Maine Prosecutor Election Unfolds Under the Shadow of State’s War on Drugs
The challenger to the Portland DA in Tuesday’s primary claims the reformer mantle. Local advocates are pushing for drug offenses to be decriminalized more fully.
Eoin Higgins, | June 9, 2022
After Oregon’s landmark 2020 ballot initiative that decriminalized low-level drug possession, Maine advocates pushed to bring the model home. The status quo continues to churn people through local jails but has failed to quell overdoses in a state that has been ravaged by the opioid crisis, they argued, and something has to change.
Champions of decriminalization got Maine closer than any other state to emulating Oregon. The state House adopted a bill last year to decriminalize low-level possession, but the legislation died in the Senate, hindered in part by the resistance of Maine’s district attorneys. With reform delayed, attention has shifted to those DA offices, which are in charge of prosecuting drug offenses—and are all on the ballot this year.
Running in Cumberland County, home to the city of Portland, Jackie Sartoris has claimed the mantle of reform as she promises to keep more people from being locked up over substance use.
She is the only Democrat challenging an incumbent DA anywhere in Maine, and she faces DA Jonathan Sahrbeck in the June 14 primary.
“We are too often sending people with addiction-related conduct to prison rather than treatment,” Sartoris told Bolts.
But she also says she would not eliminate criminal consequences for substance use in Cumberland County. She has expressed some support for legislation that would reduce the role of the criminal legal system, but says she wants to use criminal prosecution as a tool to push more people into treatment, the stick to the carrot of having charges dropped.
“My approach is to use interactions with the criminal legal system as opportunities to solve an underlying problem and help people in need of assistance to obtain help,” she told Bolts.
The boundaries of prosecutorial reform have shifted recently as some DAs have drawn a starker line against low-level drugs prosecutions. In Maine, many advocates are no longer satisfied with making the criminal legal system less severe. They want prosecutors to entirely butt out of substance use, and have pushed the state to shift resources toward social services and treatment programs that operate outside of the criminal legal system.
Tina Heather Nadeau, the executive director of the Maine Association of Criminal Defense Lawyers who talked to Bolts in her personal capacity, is skeptical of prosecutors who claim to want to use treatment for the benefit of the defendant. All too often such mandates are used as a “bludgeon,” she said, setting people up to fail.
In this moment of crisis, Nadeau says she is mainly interested in how candidates propose to reduce the havoc of encountering the criminal legal system. Even a brief jail stint after an arrest can have grave consequences for someone’s life, and overdose risks are high upon release. “I want to know how they’re going to help people who come in contact with the criminal justice system—either minimize their contact or get them to a better place,” she said.
Marshall Mercer, a formerly incarcerated advocate for drug reform, made the case during last year’s legislative debates that the looming threat of criminalization gets in the way of people’s recovery. “Every time I would look for help, there’d always be someone looking down on me,” he said at a public event. “We’re not going to go looking for help if people are arresting us and throwing us in jail.”
A report released by the ACLU of Maine in March concurs and calls on the state to take a more holistic approach.The report assails Maine for doubling down on spending on incarceration: One year in a state prison is more than double what it would cost for housing assistance, counseling, and treatment at MaineCare. “Incarceration does the opposite of what people need, which is support and connection,” lead author Winifred Tate, a Colby College anthropology professor, told her university. People also end up with burdensome criminal convictions.
Maine seemed to be on its way to an overhaul last June when the House passed LD 967, a bill that would have made drug possession a civil violation rather than a criminal offense. But the bill was eventually downed by the opposition of the Maine Prosecutors’ Association and the likely veto of Democratic Governor Janet Mills, a former prosecutor.
Sahrbeck, Cumberland County’s current DA, is skeptical of decriminalization because he thinks it would make dangerous drugs flow into the region. He’s waiting to see how Oregon’s reform goes. “Unfortunately, opioids and fentanyl, methamphetamines—they are so powerful, and people are suffering so much, that oftentimes the criminal justice system is that thing that triggers someone getting into recovery,” Sahrbeck told the Maine Beacon last year.
Sahrbeck became DA in 2018 after unexpectedly winning as an independent when both the Democratic and Republican candidates dropped out in the campaign’s final stages. He filed as a Democrat this time. He told Bolts that running as a Democrat makes sense ideologically.
