By Jordyn Haime, Granite State News Collaborative

Being in the right state at the right time likely saved Ronald MacKinnon prison time when he made the decision to not seek immediate medical care for his wife.

Debbie MacKinnon, 52, was experiencing what then-71-year-old Ronald had thought was a seizure in the front seat on their drive from Keene to Brattleboro, Vermont, just across the border. He also knew that she had a history of seizures and drug overdoses, which combined with the seizures, “may require emergency medical attention,” he later wrote in a court narrative. But instead of seeking immediate medical care for Debbie, he ordered his daughter not to call 911 and instead pulled the car over to splash water in her face.

They continued on to Brattleboro until MacKinnon’s daughter told Ronald her mother was dying. Despite being only a mile away from Brattleboro Memorial Hospital, he turned around and drove twenty miles to Cheshire County Medical Center in Keene.

"By the time I arrived at the Cheshire Medical Center,” MacKinnon wrote, “Debbie had died.”

In Windham County Superior Court in Brattleboro, MacKinnon was charged with involuntary manslaughter, but that charge was dismissed. He pleaded guilty to reckless endangerment and failure to provide emergency medical care. 

MacKinnon’s case is an example of how a person’s split-second decision can permanently alter the trajectory of their future. Had MacKinnon been prosecuted in Cheshire County, where he’s from, he would almost undoubtedly have been given a traditional charge, such as misdemeanor reckless conduct, said County Attorney Chris MacLaughlin. A person convicted of misdemeanor reckless conduct in New Hampshire would face up to a year in county jail.

Instead, MacKinnon, who is now 73, was sent to a Community Justice Center (CJC) in Vermont, where he is currently on probation and expected to complete a restorative panel program at the Brattleboro CJC. Similar programs are not available for adults in Cheshire County.

“It was a very unique case that presented us with a unique set of circumstances that to my recollection we’ve never seen in the office before,” said Steven Brown, a deputy state attorney in Windham County. Factors taken into account were MacKinnon’s age and the fact that he provides care for another family member.

“We weren’t going to achieve any other sentencing objectives by putting him in jail. We believe that this is an offense that he will probably never commit again and sending him to jail was not going to be particularly productive,” Brown added. “We try to fashion sentences that are tailored to the particular case.”

According to the Brattleboro CJC, MacKinnon was scheduled to complete the program in October. Ronald and his daughter, Sara, did not respond to requests for comment. 

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As protests against police violence and mass incarceration continue across the country following the police killing of George Floyd, many activists have been looking for new forms of justice that address and repair harm while creating safer communities and reducing the prison population. Many, including the national Black Lives Matter organization, see restorative justice as the answer.

The United States incarcerates more people than any other country in the world at a rate of 698 per 100,000, according to 2018 data from the Prison Policy Institute. That’s nearly 1 percent of the country’s population behind bars, for a total annual spending of about $182 billion per year.

Restorative justice asks, what if there was a different way to repair the harm the crime has caused? What if we center the victim and ask what they want, how their pain can be addressed, while also focusing on holding offenders accountable and addressing the reasons they committed a crime in the first place?

Communities in Vermont were asking those same questions back in the late 1980s, when the state’s correctional facilities were experiencing severe overcrowding and probation officers were overburdened with cases, said Derek Miodownik, restorative and community justice executive at the Vermont Department of Corrections. Court sentences were getting longer and harsher, and nationally, incarceration rates skyrocketed as a result of new drug policies. 

“The public was not particularly favorable in the mid to late 80s about the job that the department of corrections was doing,” Miodownik said. “Communities were saying, ‘we want to be directly involved with holding people accountable.’”

Then-commissioner John Gorczyk headed the effort to create a reparative probation model, based on the idea that probation should be more than just having someone watching over you, that it should be reparative to the community. That later gave rise to reparative boards, which continue to be used in Vermont today for certain offenses.

“No longer would it be a probation officer, but from the notion of a community justice center,” Miodownik said.

