Police Data Show Racial Bias, But What About The Rest Of The Criminal Justice System?

Aug 12, 2016

Data collected by the state police point to racial disparities in traffic stops – and apparently the number of incidents is rising — in spite of increased attention to the issue.

But what about racial bias in the rest of Vermont’s criminal justice system?

A recent national report by the Sentencing Project on racial and ethnic disparities in state prisons says Vermont has one of the nation’s highest incarceration rates of African Americans compared to whites, based on the state’s population; a ratio of more than 10:1.  

Audio for this piece will be posted.

In other words, the percentage of blacks in Vermont’s prisons is 10 times the percentage of blacks in the state’s overall population.

“I guess what I’m surprised about is where we stood on a national level,” says Mark Hughes, co-founder of the Montpelier-based organization Justice For All.

“Department of Corrections, they don’t drive around picking folks up arbitrarily, there’s an entire criminal justice apparatus that we need to acknowledge,” Hughes adds.

The percentage of blacks in Vermont's prisons is 10 times the percentage of blacks in the state's overall population.

Attorney Robert Appel served for eight years as the state’s Defender General.

He says in a place like Vermont, with an overwhelmingly white population, our own stereotyping and biases are at the root of racial disparities in the state’s prisons.

“I think the reason we have such gross disparity in the incarcerative population for African Americans is because they’re more likely to be drawn to the attention to the police,” Appel says.

“In fairness to the police, community members call up and say, ‘there’s three black male teenagers hanging out in the parking lot, they have their hats on sideways and they’re wearing baggy pants. Send a car’. And they found something, or it escalated.”

Appel compares the criminal justice system to a funnel. Law enforcement is the wide entry point, which is why he says there should be a focus on bias in policing.

But Appel says there are plenty of other opportunities for racial bias to show up in the multitude of choices made by prosecutors, by courts and by the corrections department.

"I think the reason we have such gross disparity in the incarcerative population for African-Americans is because they're more likely to be drawn to the attention to the police." — Robert Appel, served for eight years as the state's Defender General

Every step of the way there are decisions about bail, plea agreements, sentencing recommendations and parole – all potentially subject to the biases of those who make them.

“It’s discretion upon discretion, upon discretion, upon discretion, upon discretion,” says Appel.

For example, Vermont’s 14 State’s Attorneys who prosecute cases operate fairly independently. No research has been done on possible racial bias in how they handle cases, although a recently-adopted information system could be used in future studies.

When David Cahill became Windsor County State’s Attorney last January he took a system usually used for the most serious crimes, like murders, and applied it to other cases.

Cahill says he makes decisions about whether to bring charges against someone without looking at information about the person’s race or even gender.

When considering plea bargains or sentencing recommendations, Cahill says he takes steps to make sure his recommendations aren’t outside of the norm.

“Recognizing that everyone has some implicit bias, the key is to take steps and mitigate it,” says Cahill.

Cahill, who until recently was head of the Department of State’s Attorneys and Sheriffs, says he’s not sure of the approach taken by other state’s attorney’s.

"Recognizing that everyone has some implicit bias, the key is to take steps and mitigate it." — David Cahill, Windsor County State's Attorney

And there aren’t any guidelines. Cahill says one goal of a recently-created best practices committee is to establish guidelines.

“The potential for unjust outcomes exists. I can’t point to any single case, but I can tell you theoretically that that potential exists and it probably does in actuality,” he says.

Cahill says there may be other ways to  look at the high percentage of African Americans in Vermont prisons.

Because of the movement of drugs from inner-city urban areas into Vermont, the prison population is made up partly of people from out of state. So it could reflect places with a very different racial makeup than Vermont’s.

“And the reality is that all of the urban areas to our south are much more diverse than Vermont. When folks from those cities bring heroin with them, they are bringing some of the cultural, ethnic and racial makeup of their area with them,” he says.

According to the Vermont-based Crime Research Group, data on race and residency of Vermont’s prison population is not readily available.

In 2015, the Crime Research Group issued a study called Race and Sentencing in Vermont, which looked strictly at prison sentences for a variety of misdemeanor convictions.

"This study found no evidence of systematic racial bias in sentencing ... You've still got to ask the question, why are the numbers the way they are? That's the question that has to be answered." — Brian Grearson, Vermont's Chief Superior Judge

“This study found no evidence of systematic racial bias in sentencing,” says Brian Grearson, the court system’s Chief Superior Judge. Grearson oversees the administration and assignment of the Superior Court trial judges.

The study didn’t attempt to answer why Vermont has a significant racial disparity in incarceration rates. 

“You’ve still got to ask the question, why are the numbers the way they are? That’s the question that has to be answered,” Grearson says.

Traffic stop data point to bias in law enforcement as a factor, but we don’t have data on many other aspects of the criminal justice system.

“How do we get at those areas in the criminal justice system where that discretionary authority exists, in the same way we’ve taken a look at law enforcement officers,” says Mark Hughes of Justice For All.

“How do we take a look at that in those other decision making points to be able to measure it so we can manage it moving forward.”

Hughes says collecting data, creating policies and providing training to everyone in the criminal justice system is part of the answer.

Hughes and others also point to larger issues that underlie bias and need to be addressed, including cultural and historical attitudes about race and sharp racial inequities in economic and educational opportunities.