As the primary election for the Cumberland County District Attorney vote approaches, Brian Sonenstein interviewed Democratic candidates Jon Gale, Seth Levy, and Frayla Tarpinian.
We published the interviews in full to capture the nuanced differences between the candidates and their approach to issues like ending cash bail, the decriminalization of voluntary sex work, and closing Long Creek Youth Detention Center. They’re pretty conversational, and quite a long read.
Here are the full transcripts of the interviews.
Editor’s note: These transcripts have been lightly edited for focus and clarity.
The Phoenix: Most of this race has focused on reforms for people with low level and nonviolent offenses, particularly people dealing with substance abuse and mental illness. What I haven’t heard too much about is how you plan to prosecute violent offenses in a concrete manner.
I know this subject hits close to home for you as someone who experienced sexual assault as a child, so I want to ask about your approach. How and why is your approach different toward violent offenses, and would you apply any of the lessons that come through in your reform approach to nonviolent offenses to violent offenses?
Levy: You’ve been to some of the forums and you’ve heard me tell my personal story, and that really is a driving force in why I’m doing this in terms of my desire to make the system work.
There’s generally three different parties in every case: the victim, the public’s needs, and the offender. And you’re right, a lot of what we’ve talked about has been how do we reduce incarceration and how do we get people who are coming into the system help and do it in a way that’s not racist and things of that sort.
But how do we protect the victims? In my story, the thing that was profound for me was that the detective had taken my case so seriously. The fact that he did that, and that the prosecutorial team did that, was huge to me. Ending up with a decades-long sentence — 50-year sentence for this guy — for me, the fact that that individual got that sentence, and that that was more significant than the questions of rehabilitation was really profoundly important to me.
There are going to be certain violent cases in which the needs of the victim absolutely outweigh the needs of the defendant.
I think the truth is that when we’re talking about predatory sex offenders, the honest truth is that I’m coming at it from the perspective that I don’t think they can be rehabilitated. I know that’s controversial to some people. That doesn’t mean I’m going to be closed-minded to it; I’m not going to let my personal experience drive decisions. But I know for me that that was really important and one of the reasons I was able to get healthy in my life.
It’s kind of like wildebeests gathering around their young, you know that process? They create the circle and they protect the young. In some ways, that’s what I feel like the criminal justice system has to do and I feel very strongly about that.
When we talk about certain violent offenses, I think there has to be aggressive prosecution. I do think that the sentences for some sex offenders has been too light. Sometimes you’ll have clients who will sit in court, and they’ll be looking at a sentence for a drug-related offense, and they’ll be hearing the sentence of someone who has some sex offense, and these sentences are comparable. They’re like how is that possible? I don’t have a good answer for them.
I don’t want to come across as someone who has this zealot-like approach to sex offenses and some domestic violence offenses as well, but those are really critical to me.
One of the things that’s been really interesting about putting my personal story out there in public is I’ve had a lot of people come forward to me — mostly women but not all women — who have said this is really important. And [they] have also said they’ve come to the system, whether it’s law enforcement or the prosecutor’s office, and they have not been heard.
One of my approaches, which I think is fundamentally different, is to train a dedicated victim-outreach team, which is different than our victim advocates who kind of do that as a trial assistance. I’m talking about real support for our victims so they’re not re-traumatized after these events, so they feel safe that they can talk. There are maybe support services they need that they get plugged into. And I think that’s really critical.
The other piece of that is I’m going to be frank with law enforcement that we’re going to go to trial on some of these cases even if we lose, if that’s the right thing to do for the victim.
You have to look at each case individually when it comes in. If you say, this is a violent case, this is a robbery, and therefore it’s a high-level felony and therefore we can’t do treatment, that is the wrong way to look at the case. You have to look at the underlying facts.
I have a client now that I’m trying to get into the Co-Occurring Disorders Court who's charged with a Class B felony robbery. It’s a case that involved a fake gun, but the point is it involved a threat and it involved a store and it was terrifying for the victim. My client is 21 years old, he is struggling with mental illness, serious substance-abuse disorders. He was completely intoxicated at the time, he wasn’t the principal — he wasn’t the person holding the fake gun — but he was clearly part of the process.
He has a family, he’s got young kids, he’s got a fiancee, he’s got a father in the picture, I don’t know where his mother is. That’s a case where you can say, well, it’s a robbery, it’s violent, and therefore there’s no way we’re gonna get this person in the drug court. Or you can look at the underlying facts and saythis was a violent episode, however this is someone who really has the ability to have a healthy and productive life, sending this person to prison makes no sense.
One of the things we do in the Co-Occurring Disorders Court is we meet weekly. There’s a prosecutor, a judge, defense attorneys, there are clinicians, a probation officer, case managers. When people apply to come into the court, we examine the case and the question we ask is, is this someone who is truly a kind of violent criminal offender that doesn’t have these other circumstances that drive [that condition]? [Is this someone] that essentially has developed anti-personality disorder?People with anti personality disorders are very difficult to bring back because somewhere along the way in their life, they lose the ability to be empathic and so the criminal thinking just kind of reengages itself over and over. Those are dangerous people and they’re really effective of manipulating systems.
I’m speaking generally, but you have to be careful because someone can come in and they can pass a lie detector test sometimes and they look good and they’re not. So you have to be careful about that. But you can also look at someone who’s gotten into trouble and has done something violent but it doesn’t make sense to just treat this as someone who's a violent criminal because this person actually really isn’t if we get them help.
One of the things that that’s pretty well known now is that brain chemistry changes with drugs, so it’s really difficult to look just at the present moment of what someone’s done and try to identify who this person is. If they’ve got a history, a long history of using drugs, their brain physiology has changed.
Some people on our streets and in our communities haven’t been sober for years and so they’re truly out of their minds, if you will. You have to look at this and say, if we can get this person sober, and then get them treatment, actually they become the person that they used to be.
The other thing we have to be really careful about is — and this is more true for women but I don’t want to be exclusive about it — but women who have been repeatedly abused, physically abused and sexually abused [and have ongoing trauma], who then try to medicate to deal with the trauma or finally act out. And to treat them in the traditional sense as criminals who have to do their time seems to me to be so unjust.
For example, I have a client who was in her teens. She was was kidnapped and held in a home for I think over a year, trapped there. She was 14-15 years old at the time, her parents out of the picture, the person who kidnapped her ended up going to prison for another charge for attempted murder — so a really dangerous guy.
She, in that period, is repeatedly raped. She finally escapes and, over the next 10 years, she is using heroin repeatedly. That’s the only way she can survive. She commits a burglary, (I didn’t represent her on this part of this case, I represented her after she violated her probation) but she commits a burglary to feed her drug habit and she gets a sentence of I think it’s four years, all but six months. Now she’s convicted of a burglary, she’s now spending some time in jail, she gets out on probation, and there’s no way she can succeed. So she fails. And now she’s doing a 4-year prison term. That is just fundamentally unjust.
The Phoenix: I want to follow up on your comments about victims and safety. In 2016, there was a National Survey on Victims Views of Safety and Justice, which found that nonviolent and violent crime survivors believed prison was more likely to cause a person to commit another crime in the future than it was to rehabilitate them, by a 3-to-1 margin.
Because most people are going to get out of prison at some point, how do we reconcile this with the use of prisons as a tool for promoting public safety and providing victims with justice?
Seth Levy: The reality is that in Maine, a lot of our sentences are probably in the 4-to-6-year range. It’s rare to have a prison sentence where someone’s in for over six years. It happens, but it’s a small percentage.
Which [speaks] to your point that people are coming back. You might protect the community for a period of time but then what do you have? You have someone who actually may be more dangerous when they come out.
Let me just first say, for a lot of violent predatory sex offenders — particularly pedophiles — I think the long sentence was important not so much, though partly, to keep the person off the street. But you know what I think the more important part of it was? The part of the victim. That’s the piece.
I’m not sure that the policy of incarcerating someone for the benefit of public safety is effective. I’m not sure I believe that. I do think there is something about this idea that, in some cases, there is a need for punishment and retribution just for itself. If you have a sentence where someone is a pedophile and they’re going to be getting out in 10 years, the prison system better be doing something to make sure when they come out they’re not just going back out, though I suspect they probably will.
I absolutely agree that if we are just sending people away to keep the public safe, that in itself I think is a losing proposition. But that really is different from my position. We don’t talk about punishment as restorative, but in some ways retribution and punishment is restorative for the victim in certain cases. I don’t think there are that many of those cases but they exist.
As a district attorney, once they go into the prison system, that’s up to the prison to figure out. However, my job is not to incarcerate people if we can do that alternatively. That’s the bulk at least in my cases, 80 percent of my cases are people who have been traumatized as children, they don’t have work, their parents have been incarcerated, the family’s broken down. That we’re going to somehow punish them for that is illogical.
If I was elected, the issue would be, what is the right result? That’s part of this process and sometimes it means — the goal should be doing what’s right and I do think that there are dangerous people that we need to prosecute. But that is on a case-by-case basis. I’m not creating two broad nets, if you will, it’s really more nuanced than that.
The Phoenix: Do you think that relapse should be penalized as a condition of alternatives to incarceration (probation, parole, diversion)?
Seth Levy: No. The drug court movement is a national movement now, and it involves judges, lawyers, social workers — it probably should involve journalists more, frankly, because it really is a community conversation. And what the science has shown us is what we’re talking about here is behavioral change. And we know that someone who has a severe addiction does not respond to punishment. It doesn’t matter.
That was the problem 10 years ago, 15 years ago. We would say, well, if someone commits a drug-related crime, we won’t have them do a lot of time up-front. We’ll do them six or nine months in the county jail, or maybe a year, and they’ll get out but they’re going to have a huge sentence hanging over them, 10 years, 15 years. That’s going to be so terrifying for them that there’s no way in the world they’re gonna use.
Well, that didn’t work, it was a complete failure, and people ended up going to prison because they relapsed.
What the science is showing us is people have what are called proximal behaviors and distal behaviors. The proximal is, what can they do now? An example of proximal behavior is to show up to court every week at a certain time, and as long as you’re not in a residential facility or a jail or have some medical disability, that’s a very specific concrete thing that you can do. So you start there.
The distal behavior would be something to the effect of, you’re actually going to be able to be sober without relapse for an extended period of time, or you’re going to be able to maintain a job, things of that sort.
What has developed is the process which involves kind of a combination of sanction and reward, and the sanction isn’t necessarily jail, by the way. The court that I sit on draws the line at dishonesty. Sometimes people will come in and they’ll pack someone else’s urine. And it comes out that you’re packing urine, that is a proximal behavior. That’s something where you can choose not to lie. If you’re lying, you’re not engaged in recovery because the first step to recovery is being honest with yourself, so it’s even not just about dishonesty to the court, but it’s also about being honest with yourself.
Punishing someone for relapse, the science has shown, is actually counterproductive. And this is one of the flaws in our system. Without structured support, when people have serious addiction issues, when we say to them, you come in, you get arrested because you’re using, or you come in on some nonviolent offense, some crime, violent or non violent, drug-related crime, and you go out on bail and the issue is you can’t use or possess and you’ve got to get counseling and none of that happens and then they get arrested and come back into the jail. That doesn’t work in the same way as giving someone a high sentence doesn’t work. They need the structure.
