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Jim Kenyon: Sentencing Commission Could Bring Real Change to the Drug Crisis in Vt.

  • Valley News columnist Jim Kenyon in West Lebanon, N.H., on September 15, 2016. (Valley News - Geoff Hansen) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.


Saturday, December 15, 2018

The difference between a drug addict and a drug dealer? They’re often one and the same — except in the eyes of the criminal justice system.

Which is a problem.

Many cops, prosecutors and politicians still operate under the notion that we can arrest our way out of the opioid crisis by cracking down on so-called drug traffickers. At the same time, the public is starting to understand that drug addiction must be treated as a mental health issue, not as a criminal matter.

But how should law enforcement and the courts handle addicts caught dealing heroin, prescription opioids, cocaine and the like? Chances are they’re in the business only to support their own expensive habits — a circumstance the criminal justice system often fails to take into account.

That’s where the Vermont Sentencing Commission comes in.

Never heard of it?

The commission was mothballed several years ago, but the Legislature brought it back earlier this year. Although it has only an advisory role, the 17-member commission includes enough criminal justice heavyweights to give it potential clout with lawmakers and Gov. Phil Scott.

Superior Court Judge Thomas Zonay was picked to lead the group, which includes judges, legislators, defense attorneys and crime victim advocates along with law enforcement and corrections officials. Windsor County State’s Attorney David Cahill represents prosecutors.

The commission’s assignment: Take an unsparing look at Vermont’s current system of dispensing criminal justice, particularly when it comes to drug offenses, to improve outcomes.

That could mean reducing some crimes from felonies to misdemeanors, which could go a long way toward helping some offenders get on with their lives. A felony conviction, or the Big F, as it’s known, can prevent an offender from receiving government assistance for housing and college costs or finding a decent-paying job.

The commission also is studying whether some drug possession offenses should be reclassified as civil violations. Instead of being saddled with a criminal record, offenders would pay a fine, much like a traffic ticket.

“Everything is on the table,” Zonay told me after the commission met at the Statehouse earlier this month.

The commission also is exploring whether the prosecution of some crimes — shoplifting, burglary, robbery, for starters — needs to be revamped. “In the criminal justice system, addiction often motivates the offenses that land people in court,” state Rep. Martin LaLonde, a South Burlington Democrat who serves on the commission, wrote on his blog. “Individuals enter the system because they illegally possess opiates such as heroin or have committed property crimes to feed their addiction.”

The commission’s progressive thinking on substance abuse is encouraging. Thomas Anderson, the state’s commissioner of public safety, urged “getting people treatment before they are in the criminal justice system.”

LaLonde, an attorney who helped lead the legislative effort to revitalize the sentencing commission, wrote “It is not enough to move individuals whose actions have been motivated by addiction out of the criminal justice system. Such individuals have to be steered toward resources that treat addiction as a mental health issue.”

That said, the lack of treatment options for substance abusers is a problem that needs addressing as well. As Marshall Pahl, an attorney in the Defender General’s Office who serves on the commission, pointed out, “Addiction treatment is a process with lots of ups and downs. It often doesn’t work the first time.”

The commission is scheduled to issue its report to the Legislature by Nov. 30, 2019. It will be interesting to see how far outside the box the commission decides to go with its recommendations.

Supporting legislation that increases the amount of narcotics that someone is caught with before being charged with a felony would be a good place to start. There’s a difference between dealing for profit and dealing to support a habit.

I’d be disappointed, however, if the commission doesn’t recommend more than just tinkering with “penalty thresholds” for drug offenders. Real criminal justice reform means locking up fewer people for shorter periods of time.

Vermont has done a fairly good job of reducing its prison population in recent years, but the state still has too many people behind bars. If Vermont was serious about criminal justice reform, it wouldn’t have to warehouse more than 200 inmates at a private prison in Mississippi.

With that in mind, the sentencing commission would be well served to question why certain crimes — including some violent ones — automatically lead to incarceration.

Any major proposal is likely to be derided by law-and-order types and some victims’ advocates as soft on crime, making it politically risky.

No matter how well offenders are screened prior to sentencing or how much effort the state puts into rehabilitating them while they’re in prison, “things will go wrong,” said Defender General Matthew Valerio, who serves on the commission. “The general public doesn’t have a stomach for that.”

He’s probably right. But Vermont has been waging a war on drugs for nearly half a century — and there’s no victory in sight. It’s time for a different approach, and reinvigorating the sentencing commission is a good start.

Jim Kenyon can be reached at jkenyon@vnews.com.