Editor’s note: This commentary is by Robert Appel, the former executive director of the Vermont Human Rights Commission and now an attorney in private practice in Hinesburg. This piece was first published in the Times Argus and Rutland Herald.
[T]he events of recent weeks have spawned much discussion, debate and discord. Here in Vermont, we often think that somehow we are better than other parts of the United States and, for that matter the world, when it comes to racial harmony and justice. Oh, if it were only so. Unfortunately, it is only a matter of time until we, too, suffer the divisive tragedy of a white police officer shooting and killing a young African-American male.
Not to say that many chiefs of our 74 state and local police agencies are not cognizant of providing police services to the increasingly diverse population of one of the whitest states in the union. The reality is that officers are human, and all humans are infected with implicit biases that influence and sometimes dictate our actions. For example, the shooter in the Ferguson case testified that he saw his young black male victim acting as a superhuman running into a fusillade of bullets.
People of color tend to draw disproportionate attention from police and some community members, leading to the potential that police become the instrumentality of community racism if they take action on biased reports. Vermont has incarcerated a grossly disproportionate number of African Americans –10 percent of the prison population, versus approximately 1 percent of the general population. This rate of disproportionality is second only to Iowa, another overwhelmingly white state.
Ch. I, Art. 5 of our state Constitution unambiguously states “(T)hat the people of this state by their legal representatives, have the sole, inherent, and exclusive right of governing and regulating the internal police of the same.” Therefore, we have not only a right, but a civic duty to regulate the behavior of our peace officers.
Much like the recent travesties of grand juries failing to indict the officers who killed Michael Brown in Ferguson and Eric Garner in Staten Island, Vermont has an established history of a dual standard of justice — one for police officers and one for the rest of us. Not to diminish the valor and value of those who choose to become officers, these and all public servants cannot be above the law. If the evidence supports a charge or an indictment, police should face trial like any other citizen accused of criminal conduct.
That data is being collected and not analyzed is worse that a wasted opportunity — deceiving all Vermonters that our police are doing all that they can to battle the scourge of implicit racism that so infects so many of our institutions.
Repeatedly, our attorney general, the state’s chief law enforcement officer, has investigated fatal shootings by police and found no potential criminal liability. Standard Vermont practice is to charge criminal conduct by the prosecuting authority supported by an officer’s affidavit. The information and affidavit is then reviewed by the judge. Only if the judge finds probable cause, is a citizen required to answer the charge. However, prosecutors who rely on police agencies for bringing cases to them rarely, if ever, exercise their authority to charge officers by information for on-duty conduct.
If there is potential criminal culpability, Vermont prosecutors may convene a grand jury to review the circumstances, leaving it up to citizens to decide what, if any, criminal charge(s) should be brought. Grand juries meet in secret without a judge or a defense attorney, and we do not learn of the outcome of their deliberations absent charges being brought. Recently, for the first time in memory, a Vermont grand jury indicted a Winooski officer for shooting an unarmed man in the midst of an obvious mental health crisis. The charges stemming from this event were set for trial this fall when an agreement was reached that spared the officer jail but hopefully ended his police career.
In recognition of gross racial disparities, several years ago a handful of police agencies voluntarily collected race data on motor vehicle stops. The analysis of this data showed, for example, an African-American man stopped by the police in South Burlington was nine times more likely to be asked to consent to a search of his vehicle than a white driver. FBI statistics shows that if you’re a black person in Ferguson, you are 2.8 times more likely to get arrested than a white person. If you’re a black person in Burlington, you are 3.6 times more likely to get arrested than a white person.
The Vermont State Police (VSP) started collecting race data in July 2010, but so far has only analyzed year one data which showed among other findings that black drivers were more likely than whites to receive a ticket or be subject to arrest. The following three years of data sit dormant. The VSP is not unique as other departments also now have years of race data awaiting analysis. An act passed last session now requires all police agencies to collect race data. However, to date, there is no mandate to crunch that data. That should be the Legislature’s next act in this arena.
Race data collection/analysis is a highly useful tool to monitor officers’ compliance with bias-free policing policies as it allows supervisors to see patterns with particular officers or location or shifts for elevated contacts with minorities.
That data is being collected and not analyzed is worse that a wasted opportunity — deceiving all Vermonters that our police are doing all that they can to battle the scourge of implicit racism that so infects so many of our institutions. It’s high time that our police get beyond mere rhetoric in combating implicit bias committing fully to utilize a known and proven tool — by engaging in consistent collection, timely analysis and full application of race data to promote the promise of equal justice under law.
