Brian Sonenstein is a reporter covering incarceration and the prison abolition movement. He is a columnist for the Portland Phoenix, co-founder of Shadowproof.com, and co-host of the Beyond Prisons podcast. Shadowproof.com/beyond-prisons

Sahrbeck

Independent DA candidate Jonathan Sahrbeck [Photo from candidate's website]

With just days to go before Cumberland County voters elect their next district attorney, the Phoenix sat down with independent candidate Jonathan Sahrbeck to capture his views on everything from broken windows policing, to opioid use disorder, to greater transparency and accountability in the DA’s office, and more.

We interviewed Sahrbeck’s opponent, Democrat Jonathan Gale, earlier this year. You can read that interview here. An abridged version of this interview can be found here

 

Editor’s note: This transcript has been lightly edited for focus and clarity.

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The Phoenix: You’ve cited your boss, District Attorney Stephanie Anderson, as a mentor and inspiration. What role, if any, has she played in your campaign or your decision to run for district attorney this year?

Jonathan Sahrbeck: Well, I think what Stephanie has done over the last 28 years, it’s a lot of things that she’s brought about in this state that are things that we’re talking about as diversionary tactics. The deferred disposition, that was adopted in Cumberland County, that is now used statewide as an alternative to probation and to jail. She also gave people an opportunity to avoid having a conviction on their record if they got through the terms.

Her vision, I think, has been one of the things that has been inspiring, not just to me but a lot of people, when they talk about reforms, and they talk about diversion, and they talk about different tactics other than just going about incarceration or probation or those tactics. So that’s one of the biggest things that I think that I have been impressed by when it comes to Stephanie. Because I did grow up here, so I’m aware of what she has done.

But I think there’s more we can do when it comes to the DA’s office. And one of the things with Stephanie and with the DA’s office that I think we need to improve on is our visibility within the community — getting out and speaking to people and talking to them about public safety issues. There are dangers that we see on a variety of topics. My biggest thing that I think we need to take on is the opioid epidemic. But I’m sure you’re going to ask me more questions about that...

The Phoenix: Yeah, we’ve got a bunch of questions for you.

So diversion is something you are interested in doing more of and that you support from her office. I feel like, especially from the forums I attended before the primary, it appeared to me that [Democratic candidate Jonathan] Gale was pushing diversion and reform and you were more of the stay-the-course kind of guy. But you’re saying diversion is something that you want to do more of, or expand?

Sahrbeck: I think diversion, either through deferred dispositions or filings or any sort of idea that people come up with, the restorative justice — those are all things to look into. But what we can’t do, I don’t think, is compromise public safety and compromise what victims are asking for when it comes to things.

Restorative justice, I’m familiar with that from my time in Massachusetts. There were numerous police departments that would do restorative justice. If police officers don’t bring a case, then we at the DA’s office won’t see that. It would be very rare that all of a sudden somebody would say, “Oh, this thing’s going on at the PD that you guys don’t know about,” and we would actively run over to get involved. That usually doesn’t happen. So, restorative justice is something that people use all the time.

I get the police logs for certain departments out there that you can read through what happened during shifts. Let’s say, if there’s 10 calls, nine of them end up being mediated and no complaints are filed and no summons is given. It’s just police having interactions with people and trying to solve the problems before bringing them into jail. So I think a lot of police departments already do that, and if police departments are okay with doing that, then I’m find with them doing it. When it comes to restorative justice though, what I just don’t want to see compromised is public safety and our victims.

The Phoenix: I’m wondering what you think of Broken Windows policing. Do you think that strategy works? Would you welcome it in Cumberland County? Given the so-called “Bayside Clean-up” and the issues with gentrification happening here, do you feel that is an effective strategy or do you have any concerns about it?

Sahrbeck: No, I think it can be. I’ve talked to New York City Police Department officers about that and I think it can be. It’s just, you can’t have a one-size-fits-all type of philosophy or policy when it comes to certain places. In one part of the city something might work like that and in another, it might not. So I think if you cast a large net out there, it might be dangerous, what you’re gonna catch.

Rather, what you would want to do is have a focus in on a particular community. Bayside, for instance — I’ve talked a lot with Sarah Michniewicz, president of the Bayside Neighborhood Association, about what her concerns are. But I’ve also gone and talked to Mark Swann about Preble Street and what he’s done, and talked to Rob Parritt out at Oxford Street, he’s leaving but… at the same time, when you’re in a community, you’re all neighbors. And if you don’t respect your neighbors, then something’s gonna get lost there. Obviously everybody has different focuses, everyone has different concerns, but I think the broken windows policy can work in certain places but in other places it might be inappropriate.

The Phoenix: Do you think people should be able to annul their records, including felonies and especially for juveniles? How, in your view, do conviction labels keep us safe?

