This commentary is by Rory T. Thibault of Cabot, the Washington County state’s attorney and a member of the Vermont Sentencing Commission.
Many Vermonters take pride in our state’s reputation for progressive social stances and believe our commitment to diversity, equity and inclusion is more than just words.
However, the November 2021 Results of the Racial Equity in Sentencing Analysis conducted by the Council of State Governments as part of Vermont’s Justice Reinvestment II process presents a sobering reality check, finding that “Black people are over six times more likely to be incarcerated in Vermont, relative to white people.”
The results confirm what many BIPOC Vermonters experience firsthand: Notions of Vermont exceptionalism on equity or values don’t hold up when it comes to progress on racial justice.
The council’s analysis starkly quantified disparities and found that “racial disparities in the criminal justice system compound at each decision-making point and are driven by a number of system factors.” Some factors are readily quantified by data, but the “how and why” are difficult to fully explain by statistics alone.
Looking beyond the data points of law enforcement, prosecutor and court decisions is necessary to unpack other contributory factors — for example, economic status, or potential overreporting of persons of color to law enforcement by white Vermonters, contributing to more investigations and arrests.
Further, the Council of State Governments analysis found that 99% of criminal convictions were a result of plea agreements. Thus, it is critical to evaluate the role of actual and implicit biases among defense counsel — it cannot be assumed that defense counsel play no role in the perpetuation of disparities.
The council made five recommendations, geared at statutory and policy change. Keeping in mind that Black Vermonters are 14 times more likely to face a felony drug charge, the council’s first recommendation is particularly critical: calling on the Vermont Sentencing Commission to consider drug offense reclassification through a racial equity lens.
The recommendation specifically calls for considering reclassifying low-to-mid-level felony drug possession offenses to misdemeanors and designating thresholds that meaningfully differentiate between personal use amounts versus those intended for distribution.
Earlier this year, as a state’s attorney representative to the sentencing commission, I worked with law enforcement and community partners to propose precisely what the Council of State Governments recommended. If adopted, the proposal would lead to 75% heroin possession cases being treated as misdemeanor offenses (up from just over 50%), resulting in presumptive diversion by statute — meaning more treatment, less punishment.
Likewise, for cocaine offenses, the proposal calls for eliminating the unjustifiable and racially charged differentiation between powder cocaine and crack-cocaine trafficking, and doubling the existing felony threshold for possession — again, leading to fewer cases in the traditional criminal justice system.
Beyond the council’s recommendations, my office has looked to identify other ways in which disparate outcomes may be eliminated, as well as how to address the impact of the historic overrepresentation of BIPOC persons in the justice system. We hope these ideas spur discussion among other prosecutors and justice stakeholders.
- First, before accepting a plea agreement, the court should inquire into whether the defendant or defense counsel believe the outcome was reached free of bias, with specific reference to Vermont’s statutory definition of “protected categories,” including race, color, religion, national origin, sex, ancestry, age, veteran status, disability, sexual orientation, gender identity, or perceived membership in any such group. Equity considerations are part of due process.
- Second, Vermont’s post-conviction relief statute should be updated to expressly authorize claims that membership in a “protected category” resulted in a disparate outcome, thereby enabling those already under sentence to seek relief. Likewise, Vermont’s clemency process could stand to be improved — ensuring a final means of redress when other options have failed to address an injustice.
- Third, for those no longer under sentence, the Legislature should consider authorizing waiver of some statutory requirements for sealing or expungement of convictions when a court finds that racial bias resulted in an unjust outcome.
- Finally, my office considered what can be done now, at the local level. In Washington County, we will begin in 2022 being more attentive to our internal practices, and plan to adapt the Council of State Governments recommendations to our work. We will also work with community partners on at least two initiatives, namely expanding our outreach and working with partner organizations to broaden opportunities for expungement of old records for people of color and other historically marginalized populations.
Likewise, also recognizing that BIPOC community members with a conviction often face even greater challenges when it comes to employment, housing and opportunity, we plan to build greater supports for people of color reintegrating into the community — using the Circle of Support and Accountability model as a starting point, with the hope of recruiting BIPOC peers and mentors to play a larger role in work the Barre and Montpelier community justice centers, and our local probation and parole office devote to returning community members.
Ultimately, the path to an equitable criminal justice system that meets our Vermont values will not be premised on legislation or rule changes alone; rather, the key is a commitment to action on the individual level by those exercising power.
Every stakeholder should evaluate how small changes and use of discretion can serve to collectively contribute to fair, just and equitable outcomes.