The example I use is like telling someone with two broken legs, you’ve got to run to first base. You’re not doing it. What our society has to learn and accept is that we have an epidemic around this illness and it’s going to take time effort and money to get through it. We can get through it, I think, but part of that means that we have to be willing to provide structured services to help people get there.
Ideally, it doesn’t happen in the criminal justice system. It happens before that. But because of the services, and what’s happening because they’re not there, is they’re coming into the criminal justice system. If they’re coming in, the answer’s not to say well, you messed up, you’re a bad kid or you’re a bad person, therefore we’re taking you away from your children and your partner and you’re going to jail for six months, and you’re coming back out and then you’ve got nothing, and now you’re sex trafficking yourself because you’ve got nothing, the whole cycle.
What we have to do is say, no, people are going to relapse, that’s part of the recovery, and we have to understand that. And people are not criminals. People don’t really want to relapse. I mean at the time that they do it they want to relapse, but they don’t want to relapse. They want health.
The Phoenix: What’s your position on jailing crime witnesses and victims to try to secure their testimony?
Seth Levy: I don’t like it. I was really upset when it happened in Augusta.
I will have to tell you that I haven’t thought through it enough to say I will never do it. But my immediate gut reaction when that happened was I was really upset by it. It seems like a case of the state losing the perspective of what it’s supposed to do.
I understand the thinking and the reasoning behind it, but at some point, you have to respect that people have their liberties and certainly forcing someone to testify who doesn’t want to testify has got to be destructive on some level, on some emotional or psychological level. If that’s what’s happening, there probably needs to be another way to do it.
It almost seems like a sledgehammer approach. And again, having not been in that position, I don’t want to commit to never doing it, but that’s my thought.
The Phoenix: Let’s talk about your grant-writing and fundraising proposals. I know you want to expand the capacity of the office to help people access services and make other interventions. Talk about your plans there a little bit more concretely and if you have any plans to be transparent about how that money would be spent and sought-after.
Let me answer the second one first: definitely. I really think transparency is going to be important. That’s what people want. I think that’s important. There’s going to have to be a balancing approach around protecting victims’ privacy issues but outside of that, it’s clear that that needs to happen.
Our district attorneys have been hiding behind the curtain for a long time and this is a public job and people need to do it. One of the things I’ve talked about is there are questions about the extent of the documentation, which I think is good, there is a managerial, funding piece to that that I think you have to figure out. But certainly, yes I think that’s important.
I ran a nonprofit for about 10 years, executive director of it, and my brother and I started it in 1989 — a little less than 10 years but about that amount of time. In that time, I raised a lot of money for the organization doing a lot of grant-writing and working with foundations and individual funders. We had this idea using narrative storytelling as a way to get middle school and elementary school students interested in expressing their voice in a way that gave them a sense of belonging and empowerment, if you will.
It was an idea that we funded. When we first started it, people were saying, well, it was a nice idea but how are you going to fund it? Almost 30 years later, the organization still exists out in San Francisco.
I will bring to the job an understanding of how to raise money and part of that is collaborating with other organizations, foundations, and government agencies to raise that money. Which goes to your question more directly of what I want to do, which is collaborate with agencies like Preble Street, MaineWorks, maybe groups like Catholic Charities, even the sheriff’s office, and come together and create development ideas. Maybe that we might approach private foundations, we might approach federal funding sources; there’s a lot of different ways, we might reach out to the public, there’s different ways you would do it, it would probably be a multifaceted approach.
Grant-writer would probably be more accurately described as a development liaison — frankly, not someone who is just going to write grants. An example is, I was over at Preble Street talking with [Deputy Director] Donna [Yellen], and they have these wonderful programs, and one of these programs they’re losing funding for. In fact, I think it’s one of the housing programs they have for teenagers and another one I think for the homeless. And they’re like, we’ve done this, it’s working, but we are struggling with funding and the state’s not supporting us.
I said, well, I think that if the District Attorney’s office was part of that, and we’re working with you, and we’re recognizing also that — you know, MaineWorks, [Founder] Margo Walsh, she’s very interested in collaborating, too. There are different groups and we would create this kind of comprehensive plan but also discreet with specific objectives. It would be employment, housing, treatment, and we would collaborate with these different organizations.
We would come forward with a collaborative proposal, which could be then driven by my office in the sense of doing the grant-writing, reaching out and collaborating with people. Raising money is a people-intensive process. The grant is the document that you present that says it all, but you don’t just get the money because you write the grant.
You are meeting with boards of directors, you’re meeting with people in the government, it is an intensive process. So, frankly, when someone says, I write grants, you can’t just write grants.
Maybe the most concrete example that might be helpful is that people come into the jail, they sit. And sometimes they get out and then they violate because they use again and then they go back in. You have a lot of people who are homeless, they come in they plead out to a charge, they’re back out onto the street, nothing changes, it just goes over and over and over.
But if we had an approach where the goal is to actually get people who come into the system plugged into sources for where they’re working, they get housing, and they get treatment, and they get back into the community, and we raise money for that, and then the great thing about the employment piece of that is it can eventually become more self funding. Margo Walsh will say there is 100 percent demand for people coming out of the jails. We have work for these people. We just need to make the link. There is going to be up front money that has to come into the system but I think we can get it.
The Phoenix: It sounds like you see it as a responsibility and you’re willing to go out there and use the clout of this office, and the proximity that it has to law enforcement, to lobby for services and different approaches. Is that correct?
Seth Levy: I’ve heard people say, we can’t raise the money, we don’t have the money, and I don’t accept that. I just don’t because I have experience raising money.
One of the challenges in raising money that every organization will deal with is sustainability and I accept that. We’re going to have to build legs underneath it, which is why we need to start talking about employment. If people are working and then they begin to pay for their own housing then it begins to funnel back in and there are ways to do it.
I think people want to take care of their own, they want to be on their own two feet, they don’t want other people giving them handouts. Margo Walsh, at 6 AM I was out there a couple weeks ago on a Wednesday morning, they’re out in her parking lot around a fire pit, there’s probably 25 guys and they’re just talking about the day. And then they’re talking about the work they’re going to go do.
Some of those guys just got out of prison, some of them have been doing it for a while. But there’s a sense of purpose and they’re going to go do their job and they have a community and 6 AM is early and they’re there. And people take pride in it.
I think the District Attorney is not only looking at policy. It’s not just an administrative job, it really also can be a community facilitator because you do have the authority of the job. You do have this, you can use that position to say we can make this happen because what you can say to a funder is — funders want to know how are you going to make this work — well, we have the incentive. I’m going to make this work and I actually have the authority of the law to put pressure on people to do it.
The Phoenix: You’ve said you’ve been researching safe injection sites, so my first question was, do you have any updates on your position? My second question is if you’re elected could you see yourself using the office’s clout and proximity to law enforcement to go to Sheriff Joyce and say, you really need to do Medication Assisted Treatment (MAT) in the jail.
He said just two months ago that they’re not doing it and his reasons are cost and inmate turnover and personnel. In my view, if you’re going to arrest people who are active users and then you’re going to put them in basically the drunk tank to make them sober up, that’s irresponsible. So I’m wondering your take on that.
I feel strongly that if MAT is clinically necessary, and recommended by a doctor, and someone is arrested, then MAT has to be provided. And it hasn’t happened yet but the people who are really leaders in this field nationally have said that this is a constitutional issue and it needs to be attacked.
The Phoenix: Yeah, I think it’s an Eighth Amendment issue.
So yeah, that’s an easy one for me. There may be administrative issues, but I think that those can get worked through. I have clients who are using methadone or suboxone and they go in and it’s immediate withdrawal and they get sick. Maine is really far behind in MAT than other states.
The Phoenix: I think it’s two jails and no prisons have it.
And the two jails that do have it are just experimenting, it’s limited. MAT is really important and some day, 25 years from now when MAT is in the jails, they’re going to say, how did we not? You’re right, it’s an Eighth Amendment issue, I’m with you on that.
The answer to the safe injection sites: Here’s my struggle with it. My struggle is it feels like you’re enabling someone to use. And when I think about it in my head, I say, well, someone who's a severe alcoholic and I say to a family member or friend, why don’t you come home and just drink at my house and I'll just provide you the place, bring your booze. And I’m allowing them to continue.
They’re safer. They’re not on the road, but I'm still enabling them to do it. And that, to me, is a difficult one. However, the people I'm working with, Colin and Patricia, asked me, Well, fair enough, [but] would you prosecute someone who was using in a safe injection site? And I said no. So they look at me and say, well, you support safe injection sites!
I conceptually am troubled with it from a recovery place. I still struggle with that and I’m still exploring it. Legally, it goes back to your question — do you punish someone for using? I think that’s the wrong approach. If you had a safe injection site and people are using, and the police arrest them, I’m not going to prosecute them for using drugs.
The Phoenix: So would you characterize your position as, you would not oppose safe injection sites if they came to Cumberland County but that you wouldn’t be a vocal advocate for it?
Seth Levy: I think that’s fair. I think that’s right. I don’t think I’m ready to go out and say we need to make this happen but if the community said, look, we’re going to do these, I certainly wouldn’t oppose that. And you know, in terms of the advocacy, I’m not there yet, I’m not sure that I won’t get there.
The Phoenix: You oppose using cash bail for low-level nonviolent offenses because of the racial and class disparities that come of it, but you think that it has a role to play for higher level offenses. How you reconcile that: this idea that cash bail targets people on the basis of their class and most often as a result of that their race. Is it not the same case for high level offenses? For instance, Harvey Weinstein just got out of jail, he surrendered himself to the police and paid his $1 million bail and went home on electronic monitoring.
Seth Levy: I think that’s a fair question and maybe there’s some inconsistency there. There are people who are dangerous to the community. Our constitution doesn’t allow them to be held without bail except in rare circumstances. I’m not willing to support this idea that anyone can be released no matter what.
When you look at people who are dangerous offenders, cash bail is one way to hold them, and they would be held on a high cash bail. There is a risk, you’re right, that’s true you still have the problem which you raise which is that someone who’s incredibly wealthy can walk. And that is imperfect.
But there is a need, in some cases, to keep people, to hold people because they are unsafe. That’s why I support it. But Washington D.C. is interesting to look at because Washington D.C. has more serious offenses than we do and they release a lot of people, but they have the resources for good supervision.
The problem that New Jersey is having right now is that New Jersey really was very forward-thinking and courageous, if you will, to decide to get rid of it. The problem is that the idea got a little ahead of the application and they’re having trouble financially and the risk is that the whole thing might blow up.
The Phoenix: That’s worth bringing up in this conversation because when we talk about ending cash bail we’re really talking in most cases about replacing it with something else, like risk assessments and electronic monitoring, which have their own problems with racial bias and so on.
Seth Levy: That’s absolutely right, which is why, frankly, most of the legislature is ready to step in on this but as a DA we can look at all those factors.