Sahrbeck: We’ve been looking into vacature, which I think is a good idea. I think the state not having something like that is something, it’s an empty area that we really should have something in there. I know that there are actively people who are looking into that. I applaud their efforts and it would be something that I could definitely get behind.

I know down in Massachusetts, you can seal your record. Well, the problem with sealing someone’s record is you look and you know that they have a record that’s sealed. So are they sealing it because they have an OUI, or are they sealing it because they have an aggravated assault? That’s really that question that doesn’t really solve anything.

But no, I think that there is some sort of reconciliation that someone could make to show that, over a matter of years, they haven’t committed a new offense or anything along those lines, then that’s valuable. As for whether or not it’s having a conviction on your record, that’s important from a prosecutor's perspective because every case that comes through our door, to me, we have to take on a case by case basis. We have to look at the defendant, look at the facts of the case, look at the law, and try to make an appropriate recommendation. Prior records are something that is very valuable for us to look at to know a person’s criminal history or lack of criminal history, which would hopefully be the case. I think having that information is important.

When it comes to juveniles, I spent a year down in Lowell, Massachusetts, as a juvenile prosecutor. One of the big things we tried to avoid down there is having juveniles walk away with felony convictions. And I know that’s what our juvenile prosecution team tries to do, too.

On the one hand, you get people who are arguing, “Well, these people shouldn’t be in Long Creek [Youth Development Center] because they don’t have felony convictions.” That doesn’t necessarily mean that they didn’t do felony conduct. But when it comes to juveniles, it’s important to know that information because when people come into the system at either 18, 19 years old, we want to know whether or not they did have a juvenile record. This is somebody who does have or has had interactions with the criminal justice system at the juvenile level, but this is the first time they’re getting into the adult world. We have to make an assessment on the public safety and, if you do have an adult who has a juvenile record, that shows a violent history, and they’re alleged to have committed a violent offense as an adult, then that is concerning. That means that behavior hasn’t stopped and it’s just escalating and following them into the adult world. I think that’s the value that that has.

The labels are unfortunate and you don’t want to have people lose out on opportunities, especially the juveniles. When a juvenile is growing up, they have an adolescent brain. It’s not fully developed until 25, we now know. So you hope that people don’t make decisions at that time in their life that stick with them forever. I think it kind of comes as society really recognizing that. We’ve had a big adverse childhood [experiences] — the ACEs programs — but that’s something that I think really, as a society, we should actually look into. It’s fascinating to actually see, because it really can tell a tale and explain a lot for certain people who commit offenses, and then why, and going back and then, obviously you can’t go back in time to address something but, at the same time, you can have a better understanding and hopefully a better method to kind of solve it and help with the situation.

The Phoenix: I wanted to ask you about transparency. I’ve heard you push back on the idea that the DA’s office needs more transparency, that it needs to be open to data and reporting, and things like that. I’ve also heard you say that, if there is evidence of misconduct like, let’s say, racial bias, you would deal with it if evidence was brought to your attention.

Can you explain why don’t you support transparency measures for an office that is so powerful and so opaque, especially if you believe there’s nothing to hide? How would you expect someone to bring evidence of misconduct to you if there isn’t this data?

Sahrbeck: We would have to start keeping records of race, of gender, of things of that sort of nature, which, I think — unless I’m seeing evidence of these problems happening — I think once you go down that road, you’re actually creating, sort of, categorizing defendants in certain ways that I might think is inappropriate to categorize people.

I would view our office in Cumberland County as colorblind when it comes to prosecuting cases. We don’t look at someones color and base any decision that we make on that. I understand the argument about implicit bias. I understand. I took a great class when I was in law school, called, “Race, Class, and Politics,” down at American University, where I went to law school. There’s a woman named Cynthia Jones. She’s written a lot about criminal justice reform, but back before it was coined. The value of that class to me is — I was actually the only person wanting to be a prosecutor in that class, everybody else wanted to be public defenders — but the reason I took the class is because I knew that these kinds of issues would come up in my career as a prosecutor, would come up in my every day. Especially when I’m prosecuting down in Massachusetts. Because it is important, people should walk into court and feel like they’re treated fairly.

I know that, in other places in this country, there’s a lot of evidence that that doesn’t happen. That people are treated unfairly based on their race, or their gender, or their sexual orientation, or their religion. But I just haven’t seen that in the Cumberland County DA’s office.

Maybe if it was something that I could be swayed to actually take that approach, for a period of time, to see if we see any patterns emerging. But at this time, I think once you start labelling people, once you start looking at cases… We put in a person’s height, weight, eye color, hair color, gender, and race on a complaint only for the purposes of the clerks office, in case that person doesn’t show up and there has to be a warrant, because you don’t want police arresting the wrong people.

I guess there could probably be a mechanism out there that we could start looking at. But I think that, once you go down that road, it’s something that i think, when you start labeling defendants in a certain matter, then that could be a dangerous step to take. That’s my reluctance on that.

