Overall, Vermont has one of the lowest incarceration rates in the country — but one of the highest rates of African-American incarceration. So why is that?
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It’s what Rosie Chase of Huntington was wondering when she put her question to Brave Little State, VPR’s people-powered journalism podcast, where we take on questions about Vermont that have been submitted and voted on by our audience.
Rosie works as a public defender in Franklin County, providing legal counsel to those who can’t afford a lawyer. So she spends a lot of time in places that most Vermonters never go: correctional facilities. She says she meets with clients, does initial interviews and prepares for sentencing.
“I spend a lot of time in the Vermont jails,” Rosie says.
Here’s how Rosie describes her situation: “I'm a white female who was born and raised in New England, practicing criminal defense in one of the whitest states in the country.”
And yet. Rosie is concerned, because the demographics in Vermont’s criminal justice system do not match Vermont as a whole.
“When I walk into the Northwest State Correctional Facility and I see the lines of black men lined up waiting to go into the mess hall, I know that something's wrong,” Rosie says. “And I don't think that the public is aware of it in Vermont.”
Maybe — but racial disparity in the criminal justice system isn’t exactly a secret.
“A growing body of research shows that people of color are more likely to be stopped, frisked, questioned, charged, detained,” President Barack Obama said at an NAACP convention in 2015. “African-Americans are more likely to be arrested. They are more likely to be sentenced to more time for the same crime.”
Our question-asker Rosie is wondering why this is happening in Vermont, and how we compare to the rest of the country. We didn’t know when we got Rosie’s question that she’s a public defender. But when we put it in a public voting round, which is where you all pick the winning question, it won decisively. So here we are.
“I think we think of ourselves as this isolated progressive state that does a pretty good job looking out for human rights,” Rosie says. “And I think that there's a grave injustice being committed.”
Spoiler alert: This is a two-part question with a complicated, gazillion-part answer. As always, we’ve done our best.
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We’re going to take the second part of Rosie’s question first, about the rate of African-American incarceration in Vermont. Is it higher in Vermont than other states?
Short answer: Yes.
“It's an outlier for sure,” says Ashley Nellis, a senior research analyst at the Washington, D.C.-based research and advocacy group The Sentencing Project.
Nellis is the author of a 2016 report called The Color of Justice: Racial and Ethnic Disparity in State Prisons.
“Vermont … actually has the highest rate in the country of adult black male incarceration, and it has the third highest rate of incarceration for African-Americans overall,” Nellis says.
The third highest rate of incarceration for African-Americans in the country, according to Nellis' report. Vermont was just behind Wisconsin and Oklahoma. Here are some other ways to wrap your head around the numbers. You can compare Vermont to the rest of the country:
“Nationally the ratio is about five-to-one black-white incarceration. And in Vermont it's more than 10-to-one,” Nellis says.
Or you can think in terms of our state’s population: “Only 1 percent of the population in Vermont is African-American but 11 percent of its prison population is black,” Nellis says.
Now, while we were reporting this episode Vermont’s Department of Corrections published newer numbers, from 2017. Those show a small decrease in the percentage of black inmates in Vermont — from 11 percent down to 8.5 percent. But when Nellis ran the numbers in 2016, Vermont’s ratio of black-white incarceration was higher than Massachusetts, Maine and New Hampshire.
“The data in Vermont is striking because the black incarceration [in Vermont] is so much higher than the national average and of its neighboring states,” Nellis says. “So, it’s very curious.”
Now, what The Sentencing Project report doesn’t tell us is where these African-American inmates are from. How many are Vermont residents, versus those arrested while visiting or passing through? That’s the subject of ongoing research — and we’ll get back to it later on.
Corey Jones is serving time in the Northern State Correctional Facility, in Newport. Brave Little State was able to speak with him on the phone through his attorney Amy Davis — over Bluetooth, in Davis' car.
Corey is serving up to three years, for distributing $40 worth of heroin. He was arrested in St. Johnsbury in 2016 as part of a big series of controlled buys — basically sting operations. He maintains his innocence.
The Vermont Defender General’s Office has appealed Corey Jones’ case to the Vermont Supreme Court, arguing that the jury convicted him based on insufficient evidence. On the day we spoke, the court heard Corey’s case. The attorney arguing the case, a woman named Dawn Matthews, also suggested there was bias involved. Corey is black.
“In light of the statistics and our continuing history of racism both in this country and in this state, a judge has to be especially alert in a drug case with very weak facts,” Matthews said.
Her argument was basically Implicit Bias 101.
