BRATTLEBORO — About once a month, Annie Richards discusses crimes with the people who committed them.
Typically, Richards and other volunteers get a quick briefing on someone. He or she enters. There are intros and small talk. Then the group holds an open-ended discussion of the actions that got the person arrested.
Panelists “try to draw out how they came to the decisions they did, to do whatever it was that they did,” Richards said. “What were the circumstances behind it? How did those actions affect the other parties involved? Looking back, is there anything they could have done differently?
“And then ultimately, we get to a point where we say, ‘OK, let’s talk about where to go from here. How can we bring a resolution to this?’ ”
Richards is not a lawyer, judge or jailer. She’s a trained volunteer with a court diversion program that provides an alternative route through the justice system for people accused of low-level crimes.
In a traditional prosecution, attorneys argue over guilt and punishment. In Brattleboro’s court diversion sessions, the focus shifts to accountability and repairing harm.
Participants must take responsibility for their behavior. They’re encouraged to confront the damage their actions have caused to individuals and to the community. They may hear from victims of those acts, either directly or through a statement. And, after discussion with the volunteer panelists, they agree to take certain steps in a bid to make things right.
If they follow through, the case is dismissed. If not, it lands back in court.
The idea is to keep people charged with relatively minor offenses from becoming needlessly entangled in the justice system, while still holding them responsible and nudging them to change their behavior.
It’s an approach volunteers hope to implement on the other side of the Connecticut River.
With the support of county leaders, the Cheshire County Restorative Justice Program started a couple months ago with a fledgling diversion program for a handful of minor offenses.
Volunteers and county officials have looked to Vermont as a model, with the all-volunteer Cheshire County program representing a tiny step in that direction.
The Cheshire County initiative, which is not funded, is authorized to handle only petty cases with no direct human victim — things like shoplifting and minor motor-vehicle offenses. It depends on prosecutors referring people to the program. No cases had been referred as of Thursday.
The practice is much more established in Vermont, where state law directs the Office of the Attorney General to administer court diversion programs in every county, targeted at people facing their first or second misdemeanor or first nonviolent felony. Generally, the presumption under state law is that such defendants qualify for diversion, unless a prosecutor explicitly objects. (Diversion is prohibited for people accused of serious crimes, including sexual and violent offenses.)
More than 2,300 adults facing criminal charges were referred to diversion in fiscal year 2018, representing 20 percent of misdemeanor cases filed in Vermont courts, according to statistics from the Attorney General’s Office. The program had a completion rate of 85 percent that year.
The state also has separate diversion programs for adults in need of substance-use or mental-health treatment, minors facing alcohol and marijuana citations and people with suspended licenses.
Justice through another lens
The diversion programs in both Cheshire County and Vermont rely on principles of a philosophy known as restorative justice.
Essentially, restorative justice views crime in terms of the harm it causes — to directly impacted victims, as well as the wider community. The idea is to think about who has been harmed, how they’ve been harmed, and how the person responsible can start to repair the damage.
“To me, restorative is the idea of when somebody hurts someone else, rather than looking at it as a violation of a law or a rule, it’s looking at it as affecting people and relationships,” said Mel Motel, executive director of the Brattleboro Community Justice Center, which provides some state-funded restorative justice programs. Through that lens, participants consider the needs of everyone involved and try to “make things as right as possible.”
An important component of restorative justice is getting people to take responsibility for their harmful actions, practitioners say.
“It’s about helping people learn how to be accountable, and not automatically expecting them to know what that looks like,” Leaf Seligman, one of the Cheshire County program’s organizers, told The Sentinel this spring. “And I don’t mean to sound like people aren’t capable. I just mean, sometimes people don’t have a history of accountability.”
Court diversion in Vermont began with youth-only programs in the 1970s, according to Willa Farrell, Vermont’s court diversion and pretrial services director. The state began funding youth diversion in 1980 and added adult diversion two years later, she said.
Today, nonprofit agencies run the diversion programs in most counties, with state funding; a handful operate out of municipalities or a sheriff’s office. Youth Services — an organization that serves adults as well as kids — runs the diversion programs in Brattleboro.
Court diversion isn’t the only place Vermont uses restorative justice. The Vermont Department of Corrections oversees a separate set of programs that work with people at different stages of the criminal justice process, from arrest to release from prison.
The corrections department’s programs go back to the 1990s. Amid public dissatisfaction with aspects of the justice system — including lengthening sentences, a tough parole board and crowded prisons — officials commissioned in-depth opinion research, which showed a desire for alternatives to traditional probation and incarceration, said Derek Miodownik, the community and restorative justice executive for the Department of Corrections.
The Department of Corrections created volunteer “reparative boards” to work with people who had pleaded guilty to low-level crimes. And a few years later, Vermont lawmakers explicitly made restorative justice principles a part of state law.
