Editorial: Height of Discretion; A Case of Prosecutorial Restraint

A reminder that the criminal justice system works best when left in the hands of capable public servants who have the latitude to exercise their professional judgment was provided recently by Windsor County State’s Attorney Michael Kainen.

The prosecutor had a case involving a prison guard at Southeast State Correctional Facility who had been charged with sexual exploitation for having a relationship with an inmate. At issue was the enforcement of a law passed by the Vermont Legislature in 2005 that made it a crime for prison guards to have sex with inmates in all circumstances. The law had previously made exceptions in cases where relationships were regarded as consensual. By criminalizing all such acts, the Legislature recognized that the concept of consent is all but irrelevant in relationships between two people in which one has such enormous power over the other.

Two circumstances made the case out of the ordinary: The relationship was initiated by the inmate, and the prison guard was a woman. It is also worth noting that the relationship resulted in the conception of a child, who was born more than a year ago.

Kainen had the option — and, it seems, the evidence — to prosecute the guard, Leanne Salls, on the original charge of sexual exploitation of an inmate, which carries a five-year maximum sentence. But the fact that the relationship was initiated by the inmate, that the accused was a woman and that the ostensible victim, the prisoner, was not interested in pressing charges combined to persuade the prosecutor to pursue a different course. He arranged to have Salls plead guilty to a misdemeanor charge of engaging in a prohibited act, for which she received a one-year deferred sentence.

“There’s a child that’s born of this, which makes it a provable case, but in terms of what ought to happen, all the evidence I have suggested that he was pursuing her, he initiated contact with her, he was flirting with her, and she yielded to the temptation,” Kainen told staff writer Mark Davis. “This is a single mother who has a child. I wasn’t comfortable making her a rapist and having her on the sex offender registry.”

All of which strikes us as eminently reasonable. As Kainen noted, it was still an improper relationship: The inmate may have initiated it and, as a man, may have been less vulnerable than might otherwise be the case, but it still makes every bit of sense to regard a sexual relationship between a prisoner and a guard as one that’s fraught with peril and ought to be prohibited. Hence the misdemeanor charge.

It’s also worth noting that the admirable judgment Kainen exercised in this case was precisely the sort of discretion that was threatened by a recent criminal justice trend. Acting on a belief that there were far too many instances of lawbreakers being treated leniently, legislators tried to handcuff prosecutors and judges by enacting such things as mandatory-minimum sentences and enhanced sentences that kicked in automatically for repeat offenders. Too many horror stories about miscarriages of justice and unsustainable corrections systems budgets eventually convinced many lawmakers to reverse course. As Kainen demonstrated in this case, allowing judges and prosecutors to apply their professional expertise to review the circumstances of each case is far preferable to a system put on automatic pilot. Judgment is a cornerstone of justice.