“It’s not just judges. It’s prosecutors, it’s defense attorneys, it’s courtroom staff, it’s jurors,” Matthews said. “It’s everybody that has this kind of shorthand that works in our brains where we have a tendency to associate people of color with crime without even realizing that we’re doing it.”
Corey Jones says he experienced more than bias almost as soon as he got to St. Johnsbury, in 2013. He’d moved from Florida to be near his sister in Danville, and he was looking for a job and apartment in town. He says someone on the street called him the N-word, and he ended up getting in a fight, and then on law enforcement’s radar.
“And it just went from there,” he says. “I have had nothing but problems with St. Johnsbury.”
Corey mentions one instance outside a Dunkin’ Donuts: “I smoked a cigarette outside of Dunkin’ Donuts, I’m ‘loitering.’ Well, I just bought a coffee.”
His misdemeanor charges and convictions piled up. Simple assault, violating conditions of release, violating a trespass notice. Headlines in the local paper would refer to him by name, like a person of infamy.
“Now, on paper, I look like some menace in St. Johnsbury. And I just don’t feel that’s a clear representation of who I am. I’m 43 years old and I’ve got more charges in Vermont, in a year that I’ve been on the street, than I had my whole life in Florida.
“I don’t know. I just don’t feel like this state — I feel like there’s some kind of stigmatism or some kind of stereotype up here, because it’s not a very racially diverse state. Had I known that — I didn’t like, look it up and see that this state’s 93.3 percent white, and I’m gonna come up here and start my life over, I didn’t look at that situation. I didn’t think it would be a situation — I’m biracial as it is. My mother’s white, my father’s black and they’ve been together my whole life.”
Now, Corey is one person, living in one part of Vermont. We can’t extrapolate his experience out into an answer to Rosie’s question. But it’s worth noting that our state is very much grappling with the presence of straight up racism here, today, in 2018.
You might have heard about Kiah Morris. She was the only African-American woman serving in the Vermont Legislature, until she resigned in September. In August she told VPR she’d been the target of hate online and in her daily life for more than a year.
“I had a home invasion, vandalism, even the woods near my house where we’d go and walk frequently as a family had swastikas painted all over the trees there,” Morris said.
Meanwhile, Vermont’s lack of diversity has become a punchline, with this recent Saturday Night Live skit spoofing a neo-Confedate meeting:
This stuff wasn’t about incarceration specifically, but even an academic who studies race and punishment took one look at Vermont’s numbers and made a pretty blunt observation:
“You know, you have a low rate of incarceration overall, right, compared to Texas and other places. But you have a very high rate of incarceration for African-Americans," said John Eason, an associate professor of sociology at the University of Wisconsin, and before that Texas A&M University. "So yeah, that would say, relative to other places, even Texas, that Vermont's just more racist."
To be fair, Eason has never been to Vermont, or studied it, but it’s striking that this was his expert opinion.
“That's something that needs to be fixed in the culture there,” Eason says. “So what is it about Vermont? That's the question I have.”
It’s the same question Rosie has, and as it turns out, it’s a question that pretty much everyone in Vermont government and the criminal justice system has, too.
But the answer is elusive. Part of the reason, according to Professor Eason, is that there’s a lack of research into rural incarceration writ large.
“Rural places are often overlooked and understudied,” says Eason, who has studied black versus white incarceration in one rural state: Arkansas.
“And what we find is that rural towns and counties have a higher disproportionate rate of incarceration,” he says. “That means rural places are more punitive for black people in Arkansas. And I think that pattern should hold. But it's difficult to get data on rural places.”
Eason says this is because most big research universities are in cities, and there’s not much funding available to study rural places.
“We have a dearth, a complete absence of information, nearly, on what's going on in rural communities,” he says.
And in the past few years, Vermont has woken up to this reality.
In August, Vermont Edition put Rosie’s question to the commissioner of Vermont’s Department of Corrections, Lisa Menard. Here’s how Menard answered:
“That’s accurate — Vermont has a disproportionate number of African-Americans incarcerated. The why is … that’s not a question I can answer. I can say that there are certainly a number of groups looking at this. The Vermont State Police has done significant work in looking at their arrest practices,” she said. “UVM did some research regarding that … We’re looking at our own practices once somebody is incarcerated, around critical decision points.”
So, Menard didn’t have the answer, but she referenced the studies and panels galore that have been looking at this issue, far beyond just corrections. Some have examined the various points of contact that people have with the criminal justice system long before they end up in prison — places where racial bias could occur.
