There is plenty that Timothy Fair doesn’t remember about his time as a drug addict, but there are some memories the 39-year-old criminal defense attorney will never forget.
Like hitting rock bottom.
It was around 3 a.m. and Fair was sitting alone on the bathroom floor of his apartment in Stowe trying to inject cocaine. The needle was old and dull. He was having trouble hitting the vein.
“There was blood spatters all over the wall, and I’m completely out of my mind, just trying to get it in, trying to get high. That I can say was the lowest point of my life,” Fair recalled.
Fair is a gregarious 6 feet 5 and solidly built. His size and commanding voice are assets to his clients in the courtroom. When he talks about coke addiction, he is direct and unflinching. He peppers his remarks with a rueful chuckle as though still marveling at how his life has turned around.
It almost went the other direction.
Several months before that night on his bathroom floor, Fair was arrested with 42 grams of cocaine in South Burlington. It was 2004. He thought for sure his life was over, and his drug use spiked.
But Fair caught a lucky break. And now, clean for a decade, his improbable path to becoming an attorney helps guide how he practices law and has made him an advocate for criminal justice reform.
A year before his arrest, Fair’s life was on a wildly different trajectory than being a drug addict or a lawyer. He was a professional skydiver spending winters in Arizona or Florida and summers in Vermont. He began as a parachute packer, learning the ropes and accumulating jumps. He worked his way up to be an instructor.
In the winter of 2003 he badly dislocated his shoulder 6,000 feet above Zephyrhills, Florida. It quickly became clear the injury would prevent him from skydiving again. Fair was devastated. He was nearing his 30s, and skydiving — his career and the animating force in his life — had been wrenched away.
That setback happened to coincide with the ready availability of very cheap, very pure cocaine, Fair said. A friend gave him a taste, and Fair was hooked.
“I liked it. I liked it so much I developed quite a habit down in Florida,” he said. Fair moved back to Vermont with a woman he was dating at the time, who he said was also addicted to cocaine.
“We came back, and we spiraled down,” he said.
Fair was living in Montpelier, trying to complete an undergraduate degree at Woodbury College, but he was leading a dual life. As a student he was selected to serve as a representative on the school’s board of trustees. At the same time, he recalls snorting lines of coke in his car before going to trustees meetings.
It was around that time he began smoking cocaine, which he said quickly led to cooking and injecting it. He split with the woman he was seeing from Florida, but fell right into a relationship with another hard-core drug user.
Fair dropped out of school and began what he described as a “horrible co-dependent relationship” that revolved around their addiction. He kept telling himself he would quit, but the time to quit was always next month.
He dabbled with heroin, but said it was never really his thing. Fair preferred the uppers — cocaine and amphetamines.
During that period, he recalls overdosing on cocaine at least four times: blacking out after ingesting too much, only to wake up to the people he was getting high with freaking out around him.
“I’m very lucky to be alive,” he said. “If I hadn’t been arrested in 2004 I’d probably be dead. I have very little doubt about it.”
After being arrested with the 42 grams, Fair thought he would be going to jail for a long time. He was charged with felony cocaine possession with intent to distribute.
As a child who liked to argue, Fair always dreamed of being a lawyer. It was an aspiration that remained in the back of his mind, even as action sports and, later, addiction made the law a remote proposition.
A felony conviction almost certainly would have precluded any future as an attorney.
“Instead, Judge Linda Levitt and the criminal justice system gave me one last chance,” Fair recalled. The state dropped the felony to three consecutive misdemeanors for possession of cocaine. He would serve only six weeks in prison.
“If my skin had been brown or black — I think about this a lot because it’s been a decade — I would probably just be getting out of jail now,” Fair said.
As evidence, he points to the recently overturned conviction of Shamel Alexander, a black man from New York City arrested in Bennington with 11 grams of heroin. Alexander, who like Fair was a first-time offender, was sentenced to 10 years in prison. Three years into his sentence, Alexander’s conviction was overturned by the Vermont Supreme Court because the justices found the traffic stop that led to his arrest was unjustified.
There were extenuating circumstances in Fair’s case. The investigation showed he was holding the drugs for someone else. But for Fair, who is also from New York City — and had nearly four times the quantity of drugs — the divergence between his sentence and Alexander’s is glaring.
“To say there’s no disparity in sentencing, it’s absurd,” Fair said.
