Shortly after she was elected district attorney for Sagadahoc, Lincoln, Waldo and Knox counties in November, Natasha Irving sent a memo to assistant district attorneys and law enforcement agencies informing them of significant changes in how her office would prosecute crime.
Following through on a campaign promise, Irving said she would seek restorative justice solutions in all but the most violent cases.
Restorative justice is a theory of justice that emphasizes repairing the harm caused by criminal behavior, and one of its foundational principles is that the people affected by the crime should be able to participate in its resolution. Currently, restorative justice is incorporated into the criminal justice system in the four midcoast counties, primarily through programs operated by the Restorative Justice Project of the Midcoast, a Belfast-based nonprofit organization.
Restorative justice “has been shown to greatly reduce recidivism, which is one of our top priorities,” Irving wrote.
Irving based her policy on research by the Brennan Center for Justice, a law and public policy institute at New York University Law School. She also studied a model used by the Penobscot Nation on Indian Island that relies on “the most updated criminal justice science, which tells us a multi-faceted approach [works].”
Prosecutors would make more use of mental health and substance abuse treatment — including a proposed drug court in the midcoast district — and consider the “collateral consequences” of jail — loss of MaineCare after 30 days, both for the offender and the offender’s children, potential loss of employment and housing, among other necessities — when making a decision to prosecute or seek jail time.
Jail as a last resort
Among the more controversial changes, Irving said prosecutors would seek deferred dispositions for all shoplifting offenses and “every appropriate matter for defendants age 25 and under,” as well as first-offense operating under the influence charges in which the operator allegedly tested at less than a 0.11 blood alcohol content.
For a charge of operating under the influence with a test that indicates a low level of impairment (less than 0.11 blood alcohol content), the prosecutor will seek a deferred disposition of six months, to include substance use counseling.
If defendants have “a good outcome,” they will plead to the lesser charge of driving to endanger, pay a $575 fine and serve a 30-day license suspension.
A “bad outcome” would prompt an “open sentencing,” meaning prosecutors could ask for, and judges could impose, any sentence within legal guidelines.
“Alcoholism is a much stronger disease than jail or a fine is going to cure,” Irving said during a recent interview. “Criminal justice can try to divert them to treatment. Jail has been proven not to be effective. Jail and prison are for public safety, not to try to change behavior.”
Deferred dispositions and other restorative justice measures are not appropriate for sex offenses, serious domestic violence offenses or other violent offenses, for high-risk reoffenders or for those charged with child pornography crimes.
She charged assistant district attorneys with continuing to prosecute “serious violent and dangerous offenses” in a “zealous” manner.
But for “non-violent and non-dangerous offenders,” she wrote, jail should be a last resort because of the cost to taxpayers, and because jail “is one of the greatest infringements on personal liberty imposed by the state of Maine.”
Not an easy sell
Just four years after being admitted to the bar, Irving and her restorative justice platform won an upset victory over Republican Jonathan Liberman, who was appointed in 2017 to replace longtime District Attorney Geoffrey Rushlau, who had been appointed to the District Court bench by former Gov. Paul LePage.
But Irving, a Democrat, found the reality of implementing restorative justice to be somewhat controversial among law enforcement, and a bit more difficult to sell in some counties than being elected had been.
The transition was particularly difficult for law enforcement in Sagadahoc County, Irving said — in part because Waldo County is home to the Restorative Justice Center and Irving has “roots” in Knox and Lincoln counties.
Irving grew up in Waldoboro and attended school with children whose parents “were in and out of jail,” she said. She later studied philosophy at a Jesuit college.
“Jesuits believe in liberation philosophy,” she said. “I met a lot of people who had big ideas of a better justice system … I’ve always believed in restorative justice. Our justice system is great and works really well for certain types of crime, but [for] so many types it’s disproportionately punitive to poor and marginalized people. I began to wonder, what would my rural Maine community look like [with restorative justice].”
Some of Irving’s plans — deferred dispositions for first OUI charges, for example — created what Sagadahoc County Sheriff Joel Merry said were initially “disgruntled” officers. Merry suspected there had been miscommunication, so he invited Irving to speak at a department meeting.
Deputies had questions and discussed with Irving some of the policies, but Merry said that following the meeting, several deputies thanked him and said, “I see where she’s coming from.”
“Cops will always gravitate to the worst-case scenario,” he said. “It’s not a bad thing — we have to be the guardians of safety, and have constant vigilance … We realize the importance of taking drunk[en] drivers off the road. We also realize there’s a pretty significant cost to a drunk[en] driving conviction. This business around … not prosecuting [a blood alcohol content of] 0.08, 0.09 … We can bemoan it, but it’s been happening in Cumberland County and York County for a long time — we’re just not used to it in the Sixth District.”