We would really be saying we can’t keep people in jail because they’re poor. This is where this whole idea of doing a triage upfront, a risk assessment and needs assessment, and then having somewhere for people to go to if they need it — not everyone needs those services but some may and say, look, this is where, these are gonna be available, lets plug this person into this.
I was in court today, it wasn’t my case but I was watching this case. There’s an individual there who has a long criminal history but the court a few months or weeks ago had issued a $400 cash bail. Guy can’t come up with $400 cash bail. And the state’s saying, well, its a safety issue, we can’t let him out.
And you’re thinking to yourself, it’s $400, what are you talking about? They filed a motion to amend the bail, the defense did and his attorney, and the only reason he’s not out is because he can’t come up with $400. What is that about?
If the person really is legitimately a risk then you have to deal with it in that way. But if you have a $400 cash bail, what are you doing? And that’s the problem.
But to satisfy the needs of the community, to make it work, we have to have certain things in place. Because if we go to cashless bail for low risk offenses, and things are not working, the public is not going to support it for very long. So we’ve got to do it right or else it’s going to fail. And then we’re going to be putting people back in. So we’ve got to be smart about it but I think we can do it in a way that works. And Washington DC, even though they have more resources, they’re showing us that it can work.
The Phoenix: Would your office create a conviction integrity unit to investigate prosecutions for claims of wrongful conviction and innocence?
Seth Levy: I certainly wouldn’t be opposed to it. You know, it would be a funding issue, but if that was something people wanted. I have no desire for people to be incarcerated and wrongly convicted. That is what you’re talking about, right?
The Phoenix: Yeah, and to broaden it a little bit, the DA’s office has no real oversight. It’s kind of its own fiefdom in the government. So a Conviction Integrity Unit is just one small measure of oversight. I mean, it would still be happening from within the DA’s office, but that’s what this is about: having some check on the DA’s power.
Yeah, I would certainly support an attorney general’s position doing it. I’m not sure, just from an administrative perspective, a money perspective, and a conflict-of-interest perspective, I’m not sure it makes sense to have the DA’s office doing that.
But, if there was — and maybe this is where it’s a nonprofit that comes in, maybe it’s the ACLU, I don’t know — but maybe someone wants to come in and have access to records. Again, you have to protect people’s privacy.
I’m surely not opposed to that. I don’t know why or where this happened where for some reason prosecutors felt like they had to just get as many people behind bars as possible.
Well, I think the risk/reward among the public has always been more toward aggressive prosecution. It’s that one guy that you let out who goes out and kills somebody that leads to a whole new set of mandatory minimums.
We are pushing this agenda, and that’s great, but we have got to do it right. Because people are open to it. And if we don’t do it right, then the pendulum could swing. Which is another thing I think that separates me from the other candidates, because I have so much experience working with people with substance abuse disorder, mental illness, I really understand those issues. Partly because i have an older sister who is severely mentally ill, I get it.
You talk to the good clinicians who work within that population, you can either — there’s a way to respond to the illnesses where you don’t get railroaded. There is a firmness that has to happen, you can’t just let it walk over you, you have to be firm about it, and I think I bring that understanding to this.
It’s remarkable how few people really understand these issues. You see it with child-protective cases, I do some child-protection work, you’ll see guardian ad litems who will make these recommendations, and people don’t understand what’s going on. But look, there are going to be mistakes that are going to be made. What’s interesting about Portland is that Portland is not so big that it’s got these entrenched bureaucracies. People are able to have movement here. It’s not a huge ocean liner — but it’s not a skiff either.
The Phoenix: The reform conversation in this race has focused primarily on alternatives for low-level and nonviolent offenses. I want to hear about your approach to prosecuting violent offenses. In the past few forums, I’ve heard you and the other candidates say you’ll be able to differentiate between someone who needs substance abuse treatment and someone who is a criminal with a drug problem.
Talk about that a little bit. How and why is your approach different from nonviolent offenses, and would you apply any of the same reform-minded approaches you have for nonviolent offenses to violent offenses?
Jon Gale: One of my opponents at an event in January at a Cumberland County [Democratic Party] meeting, said I’m about reform and treatment but then parsed out as a category domestic violence cases. [Another attorney] raised his hand and said, look, those same issues with substance abuse and psych issues, mental health issues, apply to domestic violence cases. How do you reconcile that? The answer avoided that question completely, but it hasn’t been asked ever since.
The job of the DA is to keep people safe. When there’s a victim, for example in a domestic violence case, you look at a victim and you ask the victim, first of all, what is it that you want?
If you’ve been a defense attorney for a long time or if you’re a prosecutor for a long time, that answer is:I don’t even want him to be prosecuted[or] as much jail or prison as possible and I never ever want to see him again. That’s a really broad spectrum, but you take into account what the victim says.
Now, let’s say a domestic violence case. I’ll suggest far more often than not a domestic violence case involves substance abuse and/or mental health issues. If the number one question is how do we best keep people safe, there can be no question that we do not ignore the same things that we’re talking about for nonviolent cases. It’s treatment.
Let's use the stereotypical case. The guy is physically violent with his wife or girlfriend and he uses his physical capacity as a leverage in argument. He can win an argument because there’s always this threat, spoken or unspoken, that you comply or I’m going to win the argument with what I have, and what I have is my physical force over your physical force.
He uses that argument more often when he’s inebriated than when he’s not. Or when he’s in a manic phase of his semi-diagnosed bipolar disorder. That's because both of those issues — his mental health issue and/or his substance abuse issue — play a role in proclivity toward violence or threat of violence. Why would we ignore that?
In the conversation with the victim, the victim might say, for instance at the other end of that spectrum, I want him in jail forever and I never want to see him again. There are ways that you can never see him again that involve all kinds of stuff, but probably not through the criminal justice system because it’s a Class D crime and we can have an impact for two years on probation, no more than that regarding a no-contact provision. But we can direct people how to do that.
Regarding the jail, the max jail — 364 days, depending on the assault — it’s highly, highly unlikely, so it’s far more likely that a judge is going to be more consistent with other cases regarding jail. But we would talk to the victim about treatment as part of the result of this case, and we also have to address the strength of the case, to prove the case.
When we talk about domestic violence, I don’t think we should be talking in terms of, I’m going to be “tough on violence.” What we’re going to be is effective. If you’re talking about a person who’s going to go through treatment and have no-contact provisions, it can wreak some difficult times on that person that are far harder than sitting in jail and can be far more effective over a period of time in reducing the risk of recidivism, reducing the chance that that person is gonna come back and go after the victim or somebody else — the next girlfriend, in my example.
In conversations with the victim, we should be talking about those things. Well, we appreciate what you want, here’s the reality regarding how much jail time: 364 days if he has little-to-no history. There are all kinds of different factors.
You’re still applying the same basic principle:How do we maximize the odds that this person won’t reoffend? How do we maximize the odds of the protection of the victim and the protection of society?
Change the facts a little bit, so now we’re talking about a far more difficult or awful case: a gross sexual assault. Let’s call it a campus sexual assault. Now you look at the person and it’s possible that part of the analysis is that this person has shown no proclivity toward sexual violence toward another person but was inebriated. You’d have to investigate that. [There are] psych issues perhaps. We’re now looking at the level of the impact on the victim as being greater, in different ways, and that the risk is higher if we fail on reducing the future criminal conduct [because] the conduct is so severe.
Not only that, the sentencing provisions require us to consider what message it sends society about like-conduct. Which is true of everything. So expectation on a gross sexual assault can be, look, you’re looking at a significant sentence of imprisonment, which to me tells all of the people on that campus — and people become aware very quickly — that [if] you engage in this, here’s a likely result. Treatment is still on the table but less so in lieu of punishment. Different from purely reducing recidivism, we’re talking about punishment. This is all complicated, obviously.
Then you change the facts again. Now, it’s not a date rape or campus rape; now it’s somebody who has engaged in a gross sexual assault with a child under 12 repeatedly, and this person knows exactly what they’re doing. This child’s life is altered immeasurably forever. And we’re talking about a Class A, it’s punishable up to 30 years, we have a lot to work with, the announcement to society and to everyone involved is this person is going to be punished pretty severely.
We do want, when this person gets out — if they’re going to get out. You might have a case where someone is 60 years old and they’re getting a 20 year sentence, but assuming the person’s going to get out —
The Phoenix: — most people do get out eventually —
Jon Gale: — the vast, vast majority of people are going to be released. And it’s our job to again protect society thereafter. Now, the current statutes do provide, in cases like I described involving a child under 12, for a lifetime supervision — there’s all kinds of tools we have to make people safe.
Do we look at the causes and inhibitions? Yes, but because of the nature of the impact on the victim and/or society, going forward, it starts to become more and more outweighed by removal for society and harder assurance that the person is not going to reoffend.
The Phoenix: So it’s like a case of an immediate threat, ongoing threat?
Jon Gale: Immediate threat and severe threat. A person has a long history of making what constitutes terrorizing, which is a threat in the future — if you do this I'm going to do this to you — never follows up, has no violent history, that’s a threat.
It might even be an immediate threat — he’s going to do this again and again and again. Not to be confused with something else, where there’s actual physical harm to somebody and there’s so many different factors. You have to look at each case individually.
All of these cases, part of the analysis is, what are our chances of success at trial? You have the domestic violence case where there’s no physical signs of injury corroborating the injury, and there are no independent witnesses, and there are no admissions. Classic she-said-this-happened, he-said-it-didn’t.
When we’re talking about plea bargaining, for some folks that’s kind of a dirty word. Plea bargaining is both sides assessing the risk of trial and the defense attorney is saying, my client is saying he didn’t do it but if he gets convicted he’s going to go to jail for sure, probation for a long period of time, there’s all kinds of different things, and convicted of domestic violence.
The state is saying, if we go to trial and lose, that guy walks out the door utterly inhibited by anything.
So you come to this agreement: alright, I’ll take the probation but I’m not taking jail. The victim wants jail, maybe. Maybe not. But their position is no jail; our position is two years of probation, no contact with her. What we’ve done there is we have protected the victim, we’ve ensured we have some protection of the victim, and society, and part of probation is no use of the substance from that night, and if we go to trial and we have a 1-in-5 chance of winning because it’s he-said-she-said, and all the defense attorneys say, beyond a reasonable doubt, do you know? we’re taking an unreasonable risk with the safety of that victim if we have a way to win concessions that increase the odds of safety.
The Phoenix: I want to follow up on your comments about victims and safety. In 2016, there was a National Survey on Victims Views of Safety and Justice, which found that nonviolent and violent crime survivors believed prison was more likely to cause a person to commit another crime in the future than it was to rehabilitate them, by a 3-to-1 margin.
Because most people are going to get out of prison at some point, how do we reconcile this with the use of prisons as a tool for promoting public safety and providing victims with justice?
Jon Gale: First of all, the 3-to-1 ratio of people saying they do not feel prison results in a reduction of recidivism is really telling. Because you can’t be a more informed person emotionally about these realities than someone who’s actually gone through it. That flies in the face of the traditional American tough-on-crime that we grew up with. I’m 51 years old and almost all of my life, until relatively recently, people have come to realize, oh wait, we suck at reducing crime.
