Marijuana Policy Project

MONTPELIER — Franklin Billings Jr., a former chief justice of the Vermont Supreme Court, said Friday Gov. James Douglas was wrong to tell state law enforcement officers to not take significant marijuana cases from the office of Windsor County State's Attorney Robert Sand.

"I think the prosecutors have the sole discretion, or they should have," said Billings, a Republican and former speaker of the Vermont House of Representatives.

"He certainly has a right to speak his piece," Billings said of the governor. "You don't throw everybody in jail because they are charged with a crime. You have to look at every case."

Sand recently allowed a 61-year-old Windsor lawyer to enter a court diversion program after she was allegedly caught with 2 1/2 pounds of marijuana. Sand has been an outspoken critic of marijuana law.

At the time, Sand said the decision was justified because it was a first offense. Douglas, however, said that was the wrong call and would not have been made by any other prosecutor in any other county in the state.

"We have to make sure our drug laws are taken seriously and I think this step will ensure that in all counties of this state, they are," Douglas said at the time.

Sand, preparing for a murder case, declined to comment.

But Billings said Douglas jeopardized the independence of prosecutors.

And prosecutors in Vermont should retain "the idea that you are looking at rehabilitation and education and not just purely retribution," in such cases, said Billings, 85.

"As a judge, I feel the prosecutor has the discretion just as the judge has the discretion absent sentencing guidelines," Billings said. "That is what they are elected for."

"I don't think he should interfere with the independence of prosecutors," he added.

Douglas told Peter Freyne, a columnist for the weekly newspaper Seven Days, that the Windsor County case was so extreme, it warranted his decision.

"I believe in and respect prosecutorial discretion. It's an important part of our criminal justice process," Douglas told Freyne. "But this is an extraordinary situation where that discretion has been abused. And I think it's important for me as the executive authority with law-enforcement agencies reporting to me to ensure that the laws of Vermont are carried out fairly."

Billings said Douglas' decision in the Windsor County matter was similar to his reaction when Judge Edward Cashman gave what some — including Douglas — believed was too lenient a sentence in a sex offense case.

"It was sort of like the Cashman situation," Billings said of the Sand matter. "He was interfering and it turned out Judge Cashman was right."

Douglas' order that state law enforcement officers refer large marijuana cases to other prosecuting agencies remains in place.

"The governor's directive remains in place," Jason Gibbs, a spokesman for Douglas, said Friday. "Beyond that, we have nothing to add. We are moving forward."

Gibbs said the vast majority of the correspondence the governor's office is receiving about the matter supports Douglas' decision. That includes letters from former and current law enforcement officers and others involved in dealing with the drug laws, Gibbs said.