The evidence, though, that I think I would have to see could come in many forms. One is obviously, we have defense attorneys who advocate very well in this county for their clients. We also have a police department in Portland and in other places that are very open to questions from us. I view our role with the police department as a team that — we work together. Obviously we’re not going to always see eye-to-eye. It’s sort of like having a family, like you have two brothers or two sisters that don’t get along all the time. You can have those sort of family squabbles and disagreements but, at the end of the day, you’re on the same team. I think that’s a valuable way to look at it.

I can’t pinpoint for one if I saw this then… I guess I could. If I did see a situation where I thought a police officer racially profiled somebody based upon their race, I could ask them questions about why. “Why did you enact this investigation? Why did you pull over that car?” And if I can’t see a reason that’s beyond the race, then that’s something that, as prosecutors, we have an ethical duty to take that step and act appropriately, which would maybe be dismissal and informing the police department about that.

I’m not saying it doesn’t happen. We do have racism in this country and it’s very unfortunate. One of the key things that we have, as prosecutors, is we do have an awful lot of power and we have the ability to take someone’s liberty away. I think it’s a power that we have to respect but that we also have to understand. I think overall, the Cumberland County DA’s office does a good job with understanding that.

The Phoenix: You mentioned the DA’s office takes a “colorblind approach” to this and that you’re concerned about categorizing people. Is it that you think it will sort of perpetuate biases in the office? I guess my concern is that — I grew up in the 90s and early 2000’s, I’m very familiar with the "colorblind" concept. I know that, in the last decade or so, that has come under a greater deal of skepticism because it’s sort of a way to conveniently dismiss the way that racial bias functions in a system, and to claim that, this is just objective.

So just to ask again, if you don’t feel like this is an issue, if there’s nothing to hide, unless you think publishing data would somehow influence prosecutions in some way, I’m trying to understand why…

For instance, you said earlier in our conversation, you want to have more face time with communities. You want to work more closely with advocacy groups. You want to involve community and bring it into the office’s work more. Do you think this would be part of instilling that trust and showing how the office functions? If you believe that bias, et cetera, isn’t there, then one way to disprove that would be to show that data. Then why not show it?

Sahrbeck: I think that’s what I just said, I would be open to doing that for a time and seeing that. I’m open to a lot of things, we have to be as prosecutors, because if you just go with the laser focus then you could miss what’s around you. I think working with a lot of groups, we have a lot of great groups in this community that could help us with these things. I understand when you say, “Yeah, you can say you’re colorblind, but you might actually not know you’re acting in a manner where there’s implicit bias.”

I’d be open to anything. I’m not going to say, “Brian, this is what I guarantee I’m going to do in the first six months if I get elected.” At the same time, transparency matters. I think having, being out in the open in the community and engaging in the community I think is important. If you have a community that’s distrusting us, I would want them to come in and tell us why. I might not agree with them but I think, at the same time, listening and having that dialogue, yeah, absolutely.

The Phoenix: Would you support or oppose the founding of a conviction integrity unit to investigate prosecutions by your office and your predecessors’ offices, for claims of wrongful conviction and innocence?

Sahrbeck: Yeah, that’s something that’s been going on around the country and I don’t think I’d have a problem with that. I think it would be a strange phenomenon to be doing in your own office because of the conflicts that could arise and, obviously, we’re not sitting around over there waiting around for a bell to go off and say, “Hey, crime’s been committed.” We’re busy enough. But I think it is something that is interesting.

I’ve gone to a lot of national district attorneys conferences and I know that that is sort of a movement that’s going on. And maybe that would be something that we could talk to the attorney general’s office about. I think that would actually be more of an appropriate office that would look into convictions, sort of like when there’s an officer involved shooting, that goes to the attorney general’s office. I’m sure one of the reasons they do that is because the DA’s office investigating a Portland [police] shooting might create a conflict between two entities that really need to work well together. Maybe having that at the level of the attorney general’s office might be more appropriate and might be something that, whoever is the next attorney general, that it’s something they might want to look into.

The Phoenix: Let’s shift gears to the opioid crisis. If our jails are forcing people to endure withdrawal, and if treatment is largely nonexistent in prisons, and if people are coming out of prison at high risk of relapse and overdose, do you feel comfortable sending vulnerable people into a dangerous situation like that, when medical professionals would not do that in any other context? It might be on the books that a person committed this crime, this is the record, but as a matter of their safety and their health, do you think it makes sense to do that?

Sahrbeck: Unfortunately, we have no closed or locked detox facilities in this state. When it comes to people, the appropriate recommendations for people, it really does come down to public safety. Is this person a danger? Is this person not a danger? That’s sort of what the DA’s office does.