We have been doing this wrong, philosophically, forever. It’s coming to that point. It is a remarkable moment when three out of four victims say "I don’t trust that prison is the answer."
But to better deal with someone you remove from society. So, someone with sexual assault against a child that I described. You’re looking at a very long prison sentence. What we would do, what we ought to be doing, is investing in treatment while incarcerated and immediately following incarceration, which we don’t do a good job of now.
We’ve started working in that direction, but we have to have the political will to convince our legislature and our governor in Maine, for example, and ultimately our people, that it’s money well spent. That it’s an investment, it’s an investment that pays off later. Our security matters of course, our sense of security, and if you have sex offenders who are going into incarceration and receiving treatment while there and receiving treatment immediately thereafter, we have a stronger sense of security.
Now that's good. But think of it in terms of money. For those who think all we need to do — these are not victims, these are people who are just out there, that same tough-on-crime mentality — if we talk to them about effectiveness and about cost efficiency, I think we make a better argument to those folks. This person is going to get out, they get a 10-year sentence, and they’re going to get out in eight-and-a-half, and when they get out because we’ve failed to treat and failed to set up a very strong transfer from prison life into society, they’re far more apt to reoffend than otherwise. And that’s going to cost us monetarily in a bunch of ways, nevermind the victim who’s the next victim.
We have to make that sale to the people who I would suggest politically tend to be center-to-right. We have to make it well. It is the job of the district attorney to engage in that conversation, that is what my position would be.
It is not the case that there’s a solution at hand. Whoever takes over this office on January 1 doesn’t have a solution to that. We don’t have it. We have to work towards that. And I think that is ultimately going to be the winning argument in our lifetimes, I’m super confident. And the same people who are really hard right, who are talking like we just need to pound those people, also will absolutely reject us looking at other countries and their successes, because that’s “not America.” They’re “not exceptional like we are!” You’re just not going to win that argument.
The Phoenix: [For them] it’s a personal responsibility issue, as opposed to a collective responsibility issue.
Jon Gale: That’s absolutely true and that’s why I think to win that argument, you have to look at it with pure pragmatism. Texas 10-12 years ago made the determination that for categories of drug crimes, nonviolent drug crimes, that mandatory minimum sentences were a really bad idea because it was costing them too much money and not getting the result that they wanted. When I talk to groups, I remind them, this is Texas! It’s Texas! We’re Maine! Come on!
They’re looking at it from this cold perspective and we need to do that, too, regarding the pull-yourself-up-by-your-bootstraps mentality. They're like,I don’t care what your circumstances were. You did it, you knew you’d get in trouble and too bad for you.
No! Don’t look at it that way. Look at it like, is that person likely to hurt you again? And if the answer is yes, then don’t do it that way. And if the answer is no, then just think in terms of what’s going to keep your family safer. And the way we keep our families safer is by investing in services to help move that person away from that activity.
The Phoenix: I want to know what your position is on jailing crime witnesses and victims to obtain testimony. Do you think that’s ethical and that it’s a tool in your toolbox, or are you against it?
Jon Gale: Okay, like, a person is charged with domestic violence and the victim says, he hit me, that’s why I have this shiner. Please arrest him right now, and they do. Then two months later, oh, I actually fell down the stairs, I’m recanting, or I’m not going to recant but I’m not going to make myself available for trial.
There have been instances where prosecutors have decided, to ensure that person is available to testify against this person, I’m going to incarcerate that person.
For me, the first question in those cases is protection of the victim and victim input. You don’t do what you just described, you just don’t do that. You have to keep the big picture in mind. And I understand, I think that was born out of, for some prosecutors who went in that direction, they thought philosophically, Well, overall I am keeping that victim safer because we’re going to get a conviction and we’re going to get things that we need for all of society this is better.
I understand that, but you do such harm to that victim. You re-victimize the victim, and you delegitimize your office when you’re threatening the population of victims and witnesses with incarceration if they change their mind and you’re inhibiting them from telling the truth to police in the first place because they think, wait, before I do this, I hear about somebody who got thrown in jail because they then later said they didn’t like the direction it was going in — all of those things work against what we want ultimately.
So no. For me, it’s not a tool in the toolbox, or it’s a really bad tool — a tool we figured out a long time ago is dangerous.
The Phoenix: Your position on cash bail is that you support ending it for nonviolent low-level offenses but you want to preserve it in high amounts for more serious offenses. Can you explain that position a little bit more, particularly given that the reason why you don’t support it for low level offenses is because it targets people on the basis of their wealth, and is that not still the case for high-level offenses?
Jon Gale: Well, in part. Let’s talk about the one thing at least the Democrats can agree upon: so a person is charged with X nonviolent offense and the bail commissioners set bail at $300 and now they’re before the court having sat in jail all weekend. I think all of the democrats would say, "Okay, what you don’t do is you don’t ask for cash bail because that person is going to sit in jail as a result." That ought not ever be our intention. It isn’t for the three of us, that’s no question.
Eliminating cash bail altogether means you’re doing at least one of two things: either you’re releasing a person with conditions without any cash, or you’re not releasing them at all. So you say, well, what the allegation says and what the evidence strongly supports is that this person attacked another person with a club. And it’s an elevated aggravated assault, Class A.
We can say, that’s easy, between the two choices, no cash bail. The end. Right? And you make the argument and you win the argument and the judge sets no cash bail and they sit.
Ratchet it down. That person threw a plate at another person and caused injury. It’s an aggravated assault, not an elevated aggravated assault, and there are all kinds of different factors. Person looks like they’re pretty capable of violence, they have some history. Are we holding that person without any bail or are we releasing them? It starts to get closer. And as we get closer down, if we’re going to start releasing folks without any monetary incentive to ensure that they’re going to stay within the court system and they’re going to abide by rules, if we don’t have powerful paid-for tools to ensure their compliance, than I would rather have what we have right now.
As we keep going down, person seems not obviously dangerous. Nevermind a murderer, we’re talking about somebody who’s done some horrible thing and under our cash-bail system they’d be a real clear hold-without. Well, what that is today is $200,000 cash or whatever.
If we had Super Maine Pretrial Services, where there are all these different ways where we’re on top of you at all times to ensure [you comply with your terms of release]. Short of that, I don’t feel that if we are releasing that person without a cash incentive, I don’t think we’re keeping people as safe as we could.
In an ideal world, we’d go cashless and all-or-nothing with a very powerful system in place. We’re not even close to having that system. That’s my ideal but we’re not there and not anytime soon.
When New Jersey went in that direction, the original response was, yay, lots of people are out of jail. And then, oh, now we can’t fund the services we have in place and they’re not powerful enough and you start to have instances where somebody is released and then goes and kills somebody. That is exactly what we don’t want.
Philosophically I can agree with that, if we have real clarity that real safety is going to be better promoted while eliminating the inequity in the bail system.
The Phoenix: If you were elected, would your office create a Conviction Integrity Unit to review and remedy wrongful prosecution?
Jon Gale: Obviously, the [Anthony] Sanborn case is the poster child for how that would have and could have and ought to have, in my view, stopped that prosecution a long long time ago.
I would be at odds with my friends in the [Attorney General’s] office about that. But from everything that I could see, Anthony Sanborn back then, if the information had been given to the defense... and even in that situation there’s a very high likelihood there would have been a conviction in the first place.
If I could go back in time, I would absolutely — our job is to do what’s right. So integrity in and of itself, that word means that you are promoting the truth. There is no place for competitiveness or vindictiveness in prosecution. It has to be clear as a bell, [an] utter search for truth.
And in so doing that, we start to talk about discovery issues, and playing by the rules and doing what’s right. Of course, I would support a unit. I don’t know what the budget situation would be with that. If we could procure the funds, certainly.
I think you might hear from the folks at the DA’s office now say, we don’t have a need for that because we already play by the rules. I will say, in my dealings with the Cumberland County DA’s office, I agree. They do play by the rules. They’re very good on discovery issues and they’re also very good about recognizing weaknesses in their case when they’re shown their weaknesses.
I can understand it’s almost an attack on your own integrity to say we need an integrity unit. But for a number of reasons — one, to ensure we’re doing the best that we can possibly in current and previous convictions and ensuring we don’t wrongfully convict people. And two, sending a message to our people that we serve, what we care about is doing it right the first time and if we did it wrong, we want to figure it out and right it. Of course.
The Phoenix: Because the DA’s office is so powerful, and because there really is no oversight of the office, is there anything else you have in mind to implement? Because I know you’ve expressed a desire for more uniformity in prosecutions in the office, so I’m just curious, on a policy level, what would you do to ensure that integrity in absence of an independent oversight body?
Jon Gale: I know every prosecutor well there. I think that some are absolutely utterly onboard with everything I want to do there, I know that. And I also know that one is an opponent, so he’s obviously promoting something very different from what I’m describing.
But what I plan to do in everything I’ve described [in forums and questionnaires] is promoting that integrity and is promoting treating defendants from the perspective of what’s going to reduce criminal behavior —ultimately what’s good for the defense.
That said, if you have somebody who has been charged with X crime and you look at the evidence, [what's] positive for the state and working against the state, and it’s a close call, ultimately the DA is responsible for that. It would be an ongoing discussion with each and every prosecutor when they come to cases like that, which aren’t quite as common as you might think, but they do come up.
My position is, the risk of wrongful conviction is always there. If you think that you, as a prosecutor, have a very small chance of winning, there’s a reason, you know? There’s lots of evidence that goes against you. That might sound naive to lots of prosecutors but it’s not.
I’ve done this for a really long time and you have to take that into account. I’ve heard the phrase, well, we just got to let the jury decide on this even though I have a very slim chance of winning this case as a prosecutor. That’s a very bad analysis.
One bit of oversight is, you know there’s no oversight per se — the AG’s office isn’t investigating the DA’s offices — but the judiciary has the finger on the pulse at all times. Under the current system, you must have a chambers conference with a judge if you’re not in agreement about what you’re going to do.
Before you go to trial, [you say] look, we’ve got some issues here that put a serious dent into the state's case and they don’t seem to be listening. They seem to be saying, oh, too bad it’s going to be a trial.
So they say, alright, let’s do a chambers conference. Now, the prosecutors at the Cumberland County DA’s office, some will end up with six conferences a day and some will have one in a week. And that’s the uniformity I talk about. I want to bring the uniformity in the approach that’s an important part of laying out this is what I want to do and I need constant communication with you to ensure we’re all on the same page.
But also when you’re going into chambers with the judge and you have a defense attorney who’s going to say, look, here are the problems, the judge looks at the prosecutor and judges know who’s who, they know where those leanings are, and it dilutes from the effectiveness of the office because judges start to assume the worst of prosecutors rather than assuming that they’re working in good faith. That really matters. I know, I’ve had conversations with judges about this very issue.
