Vermont News Briefs

Experts: Legislative response to Brooke Bennett murder is encouraging, flawed

Editor’s note: This article is by Mark Davis of the Valley News, in which it was first published Sept. 15, 2013.

RANDOLPH — With his guilty plea last month, Randolph sex offender Michael Jacques is about to spend the rest of his life in prison for the 2008 rape and murder of his 12-year-old niece. The package of reforms to Vermont’s sex crime laws passed by lawmakers in the wake of Brooke Bennett’s death, however, will likely remain on the books long after Jacques fades from the headlines.

The 76-page law, which passed in 2009 with bipartisan support, overhauled nearly every aspect of how Vermont investigates, punishes and monitors sex offenders and cares for their victims.

Five years after Brooke’s death, experts from a variety of fields recently told the Valley News that the law, known as Act 1, is flawed in parts and still must be fully implemented, but has made real progress in reducing danger and preventing future crimes. While some of Act 1’s headline initiatives have stumbled, experts generally agree that the law’s greatest success has been building awareness of the dangers of sex crimes and the need to support victims.

“I would say that the community’s response and the legislative and administrative response to her murder was heartening in a lot of ways,” said Sarah Kenney, associate director of public policy for the Vermont Network Against Domestic Violence and Sexual Violence. “Folks really acknowledged the reality of sexual violence in our communities, which is not generally the stranger in the bushes we think we need to protect ourselves from; it’s a family member, a party known to the victim. The response of the Legislature and our community to Brooke’s murder really acknowledged that reality, and I think it has been making a difference. There’s nothing that’s going to replace her, but it’s heartening to see some good has come.”

The law included more than 30 changes that mandated training for educators and probation officers, required collaboration between government agencies, increased mandatory sentences for some crimes, and provided investigators new tools to make it easier to prosecute and monitor offenders.

Ironically, experts said, many of the attention-grabbing initiatives from Act 1 — most of which focus on the criminal justice system — have struggled to be effective. Meanwhile, overlooked pieces of the law — increased training for teachers and state workers to better understand the needs of victims of sex crimes, and mandates for agencies that deal with offenders to better communicate among agencies — may have made a bigger impact.

“I’m not sure the criminal justice system is always hugely effective in deterring crime,” said Robert Sand, a former Windsor County state’s attorney. “The best deterrence occurs in strong communities with well-educated people that look out for each other. So, the idea that we are going to pass laws that eradicate this type of crime is unrealistic. Is someone who is going to offend against a child, who faces decades in jail, going to control their behavior because under a new law they are going to face even more decades in jail? The system is better geared to apprehending those people and locking them up. I don’t see how that helps stop the next person from coming down. That is more complicated than the criminal justice system can handle.”

Special Investigation Units

Of the initiatives that garnered the most attention, the one that experts say holds the most promise in making Vermont safer is the bolstering of “special investigation units,” teams of investigators, victim’s advocates and prosecutors in each county that would focus specifically on investigating sex crimes.

The SIUs had been authorized by an earlier law, but in Act 1, they were given a significant funding boost and mandated to take the lead in prosecuting sex cases and be available to all Vermonters.

The teams are now working in every corner of the state, and have been credited for bringing more professionalism to investigations of sex crimes.

“I think we’re getting much better investigations,” said state Sen. Dick Sears, chairman of the Senate Judiciary Committee and a driving force behind the reforms. “The SIUs made a huge difference.”

For example, the Orange County SIU spearheaded a high-profile case in November 2012, when its investigators brought sex charges against former Oxbow Union High School gym teacher Brian Musty. The unit brought charges within four weeks of receiving the complaint, even though the alleged crime occurred years earlier and the victim had long since left the Upper Valley. Musty has pleaded not guilty and is awaiting trial.

But the launch of the SIUs hasn’t been without problems.

For starters, five years after former Gov. Jim Douglas signed Act 1, not every county has its own SIU. Grand Isle and Essex counties partner with SIUs from nearby counties.

The teams, moreover, have grown at different rates.

For example, while most teams have at least one full-time investigator, the Windsor County SIU does not have one devoted full-time investigator (Orange County has two), but rather relies on officers from several municipal departments. Addison County launched a team only last year.

The teams have also been hamstrung by heavy turnover, stalling progress of some units, according to reports filed by the Vermont state auditor in recent years. Another report, by the Vermont Center for Justice Research, cited “organizational struggles that were well documented,” in the SIUs.

Marc Metayer, SIU grants program manager, cited two factors for the constant churn: The emotional strain that working on the cases exacts on some investigators, and a culture in law enforcement that sees personnel frequently moved through units and given promotions to other duties. Moreover, some directors of SIUs have also left, forcing teams to seek fresh leadership.