In my experience in Massachusetts, they have as part of the civil code down there what’s known as Section 35. What Section 35 is in Massachusetts is, if somebody comes in and they petition the court or somebody else petitions the court on their behalf, they literally come into the court, they get screened by a counselor at that time, that counselor comes in, speaks to a judge, and they have an attorney appointed to act on their behalf, to question the counselor on it, to talk to that person. A lot of times, people are voluntarily committing themselves. Sometimes it’s involuntary. So they have those rights, that the DA’s office doesn’t really have anything to do with it. I just know about it because I spent a lot of time in Massachusetts. And then, of course, if they are deemed to be a danger to themselves or to society, they’re brought to—back before 2012 it was Bridgewater State Hospital, and that’s a 30 day detox facility.

Unfortunately, with the opioid epidemic, 30 days is a drop in the bucket in terms of recovery. But at the same time, at least that gave them an opportunity to get into a locked detox facility with a civil commitment from a judge, as opposed to a criminal charge. That would be something that I think, if we had the means to have people evaluated in that way in a locked detox facility, that would be a much better alternative than just saying, “You’re a public safety risk, you’re gonna go to jail.”

I would love to be able to say we can do that in this state. Unfortunately, that takes more than the DA pushing it. I think that could be an avenue that we could explore. But if someone is having a mental breakdown, or a breakdown based on a substance use disorder, that is something that, unfortunately, the only alternative we have, when they are a public safety risk, is that they are under arrest and they go to jail. But it’s this constant seesaw battle between the county jails, and the police, and the medical community, and the DA’s office, that it would be much better if we came to a better understanding.

I went to speak to a recovery house in North Deering and there were about 25-30 women at this facility and a lot of them were actually from Massachusetts, and they all described themselves as Section 35 women, so what they had done is, they had gone to the detox facility but they knew that wasn’t enough. It wasn’t just, go out the door, see you later, you’re cured. There was a lot more that they needed to do in order to beat a substance use disorder. Because we know it takes 18 to 24 months in order for somebody to enter that point, whether it’s to rewire their brain back to where it was, if it ever will go back to where it was.

So the DA’s office, the jails, aren’t the answer. You cited it yourself. Those 24 to 48 hours after somebody leaves a jail after detoxing are some of the most dangerous hours that those people have because they have been going through hell, when it comes to detoxing and it’s not the appropriate facility for that. To have them walk out onto the street is very dangerous, not just for them but for the public safety risk. I can’t tell you the exact answer, but I think exploring other ways, looking at what other places are doing… One of the things I think is a underutilized approach is embracing the recovery community and getting their help. That same place that I went to, you heard of the thing they’re doing down in Ocean County, New Jersey? Which is, if somebody’s Narcan-ed, the police bring them to the hospital, and when they get to the hospital, they have police talk to them, or doctors, or social workers, and they’re finding out that, of the people who had been Narcan-ed, maybe 10 to 15 percent were getting themselves into treatment, which is not very successful. What they started to do is have recovery coaches, which were people who had gone through substance use disorders and were in recovery and their success rate went up to about 65 percent and people said, “Okay, I’m gonna try treatment.” I think, talking to people in our community that have a loved one or they themselves are going through a substance use disorder, or have beaten a substance use disorder, having someone speak to them that’s actually gone and walked in their shoes is very valuable. It’s a valuable thing that we don’t do enough, we don’t have those programs, and we don’t use people who would be willing to work. When I went to speak to those [Section 35] women, I told them about this thing they’re doing in Ocean County. I said, “How many of you would be willing to help out with that?” Every single one of them raised their hands. It felt so great to see that, and they wanted to help, and we wanted to see them help. But now I’m a little frustrated that it’s been about six months and we haven’t gotten any programs off the ground, when it’s there and we could do more.

The Phoenix: When you talk about treatment — you’ve discussed detox facilities, I’m wondering what you think about medication assisted treatment. Is that something you support or do you favor more of an abstinence-based approach?

Sahrbeck: No, I know that medication-assisted treatment — I’ve gone and talked to people at MaineHealth, I’ve spoken to doctors about this, and that is the way to treat this disorder. I understand, methadone has been the way to treat heroin addiction since heroin came on the scene. We have to recognize [opioid drugs] are basically synthetic heroin.

I don’t think the DA could walk into the jail and say, “Hey, Sheriff Joyce. This is how you’re going to do it.” But having someone at the table who says this might be the way to do it could be a new possibility. Unfortunately, as you know, a lot of the [medication assisted treatment] drugs can get diverted inappropriately, especially if you’re in a jail setting. There could be a risk to a person getting that sort of treatment in a jail just because people know they’re getting that treatment. That’s something that I think the jails really need to consider on their own, whether or not it would be appropriate. Maybe there could be a portion of the population that’s separate from another portion that’s getting this medication assisted treatment.

But I know cold turkey has a success rate of like 3 percent or something ridiculously low. Doing it that way is not going to [lead to] a lot of success. I think taking a new look at medication assisted treatment might be a good way to look at things. I just think, as district attorney, I could give my views on it, but I don’t think I would have the power over any jail, or prison, or locked facility, to do that.