It’s not in an official capacity, for instance a judge doesn’t grade a DA’s office, but day in and day out we have pretty much the same judges that we deal with and those chambers conferences. You lay out the facts, you lay out the criminal history, you lay out the plea offers and discussion about it and you say, this is why we haven’t come to an agreement.
There are cases where you go to trial, where we agree to disagree, and judges in that situation, you know you can come in [and speak] to a judge and you can say, this is one we are going to have a trial. I have stuff. He has stuff. And his motivation is this and my motivation is this and it’s a trial. Doesn’t happen that often but it happens. And you have some defense attorneys that are way more aggressive and are willing to put their clients at risk in ways that I think is wrong but those are going to be trials.
The Phoenix: You worked as lead defense counsel on the Black Lives Matter case here in Portland in 2016. I’d like to hear your thoughts on the level of distrust that the protestors had with law enforcement and the DA’s office, and what you would have done differently had you been the prosecutor in that case.
Jon Gale: Number one, the police brought particular charges to the DA’s office, they were all obstructing a public way if I remember correctly. And then the DA’s office added charges. So, the level of distrust started that minute when defendants found out, wait, I have two or three charges, I thought I was charged with one.
The police department set the charges at X and then they were X+Y and Z. Don’t do that unless it’s the case that the police simply missed what ought to have been charged. I’m not saying you always agree with police but I’m saying, in that particular situation, I wouldn’t have added charges because it felt to everyone like it was leveraging. And to a degree it was, in my view.
Two, I think the sequence of events is very particular. The protest at the very end could have become a danger to the protesters and to others. And that’s when the police intervened. So there were protesters that night who intended to get arrested all along and thought they’d probably be arrested way earlier than they were. And there were protesters who had absolutely no intention of being arrested for very obvious reasons, because a criminal conviction meant a lot more to them.
What happened was there was a moment when people started getting arrested who were on that side they didn’t intend to, which created a group of all protesters [who had a] like, we’re-all-in-this-together strategy, and that’s completely understandable. So as DA, upon learning that, I think it would have behooved everyone to acknowledge that this was an expression of peaceful protest and parse out those folks who didn’t want to be convicted and negotiate on those terms. That really wasn’t done. The position of the DA’s office from the beginning was everybody is getting a conviction, which again created, I thought, an adversarial position that was unnecessary.
Then, when the notion of resolving this without convictions and with a restorative justice plan was raised, within the DA’s office that should have been accepted right away. It wasn’t. It was rejected and then accepted after a settlement conference that we requested and got. And the judge agreed that was a good idea and the DA’s office eventually agreed.
Then, [at] the restorative justice circle that was planned, the state wanted to be present with a lawyer there. Our position as counsel was that we didn’t want to be there; we wanted it to be an opportunity for the protesters and the police to have a conversation and engage in a restorative justice circle without the presence of lawyers because we felt that ratcheted up anxiety and created a situation where people were relying on lawyers to protect them, which necessarily is contrary to the plan. The conversation that I had with the DA’s office was, let’s not do that, that’s a bad idea, and that was something that was firm on behalf of the DA’s office. I would not have done that. I would have allowed all the parties involved to sit down together with a mediator and some observers.
Then there’s an observer issue. The observers that were recommended by the DA’s office were people that made a lot of sense to be observers — actually, to the benefit of the protestors. But because it was imposed without discussion, it felt as if it was from power and being shoved down their throats. Understandably, they reacted to that, the protesters did.
Then, splitting the protesters into two parts was imposed by the DA’s office. It's true that when you engage in a filing that the DA’s office can say, look, this is the way we want to do this, but you should negotiate that. We could have negotiated that stuff. Ultimately we did [on] the day of the circle and got to a point where every protester was ready to engage. And even at that point, the DA’s office said no.
I will say that there are folks in the DA’s office who engaged in the whole process who definitely learned from it, no question. And I think the whole thing could have been defused in a bunch of different steps. I loved the idea of the restorative justice circle because the protesters wanted their chance to say what they want to say and this provided them with that. But I also know that the Portland Police wanted to let the protesters know this is the position we were put in that day because we didn’t have notice of the protest and it’s a Saturday night in July in the Old Port, where it’s going to go for two-and-a-half hours. We didn’t know the duration and then it’s 11 at night and people are pouring out of bars having had lots to drink and then you’ve got people yelling at you.
It put the police in this situation, [like], now we actually have a situation where people could get hurt. If both sides had a conversation, I am certain it would have been mutually beneficial. Certain. And it’s too bad that the steps went the way that they did, and when I say too bad I mean really too bad. But ultimately as we know the protestors ended up without a conviction, the case that had been filed was dismissed. I just think it was an opportunity missed.
The Phoenix: This campaign has had a lot to say about the need to expand diversion and treatment outside of jails. I’m sure that in response to that line you’ve heard from a lot of people that there’s not enough funding, there’s not enough bedspace, there’s long waitlists, limited access to housing and health care, etc. This is a political race, you’re building a movement behind you, and the DA’s office has clout in the state. Do you see it as your role and responsibility to not just support these things but to actually go out and use that power with lawmakers and other politicians in the community to try to get things like medicaid expansion, affordable housing -- the things that would keep people off of your caseload if they had those resources and support. Do you see that as your role and will you do that if elected?
Jon Gale: At some point in the last year or so, Kevin Joyce, who is our sheriff — our chief law enforcer and he runs the jail — held a press conference on early childhood education. Not the typical thing that the sheriff is going to talk about. And he talked about how there’s a direct link between early childhood education and it’s availability and a reduction in criminal activity later.
That’s playing the long game. Pretty good. Undoubtedly, the District Attorney can look at crime in that full way rather than simply what sentences are meted out or what approaches are taken on the day of the arraignment. And we ought to, without any question.
I’ve had a lot of discussion in this campaign with city councillors and state legislators that start touching on this. Medicaid is a giant one, but they touch on all kinds of issues that aren’t traditionally discussion points for the district attorney. A major part of the role of the DA and in this case of the state’s largest county is, I think when you say ultimately it’s about safety and keeping people safe, and we engage in policies that in the long run reduce criminal activity, we’re doing a better job at keeping people safe.
Yes, I will without any question, it’s something I’m very comfortable doing. Those conversations I really enjoy, big picture policy discussion, and while it traditionally hasn’t been the role of the DA, we’re in a different place right now. We’re coming to understand the connection between all kinds of issues, from education to health care, that we didn’t grasp.
I’ve also had conversations with the School Board members. Mark Balfantz is a relatively newer member in Portland and that guy sees it from 10 miles away. He is on it. And we had great conversations on, to use the word, intersections between criminal justice and early childhood education.
I’ve had friends who are school teachers — my brother teaches in a school in Yarmouth. It’s enormous in a bunch of ways, not just about juvenile justice but about investing in childcare, early childhood nutrition, food security.
We keep coming back to this, but we’ve had a governor now for all these years that’s so against social services and we’ve had a federal government that, even when Obama was president, he still had Paul Ryan and others talking about the hammock as opposed to the safety net. It just sees the world in this very particular way that demonizes anyone in the bottom quintile or bottom two quintiles or people of color in this overly simplistic and disastrous way.
I think that we have to have conversations that ultimately come back to function and pragmatism and say if we’re investing in childhood education here, it costs far less than dealing with this person through the justice system and the department of health and human services and health insurance and other ways here, because we failed earlier. A smaller investment here means you get to a better place there. And I know it’s today’s budget for a benefit 10 years from now, but it’s worth it, here’s how.
So yes, absolutely, the DA should be engaging in those discussions with people, it’s an opportunity to partake in that conversation.
The Phoenix: Is there a case you had, either as a prosecutor or defense attorney, that you had at some point in your career that was a watershed moment for you, that fundamentally altered your view of the system and your role within it?
Jon Gale: One of the most important cases I ever was involved in was a watershed moment in a very particular way. Not a happy one.
I had a person charged with causing the death of a toddler. And she, from the day I met her, I didn’t buy it one bit. It didn’t make sense, there were so many different ways that it didn’t make sense. She had no history of violence and she described a sequence of events that made sense and it just didn’t make sense that she would have either shaken to death this child or struck her head intentionally.
She was charged with manslaughter because they wanted to leave open the possibility that it was a mistake, that it was criminal negligence. In that case, the reason why it was a watershed moment is because if you lose as a defense attorney she goes to prison for a very, very long time and she loses her child for good. And if you win, none of that happens. The sense was that you have this pressure to do what’s right and the pressure should be on the other side of the aisle at the exact same time. The prosecutor should be looking at it in the exact same way.
I learned a fair amount of information that the prosecutor didn’t know or understand, and, naively, I said to the prosecutor, 'Hey, you didn’t know this, but here are prime indicia that my client didn’t do it. Prime indicia. And really this case should be dismissed.'
The prosecutors position was, 'Oh, ok, well we can have a trial.'
I’m like, 'Wait a minute, I’m giving this to you, do the right thing.'
No. And then I received more information that was even more damning and one piece of which, which was really important, was that one of the primary investigators had given a synopsis of an interview, and the interview was recorded, and then you listen to the recording and it’s not what the person said. It was the opposite.
The question was, Was this child acting normally? This was the person in the car bringing the child to my client who was a primary care provider. Was the child normal? Well, she’s usually really chatty. Well, was she chatty? She was real quiet. Well, is that normal? Yeah, I mean she’s usually really chatty. Well sometimes, is she quiet? I guess sometimes she’s quiet.
Synopsis: she said the child was normal.
I mean, horrifying, and you keep going through what she said and she kept hedging.
Was the baby in a child seat? Yeah I didn’t really look. Well, you didn’t look? Yeah, I didn’t really look back there in the backseat. Well is the child normally in a child seat? Yeah she’s normally in a child seat. Well was there anything to lead you to believe she wasn’t in a child seat that day? Yeah I didn’t look.
Synopsis: she said child’s in the child seat.
This really mattered because the baby was in her mother’s arms, wrapped up in a blanket on a June evening when it was 75 degrees, because the child was unresponsive. That destroys the case for the state.
So you come to this point in pretrial where I’ve given everything I’ve given to the prosecutor, and he’s still going forward. [Now] I’m not going to give it to him, I’m just going to cook the investigator on the stand with it. So that kind of sense of competitiveness, it’s hard to describe what it is, just a misunderstanding of your job as a prosecutor in my view, it was almost naivete on my part that made me believe that prosecutors need to come at it from a different perspective than that person was bringing.
It was a watershed moment in kind of shedding that naivete. As a prosecutor, I dismissed a couple of cases in the middle of trial when my witness went off the rails in testifying in ways that exaggerated the evidence and was contrary to what id been told in pretrial. I was just like, I can’t rely on my witness anymore, I’m dismissing because that testimony just went on the record and I know its contrary to what I’ve been told before.
I think that most prosecutors do the right thing but you have to acknowledge that there are some that don't see it that way and that you have to make certain that the immense power. Remember, my person would go to prison for a long time and lose her child forever if that guy won his trial. The impact is immeasurable. That was this big awful case around 2008, 2009 in Caribou.
She was, thank god, found not guilty but the sense was we never should have that trial, that case should never have walked up to that point. That was one, there are way too many to mention. But that was one and when you talk about integrity, there it is.