“In the police world there is a regular rotation that is expected,” Metayer said. “As folks move up their career ladder, they move on. And there is a personal toll that these crimes can have. Oftentimes, after a few years, folks are cycled out as a matter of course. That gets us in a loop of training people, getting them experienced, then having to do it all over again.”

But, while advocates say the quality of investigations have improved, there is no evidence to suggest that convictions have increased. A January 2013 report from the Vermont Center for Justice Research said there is no evidence to suggest that the SIUs have been able to increase convictions or sentences for sex crimes. Conviction rates for child sex crimes actually dropped slightly after the creation of the SIUs, according to the report.

Max Schlueter, executive director of the Justice Research center, cautioned that the study is far from conclusive, and that it is unfair to judge the success of the SIUs only a few years after they were created, when statisticians had only several dozen cases to measure.

“I wouldn’t broad-brush it too far,” Schlueter said. “When people talk about these units as being helpful, they really provide a lot of support and services to victims that probably wouldn’t have (before). But if you’re looking if they are successful at increasing convictions or (getting) longer jail sentences, I don’t think the data is there, at least yet.”

Metayer said it is too early to pass judgment on the success of the SIUs.

“The short-term assessment is always going to be difficult,” Metayer said. “We’re trying to break a cycle that has been going on for generations. In order to see success, you’ll see it generations down the road. Often, offenders we are dealing with were victimized when they were younger. We have this cycle. If in 15 years, they don’t develop into offenders, then you have (succeeded). We look at is as a long-range piece.”

Another key initiative from Act 1 has never been launched.

The law allowed for the collection of DNA samples of people arrested on felony charges, which encompassed nearly every alleged sex crime. Prior to the law, authorities were allowed to collect DNA only from people convicted of felonies.

Advocates said the change would result in more prosecutions, by tying more evidence to potential suspects, and give investigators one more tool in keeping children safe from sex predators. But it was never implemented.

The DNA collection provision was immediately challenged by defendants across the state, who claimed it represented an unconstitutional search. The provision was set aside pending the appeal, which was argued at the Vermont Supreme Court earlier this year. Justices are expected to announce any day whether they will allow the DNA collections to proceed.

Role of probation officers

In the weeks after Brooke’s murder, attention focused intensely on the Department of Corrections and a probation officer’s decision to recommend that Jacques, a registered sex offender, be released from probation in 2004. Authorities say he committed five sex crimes prior to Brooke’s death.

“When I make comments about successes in sex offender treatment, I have three names, of which Michael Jacques is one,” probation officer Richard Kearney told an Orange Superior Court judge in 2004. The department also was criticized for failing to notify a judge that Jacques, who was working in West Lebanon , had run afoul of sex offender registration rules in New Hampshire.

In response, Act 1 implemented a series of measures to aid probation officers, and to restrict their ability to advocate freeing probationers from supervision.

The measures required increased training for probation officers who supervise sex offenders and the creation of designated sex offender monitors in every probation and parole office. Each monitor’s caseload was limited to 45 offenders.

Five years later, those benchmarks have been met and have helped probation officers keep a closer eye on offenders, according to Kris Goldstein, chief of the Department of Corrections treatment program for sex offenders.

“We are finding that the caseload numbers are pretty right on,” Goldstein said. “I’m not hearing any rumblings that caseloads are too high. …We have refocused our energies.”

The department also has instituted a series of internal reforms mandated by Act One, Goldstein said.

For example, probation officers meet with sex offenders in prison several months before their release date, to begin planning for where the offender will live and arranging for supervision. And probation officers are working with local police and the SIUs to conduct so-called “registry sweeps” — unannounced visits with sex offenders to ensure they are complying with terms of their probation.

Separately, Goldstein said, the Parole Board is requiring that any sex offenders it releases — numbers were not available, though experts say it is only a handful a year — agree to take lie detector tests administered by probation officers, who can ask if they have violated any rules and send them back to prison if they fail the tests.

Probation officers are also asking more of the people they supervise.

For example, the new law requires sex offenders to report in writing if they intend to live with anyone under 18. Previously, it was left to probation officers to monitor such living arrangements and step in if they were deemed unsafe.

As part of an Act 1 initiative to enhance collaboration between law enforcement and the Vermont Department for Children and Families, the paperwork is reviewed by Department for Children and Families to help ensure that vulnerable children are not at risk. If either the Department of Corrections or Department for Children and Families has concerns, the living arrangement can be vetoed.

“We have an improved relationship between DOC and DCF,” Goldstein said. “It’s like any other business — you establish relationships and work in collaboration with a common goal.”

Probation officers have also been restricted in their ability to deem offenders safe. Before Act 1, probation officers could recommend to a judge that a well-behaved sex offender could be released from supervision. The judge usually signed off without an additional hearing, Goldstein said.