But for Sartoris, his challenger, Sahrbeck is mainly invested in “superficial change” in rhetoric, and the diversion and restorative justice programs he has pursued are not sufficient. Sartoris, who lives in Cumberland County but works as a prosecutor in nearby Kennebec County, told Bolts that she would pursue alternatives to incarceration at a much greater rate. She also said she would charge more cases at a lower, misdemeanor level rather than the felony level to ensure that they qualify for a diversionary approach.
Sahrbeck disputes that interpretation of his office’s work. He shared data with Bolts showing a decline in the total number of cases his office filed with the court in 2020 and 2021. “Our diversionary measures in charging like our restorative justice diversion program, compliance diversion, and higher scrutiny on which cases to prosecute show a significant decrease in criminal filings,” Sahrbeck says.
But this reduction in the raw number of cases filed, which coincided with the onset of the pandemic, matches the decline in the number of overall cases that entered the DA’s office for review in the first place; the start of the pandemic led to a big drop in police arrests nationwide. The rate of how the DA’s office processed cases changed little: In 2018, the last year before Sahrbeck became DA, the number of cases filed with the court was 63.3 percent of the number of cases that entered the DA’s office. Last year, that rate was 63.6 percent.
The DA also pointed to a reduction in the number of people held at the county jail, crediting it to “policy changes surrounding cash bail and motions to revoke bail in which we now look for supervision in the community wherever possible over incarceration.” That number dropped when the pandemic began, Sahrbeck stressed that “the numbers never returned to pre-covid levels.” Over the past year, though, the local jail has been marred by repeat COVID outbreaks and coverage of dismal conditions like solitary confinement, with advocates demanding reductions in detention.
Sahrbeck and Sartoris do agree on a key policy question. Both candidates told Bolts that they opposed the creation of a do-not-prosecute policy, like some progressive officials have adopted elsewhere in the country for low-level drug cases and some other charges, and thereby rule out bringing drug possession charges.
Sahrbeck said each case should be taken on a “case-by-case basis.” “I kind of get wary when it comes to do-not-prosecute lists, even though I know I do have discretion, because the legislature is the one who makes the laws,” he added.
Similarly, Sartoris said she doesn’t back creating a declination list, including for drug offenses, “where the legislature has enacted laws that apply.”
Sartoris tweeted earlier this year that she would never prosecute cases related to abortion. When Nadeau, the local defense attorney, asked whether there were other types of charges that she would pledge not to prosecute, Sartoris replied: “Running to be DA, not DF! (Dismissal Fairy).”
Nadeau retorted that the comment was “glib” and asked, “What about the ethical obligation of a prosecutor not to pursue charges they know they can’t prove? Or if a dismissal is in the interest of justice?” She said Sartoris blocked her after the exchange.
In an interview with Bolts, Sartoris also expressed wariness about changing state law to decriminalize drug possession.
What she wants instead is to provide more people “access to secure treatment” in lieu of incarceration, but also in lieu of ever ending up with a conviction.
She told Bolts she would pursue a policy of providing people arrested for drug offenses with the information for treatment for addiction services, and require them to follow up and actually enter treatment. When her office receives confirmation, she said, they would dismiss the charges—enabling the defendant to leave the system without having been convicted.
“This enables the first touch for most people with the criminal legal system to possibly be their last, without a conviction or fine resulting,” Sartoris said.
Under this approach, people would continue facing the threat of criminal conviction if they fail to follow-up the various steps of the process laid out by the DA’s office. Proponents of decriminalization say forcing people into treatment is often unproductive, costly, and ultimately ineffective.
Nadeau notes such decisions are not outside of prosecutorial control.
“There is nothing that requires a prosecutor to push a possession charge,” Nadeau said. “There is nothing that pushes the prosecutor to go forward with even a trafficking charge if the stop was based on racist garbage. Nothing. They can always do the right thing.”
Matt Gunn, co-chair of the Drug Policy working group of Maine DSA, agrees. “I can see from a prosecutor’s perspective how that looks very appealing,” Gunn said. “But whether someone supports mandated treatment options or not, having the mentality that we need to seek out cases and prosecute them and be arresting people and taking them off the streets and away from their jobs and their lives and their families so that they can stop using drugs is not a healthy approach.”
Gunn regrets that the state is not fully committing to approaching drug policy as a public health issue because politicians are most concerned with the perception that they’re looking after “public order.”
“Whether they are upholding public order is up for debate,” he said, “but they have to make their constituents feel as though they are maintaining a safe environment.”