There’s the initial interaction with police — maybe it’s a 911 call or a traffic stop. For the past few years, Stephanie Seguino, of the University of Vermont, has been looking at traffic stops. And in a study released in early 2017, she found that black drivers are twice as likely to be arrested after a traffic stop than whites.
"The results should not be surprising to anybody,” Seguino said. “I think the real issue here is that Vermont has taken on the challenge of being self-aware and of trying to improve policing so that it fairly treats and supports all of the communities in our state.”
Meanwhile, the Vermont State Police has been looking at their own practices. The effort includes training, ongoing study of racial data on traffic stops and searches, and a strong emphasis on diversity hiring. And well before an officer is hired, the state police do a background check — including the applicant’s social media presence — to try to weed out people with racist attitudes or affiliations.
“The thought process being we get our members from society,” says Vermont State Police Lt. Garry Scott, “and all the implicit bias, explicit bias that they have, we want to make sure that we’re looking into that before they put on this uniform and are going to represent the values that we believe would make a good state trooper.”
Scott is director of fair and impartial policing at the Vermont State Police. He says he’s the only state police officer in the country with that job title, and the unique position reflects the agency’s yearslong effort to be proactive to reduce bias. He says it’s an ongoing process that everyone involved needs to work on.
“Education up front, and making sure our members or whoever's the person that has the discretion is aware of all these cultural differences, and can use that in a way to help guide their decisions to where cases can and cannot go,” Scott says.
For now, let’s get the perspective of a person who’s looked at race and justice issues for four decades. Robert Appel has worked as a public defender, defender general and as executive director of the Vermont Human Rights Commission. More recently he’s been in private practice handling many cases dealing with bias and overt racism.
“People find me, but it’s not unique,” he says. “Like I say this is sort of a niche. I’m known for this. I just see it day in and day out. Bias at play, producing differing outcomes.”
From his decades of experience on the fault line of race and justice, Appel has a simple explanation for what’s behind the high incarceration rates for African-Americans:
“Black faces in white places. To me that’s it. You know, it’s that fundamental,” he says. “You don’t fit, you’re not one of us. You’re up to no good.”
It all adds up, he says, but it starts with someone drawing suspicion because of the color of their skin.
“If you look like you don’t fit, you’re going to draw attention. If you’re likely to have more police contacts, that’s going to result in more arrests, convictions and criminal history, [and] you’re likely to receive a harsher sanction the next go around,” he says. “So it’s cumulative, whether it’s in state or out of state.”
Hang on to that idea of cumulative consequences, because it’s going to come up later.
The courts have reviewed cases where race unjustly led to an arrest or conviction. In 2016, the state Supreme Court threw out the conviction of a young black man named Shamel Alexander who was arrested in Bennington for possessing heroin. The court ruled that the only reason Alexander was stopped was because of his race.
“It’s sort of an archetypal example,” Appel says. “Bennington Police Department assumed this black man was another black man who he wasn’t.”
Interesting side note: Before Alexander’s case got dismissed, he was sentenced to 10 years in prison, which Appel said is a far longer sentence than normal for comparable possession cases.
But Appel says things are getting better. He credits the Vermont State Police and the Vermont courts with paying more attention to bias issues. And he says he’s learned one other, fundamental thing after following cases like Alexander’s for years:
“I’ve learned to trust what I hear. It’s just too consistent from too many credible people. And I think it’s hard for us — white people, and white men in particular — the tendency is, ‘It’s not my experience,’ so it’s easy to deny. You know, 'they’re playing the race card.' Well, they’re not. Just because you don’t experience it doesn’t mean it’s not happening.
“And denying somebody else’s experience, to me, is an ultimate – I won’t say the ultimate – but an ultimate form of racism.”
People who end up in prison move through the criminal justice system. But Appel said it’s not really a system – he calls it a non-system that relies on layers and layers of discretion as weighed through very human eyes and emotions.
And much of that discretion rests with judges.
Chief Superior Judge Brian Grearson works out of the state Supreme Court in Montpelier, a granite edifice adjacent to the Statehouse. Grearson has worked as a prosecutor, a defense lawyer and in his own law office. He’s been a judge since 2004, and chief superior judge since 2014.
Grearson also still serves as a trial judge in part because, as he puts it, he likes to "knock the rust off" and work hands-on in the court system.
“I’ve been down in Rutland and sat in the treatment court, I’ve sat in Chelsea, in Newport, down in Bennington,” he says. “I try to sit in as many different courts and as many different dockets as I can, and I still like it.”
Grearson is a trial judge’s trial judge who clearly reveres the law. He says when Vermont judges get together, they do talk about the issues that our question-asker Rosie had.