The Phoenix: I would like to hear your approach on violent offenses. I know you have a lot of experience with your work right now in the DA’s office. It’s a very close subject for you because of your mother and her own case.
My questions are, how and why is your approach different from non-violent offences than when approaching violent offenses? Would you apply any of the same reform-minded approaches from non-violent offenses to violent offenses?
Frayla Tarpinian: I think we use violence as kind of this black and white line and I don’t see the world black and white, as much as I’m a literal thinker. I see the world very much in shades of gray.
For my current caseload, I am in charge of domestic violence, sexual assault, and elder abuse. Domestic violence is the lion’s share of that, that’s the work that really drove me into prosecution.
So the question for everyone is, where is the line? I don’t think there’s a hard and fast line. I’m not interested in creating check boxes; we’re not in the federal system, I don’t want to go there. You know, A + B = prison, if you’re in C you get this, and if you’re in D you get that.
I believe in broader policies but I also believe that it’s very important that the DA becomes more transparent, becomes more active in the community, that she is being seen (for my case), and is actually interacting with the community, is accountable to that community, that will answer questions about why things are being done. And so part of that is an open-door policy.
The Phoenix: Are there any cases that involve violence broadly that you would do something like diversion for?
Frayla Tarpinian: Yes, I’m open to that. I haven’t fully thought out a plan that would include that, to be honest.
I currently, in my practice, one of the critiques that I’ve heard of myself in forums, is I do use deferred-dispositions with domestic violence cases, especially in lower-level offenses. And that’s kind of the level of violence, the history between the parties, the age of the parties. A 19-year-old is very different than a 29-year-old, which is very different from a 59-year-old — there are different life patterns there.
So we try to differentiate. Community safety is about future-predicting, which we’re terrible at doing as humans. We think that we’re omnipotent, but we’re not. So we try to manage that risk. We have taken account the victims, his or her safety, also accountability for the actions and for the harm that’s done.
But also, what action should we have? We have very blunt instruments in the current justice system. We need to reserve those instruments for only the most serious cases. That’s why we have a higher system of proof. We need to not use the current criminal justice system and law-enforcement in general to solve petty disputes. We need to reserve criminal justice system for actual serious offenses.
The judges always talk about the three-legged stool where we have the victim and justice, community safety, and then the defendant and rehabilitation. And I know that’s been a very not-popular word in the criminal justice system for a really long time. I think we went away from it kind of in the 1970s and then as we went into the 1980s we lost that and completely gone away from it.
But we have to, for the vast majority, I’m talking more than 95 percent, probably higher than that, of people that I deal with in my practice and are dealt with in criminal practice across the state. Virtually all of them, with a very few minor exceptions, are coming back to our communities.
We have to be responsible that when they come back to our communities, that we allow them the opportunity to gain whatever they need to help them be more successful. Not just because we’re good people and that’s the right thing to do for people, but also because it’s the smart thing to do.
We want people to be functioning better. We want people to get help for mental illness. We want people to get help if they’re using substances and if they can’t manage that situation. We need to give them an opportunity to learn different ways. Will we fail? Yes, definitely. We’re working with people who’ve already — if you think about past history as the best predictor of future — we’re working with people who have a different ways of thinking, criminogenic thinking maybe, whatever patterns they are. We need to at least try because otherwise, what we’re doing has no reason. There’s no reason for it.
So we really need to focus on that trifecta. Accountability, justice for the victim, safety for the victim, community safety, and what can we do to make the situation better than when we found it. Do we succeed all the time? No, not at all. I’m the first one to say that we have things we need to work on. But I think there’s opportunities to work on that.
Where the line is? Now that is a very tricky question and it changes depending on the individual circumstances of the case. And that’s not just a cop-out because I don’t want to answer the question.
I’ve dealt with sexual offenders who have a number of victims who are very young, who’ve done a lot of harm, who are probably not going to be safely managed in the community. I would love to work on whatever issues they need in order to be safe in the community. I’m not willing to let them move about freely in the community because I have kids and I don’t know if you have kids, but there are a lot of children that we need to protect.
And sometimes the interest of the community does rise above the liberty interest of that individual. Again, I don’t do those cases. I can count on one hand that I’ve had that are in the double digits in the last 20 years. You know, we don’t get those sentences very often in the state of Maine. I don’t think that’s a bad thing. When I talk with colleagues, for example about child pornography — we call it sexually explicit material here but child porn is vernacular — in certain states if you have a count of that, if you have one possession of one image, which if you know anything about computers, you have an image on a computer you have multiple images because when you open it up there are temporary files, you can get a count for every one, even though you’ve only actually downloaded and attempted to look at one image.
There are some states where there’s mandatory minimums of 10 years for every image. That puts such a heavy hand on one side of the justice scale that it just delegitimizes the entire process.
I am not a proponent of child pornography. But we have to be logical about how we approach it. In this state, people do go to jail for having those materials. I think that’s appropriate. But that’s jail, not prison. They’re shorter terms. And there’s an opportunity to learn new ways of being and also just recognizing the seriousness of what you did and hopefully not doing it again at the end of the day.
It’s like magnets. You push one end —
The Phoenix: — they pull on each other.
Frayla Tarpinian: Exactly. They do. And you have to really be thoughtful how you approach those cases. I wish there was an easy way to say, I wish there were boxes we could use, that would be really really easy. But I think the people who got lost in between the cracks — and there are a lot of cracks in the system and people get lost in there - I’m not willing to give up.
We don’t have such an overwhelming number of people in our system that we have to give up that ability. Maybe we have 10,000 cases a year in Cumberland county.
The Phoenix: To what degree does the victim’s perspective play into this for you, when you’re representing a victim. Just to give you an idea, in 2016, there was a National Survey on Victims Views of Safety and Justice, which found that nonviolent and violent crime survivors believed prison was more likely to cause a person to commit another crime in the future than it was to rehabilitate them, by a 3 to 1 margin.
Frayla Tarpinian: I hear this every day.
The Phoenix: And so I’m wondering about what the victim wants. Where does that come into play for you, especially when we’re talking about violent crime? And as we’ve acknowledged in this race, treatment is non-existent and ineffective in a lot of these places and most people are going to get out eventually and come back into the community. Where does the victim’s perspective come in to this for you? Are the places where it’s overridden and how do you grapple with that?
Frayla Tarpinian: It’s tough because people who we are working with come in with very different perspectives. I work with people who for the most part, have important significant relationships with the person who’s committed the crime. And that’s a very hard — what you’re talking about grappling with — it’s very hard to deal with that.
Most of my victims tell me they want the violence to stop of course, they don’t want to be hurt anymore. But they also they don’t want the father of their child in jail, they may not be able to support themselves, they love this person most of the time, or they have a pre-existing relationship that is important to them. So you have to respect that. It can be very difficult.
What I always tell victims, my approach to victims, what I say when I first meet someone I’m working with, is “I represent the state, I don’t represent you. You have a right to an attorney.”
Now, practically speaking, attorneys are expensive, I am aware of that. But they do have that right and they should know that. And there’s only one thing that I promise victims ever. I say, “I promise you that I’ll tell you the truth. You may not like it and we can talk about that and I’m happy to listen. But we may at some point disagree. That’s okay. I will always tell you the truth.” That’s the only guarantee that I make in this business.
When I was a defense attorney, it was really important to me that my clients understood what was happening. They may not like it, they may have very limited options, but it was really important for me to understand exactly what was happening in each stage of the process because a lot of anxiety flows from just the unknown. That’s anxiety as someone in the system you can actually address. You can’t deal with what you can’t control but you can at least explain what’s happening. I try to do that, not in the same way, but with the people that I’m working with - victims, survivors, people that have different names for themselves — and try to meet them there.
I also have to step back because I don’t represent their interests. Make sure to balance what they want and what’s best in my opinion, and hopefully what my boss’s opinion is because I really serve on her cases. What is the goal of this prosecution? How do we meet that goal? How do we account for the crime without diminishing the gravity of the sentence?
If we had something other than jail, that would be great, but we don’t have that right now. How do we balance what the victim wants? And frequently, in domestic violence cases, by the time that the prosecution is over, frequently my victims are no longer cooperating with me and do not want me to proceed in the case.
But if there has been injury to that person, and usually in order to proceed with an uncooperative victim you need some more, an eye-witness or some other things that will allow you to move forward. If someone’s been really injured, I understand why and/or I accept their position about prosecution at that point. Maybe they have forgiven and moved on and they don’t want to deal with it anymore, that’s a completely understandable position.
But if somebody’s injured them, there needs to be a consequence. I don’t look for jail in every DV case, particularly ones where there’s a lot less of an injury, or if a victim comes to me and says, my wife is wonderful when she’s not drinking, and I hear that a lot, then maybe we need to work on that. And that’s what we have deferred.
There’s a criticism right now about using deferred [depositions] for domestic violence cases, there’s a place or that. There is a place for that. And we need to take into account the victim’s desires to not permanently impact their partners through the criminal conviction process. Allow people to get treatment if that’s what they need to, whatever issues that are leading to fuse the violence in the house.
What I tell victims is if you need a police intervention in your home, I have to believe that that was a really scary situation, there was a serious situation, it got out of your control, and I know that I am causing you pain right now because you’re not able to whatever it is, you know, support yourself, make sure that the kids get picked up from school… There’s a lot of different factors. But I have to keep my eye on community safety and make sure that it goes forward. It’s a matter of balancing that.
I think the most significant thing for me is I had a victim early on in my career. A very serious domestic violence case, extremely serious. I really believed that, had that situation continued, she probably would have been extremely injured or worse.
She was extremely uncooperative and she had told me that she did not want this fight, she wasn’t going to do this, she wasn’t going to do that. It got to be very difficult to prosecute. But we were able to move forward and, years later, she walked into my office to thank me.
So you have to be able to balance all of that. Not every victim is going to do that. I’m sure you could find 10 victims right now who really wish they never heard my name. And that’s okay. That’s okay. You just have to do your best and hopefully listen to victims, think about what the community safety needs, and also domestic violence, unless you’re talking about someone dead or seriously injured, the maximum sentence with [Class] B’s is 10 years. You’re usually dealing with [Class] C’s if it’s a multiple offenses with prior convictions, you’re looking at 5 year’s maximum. Run-of-the-mill Class D misdemeanors is one year maximum.
All of these people are coming back to this community. They may not be coming back to that partner, but they’re coming back to a future relationship. These people have relationships. They are us.
The Phoenix: They’re members of our community.
Frayla Tarpinian: Exactly. It’s the house next door, it’s the one down the street. And we hope that we can prevent homicides because that’s worst-case scenario. But that’s the reality, our reality. We have to make sure that people are in the best position to carry on and hopefully safely, and hopefully in a better way. Because most people don’t want to be involved in violence, whether they use it or whether they receive it, or whether it’s both - frequently it’s a mixture of all three. Nobody wants to be in a relationship where that’s happening. It’s a really uncomfortable place to be.
