As diversion clerk, Katherine Ellis works with many different types of people facing charges in Cumberland County.

Her job in the district attorney’s office is to help people after they admit to committing a crime but have been given a chance to wipe the slate clean by living up to the terms of what is called a deferred disposition.

“I am mother hen, mother duck to all of them,” Ellis said recently during an interview in a conference room in the district attorney’s office.

Ellis chose the conference room rather than her office to protect the identities of the people she’s trying to help. For them, the successful completion of a deferred disposition means that their names likely won’t end up in the local newspaper — or on a Google search – as someone with a criminal record. Ellis said many of them are college students who get caught stealing or others who have pleaded guilty to operating under the influence, domestic violence assault, possession of scheduled drugs or assault.

On this particular day in mid-January, Ellis was tracking 766 people on deferred dispositions in Cumberland County, the busiest prosecutorial district in the state. Since 2005, the office has handled 8,480 deferred disposition cases involving 7,916 people. It has an 83 percent success rate for people meeting the terms of their deferred dispositions, Ellis said.

Even though deferred dispositions are one of the tools available to all district attorneys in the state, their use remains relatively limited. In fiscal year 2018, of 46,577 criminal cases statewide, 3,558 — 7.6 percent — were given deferred dispositions, according to an analysis of court data by the Council of State Governments Justice Center.

The way deferred dispositions are handled in Cumberland County compared to the rest of Maine is an example of the disparity that exists when it comes to how criminal cases are handled and whether defendants facing charges can expect consistency in the system from one part of the state to another. Those in Cumberland County can expect to get support — and clear direction — from Ellis on how to live up to the terms of the agreement. In other counties, district attorneys say they don’t have the funding to pay for a clerk to monitor deferred dispositions, although 11 Maine counties have a contract with Maine Pretrial Services to help with compliance.

But for those in Washington and Hancock counties, there’s neither a clerk nor a Maine Pretrial Services contract to help defendants stay on track.

For more than seven months, Pine Tree Watch has examined the criminal justice system to look for instances of fairness or inconsistency in how cases are handled. One of the primary barriers to determining consistency has been a lack of data that shows whether someone accused or convicted of a crime in one part of the state is treated the same as someone in another part of the state.

When it comes to alternative sentencing options like deferred dispositions, Augusta criminal defense attorney Walt McKee described them as game-changers, particularly for people who are first-time offenders.

“The advent of the deferred disposition process was the single most fundamental change that we’ve seen in the criminal justice system in Maine in the last 20 years,” McKee said. “For many people, they don’t want to have a conviction, especially for the majority of people coming through the system for the first time.”

How it works

In the case of a college student caught shoplifting, Ellis said a deferred disposition typically lasts six months. The student would go to court, plead guilty to the charge and then agree to several stipulations with the understanding that if he or she meets all the terms, the charge would be dropped from their record.

Ellis said after the court appearance, she makes contact with the defendant — either in person, via email or over the phone. She tells them they must complete a 6-8 hour online course that costs $75 and is offered by the National Association for Shoplifting Prevention. They must do 30 hours of community service at an approved nonprofit agency. They have to pay $25 a month every month in court fees during the duration of the deferred disposition.

They also have to stay out of trouble and if they do come into contact with police, immediately tell the officer that they are on a deferred disposition. If they move, they must tell the DA’s office within 24 hours. They are required to maintain or seek a job or continue with schooling.

The terms are flexible — they can last six months to three years — depending on the crime. Many times defendants are required to attend counseling to get help with managing their anger, alcoholism, substance use or a mental health diagnosis.

Ellis will also give coaching to those required to write an apology letter to a victim, noting that the letter should be heartfelt. She’ll tell them to do an online search if they need to “find a proper way to write an apology letter.”

From his perspective, Cumberland County District Attorney Jonathan Sahrbeck said deferred dispositions serve several purposes, including bringing closure to a case so his office doesn’t have to call witnesses or prove a case beyond a reasonable doubt. It also gives the defendant a chance to take responsibility for their actions and gives them a chance to get treatment or make amends to a victim, he said.

The biggest incentive for a defendant is that if he or she successfully meets the terms of the program, the charge gets dismissed or reduced to a less serious crime.

