The coronavirus pandemic has made it harder to go to jail — or even court — and created a backlog for the state’s criminal justice system.

Courts initially closed at the start of the pandemic. Currently, no jury trials are taking place and in-person court hearings are limited — though many are taking place virtually.

To help alleviate the burden on the system, the Criminal Justice Commission on Mitigation of Pandemic Impact has worked on finding solutions. The group, comprised of local law enforcement and legal minds, recently issued five recommendations aimed at easing the strain.

The commission’s document recommends proactive traffic enforcement be “curtailed with a focus towards life-safety issues such as high speed, impaired driving, reckless/distracted driving, etc.”

Maeghan Maloney, district attorney for Kennebec and Somerset counties and president of the Maine Prosecutors Association, is a leader of the commission. She said the recommendation is not a free pass for motorists to ignore traffic laws, but a suggestion for police to not run the license plate of every passing vehicle.

“Let’s pull back on what we call proactive policing and refocus on reactive — cars that are speeding, any citizen complaints, any case with a victim, all cases where you are called to do something because of a concern that either a police officer or citizen is witnessing,” Maloney said. “We want to focus on all crimes that involve public safety. The whole idea is we want to keep the public safe.”

Area police generally support the recommendations, and some departments have already made changes in the way their officers enforce the law during the pandemic.

“Due to the pandemic we will be focusing more on the violations that adversely impact safety rather than every violation, in hopes of helping the backlog in the court system,” said Augusta Police Chief Jared Mills, a member of the commission. “We have already made this suggestion to our officers.

“We have to work in cooperation with our partners rather than against during these unprecedented times,” he added. “The other side of the coin is the courts and DA are going to be forced to simply dismiss all of our non-safety related summonses anyway, so if we can avoid putting them in that position then we should.”

Hallowell Police Chief Scott MacMaster has asked his officers to not write as many violations and has given them guidelines to only enforce reckless or potentially dangerous violations. He said officers have been encouraged to park in areas of Hallowell where speeding is a concern as a way to remind people to slow down and get their voluntary compliance — rather than write tickets.

In Winthrop, however, Police Chief Ryan Frost said he does not anticipate his department curtailing traffic enforcement. He said police did so in March for a couple of months but noted mask-wearing and use of sanitizer have made it safer for officers to do their job during the coronavirus pandemic.

Frost said his department will “follow the commission’s recommendations as best we can as it relates to reducing cases filed at court. It is a must.”

“But we will continue to actively stop traffic violators in an effort to reduce the traffic deaths for 2021, from the high number in 2020,” he said, citing 165 traffic deaths in Maine during 2020. “Winthrop was fortunate to not have a traffic fatality in 2020, and we will do everything we can in 2021 to keep it that way.”

Maloney said police are free to continue to enforce traffic laws as they see fit, pointing out that the commission’s areas of agreement are only recommendations — not requirements.

DIVERSION PROGRAMS

Another recommendation made by the commission is for people accused of nonviolent misdemeanors to be offered diversion programs. That means if they meet a certain set of requirements they may have the charge dismissed. In the event people complete the program before their court date, which increasingly possible as cases continue to be delayed, they may not even be formally charged in court.

The district attorney’s office already offers a diversion program option, Maloney said, to accused nonviolent misdemeanor offenders as a way to resolve their charges. Defendants have the choice to enter a diversion program or resolve their charges in court.

One diversion program, Maloney said, is a six-week program through Crisis and Counseling in which people receive case management and counseling services.  Another program, she said, works to help people caught driving without a license get them back.

Driving without a license or with a suspended one, Maloney said, are a large share of the caseload in Kennebec and Somerset counties. The majority of people driving with suspended licenses, she said, are in that situation because they have been unable to pay their court fees.

That can be a cyclical problem, Maloney said, as people who need money to pay off fines may decide to drive without their license — especially with the scarcity of public transportation in Maine. They risk getting pulled over and back in the system, with even larger fines and longer license suspensions.

MacMaster said a clemency day or week on suspended licenses would help.

“Maybe reducing fines and reinstatement fees by half would allow a lot of these violations to be prevented,” he said, “and allow people who depend on their licenses to get them back to take care of employment and family members.”

Diversion programs can also offer offenders with substance abuse issues access to free treatment, Maloney said.

Police departments in Augusta and Waterville and the Kennebec County Sheriff’s Office can refer offenders directly to diversion programs.

For Augusta, Mills said, candidates for diversion programs must have committed a low-level, nonviolent offense and they must have an illegal drug addiction that contributed to the crime of which they are accused.

“Essentially our philosophy, like most police departments, is that we focus our enforcement and incarceration efforts on the dealers while looking to collaborate with rehabilitating the users,” Mills said.

Other diversion programs offer offenders the option of performing community service to have the charges against them dismissed and a program that works with offenders and victims to try to address why crimes were committed.

While Maloney did not have the number of offenders who had been diverted away from court through diversion programs, she said it is a significant enough number to help ease the burden on the court system.

“I firmly believe that is how we reduce crime,” she said. “I think if we give people the real, concrete help they need, we no longer see them in the criminal justice system.”

Officials with Waterville Police Department and Kennebec County Sheriff’s Ken Mason could not be reached for comment on their use of diversion programs. In November 2020, however, Mason said the sheriff’s office was asking police departments across the county “not to go actively warrant hunting,” as part of efforts to reduce the population at Kennebec County jail in the pandemic and lessen the burden on the courts.

Other recommendations included allowing local police officers to fill judicial marshal shifts, increase the use of virtual hearings and consider a clemency day as is done in Vermont, where all unpaid fines are reduced by 50%.

The commission was first started by Andrew Robinson, district attorney for Androscoggin, Franklin and Oxford counties. In addition to Maloney and Mills, other members include Superior Court Chief Justice Robert Mullen, state Commissioner of Public Safety Michael Sauschuck, Governor Janet Mills’ policy advisor Tim Feeley, Penobscot County Sheriff Troy Morton, state Director of Adult Probation Susan Gagnon, University of Maine Police Chief Roland LaCroix, Warden Service Lt. Dan Menard and Col. Dan Scott, Department of Corrections Director of Classification Ben Beal, former executive director of the Maine Commission on Indigent Legal Services John Pelletier, Maine Association of Criminal Defense Lawyers Treasurer Walt McKee, and Deputy Attorney General Lisa Marchese.

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