The Phoenix: I understand that these are not things you as DA can decide on a whim and change the whole system. But as you said earlier, you work closely with law enforcement, you have some cachet there. You have clout. It’s more a question of, would you add your voice to the collective of people saying to Sheriff Joyce, “We understand the concerns but this is a medical approach.”

With that in mind, at the forums, the issue of safe injection sites has been raised. I know in response, a few times, you’ve said that “saving a life isnt the same thing as helping people.” I wanted you to elaborate on that, and this other idea you raised that somehow these facilities would be a boon to the opioid black market. Can you talk about this and how these views inform your choices as a prosecutor?

Sahrbeck: I’m not a supporter of safe injection sites, and when I said, “Saving a life isn’t the same as helping someone,” I was specifically [talking] about someone being Narcan-ed. That, yes, Narcan is a valuable, necessary drug in fighting the opioid epidemic. I don’t ever back down from saying that or standing by that. But, as you know, when someone is Narcan-ed, they’re taken off the high. The fentanyl is released from their brain nerves and, basically, they are back to that state of almost instant detox.

Speaking to a lot of people who have been Narcan-ed, they expressed to me the nightmare that is, and how they feel about it. Having safe injection sites, though—but helping someone, to me, is having somebody try to ask them if this is the day they want to get into treatment. Ultimately, law enforcement and the police are most of the time not going to be the factor that gets somebody into treatment. It’s going to be that person making that decision. I say that from the two years I spent in York County drug court speaking to people with substance use disorders, and knowing the successful ones were people who were in there for themselves, not to avoid jail or as part of probation. They were in there because they needed to make this decision themselves and thank god they came to that decision and they’re still around.

Forcing somebody into treatment is usually not going to be very successful because they’re not ready. And so that’s not really appropriate for law enforcement to force anybody into some sort of treatment because the success rates are going to be low. That’s my differentiation between saving a life and helping somebody.

The safe injection sites, I understand and I think the strongest argument for them is that it gives—if you go to a place that’s a safe injection site, most likely you’re going to see someone there that’s going to ask them that question, “Is today the day that you’re gonna get into treatment?” That, to me, is the only argument you have for those. With the needle exchange, people have that opportunity to get that exposure to someone who is gonna ask them, and I support the needle exchange.

Safe injection sites, though — we have to remember that the heroin or the fentanyl or the carfentanil that somebody is getting is coming off the street. I haven’t seen anything that’s advocating for the government to give people heroin or fentanyl to go get high here. So that’s why, I’m not saying it would be a “boon” for drug dealers, but it would give an opportunity for drug dealers to sell to someone that they can go use somewhere else. I know from the statistics I’ve seen, up in Vancouver, that they have these safe injection sites, and the overdose rates have gone up. So I haven’t seen that data out there.

There was just a study I read about a month ago that showed the same thing, that they didn’t have that data out there that says, if you have safe injection sites, the overdose rates will go down. To me, I have not seen enough that would allow me to support these things, because it would give an opportunity to drug users — a place to use them, and I think the cost would outweigh the benefits.

The Phoenix: I don’t know specifically which — the second study that you saw, I know there was a big one going around about a month ago, so I’m going to assume it was the same one. I don’t know if you’re aware that study was rescinded a few weeks ago.

Sahrbeck: Oh no, I didn’t know that.

The Phoenix: Yeah, there were some problems with the methodology.

Sahrbeck: Do you have a link?

The Phoenix: It was written in Vox, and—

Sahrbeck: Yeah, I read that.

The Phoenix: —if you go back there’s now a huge correction on the top of it. I just wanted to let you know about that.

Sahrbeck: Alright, well, I like when I see things corrected. I’ll go take a look. And that study was very much like, it was kind of inconclusive. It wasn’t like, open injection sites do not work. It wasn’t saying that. But it was, I think the first paragraph said to put this on hold. But that’s interesting, thank you for telling me that. I’ll take a look at it.

The Phoenix: I wanted to circle back to your comments about involuntary commitment. That was something I noticed on your website that you were interested in expanding—voluntary and involuntary commitments for drug users.

The Association of Addiction Professionals and other experts who work with these populations have criticized involuntary commitments [for substance use disorder], for a lot of the same reasons that people criticize detoxing in jail. It’s not medication assisted withdrawal, it’s basically supervised withdrawal, and the person, you mentioned, they’re there for 30 days and they’re back out on the street. Some clinicians and addiction professionals also say involuntary commitment violates their medical ethics to a certain degree. I’m just wondering if you can talk about why you support such commitments, why you think they’re important, and if you have any response to those concerns?