“We want people to be successful with deferred dispositions,” he said. “We try to get people who are going to be able to get through that probationary period.”

For some, the alleged crime was a lapse in judgment “or something else bigger was going on,” he said.

Portland defense attorney Robert LeBrasseur said deferred dispositions are appropriate for first-time offenders or for those with mental health or addiction issues. He said he wishes prosecutors in Cumberland County would use them more frequently because they are a good way to ensure people get the help they need, particularly counseling. A few years ago, he got a deferred disposition for a client of his who was accused of a fourth-offense OUI after a suicide attempt.

“It’s certainly not appropriate to throw that person in custody,” he said. “It’s not going to help their mental health.”

LeBrasseur said it is also up to attorneys to take the time to make sure their clients have the ability to comply with all the terms of a deferred disposition, including fines and fees that are often part of the agreements. When he sees people fail to live up to the agreements, it’s often because they can’t afford the $25-per-month supervision fee, LeBrasseur said.

He said the county should consider ways to lower the fees “so you’re not punishing a low-income client with a conviction that’s going to impact the rest of their lives.”

Maine Pretrial Services Executive Director Elizabeth Simoni said the additional $25 monthly fee assessed in Cumberland County to pay for Ellis’ position is something that gives her pause about the program. Her organization is a private nonprofit that provides screening, risk assessment and supervision to defendants in 11 Maine counties — all but Aroostook, Piscataquis, Washington, Hancock and Somerset.

“If you can’t pay, you’re not going to be offered that alternative,” she said. “That’s a stumbling block from our perspective.”

Also, whether a deferred disposition is offered to a defendant depends on a number of factors that aren’t as cut-and-dried as they might at first seem.

“The difficult part with deferreds is there is not a sorting mechanism in the state,” Simoni said. “People tend to look at what type of case they have, is it a strong case, would they wish to take it to trial.”

In the 11 counties where Maine Pretrial offers services, the organization does establish regular contact with defendants it is working with, encouraging what Simoni described as passive reporting on how successfully they are meeting their obligations from the court.

And while defense attorneys and prosecutors like deferred dispositions, victims sometimes feel that they do not go far enough to punish the accused.

In January, McKee successfully got a deferred disposition for Jeremy Judd, 42, of Mechanic Falls, a Maine game warden accused of assaulting a woman at a concert in Bangor. Judd pleaded guilty to disorderly conduct and in exchange, charges of assault and unlawful sexual touching were dismissed, according to the Bangor Daily News. McKee said Judd had already begun counseling to address his drinking and the terms of his deferred disposition require him to continue counseling, abstain from drinking alcohol and undergo random testing for alcohol use, the newspaper reported.

Penobscot County District Attorney Marianne Lynch told the newspaper that the victim — who said Judd slapped her on the buttocks and reached under her shorts — was unhappy with the plea agreement. Lynch said all of the alleged crimes were misdemeanors and that the deferred disposition called for rehabilitation.

“This was not acceptable behavior, but he has taken steps to address his alcohol use,” Lynch told the BDN. “He was obnoxiously intoxicated, but I don’t think this incident is a reflection of the entire Maine Warden Service.”

McKee also served as the attorney in another deferred disposition case in which the victim’s family was unhappy with the outcome. McKee represented Jonathan Roberts, 46, of Massachusetts who was driving a boat that killed Kristen McKellar, 32, on Damariscotta Lake in August 2018. McKellar’s family was shocked that Roberts received a deferred disposition that included no jail time and will require him to perform 100 hours of community service in exchange for a guilty plea to driving a boat at an unsafe speed in the water safety zone.

McKellar’s sister, Alison McKellar, told Pine Tree Watch that the outcome of the case “just felt very hollow.”

“It was like nothing,” she said. “It was a huge slap in the face.”

Addressing a crisis

The idea for deferred dispositions came from a January 2004 report of the Commission to Improve the Sentencing, Supervision, Management and Incarceration of Prisoners. The 17-member panel made up of lawmakers, judges, mental health advocates and law enforcement officials aimed to address what was described in the report’s introduction as “a severe prisoner population problem.”

The report noted that at that time, Maine had the fastest-growing state prison population in the country and that county jails were seeing an average growth of 8 percent a year.