Fair recalls looking out the tinted window of a Department of Corrections transport van on his way from the prison in South Burlington to the work camp in St. Johnsbury where he served his time. He said he’ll never forget thinking, “What is happening to me? This is not who I am.”
Being incarcerated is “dehumanizing on so many levels,” he said. Losing your freedom means every movement is prescribed: when you sleep, when you eat, when you use the bathroom or shower.
“There was no rehabilitation in prison. There’s plenty of drugs. If you want to get high, get high. You’re constantly worried about getting beaten up. You’re constantly worried about protecting what’s yours — you know, I had my sneakers stolen, even here in Vermont,” he said.
Fair was released from prison in 2005 and returned to Stowe. He said he wishes he could say he stopped using after his release. But he continued to dabble with drugs for a few more months, he said.
It was through the help of a “fantastic” probation officer and substance abuse counselor out of Morrisville that he was finally able to kick his coke habit. In 2006 he came off probation. By that time he was clean, he said.
After graduating from Champlain College — which had merged with Woodbury — Fair did well on the LSAT, the law school entry exam. He applied to Vermont Law School, having to declare his criminal history. Fair was accepted at VLS but told there was no way to guarantee he would be admitted to the bar.
Fair again had to own up to his crime on a portion of the bar exam called “character and fitness.” He passed on his first try. Same thing when he was admitted to the federal bar in 2014.
Come August, sufficient time will have passed for Fair to petition the court to have his record expunged. Fair said he’s in a healthy relationship now and just bought a house in South Burlington.
Fair looks back on going to prison as a turning point, something that finally made him get real with himself.
Jail was hell, but the criminal justice system hadn’t failed him going in or coming out. He pleaded down to lesser charges and had a positive experience of parole. That makes him more aware now when the system is letting down his clients.
Fair also knows what’s at stake and what can come of second chances.
“If I hadn’t had that break — if they had charged me with a felony — it’s likely I never would have been able to pass the bar or qualify with a felony conviction. … I never would have been able to move forward with my life,” Fair said.
Paul Volk, a prominent defense attorney whose firm Blodgett, Watts & Volk hired Fair in 2013, said that’s not an exaggeration. Volk said he routinely sees cases like Fair’s exact a much heftier price than six weeks at the work camp.
“It could have been incredibly grim,” Volk said.
As an attorney, Fair says his past as an addict and inmate gives him unique insight into his clients’ lives. If you’re a drug addict facing criminal charges, it’s unlikely your lawyer knows firsthand the struggle to get clean or the nightmarish deprivation that awaits you on the inside.
Put another way: “I doubt many criminal defense attorneys have been strip searched” by a corrections officer, Fair said.
During law school Fair interned with Washington County State’s Attorney Scott Williams when the prosecutor was still a defense lawyer in private practice. Williams recalls Fair, who was older than most other summer interns, as mature and competent.
Fair was upfront about his criminal history, Williams said, offering as much detail as Williams wanted. The two became close that summer. Williams had Fair and his girlfriend over for dinner a few times, and they still are in touch occasionally.
“When you consider his background it would be pretty easy for him to be a hardened dude, but he’s not,” Williams said. “He’s a really empathetic human being — he really feels people’s circumstances — which is why I’m sure he’s a damn good defense lawyer.”
When Volk’s firm needed to hire an associate, it was deluged with more than 40 applicants. Volk said Fair distinguished himself with his “zeal and passion” for criminal defense and civil rights work.
“He wasn’t just saying it because he needed a job,” Volk recalled.
Fair’s criminal history didn’t give Volk pause either. Volk, who grew up in a literal carnival and spent years touring with the Grateful Dead, said he’s learned to judge people based on “where they are right now.”
Volk said Fair has validated the firm’s choice to hire him. There aren’t many junior lawyers with Fair’s work ethic or command in the courtroom, he said.
When Williams was elected state’s attorney in 2014, he reached out to Fair, asking if he would like a job as a deputy state’s attorney. Fair demurred, saying his heart was in criminal defense, Williams said.
Williams said he gives his deputies wide latitude to exercise their judgment. That involves the authority not to press charges, or to seek diversion or even to look for informal opportunities for restorative justice.
“If a prosecutor is willing to consider the individual and all the facts and circumstances, they should be able to reach a more nuanced decision,” Williams said.