Deputy Chief Robert Savary of the Bath Police Department said that he and Chief Michael Field are “just still playing the wait-and-see game.”
Savary said some of his officers have expressed concern about the end result after they arrest someone, but that the department will continue to enforce laws as they always have.
“Down the line could it lead to frustration? Yeah, but we’re still in the feeling-it-out period,” he said.
“We’ve been telling the guys, ‘They’ve been dealing with this kind of thing in Cumberland County for years,’” Savary said. “We’ve always thought it was crazy, but now we have somebody in here who is not going to prosecute as aggressively. The voters decided. Our philosophy is, if they’re drunk and operating a motor vehicle, we’re going to hold them accountable and arrest them when appropriate. Where it goes from there is kind of out of our hands.”
One of the more notable decisions Irving has made since taking office was to decline to prosecute 25 peace activists arrested for protesting outside Bath Iron Works during the christening of a destroyer.
“I can see the reasoning behind it, and it is at their discretion,” Savary said. “I guess we really don’t have anything to complain about.”
Impact on police
Rockland police Chief Chris Young said his department is not changing any enforcement practices as a result of the district attorney’s policy changes.
While it’s still too early to tell if there will be any ramifications from the new policies, he said he supports the direction Irving is trying to take with restorative justice.
“There is value in what she is trying to do,” Young said.
“Change is good and sometimes we as law enforcement are reluctant because we want to continue to do what we do, but it is working,” Richmond police Chief Scott MacMaster said. “I think, and hope, we will see a lot less repeat offenders because of voluntary compliance, education and opportunities for extended probation and deferred dispositions.”
MacMaster said the deferred dispositions he’s seen come from Irving’s assistant district attorneys have had “pretty good conditions behind them saying, ‘If you do offend again, this charge will not be expunged.’”
He said officers are also trying to “screen” cases more “and give people the opportunity to make things right before they have to go to court.”
For example, he said that instead of writing a summons when an officer encounters an uninsured motor vehicle, the officer might say, “If you come in in a few days and show us insurance, we won’t send [the summons] in.”
Merry said he has no problem with deferred dispositions, but looks forward to seeing whether, when a defendant returns with “a bad outcome,” the state follows through with the threatened penalty.
Merry also agreed with MacMaster that diversion before criminal charges are filed already occurs on a regular basis. He said several years ago, as the country emerged from a recession, he noticed that the state was collecting less in traffic fines even though the amount of the fines had increased.
“Police officers were making the decision, ‘I’m not going to write you a ticket for $250 for [expired inspection]. I’d rather you go spend the money on a new muffler,’” Merry said.
Irving said she is not critical about existing law enforcement policies, and said officers have a very different mission than her office.
“The police have to make in-the-moment decisions,” she said. “They have to do their job on the spot. [If the assistant district attorney declines to prosecute], it doesn’t mean we don’t believe a crime was committed. It doesn’t mean the police didn’t do what they were supposed to do, or won’t do it in the future.”
Of the decision not to prosecute the protesters at the Bath shipyard, she said the decision would have been different had they trespassed on shipyard property.
“But look at the Black Lives Matter protests in Portland, or the latest BIW protest,” she said. “None of them ended well for the prosecution. Plus, I do believe people have the right to protest.”
But she said the amount of taxpayer money that would be spent prosecuting 25 Class E nonviolent crimes isn’t warranted.
A work in progress
Irving also said prosecutors can’t always predict who is a high risk for a deferred disposition. For example, last month, 31-year-old Corey Ater of Phippsburg, who was on a deferred disposition, negotiated by Liberman in October, for operating after revocation, was arrested for allegedly attacking his estranged wife with a knife in front of a 4-year-old child.
“No one had him on their radar,” she said. “What he did was horrible, but it wasn’t something we could have predicted from his history. It was a horrific crime and because of the deferred disposition, he’s in for two years on the OAR.”
Irving said she is still crafting and refining her policy, and most recently added a requirement that all sexual assault cases must be run by her personally before they are declined.
She also amended the policy following receipt of a letter in April from Mothers Against Drunk Driving, objecting to the use of deferred dispositions for first-time OUI offenders.
In the letter, MADD National President Helen Witty requested that Irving’s policy only apply to situations in which the driver was not involved in a crash, had a valid driver’s license, had no children in the vehicle, had no previous OUI arrests and included the use of Ignition Interlock Devices for a minimum of six months.
The transition to restorative justice begins, Irving said, with evaluating what resources are already available, and then beginning to look at funding sources for additional programs. Those conversations, about public and private funding, have already begun, she said.
“We hope within the next two years” to have a full program underway,” Irving said.
BDN writers Abigail Curtis and Lauren Abbate contributed to this report.
Follow BDN Bath-Brunswick on Facebook for the latest news from the Bath-Brunswick area and Lincoln and Sagadahoc counties.