“The unexpected explosion in the number of inmates constitutes a crisis that threatens to spiral out of control if left unchecked,” the report states. “Maine’s prisons and jails are struggling with bed shortages, skyrocketing costs and increasing risks to inmates and staff, with the situation deteriorating year by year.”

In just four months, the commission came up with 61 recommendations. Third on the list was to “enact a new sentencing alternative to give judges an alternative punishment to probation or incarceration.” They suggested it be called deferred disposition and outlined many of the requirements that are commonly used today, including community service, treatment plans and work or education goals.

The alternative sentencing option became Maine law in 2004. It was most recently amended last year, when language was added to say that deferred dispositions should be the preferred option for low-level drug offenses and for engaging in prostitution.

Stephanie Anderson, who served as Cumberland County district attorney for 28 years and now works as executive director of the Maine Prosecutors’ Association, said the year after deferred dispositions were created by lawmakers, she worked on a bill to allow DAs to assess fees to pay for a clerk to supervise people on deferred dispositions – the job now held by Ellis in Cumberland County. Then she asked her county manager for seed money for one year, promising to divert at least 400 cases a year so the position would be self-supporting from then on.

“I think (deferred dispositions) are great only if you’ve got somebody in place who’s paying attention,” she said. “You wouldn’t believe all the people who come in and have done nothing.”

Anderson said she believed that unless there was close supervision of defendants granted deferred dispositions, they would be “a total sham.”

Anderson said she did not know if other counties had a person dedicated to monitoring people on deferred dispositions, although she said it’s likely they have some support staff who help with the cases.

Andrew Robinson, the district attorney for Androscoggin, Franklin and Oxford counties, said he has “an overworked clerk dedicated to monitoring people.” In Aroostook County, District Attorney Todd Collins said they take a different approach to deferred dispositions where the focus is on keeping people out of jail but not on lowering or erasing convictions. Up to about 20 defendants who face significant jail or prison time are supervised by a staff member, Collins said.

“I would like to expand the program to include lower-risk individuals and misdemeanor cases, but I have not been able to secure that funding,” Collins said in an email.

Three DAs representing eight counties — Washington, Hancock, Lincoln, Sagadahoc, Waldo, Knox, Somerset and Kennebec — said they don’t have enough staff to closely monitor people on deferred dispositions. District attorneys Marianne Lynch, of Penobscot and Piscataquis counties, and Kathryn Slattery, of York County, did not respond to requests for comment on who oversees the program in their districts.

Matthew Foster, Washington and Hancock district attorney, said some agreements require defendants to check in regularly, and if they do not comply, the agreements are terminated. In addition, his district does not have a Maine Pretrial Services contract, which sometimes helps track people on deferred dispositions in other counties.

“It’s up to the people on deferred dispositions to comply,” Foster said.

On the Midcoast, District Attorney Natasha Irving said people on deferred dispositions are tracked by a combination of prosecutors in her office, defense attorneys and Maine Pretrial Services.

“All non-attorney positions are funded by the counties, so Cumberland often has administrative members of the team that we would love to have,” she said.

In Somerset and Kennebec counties, District Attorney Maeghan Maloney said her staff does do some checking to ensure that people have met the terms of deferred dispositions, but it mostly falls to the person who received the alternate sentence to comply.

“It’s mostly up to them,” she said. “We do check to see if they’ve done their community service hours but only at the end. We don’t track during the deferred disposition. We don’t check in with people to say, ‘So how far along are you?’ We don’t have the staff to do that.”

In her district, Maloney said many of those on deferred dispositions are also part of a specialty court program, such as veterans court or drug court, that requires them to regularly check in with staff who run those programs. In other instances, Maine Pretrial Services monitors people while they are on deferred dispositions, she said.

For Ellis, whose full-time job is to track people who are given the chance to have a clean record, the difficulty some people have in fulfilling the terms of the agreement can stem from a lack of support. For those in Cumberland County, she’s there to give it to them, if they are willing to put in the work.

“If I’ve seen the effort, I’ll go to bat for them,” she said. “When I don’t hear from you until the day before court, I’m not going to bust my butt for you.”

Pine Tree Watch is a weekly local journalism product published by The Maine Center for Public Interest Reporting, a nonpartisan, nonprofit civic news organization based in Augusta. Its public-facing website is pinetreewatch.org.