But when those judges gather, there are no African-Americans in the room.
“We’re a pretty homogenous group here, no question,” Grearson says.
But he says race is not a factor in sentencing decisions.
“It certainly has never been a factor for me,” he says. “We see a lot of people in handcuffs and the color of their skin doesn’t make a difference.”
Grearson says he and others on the bench work hard to be colorblind in their courtrooms. He says the vast majority of criminal cases are settled with a plea bargain that includes a recommended sentence judges usually approve. And he says the sentence is only one part of process that affects the racial disparities in Vermont’s prisons.
For example, does the defendant have ties to the community? And what’s their prior criminal history?
“The mistake is to compare one armed robbery, if you will, to another. It’s an oversimplification without knowing who that person is in front of you. And that’s really what we try to ask in every case: Who are you, what brings you to this point, and all of those factors we’ve talked about come into play,” he says.
And in some cases, Grearson says, Vermont judges may be dealing with bias carried over from another state:
“If you start the chain, just by way of example, of the stop-and-frisk policy that was prevalent in New York for some period of time — if that's violative of constitutional rights and that stop and frisk leads to an arrest which leads to a detention which leads to a conviction, by the time that person may be coming to Vermont, they're coming with that record. That may in itself be based in part on racial factors that aren't present in Vermont.”
Robin Joy, the director of the Crime Research Group, in Montpelier, makes the same point as Judge Grearson about the legacy of stop and frisk in Vermont.
“Now, that stop and search was totally unconstitutional. But we don't find that out until the ACLU sues many years later,” Joy says. “In the meantime, that person takes a plea because it's a lot easier, [and] gets that conviction. Now that conviction can now be used in another courtroom, and this begins to compound some of the issue.”
And here we get back to that idea of compounding consequences. Having an out-of-state record does put you at a disadvantage in Vermont’s criminal justice system. This was one of the conclusions of yet another study — one that the Crime Research Group did for the Legislature, in 2015, on race and sentencing.
“[Legislators] were interested in whether or not race played a factor in the decision to incarcerate versus a community sanction and in the length of time that people got sentenced to,” Joy says.
The study looked at four crimes: assaults, simple domestic, possession of cocaine and possession of marijuana (which was illegal at the time).
And the result?
“We did not find evidence of a wide systemic bias towards people of color in that study,” Joy says.
No bias. But again, her team did find that having an out-of-state record would impact the sentence that someone got, meaning that defendants who had prior records from another state were more likely to be sentenced, and sentenced for a longer period of time.
Here’s the thing. The study also noted that minority defendants were more likely than white defendants to have those out-of-state records. So can you draw a line there?
“Well, that's part of what we're looking at in this next study,” Joy says.
So, you see how this goes. Studies beget studies. Incidentally, Corey Jones, the guy who’s serving time in Newport, had an extensive out-of-state record when he was sentenced in Vermont, including several felonies.
“Which has nothing to do with my crime,” he says. “I should be getting sentenced for the charges that they found me guilty of, not for what happened when I was 14 years old or something, you know?”
In Robin Joy’s view, this phenomenon may warrant further examination:
“I think perhaps the next serious discussion that Vermont ought to have is: What role do prior records have in perhaps compounding institutional racism? And what role should they have when we look at the sentencing decision, or even the decision to arrest or to stop?”
Joy’s next study is looking at something we mentioned earlier: the question of how many African-American inmates are residents of Vermont, versus from out of state.
“Is the theory true that a lot of people are coming in from out of state to commit crimes? And if that's true then, OK, so we don't count those people to our population [to calculate Vermont’s African-American incarceration rate]. But what if it's a lot of white folks that are coming in from out of state to commit crimes?”
And according to that new report from the Department of Corrections, just 1.6 percent of Vermont’s prison population in 2017 were black people from out of state.
DOC also looked at sentence length, as well as frequency of drug charges and burglary charges. And they didn’t find any racial disparity.
Speaking to the Joint Legislative Justice Oversight Committee in October, Monica Weeber, the Department of Corrections’ director of administrative services, said the sentencing data is just a starting point.
“The sentence information is information that we really feel we need to do more work on,” Weeber said. “It’s something that we’re realizing that we have to understand — how the sentence information is captured and then how we can take it out and analyze it."
We want to pause for a minute, because we’ve been talking about a lot of studies in this episode. And what we found in our reporting was that basically every study has a critic. Someone who takes issue with the data or methodology. Robin Joy has issues with The Sentencing Project analysis. Vermont State Police had issues with Stephanie Seguino’s research. The Vermont ACLU has major issues with the DOC’s latest report.
