to explain his actions that winter almost three decades ago. “I don’t know why this seemed like a good idea,” he said. “I wasn’t raised this way. I was raised in a good home, good morals, good standards, good parents.”
He takes responsibility for what he did. But he’s also grateful he got a second chance. He knows a pair of felony convictions could have reshaped his life.
“It’s so hard, you know, without getting them off your record,” he said. “Finding a job that you could grow in and retire from is — I think it’s almost impossible.”
Morey ended up in jail after all. In 2000, looking for steady work, he joined the Cheshire County Department of Corrections as a corrections officer. He retired last year at the rank of major, having served as booking commander and, for several months, interim superintendent.
“One choice could have put me inside the walls instead of walking out every day at 3 o’clock,” Morey said. “And that’s something that’s important not to lose sight of.”
This reporting was supported by a grant from the nonprofit Solutions Journalism Network. The Sentinel retained full editorial control.
Paul Cuno-Booth can be reached at 352-1234, extension 1409, or pbooth@keenesentinel.com. Follow him on Twitter @PCunoBoothKS
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