That’s ultimately what the criminal justice system was willing to do for Fair, and Williams said he has no doubt Fair would have been able to do so wisely for others.
“But I respected his decision,” Williams said.
Fair’s background has also made him an advocate for sweeping criminal justice reforms, especially on drug policy, because he sees that many people aren’t getting second chances or the help they need to get sober.
When Fair dropped by a recent talk at Burlington’s ArtsRiot titled “Mass Incarceration in Vermont,” he sat close to the stage. Listening intently, he issued his rueful chuckle whenever a speaker struck a chord.
Afterward he spoke with Suzi Wizowaty, a former state representative who runs Vermonters for Criminal Justice Reform, a nonprofit that sponsored the talk.
“People who have had direct experience with the system know how messed up it can be,” Wizowaty said in a later interview. Lots of well-intentioned people are working in criminal justice, but most have no idea how deeply they impact lives, she said.
Wizowaty said she invited Chittenden County State’s Attorney TJ Donovan to speak at the event because as a prosecutor he’s shown he understands those impacts.
Donovan called on the audience to consider the role poverty plays in criminal justice. Often the only middle-class people you see in the courtroom are the attorneys, he said.
“You have to ask yourself the question ‘Why?’” Donovan said, adding that it’s not because the poor have a monopoly on crime.
Prosecutors change lives when they charge people with crimes, Donovan said. That power can be abused to bring people into submission. You bring as many charges as you can to leverage a plea deal, he said.
A major reason the poor are more likely to end up in jail as result is that they can’t afford private attorneys. It’s one of the greatest inequities in U.S. criminal justice, Fair said. Making $60,000 a year as a defense lawyer, Fair said, he would have to sell his car and possibly his house to retain himself as an attorney.
Didn’t commit the crime? Don’t like the deal being offered? Want to exercise your right to a trial? It’s likely to cost you $10,000 for a private attorney. If it’s a major felony or you need an investigation or depositions on your behalf, that could run you $25,000.
Even if you qualify for a public defender, earning a modest income could mean a hefty copay. Fair said he respects public defenders, having interned in two county offices, but they’re spread far too thin to always provide effective representation.
The vast majority of Vermont’s roughly 1,750 prisoners — at least 95 percent, according to Vermonters for Criminal Justice Reform — rely on public defenders for their right to counsel.
Vermont’s public defenders are involved with 84 percent of the criminal cases that go through the courts each year, according to Defender General Matt Valerio. All told, public defenders handle roughly 22,000 cases a year across the state.
Once you’re in the criminal justice system it’s even harder to get out, according to reformers.
On any given day, close to 9 percent of Vermont prisoners have served their time and are being held for lack of approved housing, according to Department of Corrections figures. That’s partly due to the extraordinary discretion of corrections workers, according to Fair, Wizowaty and Donovan.
Tellingly, in an October 2015 report to the Legislature, DOC officials said the court had never once rejected the department’s opinion on the acceptability of housing for release, despite numerous legal challenges.
Even if family or friends are willing to take you in, the criteria for acceptable housing can be onerous and subjective. Does your uncle have hunting rifles, or keep the fridge stocked with beer? Alcohol and weapons are reasons housing can be denied, along with a determination about the “foreseeable risk” of harm you pose to the people you live with or the community.
Once released, people often face an equally onerous set of conditions for their probation. Curfews are especially difficult, Fair said. If you blow a tire or miss a bus and aren’t home by the designated time, it’s largely up to your probation officer whether to send you back to prison and for how long, he said.
“Frankly, I couldn’t comply with some of the conditions that folks have to comply with in this state,” Donovan told the audience at ArtsRiot. Violating probation can lead to serving years in prison on harsh underlying sentences initially suspended by the court, Donovan said.
Fair knows that probation officers can play a crucial role in rehabilitation, because it happened for him. But all too often in his legal practice, he said, he’s seen probation officers let personality conflicts affect their decisions.
Fair told the story of a 65-year-old client who was on probation after serving time for his fourth drunken driving offense. The man had since injured his back and was no longer physically capable of driving.
The client didn’t get along with his probation officer, a man roughly half his age. One time the officer told the client to “wait right there” while he went to check on something, Fair said. Fair’s client refused, and the officer sought to send him back to jail for four years for violating probation.
“He lives 3 miles away from the probation office. It’s not like he got on a plane and fled the country,” Fair recalled. The probation officer felt disrespected. Fair was able to argue the sentence down to six months.
