Will Vermont's Federal Prosecutors Get Tougher on Drug Crimes?

Published June 7, 2017 at 10:00 a.m.
Updated June 7, 2017 at 3:50 p.m.

Eugenia Cowles at a press conference - OLIVER PARINI

Oliver Parini
Eugenia Cowles at a press conference

Erica Heilman of the Rumble Strip podcast created an episode to accompany this story. Hear excerpts from her interviews with Vermont defense attorneys throughout the article, and listen to the podcast here.

Only a few people were in the courtroom on the day Sarah Ellwood had to go before a federal judge — for the second time. Three years earlier, when she was 20, she had gotten involved with an older man, a drug dealer who rented hotel rooms and an apartment in her name to move his product. She ended up serving 13 months in prison for it. Then, weeks after being freed, she violated her probation by using cocaine and fentanyl. The Winooski resident was potentially facing up to two more years behind bars.

"I'd like to apologize to everybody," Ellwood said in Burlington's federal court on May 31. "I can't emphasize how disappointed I am in myself."

Assistant U.S. Attorney Michael Drescher told Judge Christina Reiss that he had no interest in throwing the book at Ellwood, a victim of domestic abuse and an addict who has struggled to get clean. He recommended that she serve only one month.

There will always be drug dealers if there are drug users. Always. Attorney Lisa Shelkrot, to Rumble Strip

Such discretion by federal prosecutors could become a thing of the past, as a result of policies promulgated by President Donald Trump and U.S. Attorney General Jeff Sessions. In May, Sessions directed government lawyers across the country to get tough on drug cases. Sessions reversed Barack Obama-era practices that instructed those same attorneys — who enforce federal law from district offices in all 50 states and represent the federal government in civil litigation — to avoid charges that carry stiff mandatory minimum sentences, such as five years for possessing an ounce of crack cocaine.

Announcing his position, Sessions warned, "You drug dealers are going to prison."

If he makes good on that threat, Vermont attorneys say it would be a dramatic change from how drug users and dealers are treated in the state's three federal courthouses — in Burlington, Rutland and Brattleboro.

"It's turning the clock backwards," said Middlebury attorney Peter Langrock, the patriarch of Langrock Sperry & Wool, which employs 27 attorneys in offices in Middlebury and Burlington. "Mandatory sentences are stupid things. They are a politician's response to a nonthinking cry from the public" for law and order.

Obama appointee Eric Miller resigned as the U.S. attorney for Vermont in February, a full month before Trump fired all of his remaining Obama-era colleagues around the country. Miller's second-in-command, Eugenia Cowles, was elevated to acting U.S. attorney. As a career civil servant, her job is not subject to political vicissitudes; for the same reason, she is unlikely to hold on to the top spot. Many of her colleagues have worked for at least two or three U.S. attorneys.

The prosecutors have just a huge amount of control over what happens, and they call a lot of the shots. Attorney Mark Kaplan, to Rumble Strip

In a brief interview, Cowles said her office has no choice but to follow the rules Sessions has laid out. But "I don't think we're in a position now to say whether it will result in a dramatic change in our current practice," said the eight-year veteran of the Burlington office, which has 18 prosecutors and 20 support staff to serve the state.

"I think we have always tried to use our discretion wisely, and we will going forward," said Cowles. "We've always had the responsibility of making good sentencing and charging recommendations."

Burlington defense attorney Mary Kehoe isn't so optimistic. "They're going to have to march. They're going to have to follow the boss," she said. "I don't think they have a choice. It's not up to them to set policies. It's up to them to carry them out."

After judgeships, U.S. attorney appointments are perhaps the most coveted positions in the legal world. They require a presidential nomination and U.S. Senate confirmation, and usually go to the most accomplished and politically connected attorney in each state.

In recent years, Vermont's federal prosecutors have generally subscribed to the notion that heavy sentences for drug users and dealers were not always the best solution, according to Michael Desautels, who runs the Vermont Federal Public Defender's Office.

"They're not charging mandatory minimums in every case they can," Desautels said. "It's been a thoughtful and relatively enlightened charging philosophy, and we hope they're allowed to continue that and not follow the dictates of the current attorney general, which don't seem to be consistent with what we have learned about drug addiction."