The Phoenix: I’m curious, I’ve heard you express this position on Long Creek similarly, that if there were alternatives out there, that you would be more in favor of those than the “blunt” tools that we have now. Is that correct?
Frayla Tarpinian: My concern with Long Creek, and I’m careful because I’ve said this before and people are immediately [like], Oh, you want to keep Long Creek open.
Long Creek is a building that’s owned and operated by the Department of Corrections. It manages a very small percentages of the children that are involved in the juvenile justice system. More than half of the people in Long Creek are committed, are adjudicated in there are actually 18-21 year olds.
Long Creek has a place right now. By law, by statute, by what we’re supposed to do with the juvenile system, we’re supposed to seek the least restrictive means. A step-down in the community and the facility would be a step-down for Long Creek as Long Creek is the most restrictive means available; I can’t think of anything more restrictive.
So if there’s a step-down, then if that’s an appropriate setting, we would send kids there. That would be the goal. Hopefully, we wouldn’t be sending poor kids there that are currently in custody but there would be this place where we could do real work.
Long Creek has good intentions. Long Creek wants to rehabilitate kids but there are people there, 18-21 year olds, they are kids but they are not children technically, that need a lot more than we can provide in the community, and even Long Creek can provide. And we send them out of state - which is, I can’t imagine how you send someone out of state for treatment.
The Phoenix: Especially a kid.
Frayla Tarpinian: Anybody! You get that disconnected. If you’re getting treatment, you’re making a community somewhere else and then you’re brought back here. And you’re expected to survive while the entire network you created is destroyed — that’s insane.
The Phoenix: And what message are you getting, where you’re being told that we’re exiling you to North Carolina for treatment, or wherever.
Frayla Tarpinian: New Hampshire, frequently. Absolutely. We had some programming, I don’t think it was enough. 8-10 years ago we had more options. I desperately miss those options. I would like to be able to put kids in those options. I had clients that would have benefited from that. I have juveniles that I’m working for now, there are kids that we work with that we would absolutely love to send in that setting.
The department has not been willing or able to take custody of kids in our system frequently, which is a problem because there are kids who could be fine in a community setting but the places available to them currently are not appropriate for whatever reason. And so yeah, I think Long Creek will in some ways take care of itself. I don’t see us functioning without some sort of locked facility at some point.
There are some juveniles that commit pretty significant criminal acts that if they were charged as adults would be serious, some of the most serious crimes we have. We need to make sure the community is safe but we also need to make sure that they’re being taken care of.
I’m also really concerned about that 18-21 year old population. I know the other models, a lot of states, bind over kids, a lot of states 16-year-olds, 17-year-olds in an adult system. I am absolutely 100 percent opposed into moving anyone under the age of 18 into the adult system.
I mean, could you come up with a set of circumstances that find those appropriate? Maybe… I haven’t seen it yet. We’ve never had a bind-over during my time of being a prosecutor in my office, there’ve been others but... It’s an extremely rare tool here, it should continue to be an extremely rare tool. I wouldn’t want it for those 18 to 20-year-olds in the adult system. I would be opposed to it. I would be opposed to anything that does that as well.
I know they’re not kids technically but they’re there for juvenile offenses, they’re young adults, their brains are not fully developed, so I am uncomfortable with any system that says, well, we’ll just take the juvenile population and we’ll put them into the community and if that leaves the 18 to 20-year-olds in Cumberland County or Windham, I’m not on board for that. I’m not.
We have to take into account everyone there. And if we could deal with kids who are 18 or 19, who are technically adults, and who are committing offenses or not being able to be successful in their probation, I would much prefer them to be in Long Creek than an adult facility.
The Phoenix: Obviously the DA’s office has a lot of power, not just in terms of discretion, but also political clout. I think it’s a very powerful office. We’ve seen that power being used to advocate for stronger, more punitive approaches to drug offenses and things like that. I’m wondering, in the case of what you’re describing with Long Creek, with it taking care of itself, or if we’re talking about with the adult system, if there were alternatives that would be great, but we don’t have them…
Do you see it as a role of the office to be a vocal proponent, not just to support these things and say, well, if they came to us, then I would be supportive. Would you go out and use that clout to push for those things?
Frayla Tarpinian: So the Maine Prosecutors Association is the organization that oversees it. It’s led by all the DAs. The way they do things is a more conservative method — not the group itself, I don’t want to label them, but they have their own policy items that they get involved with and things that they do.
I doubt that that group would take a strong stance in this matter. But as an individual DA, you set policy. You certainly have a louder voice than others because you have the power of the office. And you also have the, I don’t want to use the word mandate, but if you get elected, you certainly have people who are supporting you in the community who are the constituency of Cumberland County, in this case. So yeah, I do see that.
I think that we’re having the discussion about Long Creek. It’s loud, it’s out there. I have a nuanced approach, I appreciate that people don’t want to listen to the entire if’s, and’s, or but’s…
But yes, the DA has a role in that discussion. Absolutely. We have a juvenile prosecutor in Cumberland County who has really dedicated her life to juvenile justice and really moving juvenile justice in a positive direction. We have reduced the population of Long Creek down to almost a quarter or a third of what has historically been and shut down juvenile facilities. So I think there have been some positive steps. That does not mean we’re done but there have been positive steps and I think there is a lot of clout yes.
The Phoenix: My next question is do you think that relapse should be penalized as a condition of probation or participation in a diversion program?
Frayla Tarpinian: No. I believe in science. I can’t believe I have to say that in this day and age.
The Phoenix: You do!
Frayla Tarpinian: I believe in science and evidence-based practices. But I am not a scientist, I am a lawyer. I like being a lawyer. What science tells us right now about the best method and about how recovery actually works in real life is that relapse is a part of recovery.
So we have to have systems that take that into account and appreciate that. Period. We also need access to medically tested treatment. We need enough providers to be able to do that. We need whole wrap-around services.
But no, if you relapse one time you should not be kicked out of these programs. It needs to be looked at in a continuum. If you relapse you go straight back to jail, absolutely not, that’s counter-indicative in every study that I’ve ever read about this that I believe.
The Phoenix: What is your position on jailing crime witnesses and victims for testimony?
Frayla Tarpinian: Against it. I don’t think it’s a good practice. To my knowledge, it’s only happened in Maine a couple times. It happened out of my office. To be frank, I know what case they’re talking about.
We need to use every method at our disposal and in a kind and understanding way to get victims to cooperate with us. Or at least to obey subpoenas. I don’t think we should do that unless we actually have to.
And when I read about that, it’s very disheartening. I was involved in the case where that happened, to be totally honest, and I wish there was another way. I don’t ever want to put crime victims in jail.
That being said, it happens. But it’s happened once in the office that I’m in. I’ve never heard of it in any other office during my terms here. I know it’s picking up. I read an article yesterday about a prosecutor who’s starting to do it a lot but I don’t believe that person is in Maine, I believe that was in a different state.
The Phoenix: It happens more in other states. Probably not so much here, but…
Frayla Tarpinian: It shouldn’t start happening here. Should it be allowed in rare circumstances? I can think of a circumstance where it should be allowed. Should it be common practice? No. Would I like to see it more often than every 10 years? No. Do I ever want to see it? No. Do I think it should be eliminated entirely? I don’t like to eliminate options and again, I’m a lawyer, I can think of in this case there might have to be.
But the most distressing, one of the most distressing cases I dealt with was two kids, 14 and 11-ish juveniles who were taken out of their mom from another state and brought here to Maine because the juvenile court in the other state issued a warrant for them and they were held in custody in Long Creek until the state came and picked them up. The idea of putting two victims in Long Creek because their parents decided to abscond with them was inhumane. So as a rule, I don’t like putting anyone into custody.
The Phoenix So it wouldn’t be something you would have on the table at all times. But there might be a circumstance where you would…
Frayla Tarpinian: I would have to personally be involved in that discussion and I would have to sign off on it. It would not be something that would be like, oh, in this case you can do that. No. And I would hope to never use it.
The Phoenix: You are the only Democrat who supports ending cash bail entirely and replacing it with risk assessment. I’m wondering if you’ve heard some of the critiques of risk assessment tools and if you have any plans to mitigate those issues. For example, they are often based on data that has racial bias or their accuracy has yet to be proven. And to be clear, I think most people who oppose cash bail are willing to experiment. You’re not going to get this right the first time and so on and so forth.
But my question is, do you have any response to those concerns? Will you be transparent about these issues if there is a turn to risk-assessment? Will you be transparent about them and provide some sort of public way to evaluate those programs?
Frayla Tarpinian: Yes, I embrace cashless bail because I believe bail right now is really arbitrary. I believe there is an implicit bias in the current system. I think there’s legitimate critiques of any system.
I don’t believe cashless bail should be completely in a vacuum, like this is it, one and done. There’s a lot of good studies from across the United States - DC, Philadelphia - of a newer, more of a model that we would have to follow and I’ll get back to that in a second. But there’s a lot of places that have experimented with it. Like DC has 10 years of data. That’s helpful. So there are methods that we can use to evaluate it.
We would need to collect data on the issues, which we don’t currently collect on anything anyway. So any data is better than no data. But we would want to make sure, I guess if there’s a silver lining in the fact that we know nothing about our information, we could at least create a hopefully a good tool to collect data so we can take into account everything we’re taking into account. I think that needs to be created for cases no matter what, pre-trial and post conviction. I think there’s bias in the system already.
But I don’t think the critiques of cashless bail can be equally applied to the bail process currently. The bail process currently is shrouded in mystery because the numbers are arbitrary. They really are. So the problem might transfer but it’s not going to create these whole new problems.
The Phoenix: That’s the concern with people who are also against cash bail but who are concerned about, for example, Microsoft getting into risk-assessment technology and I think some people are wary of how the algorithms are developed.
Frayla Tarpinian: But we can control for it if we collect that information, which is good. And the benefit of risk-assessment is that they should be - and should is a big word, you could drive a bus through it - they should be objective.
I would like to tell you that I am aware of implicit bias and I am and I have been trained of implicit bias and I try to make myself aware. But our society, especially in Maine, is so permeated, you know, we are swimming in white supremacy. And that’s not something to be be ashamed of. That’s something that we need to accept and then we need to take the next step forward.
How do we control for that? I think objective tools can help with that. Are they the end-all be-all? No. There still has to be common sense, there still has to be a review of the facts, a review of everything that would enter into that.
I don’t think there’s going to be a magic bullet on bail. We should study it. We should study to see how are we allocating that, how are we allocating conditions, how do we factor race into these decisions. I would like to know the answer to that question. Because hopefully we get to a place where we are not factoring in race into these decisions and people can see that and feel that the system is fair. The system needs to be fair but people also have to be able to see that the system is fair to have belief its integrity.
The Phoenix: Right, and legitimacy.
Frayla Tarpinian: Both of those things are important.
So there’s two things that I want to do with transparency. One is, I would like to raise the visibility of the DA’s office, I would like to have an open door policy so we can discuss this. I also want to create an advisory committee to work with the DA about policies. So if we’re going to make these sweeping changes…
The Phoenix: And would that be like a community advisory committee?