The population of inmates older than 50 has nearly doubled in the last decade, according to DOC figures. Older inmates drive corrections spending, and Fair’s senior citizen client went to prison even as the Legislature explores how to parole more older inmates who aren’t a public threat.
Vermont is one of 11 states that spends more money on corrections than higher education, shelling out more than $150 million each year to supervise or lock people up.
What State’s Attorney Williams called the “vagaries” that often determine criminal justice outcomes — discretion on the part of police, prosecutors, judges and corrections officers — are especially harsh for drug addicts, whose criminal behavior generally occurs when they’re not getting the help they need to stay sober, Fair said.
Donovan agrees. During his remarks at ArtsRiot, he called for Vermont’s criminal justice system to redefine what accountability means for the people whose lives it controls.
“It doesn’t mean punishment, it doesn’t mean jail, it doesn’t mean convictions,” Donovan said, “Accountability means getting sober, but not saying to somebody, ‘Get sober.’ It’s actually providing the resources and the structure and the understanding that getting sober is really hard and relapse is oftentimes part of recovery.”
Fair said he supports Donovan’s candidacy for attorney general because he has shown a willingness to tack away from the “tough on crime” mentality that has pervaded criminal justice for the last four decades.
Donovan’s pioneering embrace of diversion courts is slowly setting the tone in Vermont, and his campaign pledge to end Vermont’s use of private out-of-state prisons is part of what gives Fair hope for the future, he said.
The harshness of private prisons stands in stark contrast to his comparatively benign experience at the work camp in St. Johnsbury, Fair said. Things are relatively good in Vermont, largely because its small population allows reformers to make strides that would be unthinkable elsewhere in the country, he added.
The term “mass incarceration” was coined by legal professor Michelle Alexander, who came up as a lawyer with the American Civil Liberties Union in California, a state where criminal justice is far more cruel than in Vermont. One need look no further than the unspooling scandals in the Los Angeles County sheriff’s office and Orange County district attorney’s office for evidence.
Still, Fair would like to see Vermont go even further. He advocates legalizing all drugs.
“Drugs are cheap. The cost comes in prohibition,” Fair said.
At the depths of his addiction, Fair never committed any crimes to support his habit. That’s rare, he said, and looking back it was partly how he rationalized his drug habit.
Most addicts eventually will start stealing for quick cash to buy drugs, he said, having seen friends do it. People hooked on heroin or other opiates have it especially tough because it creates physical dependence, he said. Fair feels lucky heroin was never his thing, but he watched people driven to desperate measures because of dope sickness.
When Vermont prisoners are sorted based on their most serious crime, 30 percent are in jail because of drug or property crimes, according to DOC figures.
All the money that goes into investigating, prosecuting and locking people up for drug offenses could be put toward education, treatment and rehabilitation, Fair contends. What’s lacking is the political will to take that leap, he said.
If Vermont made it so addicts had somewhere to buy and use drugs safely — which also offered education and counseling — it would reduce drug-related crimes, there wouldn’t be dirty needles floating around, and children would be less likely to be exposed to drug use, he said.
Making that pivot, he believes, would over time resolve many of the worst problems facing Vermont, such as the explosion in the number of children in state custody — which officials link to drug addiction.
“Is it going to resolve everything? No. Are there dangerous violent people out there who need to be taken out of society, maybe forever? Yes,” Fair said.
But locking up nonviolent drug addicts isn’t working, because they don’t get the help they need in prison, and when they’re released they go back to their drug-seeking criminal behavior, he said.
“This is something I swear is true: All drug addicts want to be free” of their addiction, Fair said.
It’s not just a theory, either. More than a decade after ruining his shoulder and almost losing his life to his cocaine addiction, Fair has recovered his sobriety.
For the first time since his injury, Fair has also recovered his health. Thanks to shoulder surgery last year, he returned to skydiving for the first time since 2003.
Jumping from a plane and going into freefall is the ultimate expression of freedom, Fair said, and he feels fortunate to have it back. It’s never far from his mind, though, that but for the mercy of a system that frequently shows none, he might just be leaving prison today.
“What good would that have done? What good would it have done if I was just getting out of jail now, or a year ago?” Fair asked.
That’s not just a rhetorical question. It’s one that Fair thinks Vermont can help answer for a country that locks up more of its citizens than any other in the world.