It's stripping ... prosecutors of the ability to use their intelligence and their experience to determine an appropriate sentence. Which is all we ever really should want, is a sentence that makes sense. Attorney Mark Kaplan, to Rumble Strip

Legal observers are pondering a related question: Who will the Trump administration nominate to lead the Burlington office?

Officials have been tight-lipped, but legal sources offered a few names. They include Vermont Republican Party vice chair Brady Toensing, who recently garnered headlines for asking federal prosecutors to examine a Burlington College land deal orchestrated by Jane O'Meara Sanders, wife of U.S. Sen. Bernie Sanders (I-Vt.); Craig Nolan, a Burlington defense attorney who spent eight years as a prosecutor in the Burlington U.S. Attorney's Office; Assistant U.S. Attorney Christina Nolan (no relation to Craig Nolan); and Washington County State's Attorney Scott Williams, known for intervening to disarm a woman who shot a social worker in Barre two years ago.

Toensing, Trump's Vermont campaign chair, declined to comment. Craig Nolan, a Republican, and Christina Nolan, whose party affiliation is unclear, did not respond to messages seeking comment. Williams acknowledged his interest.

"I have had a few discussions with folks," Williams said. "I have indicated that if someone felt it would be appropriate ... I would be willing to be considered. I would like to see someone in that position that I perceive has balance and perspective, and I think I have that."

Williams, a Democrat elected in 2014, identifies himself as a political moderate. He has tried to start a program to divert Washington County defendants with addiction issues from the criminal justice system. At the same time, Williams said, he supports mandatory minimums for higher-level drug dealers.

Traditionally, U.S. attorney contenders are vetted by a state's two senators and — if the senators belong to a different party than the president — the highest ranking member of the president's party in the state. The senators, especially the senior one, generally hold a lot of sway, though the process can vary based on the political climate and the senators' influence in Washington, D.C.

U.S. Sen. Patrick Leahy (D-Vt.), a former state's attorney and Vermont's senior senator, served as kingmaker for both Miller and his predecessor, former U.S. attorney Tristram Coffin.

Sanders' office did not respond to a message seeking comment.

Leahy anticipates having a say in Trump's selection, according to his spokesman David Carle, even though the senator has been blistering in his criticism of Sessions' policies — and introduced legislation last month that would give federal judges more leeway in sentencing defendants.

"Sen. Leahy expects to play the same kind of role he has in past years," Carle said.

Carle said Leahy has talked with Gov. Phil Scott, Vermont's top-ranking Republican, about potential nominees. Scott has distanced himself from Trump, but his spokeswoman, Rebecca Kelley, said members of his and Leahy's staffs have started interviewing candidates and expect that the Trump administration will respect their recommendation.

"We have been communicating with Sen. Leahy's office, and the goal is to reach a consensus among offices," Kelley said. "It's hard to predict exactly what weight it will hold, but we're going to put forward a strong candidate and hope the White House will be looking for recommendations from the state."

Another view: "They don't have to reward Republican loyalists up here for delivering money and votes, because they haven't gotten either in Vermont," Dan Richardson, a Vermont Bar Association board member, said of the Trump administration. "So who gets the appointment and whose name filters up depends on who knows who in the various levels. It could be just as random as some attorney out there who has a cousin or friend in the Trump administration."

Trump has a huge backlog of appointments to fill — 93 jobs have been vacant since he forced all the remaining U.S. attorneys from the Obama administration to resign three months ago.

Meanwhile, federal prosecutors in Burlington do not seem to have changed their approach. A few drug cases that were in the pipeline before Trump took office have been resolved with below-maximum sentences.

Judge Reiss gave Ellwood four months — more than the prosecutor had sought, but less than the two years she faced.

Jeff Sessions’ decision cannot be seen as anything other than doing this explicitly as a mechanism of racial oppression, in my opinion. Attorney Dan Sedon, to Rumble Strip

Another case involved a high-profile dealer. Prosecutor Christina Nolan called Michael Foreste, a New York City man convicted of selling thousands of prescription opiate pills, one of the "main drivers" of Vermont's opiate crisis. Nonetheless, she sought a 15-year sentence instead of the 30 years she could have pursued. A judge sentenced Foreste to nine years.

Attorneys suggest the best test of whether the Vermont U.S. Attorney's Office is following Sessions' orders will come in the next few months, as fresh cases are presented to grand juries and indictments are unsealed. If new charges involve mandatory minimums, they say, it will signal that a new day has dawned in Vermont.