Sahrbeck: This is something I talked about earlier, this is the Section 35 civil commitment that somebody would have. I think, one, it’s pie in the sky right now given that we don’t have locked detox facilities in Maine. The other thing, though, too—and I understand medical professionals might say it violates their ethical duty, because of the “do no harm” aspect of it. But when you have someone who is presenting, who is showing signs, and there’s medical evidence that they are a harm to themselves or society, and that goes before a judge, and that person is represented in court, then I think that there are safeguards there that will ensure that someone isn’t just thrown away. The key aspect of it is, when it comes to commitment, when it comes to a locked detox facility, is, what happens after? And if we don’t have the facilities and we don’t have the support system in place after somebody comes out, then it’s—like you said—it almost creates more of a risk, because that person is coming out…

I’ve seen very sad stories with drug court, that even people that have gone through drug court, that might have lasted them a year or 18 months, and they graduate on a Friday and we pass around the coin and clap, and the next morning, they’re dead in a hotel room by themselves after overdosing. There’s not a perfect solution out there, but the more tools we have in the toolbox, I think the more we can take on the epidemic more than we already are. It’s something I would want to look at but right now, without having those facilities, like I said, it would be very difficult to go down that path.

The Phoenix: I wanted to ask you about the prosecution of Yan Liu. From people that I’ve talked to, who work with human trafficking and rape victims—they were very highly critical of the decision to jail and for a little while prosecute Yan Liu. I know you work a lot on human trafficking. I know you run the [human trafficking] unit [at the Cumberland County DA’s office], you’re not just coming to this randomly. Talk about your thought process, how often you take that kind of avenue in a case like that, and elaborate on your decisions there.

Sahrbeck: First of all, she was never jailed. She was arrested and brought over to Cumberland County Jail, and a bail commissioner—that has nothing to do with the DA’s office—set a $1,000 cash bail based upon the fact that she had no address, she only had a passport from china, and she spoke no english. So that was the bail commissioner’s information that that person had and they set the $1,000 cash bail. She posted that bail and wasn’t jailed.

The Phoenix: She was charged with Engaging in Prostitution by your office, was she not?

Sahrbeck: Well, she was summonsed by the police, so once she posted, she was given an arraignment date about two months later, in March. That’s when there was a complaint that went forward, which wasn’t myself putting forward the complaint because the legislature has said that engaging in prostitution is a crime. It’s a Class E crime. But also, a first offense engaging in prostitution, you cannot be jailed. There’s not a jail sentence. So the idea that I’m out there trying to jail victims of sex trafficking on engaging in prostitution—I can’t do that nor would I do that, just so we have an understanding.

The concern that I had was that I did believe that she was a victim, but the affirmative defense for engaging in prostitution is that you are being coerced by someone into doing that. It’s an affirmative defense. We can use that as a tool to have discretion on charging, but my concern is that, if she didn’t get charged, we were never going to see her again. So I know people have criticized me, saying, “Well, this brings someone into the criminal justice system.” But I think the law and the conduct is what brought that person to the attention of law enforcement, and my concern was we might never see her again. When she came in and showed up for the dispositional conference, my first reaction, to the defense attorney, was, let’s file this for a year with the hope that she will come back in a year and be okay.

The discretion that police have and that I advocate for the police to do is, when they come upon a person that we consider a victim of sex trafficking, any person working in prostitution, is to offer them services. Say, “Do you need help?” And that’s where the groups that I work with all the time, like Just Love, the Preble Street anti-trafficking services. Those are the people that show up when the police officers call at three in the morning and say, “Hey, we just found somebody, can you come and bring them some toiletries, bring them some clothes, bring them something that might help them?” The services are always asked for.

I think that the fact was she didn’t speak any English, so that was very difficult, and so they were trying to figure out if there was more to the story, where she came from, is she a Chinese national, that somebody they believe was posting up for her. Getting that information was valuable. Her case was particularly difficult because the lack of English that could be spoken between herself and law enforcement. But the idea that I ever jailed a victim of rape or an asylee is just absolutely false. I know you wrote that, so I hope that clears that up.

The Phoenix: So then where was the breakdown? Was the arrest a method to bring her in to be interrogated about it? It didn’t seem like she was rescued and brought to the station and asked questions. Everything I read about it seemed a bit more punitive than that. I hear what you are saying, but I’m just wondering, where was the breakdown here? Was there a breakdown here? Or is this just how the system works?

Sahrbeck: I want to give you the complete answer but I can’t because there’s an ongoing investigation that involves federal law enforcement and larger entities. Yes, I have an answer, but I can’t give it given that it’s an ongoing investigation. I hope you respect and understand that.

The Phoenix: I do, I’m familiar with that.

Sahrbeck: I’m sure you can read between the lines of the police report and the people who were there that night.

The Phoenix: You have more experience as a prosecutor than your opponent. You haven’t worked much as a defense attorney, have you?