Vermont is viewed as a national leader when it comes to alternative and restorative justice: the state has a robust set of programs where restorative principles are used, from pre-court direct referrals, to post-adjudication, to prisoner reentry. Each center provides a variety of services from restorative panels like the one MacKinnon is currently working through, to court diversion, mediation, reentry for former prisoners (known as Circles of Support and Accountability, or COSAs), and other community resources. According to some estimates, Vermont is the only state in the nation with a community justice center in every county. It ranks high nationally on a study that measured how many diversion statutes each state has in place. Community justice centers and court diversion are both written into Vermont law.

According to the community justice statute, each community justice center should have an advisory board of at least 51 percent citizen volunteers, use a variety of community-based restorative justice and dispute resolution approaches, and provide educational resources to the community.

“It helps that we have restorative justice in statute because that way, there is some discretion, certainly, but it limits discretion for some of our programs and some of youth services’ programs as well,” says Mel Motel, executive director of the Brattleboro CJC.

The statute does not specify which crimes are eligible, but it does prohibit cases of domestic and sexual violence and stalking from from being referred to community justice centers, except in societal reentry programs. Individual centers say they accept misdemeanor and felony non-violent crimes, anything from petty theft to possession of controlled drugs, and multiple offenders are accepted.

“I don’t like blanket rules for the most part. I like to look at each case individually, and the restorative justice cases work best when there’s community involvement and we’ve developed a way for the offender to talk to the victim,” said Tracy Shriver, a state’s attorney in Windham County, Vermont. “I think that having general guidance is a good idea, but I hesitate to say specifics are a good idea.”

While New Hampshire offers court diversion programs for juveniles and adults -- in which offenders are given the chance to have their record expunged upon completion -- they are inconsistent statewide. Juvenile pre-court diversion is written into statute and there is at least one program in every county, but according to the state’s juvenile diversion network, not all police departments follow the statute to a tee. 

There is no law regarding adult diversion in New Hampshire, and in three counties, there is no option for adult diversion at all. Some programs strictly take first-time offenders, while others will accept multiple offenders. And while juvenile diversion is available in all counties, public defenders have expressed concern about the programs’ consistencies program to program.

The benefits of community-based justice: more savings and lower caseloads

Vermont has the data to show that restorative justice really does reduce the likelihood of reoffense. And since community justice and diversion are written into statute, the state is able to keep track of most important data that shows its progress. 

A 2019 Vermont Court Diversion study found that the recidivism rate for all diversion participants statewide was 16 percent. Of the first-time offenders and those who had never been to diversion before, less than one percent committed another crime after completing the program.

A 2014 study by the Crime Research Group found that pre-court or pre-charge intervention may be more successful than post-charge: about 21 percent of those sent to restorative panels reoffended if they were referred pre adjudication, as opposed to 30 percent of those whose case had already been adjudicated, meaning their record wasn’t expunged after program completion.

It’s difficult to compare those numbers to New Hampshire’s because the state does not track overall diversion data. But on the juvenile side, the state’s youth diversion network found that 22 percent of juveniles reoffended after one year, and 41.7 percent reoffended after three years.

“What I think is strong about diversion in Vermont is it’s a long standing program and statewide has existed for 40 years, so there’s a long tradition of working with community volunteers,” said Willa Farrell, director of court diversion and pretrial services at the Vermont attorney general’s office.

“In both juvenile and court diversion statute there is what we call a presumptive referral to diversion that says if the case is a misdemeanor that is eligible for expungement,” Farrell said. “The Vermont legislature has basically encouraged prosecutors to refer to diversion by saying, if this case is eligible for expungement, then you should send them to diversion unless it doesn’t serve justice.”

New Hampshire has had diversion for juveniles written in statute since the early 1980s, but a clause mandating that it should be done pre-charge was only added in 2011. Adult diversion is not written into statute at all, making services inconsistent across the state.

Like the rest of the country, Vermont’s incarceration rate skyrocketed in the 1980s as a result of the war on drugs, but has recently been in decline: according to state research, referrals to diversion services increased by 28 percent between fiscal years 2018 and 2019. And by 2019, a third of the state’s new misdemeanor charges were sent to diversion rather than charged traditionally.

However, while alternative justice is written into statute, Vermont is still missing some major data points. The state does not track data from the CJCs -- and many CJCs do not track their own recidivism rates -- making it difficult to compare the effectiveness of New Hampshire and Vermont’s alternative sentencing options. Both states also do not regularly track justice system-wide recidivism rates. 