Frayla Tarpinian: Yes, that’s the key. So stakeholders in the community who feel that the system needs to be reformed.
I am positive that I can’t tell you everybody’s position. I’ve talked to many people from a variety of backgrounds. Do I understand everything they’re saying to me all the time? No. And so I think it’s important to have that discussion and make those decisions in a deliberate manner. And we need feedback as well.
Again, it’s important that the system is fair and we have to make sure that is. But we also have to make sure that people understand that and believe that and see it. Are we going to catch everybody? No, but at least if people feel like there’s a place that they can have a voice and they can understand why decisions are being made, you can at least offer that and understand why. It’s important that people feel that it’s fair. That feeling of importance is just as important. So I think that’s the best way to do that.
The Phoenix: That would be great, especially since, one of the issues in the community, and I’ve lived in other bigger cities, and I’ve seen these things play out in places that have a little bit more of issues than Cumberland county. Not to say that Cumberland county doesn’t have problems, but the DA and prosecutors in general, there’s not a lot of oversight.
Frayla Tarpinian: There’s no oversight. There’s a decision from the federal bench about that. Like the DA’s decision on cases is the decision on cases. When you elect that person you have given them that power, that discretion.
The Phoenix: Well, one of the things I’ve been asking the candidates about is in the absence of an oversight mechanism, how do you improve that feeling of legitimacy in the public? You mentioned this advisory committee, the transparency, the data...
Frayla Tarpinian: Transparency. Transparency as in, not just the data, people have to see you in the community. You have to show up at their meetings. You have to be willing to talk to people. You have to be able to address situations fairly.
You have to accept criticisms. You have to accept criticisms fairly, and respond and not-respond. People have a right to not like what you do, that’s okay, you can’t change that. But they have right to know what you’re doing and why you’re doing that.
A DA’s an elected position, you are hiring an attorney when you elect a DA. You are hiring an attorney to deal with all of the criminal process. And when you hire somebody, you have the right to accountability. We’re not going to get everyone in Cumberland County to agree with what they should do on any case. I can guarantee you that every single case, there will be 2 sides or 4 sides and maybe 10 sides.
A DA should be able to take into account everything and be held accountable for their actions. That’s not something to be scared of. That goes with the job. That’s your job, to be held accountable for that decision. If people don’t like it, we make changes. That doesn’t mean you bend with the wind. It means that you make changes that are defensible based on good practice. And if they’re not, then you evolve your practice so that you do the right thing. Because ultimately the job of the DA is to do justice. It’s as completely amorphous as that and as completely concrete as that.
The Phoenix: If elected, would your office create a conviction integrity unit to investigate claims of innocence and wrongful conviction?
Frayla Tarpinian: No, because there’s not the ability to do that on a micro level with the DA’s offices. There is a movement to create that for the state level, for everybody. And I very much support that.
I helped start an innocence project. That was the first research-assistance on the innocence project at the Schuster Institute. It’s still going on. I’m very proud of that work.
Wrongful convictions exist. We have an obligation as prosecutors to investigate them, take responsibility for them, and correct wrong that we make. I fully support setting that up. I don’t believe that it should be done on an office-by-office case for two reasons.
Our offices are too small. Cumberland County is the biggest office and there’s less than 20 prosecutors in that office. You can’t investigate somebody in an office of 20 people. I wouldn’t trust that investigation being somebody in a small office. I wouldn’t want to investigate any of my colleagues and I wouldn’t want them investigating me.
I think it needs to be on a larger level because of the size of our DA office. If we had a DA office with 500 attorneys, which exist in the state, you could do that. But with the size of our offices and especially, in some counties there’s only 1 or 2 prosecutors in an office. It needs to be done on a larger level but yes, I support that.
The Phoenix: So, you’re saying it needs to be done independently of the DA’s office?
Frayla Tarpinian: I would prefer it to be independent. I think it would be helpful to have investigations be independent for all law-enforcement misconduct. That being said, for the DA’s office, I would support it to be more independent if we could, but that would have to be a creature of legislature. But I would welcome that. I think our convictions, they have to stand up to scrutiny.
The Phoenix: Is there a case that you can point to in your past that fundamentally altered your perception of the justice system? And are you able to talk about that?
Frayla Tarpinian: Yes, I’m going to talk about it vaguely. I have a client, she’s a female client who was accused...and I’m going to talk about two cases because these happened in very similar times in a very similar place so they’re kind of intermixed in my head.
One client had a bad criminal history, had a long period of no conduct, and then was accused of something relatively minor. But for the history, it wouldn’t be such a big deal. And I believe that she was innocent. I still believe that she is innocent. I actually know...I am confident that she is innocent, 100 percent.
I was not able to get the case dismissed, mainly based on the past. And it involved writing a check and there was a perfectly reasonable explanation as to why that happened but it didn’t matter. And so we ended up in jury selection and she was offered a deferred disposition and I took the offer because that’s what you have to do. And it was accepted. And that case to this day haunts me. It was a minor case, it ended up really well, it ended up with solely a conviction but it was not seen as conviction. And the reasons that the offer was accepted is that the person would be assured that they would be home with their family at Thanksgiving and Christmas. And that case haunts me because I believe she was innocent.
I’ve represented a lot of people. I was not a brand new prosecutor at this time, I was several years into prosecuting. I had represented a number of people. I don’t say innocent lightly. But I was convinced 100% that she was innocent. And the fact that she is now convicted of something that she did not do, it makes me heart sick. And that I participated, I went on the record against the recommendation. People have a right to make their own decisions. But the idea that the justice system is used or can be used…And I don’t think the prosecutor was targeting her, it wasn’t a personal thing. But just the history, this and that, I can prove that this is where you’re going to end up...it just made me sick, it made me heart sick.
That’s the worst case scenario in our system. Our system is designed so that we don’t not ever convict an innocent person. We accept that we lose people who have committed crimes but we cannot prove it to the level that we need it to prove it to to make the conviction happen. And we accept that loss. We accept that we’re going to lose some people that should be held accountable for the actions we cannot prove in order to preserve innocent people from ever having consequences. So that was really hard.
And then another case where I had a prosecutor do something that I did not appreciate. I don’t want to make known who it was. But all charges were patently false. Not even close. They didn’t pass the straight face test.
There were a lot of nasty dealings behind the scenes. My client was older. My witnesses were elderly and this person did not do the right thing, ended up procedurally screwing around with the case. The case went away, then they restarted the case later.
Eventually I did get it dismissed by court order because it was so wrong. But the idea that the person could be held up, just what my client was put through for ego. And there was no other, I can’t explain it other than that. There was no law there, there were no facts there. A crime did not occur. And it didn’t matter what I said or did or filed or wrote because a prosecutor has control over cases, the court can’t dismiss a case until after it’s heard the facts. We had to go through that whole process and because of some poor conduct we had to go through the process yet again. After that point, it just...it was just wrong. And that really made me angry.
The Phoenix: Can you distill from those cases what you took away? What is it after those experience and now that you’re running for the DA, if you get elected and you look back on those experiences, what are the concrete lessons that you pull from it to inform your work?
Frayla Tarpinian: What makes me a better prosecutor is that I was a defense attorney. There’s nobody that I have prosecuted that I haven’t sat next to in a very similar situation. And I haven’t spoken with that person, and I haven’t talked with them about options, I haven’t talked to them about their case and how that case affects their lives and their family’s lives and how to address it. And I think being able to relate to people on both sides is extremely helpful.
My strength is also that I come out of the prosecutor’s office and I have a lot of experience that’s really relevant to bring to the table for the DA’s office. Having both perspectives makes me relate to all sides which makes me more fair.
I’m not a career prosecutor. There’s nothing wrong with being a career prosecutor but I know that my experiences from my past as a defense attorney, especially from those two cases, I can really understand the weight and the power that the judicial system has. When it’s going along beautifully and we can protect our community safety and we hold someone accountable and they go through the Veteran’s Court or the Co-Occurring Disorders court and they come out and they thank us and they’re very successful, that’s amazing when that happens.
But when it goes wrong, and it goes wrong in ways that unless you’ve been incarcerated or subject to arrest or charged with a crime you can’t comprehend what that is, to live with that hanging over your head and the head of everybody you loved. Being grabbed off the street, thrown in jail for a day, a week, a month, whatever, and then being subject to all these things that are outside of your control creates a lot of anxiety. And if it’s misused… when it’s warranted, it’s a tough situation. When it’s unwarranted, that’s absolutely, we just can’t have that.
The Phoenix: Is there anything that this race hasn’t touched on that you think is important?
Frayla Tarpinian: One of the things we [candidates] never really touch on, because it’s really boring and probably nobody cares, is when you really look at what the DA’s office does on a day-in, day-out basis, it’s important that the person who is in that role understands how the process works. Because on January 2nd, the court’s going to open up. And we’re going to have in-custody due that morning because people would have gotten arrested over New Year’s eve holiday and they need to be seen. And you need to be able to have somebody to walk into that office who can keep it functioning.
Again, 10,000 cases a year, there’s less than 50 staff members, and that’s prosecutors and staff, that’s not all prosecutors. We need to make sure that the office still functions so that we are still able to maintain what we’re doing on a day-to-day basis well. At the same time, creating changes and new policies. There’s no time out because there’s a change in the administration.
Everything that has to happen has to happen on top of a very busy office. Not struggling to keep afloat because of mismanagement, struggling with the the numbers, the sheer caseload numbers are enormous in the state of Maine for all prosecutors. We’ve had more prosecutors out in the last two years. We had an investment in personnel which is needed. But our numbers are still much higher than the standards that are required. Or the [American Bar Association] standards that are national.
We need someone who can hit the ground running because the office is never going to take a break. All of these reforms are going to have to happen simultaneously to keep the office running. And there’s some really big administrative things that are coming up. The courts systems are going all digital, paperless in 2019. The DAs have to create a system for their computers to create and generate digital information. So immediately in 2019, that prosecutor is going to have to make some good decisions about how we are going to deal with this. How are we dealing with filing with the court? How do we get that digital information to defense attorneys? There’s processes in the works in every county. They’re different in every county. We’re definitely preparing for it, talking about it, and working it. I worked on the committee who is involved with that for a long time. I’m not on it currently but I was on it for years.
So it’s not just about making reform. Reform is important and needs to come. It’s also about making that office do what it needs to do, which is filing complaints, however the courts are going to accept them, and making sure there’s a body in every court that’s needed to be covered, cases are being screened appropriately and handled appropriately, that trials are continuing to be run and that people have what they need to do that.
The DA is not personally charging into every courtroom. The DA is the one that’s making sure that the courtrooms are covered, the cases are covered, policies for the cases are being distilled and doing that. I bring a lot to the table on that less exciting administrative side. I want to make the changes as well. But I think I’m the only one who really has an exact concept of what walking into the busiest DA office in the state is going to look like on January 2nd.
To a group of prosecutors, that it’s going to be a fairly large administrative change if it’s a Democrat. Because we are all talking about doing things differently than things have been done and that can be, that change is hard for anybody.
Brian Sonenstein is the editor of Shadowproof.