Act 1 prohibits probation officers from coming forward with such recommendations. Now, only a defense attorney can request that a sex offender on probation be discharged from supervision, which in turn triggers a full court hearing.

“We have more eyes on every individual,” Goldstein said.

New crime, new punishment

Two seemingly straightforward initiatives in Act 1 were designed to send sex offenders who targeted children to prison for longer terms, and to make it easier for their victims to participate in the criminal justice system.

The law created a new criminal offense, aggravated sex assault against a child, which carries a mandatory 25-year minimum prison term, and barred judges from granting deferred sentences for that offense. (Previous offenses against children were charged under a variety of criminal statutes that carried lesser sentences.) Meanwhile, the law prohibited lawyers from conducting pre-trial evidence-gathering interviews, known as depositions, with juvenile victims.

The mandatory 25-year sentence has given prosecutors important leverage in negotiating plea agreements, Windsor County State’s Attorney Michael Kainen said. Prosecutors can charge defendants with the new criminal offense, and, if they are concerned about the strength of their case, negotiate for a lesser charge that still carries significant prison time, said Kainen.

“We (do) charge that often,” said Kainen, who has also served as a prosecutor in Orange County and as a House lawmaker. “It can drive plea agreements. Particularly if you have a young victim that isn’t (comfortable testifying). If you have the hammer of 25 to life, you might get a plea agreement. I have threatened that (new charge). In terms of leverage, it’s helpful.”

Jacques was charged in federal, not state court, and agreed to a plea deal that will see him serve life in prison without parole, instead of going on trial and possibly facing the death penalty. He will be formally sentenced in the coming months.

Victim’s advocates cheered the prohibition on deposing young victims, saying the repeated interviews, forcing them to relive the experience with a group of strangers, can be traumatic.

“The deposition process can be incredibly re-traumatizing for victims,” said Kenney, of the Vermont Network Against Domestic Violence and Sexual Violence. “It’s the defense attorneys basically grilling the victim, and kids ought not be subjected to that.”

But defense attorneys say the combination of longer mandatory minimum prison sentences and the ban on depositions of young victims may be having an unintended consequence — more sex offenders being acquitted at trial.

The argument goes like this: With the tougher penalties, defendants have less incentive to enter into plea agreements. And, without the benefit of depositions, neither prosecutors nor defense attorneys understand how well the key witness will hold up during a trial.

“While the limitations on depositions might alleviate stress for the complaining witness pretrial … it is likely that the limitations contribute negatively to the state’s ability to evaluate and prepare a case, and gain a conviction for those cases that go to trial,” the Vermont Defender General’s Office wrote in a 2011 report to the Legislature.

Defender General Matt Valerio said those concerns have were well-founded. “The unfortunate byproduct is that prosecutors don’t know their cases as well … and there is no incentive for a defendant to settle,” Valerio said. “That really is the result of changes to the law. A lot of times, depositions resolved the case.”

The concern is difficult to verify. The Vermont Criminal Information Center has published crime statistics only through the year 2010, and the Justice Research center is studying the matter.

The Vermont Department of State’s Attorneys, in a 2011 report, said it continued to support the prohibition on depositions.

But at least one prosecutor agrees with Valerio.

“I thought the ban was misguided,” Kainen said. “If the (victim) can’t get through the deposition, you ought to know that. You’re going into trials blind (and) you’re not settling the case.”

Focus on prevention

But if experts disagree about the effectiveness of stiffer sentences and the ban on depositions, they credit the law as a success in an area that is difficult to measure — bringing more attention to the danger of sexual crimes and the need to make sure children are protected.

The law had a list of provisions, requiring increased background checks for school staffers and day care providers and forcing agencies, including the Department of Corrections and the Department for Children and Families to form committees to discuss their efforts at monitoring offenders and protecting children.

Those “non-flashy” initiatives, Kainen said, have led to increased talk among officials about how to cope with the danger of sex crimes.

Sears agreed. “I see collaboration all the time,” he said. “I think it’s changed dramatically since the Jacques case. I think it’s made a difference, definitely.”

Representatives for the Department for Children and Families did not respond to messages seeking comment.

Today, with five years of experience with the new law but little data available, no one familiar with Act 1 was willing to deem it an unqualified success. But experts on all sides believe it undeniable that Brooke Bennett’s murder, and the legislative response, has sparked a sustained effort to prevent sex crimes.

“Everyone wanted to talk about mandatory minimums and the criminal justice response, which is valuable, but it’s not going to end sexual violence,” Kenney said. “We have to focus on prevention. I have been really impressed with the way the work had been embraced by the state.”

Mark Davis can be reached at [email protected] or 603-727-3304.

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