Andy Pallito, commissioner of the Department of Corrections, left, and Bobby Sands, senior policy advisor for the Department of Public Safety, talk with
Andy Pallito, commissioner of the Department of Corrections, left, and Bobby Sands, senior policy advisor for the Department of Public Safety, talk with lawmakers on Jan. 9, 2014. (Photo by Anne Galloway/VTDigger)
MONTPELIER -- On Wednesday, Gov. Peter Shumlin used broad strokes to describe his solutions to the opiate "epidemic" in his State of the State address. Early Thursday morning, officials began to outline in detail how one critical aspect of the governor's initiative would work.

Andy Pallito, commissioner of the Department of Corrections, told lawmakers that he expects that new "pretrial services" would keep a large number of defendants with substance abuse problems out of jail and ultimately reduce recidivism rates and the state's growing number of detainees.

The state spends more than $130 million a year on the prison system. All of that money comes straight out of the General Fund for government services; there is no federal aid for corrections. About 2,000 people cycle through Vermont's prison system each a year, and 80 percent of those offenders, according to Shumlin, have been convicted of a drug-related crime. The current recidivism rate, or the rate at which inmates reoffend, is about 42 percent.

In his first run for office in 2010, Shumlin campaigned on the promise that he would reduce the state's prison population - and the cost of the corrections system - by using community justice centers and other programs to keep low-level criminals out of jail. His new initiative, which would keep defendants with substance abuse problems out of jail, is in effect an extension of that policy. In his state of the state address, the governor said he would set aside $760,000 to help the criminal justice system develop a statewide program modeled after a successful "rapid intervention" system in Chittenden County.

Bobby Sands, a senior policy analyst for the Department of Public Safety and a former state's attorney, described how a statewide "pretrial services" system would work.

"What I'm about to share is a vision, but not a mandate, and we look forward to collaborative process here and with the judiciary, law enforcement and criminal justice professionals," Sands said as he launched into a 30 minute exposition on the efficacy of pretrial services.

The program, which would be based on a "sequential intercept" model, involves identifying defendants with a substance abuse problem, using data to assess whether a treatment program would be effective and offering treatment as an opportunity for defendants to reduce or eliminate criminal charges.

Every step of this process would be monitored, Sands said. The "pretrial services" system would require close cooperation between law enforcement, state's attorneys and the courts.

"Pretrial monitors" would be hired on contract by the court system to ensure that defendants are properly assessed for a treatment program and, if they do go into treatment, that their progress is monitored.

An assessments of defendants would be conducted right after the arrest and before an arraignment. The assessment would be based on information from "instruments that have been validated to be reliable" and statistics that predict an individual's risk and identify needs.

The risk assessment would be used to give the prosecutor information - including a statistical indication of a defendant's risk of flight - before charges are filed. It would be up to the discretion of the prosecutor to determine whether the case should be filed in court or the defendant should go into pretrial treatment.

The risk assessment would also inform the bail terms and conditions of release the judge imposes on the defendant, Sands said.

"Let's assume a prosecutor chooses to allow an individual to participate in a precharge program - a program that is set up to take place before the case is actually filed in court," Sands said. At that point, the defendant would meet with a pretrial monitor. "The monitor would make a referral for that individual and identify community based providers."

At that point, the monitor would keep tabs on the defendant's progress in treatment. "If the defendant is successful in a community based program, the prosecutor then would decline to file the charge," Sands said.

"In an alternative model, prosecutors might file the charge, but by agreement do it by waiving a court appearance with a fine only outcome," Sands said.

Chittenden County state's attorney TJ Donovan does not file a charge in court if a defendant is successful. In Addison County state's attorney Dave Fenster delays the arraignment date if someone is successful and files a lesser charge, Sands said.

"We can mold this to the wishes and desires of the community," he said.

If a defendant in the pretrial service program fails to comply with a treatment program, he or she would then be charged with a crime.

Sands described the outcomes of the pretrial system as a win-win for defendants, the courts, taxpayers and the public.

The program has the potential, he said, to get people who need help into treatment, and would reduce the number of cases in the criminal justice system, cut incarceration costs and enhance public safety.

First and foremost, Sands said, "We are miss an opportunity when people initially come into the system and have that initial contact with law enforcement and they are, in many instances, uniquely receptive."

The risk assessments, based on predictive models and conducted by pretrial monitors would allow for better bail decisions. Right now, Sands said, the courts don't have "a lot of objective information" to work with.

Ultimately, the program would enhance public safety because people released from the criminal courts would be monitored, Sands said, and fewer detainees and shorter incarceration periods would be lest costly.

When people who are apprehended for a drug-related crime are faced with criminal charges, they are more willing to go into treatment, he said. Word gets out quickly that participating in the risk and needs assessment and pretrial services tends to work to benefit of the accused, so most people agree to participate, Sands said.

"Folks may not always be best judge of what is in their own best interest," Sands said. "When someone in a black robe tells them what is in their best interest they often get the point."

The fundamentals of the criminal justice system don't change, Sands said. "Everyone is presumed innocent, that's a bedrock principle in our constitution," he said. "We have to all be sure nothing we develop intrudes on that presumption of innocence."