Who's Your County Prosecutor? ACLU Wants To Make State's Attorneys Household Names

Jun 7, 2018

The Vermont chapter of the American Civil Liberties Union is looking to boost the profile of political contests that often fly under the radar: the race for county prosecutor.

Come Election Day, most Vermonters probably have a pretty good idea of who’s running for governor, or who the candidates are for the U.S. House or Senate.

But the race for county prosecutor, according to ACLU of Vermont executive director James Lyall, is generally a sleepier affair.

“We often say that the most powerful politician you’ve never heard of is your elected prosecutor,” Lyall said.

The criminal justice system is a sprawling apparatus — full of judges, defense attorneys, police, parole officers and prison administrators. But Lyall says no single person has more control over the outcome of criminal cases in Vermont than the 14 democratically elected state’s attorneys.

“So it’s not a judge who decides who goes to prison for how long or why, or whether they get treatment or whether they’re diverted to an alternative course," Lyall said. "It’s prosecutors who decide all of that."

Lyall said prosecutors generally make those decisions behind closed doors, hidden from public scrutiny. He said the ACLU’s new “Prosecutor Accountability Initiative” is trying to change all that.

The campaign will shine a spotlight on state’s attorney races around Vermont this year. To kick it all off, the ACLU has sent questionnaires to every candidate running for the office.

The survey questions try to get at the heart of candidates’ criminal justice philosophy:

  • Do they favor a public health approach to drug crimes?
  • Do they support alternatives to jail for defendants with mental health issues?
  • Do they think it’s important take into account the fact that a defendant has young kids when deciding on a punishment?

“We believe it is important for Vermonters to have the information that they need to make informed choices come Election Day,” Lyall said.

"We often say that the most powerful politician you've never heard of is your elected prosecutor." — James Lyall, ACLU of Vermont

The campaign in Vermont is part of a broader ACLU initiative across the country.

Addison County State’s Attorney Dennis Wygmans said he welcomes more public interest in his office’s decision-making process. However he said he’s not yet convinced the ACLU’s approach is the best way to go about it.

Wygmans said the first he learned of the ACLU campaign was when someone from the group’s office emailed him the candidate questionnaire.

“[It] seemed kind of impersonal to, you know, just blindly send out [an] email,” Wygmans said. “I’ve been in office for a year and five months, and I’ve never been approached by a person from the ACLU.”

Wygmans said he can think of more productive ways for the ACLU to engage with prosecutors.

“Give me a call," Wygmans said. "Set up a meeting. Meet with us."

Wygmans said he’s personally led a number of criminal justice reform initiatives in his office, such as ramping up court diversion numbers and seeking treatment, instead of jail, for people charged with low-level narcotics offenses.

But Wygmans said it’s pretty clear that the ACLU believes there are right and wrong answers to the questionnaires it sent out. And he said the organization seems to be trying to impose its viewpoints on county elections, rather than start a collaborative conversation.

"There is a lot of common ground here that we could be working on together, as opposed to, you know, setting up what some people see as false premises just for the purpose of knocking them down." — Addison County State's Attorney Dennis Wygmans

“There is a lot of common ground here that we could be working on together, as opposed to, you know, setting up what some people see as false premises just for the purpose of knocking them down,” Wygmans said.

Lyall said it’s voters, and not just the ACLU, that want a new approach to criminal justice.

A recent poll commissioned by the organization found that two-thirds of Vermonters support reducing reliance on prisons. Two out of three Vermonters also say they’d favor a candidate who supports alternatives to incarceration, like diversion or treatment.

Lyall said the ACLU is trying to get voters the information they need to make informed decisions at the ballot box, not to demean or diminish the incumbents holding those offices.

“Unfortunately I think ... that sort of defensiveness might reflect a little bit the fact that this is an office that doesn’t engage with the public a lot, that hasn’t been especially transparent,” Lyall said.

Vermont Law School professor Robert Sand said he understands state’s attorneys’ wariness with the ACLU initiative.

“I’m not sure I necessarily like the idea of calling it ‘prosecutorial accountability’ — that suggests perhaps something of a pejorative,” Sand said.

Sand, however, said he absolutely supports the concept behind the campaign.

“Prosecutors wield extraordinary power within the criminal justice system and therefore within society,” Sand said. “And by and large in this state those races have flown under the radar.”

"Prosecutors wield extraordinary power within the criminal justice system and therefore within society. And by and large in this state those races have flown under the radar." — Robert Sand, Vermont Law School

Sand formerly served as state’s attorney in Windsor County. On any given year, his office handled about 2,000 criminal cases.

“Every single one of those cases involved multiple decision points that could have a profound impact on the lives of Vermonters,” Sand said.

Since well more than 90 percent of criminal cases are resolved through a plea deal in Vermont — and the county prosecutor gets to make the offer — Sand said it’s state’s attorneys that generally have the discretion to decide who goes to jail and how long they stay there.

“We don’t have an objective set of criteria from which a prosecutor should formulate his or her plea or sentencing recommendations, so it is largely based on the subjective best judgment of the prosecutor what offer to make,” Sand said. “And obviously different prosecutors have different subjective opinions about what is fair and appropriate.”

Sand said he isn’t aware of any prosecutors who are misusing that authority and discretion. And both he and Lyall said the state lacks the county-level data needed to quantitatively assess the performance of incumbent state’s attorneys.

“I think by and large the public seems reasonably pleased with their prosecutors. But maybe that is borne out of lack of full awareness of what is going on,” Sand said. “What I like about the initiative is that bright spotlight will let people know with more clarity what the prosecutorial philosophy is of their state’s attorney, and that’s a useful thing for elections.”

Tom Dalton, executive director of Vermonters for Criminal Justice Reform, said it also could be a useful thing for people impacted by prosecutors’ criminal justice decisions.

"Prosecutors have huge power to inflict real harm or do real good." — Tom Dalton, Vermonters for Criminal Justice Reform

While the number of people incarcerated in Vermont has begun to drop modestly in recent years, the inmate population is double what it was 20 years ago and triple what it was in the 1980s.

Recent data show that Vermont incarcerates African-American men at a rate higher than any other state in the country. And Dalton said reforms at the county level are vital to rectifying that trend.

“The decisions that prosecutors make have life-altering consequences for people they prosecute, and also their children and families and the whole community,” Dalton said. “Prosecutors have huge power to inflict real harm or do real good.”

Disclosure: Vermont Law School is a VPR underwriter.