Problems: lack of data, funding issues, potential discrimination...

Vermont is missing one crucial data point that could improve restorative justice services: race. According to Willa Farrell, director of court diversion and restorative justice at the state’s attorney general’s office, Vermont does not track racial data within diversion, and neither do most community justice centers.

“Historically, our center hasn’t tracked race data. We haven’t tracked data on sexual orientation. There are so many pieces that we haven’t been required to track and just this fiscal year, we’ve started asking for people’s self reported race data to help [the Crime Research Group] get a better picture,” said Motel of the Brattleboro Community Justice Center. 

The attorney general’s office is beginning to collect data on race within diversion for the first time this fiscal year. And Vermont’s Crime Research Group is conducting a deep study into potential racial discrimination within restorative justice there.

“We’re Vermont and we like our restorative justice and these alternative programs, but in creating these alternatives, we are not considering the impact of race,” said Robin Joy, Director of Research at the Crime Research Group.

The study hasn’t been completed yet, but Joy thinks there may be potential for discrimination within Vermont’s restorative justice systems, although many activists have recently turned to restorative justice as an answer to discriminatory arrest and incarceration.

“We’re compounding, is my hypothesis,” Joy says. “We’re compounding the problem of disparate treatment that people of color already have within the criminal justice system...there are crimes that people of color do commit that we’re not sending to the treatment courts or to these alternative programs.”

Vermont’s racial disparities within its incarceration system are some of the largest in the country, with Black people over 10 times as likely to be incarcerated as whites, according to the Sentencing Project. That’s roughly double the national black to white imprisonment ratio.

New Hampshire doesn’t track racial data within its court diversion systems either; in fact, the state itself does not track any diversion data. The state’s juvenile diversion network has the funding to track many data points including recidivism and race, but since adult programs are decentralized and inconsistent, it’s almost impossible to tell what kind of impact diversion programs have had on race and recidivism there.

In New Hampshire, practitioners of adult diversion are hoping that forming a new adult diversion network could help with data tracking and sharing resources. But a similar effort in Vermont fizzled out about three years ago.

“It was partly a financial issue. Many of the justice centers have been level funded for several years in a row and the result of that is that were actually doing less well financially if costs go up, especially if you want to give a salary increase to someone,” said Carol Plante, former director of the Vermont Community Justice Network and current director of the Montpelier CJC. 

In 2019, CJCs received a little under $3 million in department of corrections funding -- the programs’ main funding source -- according to Miodownik. Distributed across 18 programs, each gets about $70,000 and up depending on size and need, he said. CJCs have been receiving about that much funding between state appropriations and statewide grants since at least 2010.

Diversion is funded separately from CJCs, by the attorney general’s office. In 2020, it got $3.1 million, an increase of about $300,000 from the year before.

A cost benefit analysis of the state’s court diversion programs found that diversion brought huge cost savings: a drug charge sent to diversion, for example, cost an average of $86.53, while the same charge put through the traditional justice system cost over a thousand dollars.

Plante’s CJC in Montpelier got $283,000 this year, she said, those funds divided among its many programs which beyond community justice services also provides transitional housing. 

“Absolutely more could always be beneficial. Under the current budget we had to reduce the restorative programs coordinator position from 35 hours to 24 hours,” Plante said. “That means that I am still doing some of that work as the director.”

At the Brattleboro CJC, Motel says funding hasn’t been a major issue for maintaining the programs it has now. But ideally, she says, she’d like to see more funding going toward restorative and community based practices beyond her walls.

“In my ideal world, restorative justice, transformative justice, different ways of responding to harm, have a much bigger slice of the pie. I would like to see a world where the primary response and the priority for resources goes towards more community based responses,” Motel said.

Editor’s Note: This series on court diversion is part of a multiyear project exploring race and equity in New Hampshire produced by the partners of The Granite State News Collaborative.  The editing team included Scott Merrill, Editor, NH Bar News; and Ben Conant, Editor, Monadnock Ledger-Transcript. The reporting and research team included: John M. Bassett, Jordyn Haime, Kathie Ragsdale, Fiona St. Pierre, and Adam Urquhart.

The series was supported by a competitive grant from the nonpartisan Solutions Journalism Network. The Collaborative and its partners retain editorial control.