The Vermont Department of Corrections now funds 20 community justice centers across the state, each offering restorative justice panels and other programs drawing on a restorative justice model, according to Miodownik.
‘They didn’t know that other people actually cared’
At the Brattleboro Community Justice Center, people come to restorative panels in different ways, said Motel, the executive director.
Some participate after being convicted of a crime, as a condition of their sentence or probation. But police or prosecutors can also refer people directly at the time of arrest, as an alternative to court. Though similar in concept to court diversion, it’s a separate program and accepts people “pre-charge,” rather than at someone’s first court appearance.
Windham County State’s Attorney Tracy Shriver said her office refers people both to the pre-charge program and to court diversion, depending on the individual case. The pre-charge program, she said, is “really for offenses that lend themselves to the community justice, restorative justice approach, or are so minor that we’d like to deal with them outside of the whole machinery of the criminal-justice process” — say, somebody stealing a sandwich.
Diversion essentially starts that machinery up but then hits pause. Shriver said that can be appropriate when defendants need a higher level of intervention, or if a formal appearance before a judge will impress upon them the seriousness of the situation. But it’s always a case-by-case decision, she added.
Miriam Dror, a mental health counselor in Dummerston, Vt., has volunteered for the Brattleboro Community Justice Center for more than a decade. She said openly confronting one’s own behavior can have a powerful impact.
“It’s given them a chance to change their behavior, because it’s come out into the open,” she said. “Where (before) they felt like they could hide things that they were ashamed of, but didn’t see any reason to stop until they got caught. They didn’t know that other people actually cared.”
While some Vermont programs use restorative justice as an alternative to the criminal justice system, others supplement a traditional prosecution and punishment, or are outside the legal system entirely, said Megan Grove, a member of the Brattleboro Community Justice Center’s board who wrote a master’s thesis on restorative practices in the state.
“There’s really a continuum of things that are partly restorative,” she said. “Or there might be something more punitive and then a restorative option alongside of it.”
Advocates argue restorative justice can reduce recidivism, and there’s some evidence of that. A 2012 study looked at thousands of people put on probation in Vermont between 1998 and 2000, and found those on reparative probation were less likely to be convicted of another crime than traditional probationers. Similarly, a recent study commissioned by the Vermont Department of Justice found that first-time offenders who participated in diversion had a lower recidivism rate than those convicted in the standard court process.
Local practitioners acknowledge restorative justice, at least as an alternative to prosecution, won’t be appropriate or effective in every case. And while it should, ideally, facilitate dialogue between the person who caused harm and the person who suffered, victims rarely participate, at least in person, according to some volunteers in Vermont.
Shriver said her office sometimes stops otherwise qualifying cases from going into diversion, depending on such factors as the nature of the allegations, the defendant’s criminal history and input from the victim. But she said restorative justice can often be more meaningful than a traditional prosecution.
“When you go into the criminal justice system, and you just pay a fine, and it’s not that impactful for you to pay that amount of money,” she said, “what have we really done?”
‘Eventually, the state gets on board’
On a recent Wednesday morning, county officials, Brattleboro-based restorative justice practitioners and others interested in the topic sat around a conference table in the Cheshire County complex in Keene.
Motel, of the Brattleboro Community Justice Center, and Sally Struble, director of restorative justice programs at Youth Services, described the programs they oversee, kicking off a freewheeling, often philosophical conversation about traditional criminal justice, alternative approaches and the merits and limits of both.
The three county commissioners, all Democrats, signaled support for moving in the direction Vermont has.
Seligman, one of the Cheshire County organizers, has said she envisions using restorative principles beyond a diversion program, such as post-prison re-entry. She would also like the diversion program to expand to some misdemeanors that involve harm to an identifiable human victim — for example, a bar fight in which no one’s seriously hurt, or a theft from a family member.
Cheshire County Attorney D. Chris McLaughlin says he’s not opposed to those sorts of steps, in theory. But he has pointed out practical obstacles, including the already high caseloads of his office’s two victim/witness coordinators.
And, as county officials discussed, New Hampshire does not have the legal framework or state funding for such programs that Vermont does.
“In New Hampshire, everything seems to start at the county level, and eventually, the state gets on board,” McLaughlin said.
While New Hampshire law does mandate juvenile court diversion, adult programs are limited. At least two other New Hampshire counties, Strafford and Merrimack, have their own adult diversion programs. Valley Court Diversion Programs, a bi-state nonprofit agency based in White River Junction, Vt., runs a diversion program in lower Grafton County that serves some adults. Executive Director Ellen Wicklum said the organization has strong relationships with a couple of local police departments, which sometimes refer people as an alternative to prosecution.
Grove said the practice got off the ground in Vermont because of support from both officials and the public at large.
“That’s one of the things that is incredibly important with restorative justice,” she said, “is that there’s buy-in from multiple levels and stakeholders involved in the process, and that it doesn’t feel like something forced.”