BURLINGTON — Eight years before they became opponents in the Democratic primary for Chittenden County state’s attorney, Sarah George and Ted Kenney faced off in a Burlington courtroom, arguing about a homeless couple that had tangled over a bottle of wine.
State’s Attorney George, then a deputy, argued that the man had attacked his girlfriend on a June afternoon in Burlington. Kenney countered that the woman had actually attacked the man, part of a larger pattern of abuse.
The man was not convicted when jurors failed to reach a unanimous verdict.
Now George and Kenney are again facing off in the Aug. 9 primary, but this time the stakes are higher. The race to become the county’s top prosecutor has become a referendum on George’s progressive approach to the role.
That approach views the modern justice system — based upon prosecution and incarceration — as inherently flawed and seeks to instead promote restorative justice through alternative means such as court diversion programs.
“People have been told for 200 years that what makes us safe is people being in jail or people being prosecuted,” George told VTDigger last week. “Changing that narrative is hard.”
To enact her vision for a reformed justice system, George makes use of prosecutorial discretion, choosing carefully which cases to bring to court. As a matter of policy, for example, George does not ask judges to order cash bail for defendants and does not seek to prosecute alleged crimes uncovered when police pull drivers over for what she calls “non-public safety traffic stops.”
But what George, who has led the office since 2017, and her counterparts across the country call progressive, Kenney calls overly lenient.
The Williston Selectboard vice chair has criticized George for offering court diversion to alleged offenders who are brought before her multiple times on the same charges. He claims that her views discount the benefits of the modern justice system.
“The system itself is in many ways corrective,” Kenney told VTDigger. “To be standing in front of a real judge and to have the potential consequence of anything from deferred sentence, where you don’t get a criminal record, to some form of incarceration is very sobering for a lot of people.”
Kenney went on to say he doesn’t believe “we should just be incarcerating people” but disagreed with George’s predilection to divert certain alleged crimes away from court.
“There should be a lot more use of individualized discretion in cases,” Kenney said.
This isn’t Kenney’s first time running for the Chittenden state’s attorney job. He first made a bid in the 2006 Democratic primary against TJ Donovan, who ultimately prevailed.
When Donovan was elected attorney general a decade later, Kenney finished second in a vote by the Chittenden County Democratic Committee to nominate a new state’s attorney. Republican Gov. Phil Scott ultimately appointed the committee’s third choice: George — who had served five years as Donovan’s deputy since graduating law school.
Kenney would later join Donovan in the Attorney General’s Office as a top staffer. No candidate ran against George during the 2018 election.
But this year, according to Kenney, numerous people of all political stripes urged him to challenge George, saying the county was “headed in the wrong direction.” He launched his campaign in early May with the slogan: “Criminal justice reform and safe streets.”
When asked if Chittenden County is unsafe, Kenney responded: “I don’t think it’s safe enough … the number of vexatious type crimes that can turn dangerous are up. People’s lived experience will confirm that.”
In Burlington, crime statistics show a mixed bag: While certain crimes such as burglaries and gunfire incidents are up, others have increased only modestly since the pandemic’s onset and pale in comparison to levels from 10 years ago.
Perhaps the most hot-button issue the candidates have clashed over — igniting an exchange of pointed videos addressing one another on social media — is whether George requests appropriate conditions of release to restrain those who have been charged with crimes.
Kenney asserts that she doesn’t, citing as an example a man who was accused of stealing cars and electronics on multiple occasions in the span of three months. Each time, George’s office asked the judge to order the man to check in with the court and to avoid the places or people he allegedly stole from. Kenney, on the other hand, said he would have asked for the man to keep a curfew and be in the custody of a “responsible adult.”
In a video responding to Kenney’s argument, George accused her opponent of spreading misinformation. She pointed out that only a judge can order conditions of release (meaning the judge in these cases assented to the conditions that Kenney deemed lax) and that the man in question was experiencing homelessness (meaning a curfew would not be appropriate).
Kenney contested George’s explanation, asserting that it’s the job of the prosecutor to ask for appropriate conditions of release. Since judges are supposed to be neutral arbiters, Kenney said, they seldom impose conditions of their own on defendants.
Kenney also noted that, although George protested the idea of assigning a curfew to a person experiencing homelessness, her office eventually agreed to one in the case of the alleged thief — and later charged him with violating that curfew in a May 9 arraignment.
Part of the complexity of Chittenden County’s justice system at the moment stems from a massive backlog of cases left over from when courts closed down during the pandemic. To alleviate pressure on the justice system and reduce crowding in correctional facilities, prosecutors and law enforcement agencies are referring more cases to court diversion than they typically do.
To clear the backlog — which, according to George, could take another full year — court diversion programs, run by community justice centers, require additional assistance, George said.
“They’ve been asked to do a lot by police and by our office through this pandemic,” George said. “I’d like to find ways to really lift them up and support them, get them all the resources they need to continue that really great work.”
Kenney, meanwhile, said he would consider dealing with the backlog through a “fire sale” of giving defendants generous plea agreements — something former Chittenden County State’s Attorney Bill Sorrell did in the 1990s.
For all that they disagree on, Kenney and George share some beliefs. Kenney, a former public defender, applauded George’s move to get rid of cash bail, saying that system could at times be “unfair.”
Both candidates — despite their talk of changing public safety through policies — spoke about the need to pursue justice on a case-by-case basis. In other words, they see a nuance in addressing crime that transcends slogans and caricatures.
“I’m not running for state’s attorney claiming that the solutions to our problems are simple,” Kenney said, “because I don’t believe they are.”