Sahrbeck: No, so I worked as a prosecutor in law school and then, right out of law school I worked in Massachusetts, moved back up here to Maine in 2012, worked as a drug prosecutor for about two years down in York County and then I went and did civil work. I worked for a plaintiffs firm called Terry Garmey & Associates, and I did mostly plaintiff civil work there, medical malpractice, personal injury, products liability cases. I handled maybe five or six criminal defense cases but that was mostly people who came into the office, who were friends of somebody, and there was an attorney over there who we shared space with, who was primarily a criminal defense attorney. He would bring me on if he needed somebody else in the office to help him out. But overall, I’d say I was a criminal defense attorney for maybe five cases, if that.

The Phoenix: The reason I ask is because I’m wondering, how do you compensate or do you feel there’s a need to see the other side?

Sahrbeck: I think that’s important. One of the best things about my experience in drug court down in York County was that was really the first opportunity—and I did a little bit of drug court work when I was down in Massachusetts. But mainly, when I was knee-deep in drug court in York County, one of the most valuable aspects of that was we actually got to talk to defendants. Because prosecutors are ethically barred from talking to defendants if they’re represented. Being able to speak to defendants and understand their mindset, and why they might have committed what they did, and looking at the reasons for what they did, I though that was important. I think that a lot of prosecutors — I hadn’t had that experience during my time, really, in Massachusetts, except speaking to pro se defendants, but you don’t get into the who’s and the why’s and the what’s when you do that, it has to be very much, “I’m not representing you.”

But also, the few criminal cases I did really shed some light on the fact that what defense attorneys do is difficult but it’s very important, but they’re just one side of the coin. On the other side of the coin you have prosecutors, and I just think that a prosecutor, the most experience you can get — you have to have somebody, I think, for district attorney, who has a very large amount of experience and understanding when it comes to what public safety needs are, what law enforcement needs are, and representing victims, and bringing about justice. I think any prosecutor who thinks they know it all needs to stop being a prosecutor because that’s one understanding that we all have to have as people — but especially as prosecutors — is that we can learn something new every day and we have to take every case on a case-by-case basis because none of them are the same. I think being a prosecutor is — you have to have dedication. One of the best things about when I went into civil work is that it made me miss being a prosecutor so much that I came back and that was a valuable thing.

I know my opponent worked as a prosecutor early on in his career, and I understand that and I respect that, I’m glad he did what he did. But at the same time, this has been something to me that it really takes almost a calling to take on this role because it’s so important. It’s important to you, it’s important to me, it’s important to everyone in our community, to have someone who has that understanding.

The Phoenix: Anything left unsaid at these forums or anything else you’d like to talk about?

Sahrbeck: Can we talk about cash bail?

The Phoenix: Definitely, let’s talk about it.

Sahrbeck: With cash bail, I know my opponent would like to see cash bail on low-level misdemeanors done away with. I’m not a proponent of that. I think the system we have in place now works to a degree.

The one thing is that, if you get rid of cash bail, the main reason we have cash bail is so that people come to court. It gives someone a stake in the game when it comes to actually showing up. You put something up, you want to make sure you get something back at the end of the case, so you come to court. If we did away with cash bail at the arraignment level, then a lot of people would be out on conditions or personal recognizance, and if they didn’t show up to court for the dispositional conference, what would we do in the alternative? Would it be someone who would be held without bail? Or another no cash bail situation, and then there would be no legal mechanism to actually get that person back into court? So what do we do, do we have an arbitrary, oh it goes to $100, $200, it goes to no bail?

My fear with doing that is, if it went to a situation where every warrant would be a no-bail situation, that would increase the amount of people in the jail probably exponentially—people held on bail on low-level misdemeanor offenses because they didn’t show up for court. What we have now is, if someone doesn’t show up to court, then the state makes a recommendation on cash bail that we think would be appropriate, based upon the circumstances.

Massachusetts has a law that says a prosecutor has to consider a person’s financial position. I think that’s something that we already do, though, but we do it with our discretion. So if you have someone who is transient who doesn’t have any means but doesn’t show up to court, who has a lengthy record, then having a low cash bail would at least try to assure that person comes into court. That’s the essence of cash bail, and that’s why I’m not a proponent of just getting rid of the system. The other thing, though, is that one of the things I saw in Massachusetts that worked effectively was dangerousness hearings.

The Phoenix: Harnish Hearings?

Sahrbeck: Well, in Maine, with the Harnish Hearing, you can ask for no bail if they had a capital offense. But we define capital offense by when the state was founded back in the 1820s. So if you looked at a system where you had Class A felonies or Class B felonies or multiple drunk driving offense or illegal firearm offenses—something that really has buzzers going off [that say] dangerousness, I’ve seen that system work, especially with domestic violence cases. Right now, if it’s not a capital offense, then all we can do is make recommendations of high cash bail. Well, that would target people without means more than people with means, and what it doesn’t really recognize is dangerousness.