Christine Longmore has a theory as to why.
"To be very frank and honest and just, you know, real about the whole situation,” Longmore says, “most people, especially leaders of organizations like police departments or the Vermont State Police or the Commissioner of Public Safety, nobody wants to be labeled as racist.”
Longmore has been working on racial justice issues in Vermont since she was in high school.
“It's sort of like the ultimate fear is to be called out or labeled as a racist, or to be labeled as the leader of an organization that has racist practices,” Longmore says.
A game of social science hot potato. Longmore experienced this very thing, as the chair of the Attorney General’s Racial Disparities in the Criminal and Juvenile Justice System Advisory Panel — one of two groups established last year to look at these issues.
Longmore and the vice chair, Mark Hughes, both quit the panel after they submitted a report about systemic racism that the panel didn’t embrace. They weren’t the only people of color in the group, but Longmore says the whole process was racially charged.
“The problem and the reason that we resigned is because of systemic racism. That was systemic racism playing out,” she says.
Mark Hughes, who is also the director of the Vermont advocacy group Justice for All, characterizes the discourse in Vermont this way: “One of the most disturbing moments I've had in the legislative process was to sit down in the cafeteria [and have] a brief conversation with a gentleman, and I said, ‘You know, talking to folks about systemic racism, you'd think most people would understand this, and I wonder if it's equivalent to talking about global warming.’ And he said, ‘No, Mark. More people believe in global warming.’”
Hughes says a big part of the answer to Rosie’s question is the fact that people are afraid to really answer it. He calls this “avoidance and denial.”
“It's, you know, choosing not to have a conversation about it,” he says. “A lot of times you'll find in circles where these conversations come up, there's just a total sidestep. And it almost begs the question — you just want people to say it. You know, is it that black and brown people are just inherently more criminal? Or is there a problem with this system?”
Several of the people we spoke to for this story are also on this panel that Hughes and Longmore quit: Monica Weeber, Brian Grearson, Garry Scott. And many current members say it wasn’t what the pair wrote that was the problem, but the fact they didn’t consult with everyone else.
“That was of course before my tenure,” says the current chair of the panel, Etan Nasreddin-Longo. “But I’ve been very mindful of the fact that people didn’t feel comfortable with the way things were handled under the former leadership, and didn’t feel like they had enough of a say in what was going on.”
The reason we’re even getting into this bureaucratic drama is to underscore just how fraught these questions are. A panel stacked with experts was charged with addressing racial disparities in Vermont’s criminal justice system, and their progress has been glacial and stymied by infighting.
"It’s maddeningly slow, frankly,” Nasreddin-Longo says. “And [the] democratic process takes time. It sucks.”
Nasreddin-Longo says the panel is expanding on a recommendation that Longmore and Hughes made, about centralizing reports of bias — and they are making progress.
“It's not as quick as those of us who have lived with racism for many years would like it to be, but I do feel, yes, that it is going forward, and that it is going forward well,” Nasreddin-Longo says.
The former vice chair, Mark Hughes, says despite the challenges, he feels momentum around these issues too. And at a recent legislative hearing, Bennington Sen. Dick Sears, a longtime state senator and chair of the Judiciary Committee, said it’s time to confront these difficult truths.
“We have a problem,” Sears said. “What is the nature of the problem, and what is the scope of the problem? You first have to admit you have a problem in order to solve the problem. And I don’t think we’ve yet admitted we have a problem.”
This is an inherently messy process — and one that means there isn’t an easy answer to Rosie’s question.
“I would say that if we answered this question in a narrow way I think we would probably contribute to the problem,” Mark Hughes says. “That's the challenge here. It's so convenient and it's so necessary to be able to neatly and tidily just package something in a way where we can consume it. So it just sort of makes sense. So it's — you know, there's a start, there's an end. There you go. Problem solved. Let's move onto the next one. This is not one of those.”
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Our editor is Lynne McCrea and our theme music is by Ty Gibbons. Other music in this episode was used under a Creative Commons license:
- "Three Stories" by Blue Dot Sessions
- "The Records" by Blue Dot Sessions
- "Borough" by Blue Dot Sessions
- "We Build with Rubber Bands" by Blue Dot Sessions
- "The Yards" by Blue Dot Sessions
Engineering support from Chris Albertine and digital support from Meg Malone. Special thanks this month to Tom Dalton, Claire Greene, Dru Roessle, Amanda Hammond and Pete Hirschfeld.