What the dangerousness statute does in Massachusetts is that it, if someone is alleged to have commit a felony offense, and you can show by clear and convincing evidence after an evidentiary hearing that that person poses a danger (and by definition, “poses a danger” means there are no other conditions of release that would ensure the safety of the community) then that person can be held without bail for up to 90 days. And the state has 90 days to bring that person to trial. I have seen that work effectively on, in particular, domestic violence cases.

Sometimes you have as situation where you have a battered spouse who doesn’t have financial means, might not even speak English — I’m thinking of one who only spoke Russian, so she didn’t have any community behind her, she didn’t have any family or friends in the area. This defendant had come in numerous times on domestic violence offenses, and she had asserted her marital privilege numerous times. So the state couldn’t go forward with the case.

Finally, this particular case rose to a felony level and the prosecutor moved to have him held on dangerousness. I still remember he came into the district court and said to his high priced attorney, “Get me the F out of here.” And that guy didn’t go anywhere because the state showed he was dangerous. He was held on bail. And what that gave the victim the opportunity to do was get on board with the prosecution which, if he had posted that $50,000 or that $100,000, which he could have done, most likely it would have been very difficult for the victim to actually have that freedom to get on board with the prosecution. That gave an opportunity for the prosecution to work with the victim, and he was indicted and brought to superior court. I think he was found guilty and sentenced to state prison time. He never saw the light of day from after what he was convicted of until probably the end of his prison sentence.

The mechanism that we had there didn’t recognize the economic means, it just recognized — so yeah, that would be something that I would really like the legislature to take a look at. We would have to move mountains on it, because I think we would have to change the Maine constitution on it, which could be very difficult to do.

The Phoenix: Right now, [the purpose of bail is] appearance in court and then [people can be held without bail for] capital offenses, right?

Sahrbeck: Right, so that makes it more difficult. But I’ve seen cases that have come into court over here, with pictures that are so bad, with allegations that are so bad that person’s charged and indicted on elevated aggravated assault, which is a Class A crime. But they can post $50,000, and they’re out on $50,000. And yeah, there’s an argument to say, well, the $50,000 will assure the safety of the community, and there’s conditions that they don’t talk or they’ll lose the $50,000. But who knows?

One case I think of is Jared Remy. When I was in Waltham District Court, we actually kept a box of all his numerous [domestic violence] assaults that he had, on the chance that he might commit another one, because we were ready to go, like that [snaps fingers], if it was egregious enough, to show he is a danger. The police I knew said, “That guy is gonna kill his girlfriend,” because that’s how much, for lack of a better term, of a psychopath he was. So I still remember in 2013, when I stopped to get coffee on my way out to Alfred after I moved back out here. A guy I used to work with down in Waltham sent me a text and said, “Jared Remy killed his girlfriend last night.”

The Boston Globe did this unbelievable spotlight on how many times the system had failed his victims. And it’s because he was a danger, but they had a very high priced attorney. He was really never held without bail. There were some points that he was held without bail, but overall, he had a lot of means behind him to perpetuate his behavior and never got better and, unfortunately, there’s a woman out there that’s been taken away from her child by him and he’s in jail for the rest of his life. I think it is a system that we could look into and, like I said, it would be difficult, but I think it would recognize and help with public safety and with victims.

The Phoenix: Backing up to the low-level misdemeanor and bail conversation, there has been research and, I think, some pilot programs in some cities, showing that you have better results with appearing in court when you have things like caseworkers, text message reminders, transportation to the courthouse. A lot of these things that have to do with the reasons why people don’t show up in court.

From my understanding, given the seriousness of skipping your court date, there’s in reality a few number of people who would really choose not to show up to court. In many cases, they have a job, or they forget, or they can’t get there, or all of these other things. I understand that cash is skin in the game and your reasoning for it. If there were non-cash means for ensuring appearance in court, would you support substituting that for cash?

Sahrbeck: Yeah, and I can tell you, we do that all the time. I had a case last week where I think the defendants cash bail was set at $2,000. The attorney came up to me and said, “He’s been in jail for 30 days.” I said, “OK, do you have a motion to amend bail?” He said, “Yeah,” and I said, “OK, can he post anything?” He said, “He can post $500.” I said, “If he agrees to conditions and posting that $500, I’ll agree to the motion to amend bail,” and we did it.

I think at that point the punitive aspect of it had already taken effect, and I don’t think, at the end of the day, if there is a plea or he is found guilty on this, that he’s gonna do more than he already has served. He doesn’t have much of a record. So that’s the discretion of the [assistant district attorneys] that there needs to be. I would instruct our prosecutors to make sure they take that into consideration. There’s definitely conditions, we agree to Maine Pretrial [Services] contracts all the time. If it’s appropriate. But its a case-by-case basis and having a policy in place that goes beyond that can be difficult at times.  

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Brian Sonenstein can be reached at brian@shadowproof.com

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