Informed by the results of this analysis, Vermont can enact targeted reforms that aim to reduce racial disparities at sentencing. The following recommendations focus on actionable policy changes that specifically target decision-making points in the court process where racial disparities were found to be most pronounced.
Recommendation 1: Apply a race equity lens to the reclassification of drug possession offenses.
Over the past half century, the targeted disproportionate enforcement of drug policies in Black communities following desegregation and escalation of the War on Drugs has resulted in pronounced racial disparities across criminal justice systems.42 Nationally, Black people are more likely to be arrested and incarcerated for drug offenses despite the fact that Black and White people use and sell drugs at similar rates.43
The results of this analysis show that many of these troubling trends are also evident in Vermont. There are significant disparities in how Black people in Vermont are represented and sentenced in felony drug cases compared to White people. Black people are overrepresented in cases coming before the court; they are 14 times more likely to be a defendant in a felony drug case relative to White people. Additionally, Black people convicted of a felony drug offense are 18 percentage points more likely to be sentenced to incarceration than comparable White people.
The Vermont Sentencing Commission is currently considering recommendations for a standardized offense classification system, including for drug offenses. The Sentencing Commission, as well as the legislature, should use the results of this analysis to better understand opportunities within the drug offense classification process for acknowledging and addressing racial disparities. Specifically, the state can use analysis findings to apply a racial equity lens to classification by
- Reclassifying lower- to mid-level felony drug possession offenses to misdemeanors; and
- Reevaluating the threshold of the highest level of possession and sales to better reflect significant amounts of drugs intended for distribution.
In California, the reclassification of drug offenses contributed to a substantial reduction in racial disparities in arrests, jail bookings, and incarceration.44
In Oregon, the reclassification of drug possession resulted in a 61 percent decrease in racial and ethnic disparities in felony convictions.45
As part of the classification process, the legislature directed the Sentencing Commission to examine penalty reductions for the possession of opioids.46 Based on the results of this analysis, it is important to note that just focusing on opioid-related possession offenses would potentially increase racial disparities in incarceration in Vermont. This analysis found that while heroin possession is the most common felony drug offense for which White people are sentenced to incarceration, cocaine possession is the most common felony drug offense for which Black people are sentenced to incarceration. To apply a race equity lens to the classification process and avoid perpetuating the historical systemic inequities related to drug policy, Vermont should consider penalty reductions across substances, not just opioids.
In states with an intent to distribute mechanism, a person could be charged with possession with the intent to distribute if the surrounding circumstances, including substance amount, packaging, or cell phone communications, indicate the intent to sell or otherwise transfer the substance found in their possession.
Several states have already reduced drug possession from a felony to a misdemeanor; five states have done so regardless of drug quantity up to the third conviction.47 Unlike Vermont, states that have fully de-felonized drug possession have a mechanism for charging someone with intent to distribute in cases where there are indicators of potential sale. Should the highest level of drug possession in Vermont remain a felony for the purpose of functioning as a de facto intent to distribute mechanism, it is important that the weight threshold be raised to avoid overcriminalization, particularly of people with significant substance use disorders.
Recommendation 2: Establish non-binding sentencing guidance or presumptive probation for certain drug and property offenses.
A primary finding in this analysis is that Black people in Vermont are more likely to face incarceration for drug and property offenses than White people even after controlling for key case variables including in-state criminal history.48While the analysis did not identify consistent racial disparities in likelihood of conviction, this finding does indicate there is a statistically significant difference in the “in/out” incarceration sentencing decision by race for similarly situated defendants.49 This means that, once convicted, a Black person is more likely to receive a sentence to incarceration than a White person with similar case characteristics, including criminal history and offense type.
Nationally, state sentencing guidelines or guidance to support the use of judicial discretion has been shown to effectively reduce racial disparities in sentencing outcomes.50 Similarly, previous CSG Justice Center analysis found no racial and geographic disparities in maximum misdemeanor and felony probation term lengths for which Vermont has non-binding statutory sentencing guidance.51
To address racial disparities in incarceration for felony drug and property offenses for similarly situated defendants, Vermont should pursue either non-binding sentencing guidance or presumptive probation for offenses where racial disparities are most pronounced including misdemeanor drug offenses to support the use of discretion in determining whether a person should receive incarceration or community supervision. Guidance or presumptive probation should focus on offenses where racial disparities are most pronounced, as well as where there is an opportunity to support the use of probation rather than incarceration without compromising public safety.
Recommendation 3: Examine racial disparities in diversion and pretrial services.
National research shows that BIPOC are less likely to receive diversion than White people.52 However, the data to understand if these same disparities exist in Vermont are not readily available. The legislature should require the collection and public reporting of race and ethnicity data in the Attorney General’s Pretrial Services and Court Diversion Report, which provides the legislature with an annual review of pretrial and diversion service usage and outcomes. The report should include the race and ethnicity of individuals who are eligible for, receiving, and declining services.
In 2020, the Vermont Attorney General’s office began collecting race and ethnicity information for pretrial and diversion programming and is in the process of considering next steps related to this recommendation.53 Collecting and publicly reporting this information would help Vermont determine whether racial disparities in program access exist and if those disparities are pronounced in specific counties.
Recommendation 4: Develop internal guidance to support consistency in charging and plea-bargaining decisions within state’s attorneys’ offices.
State’s attorneys play a critical, if sometimes less visible, role in sentencing outcomes. Prosecutorial data is rarely available to fully understand the impact of charging and plea-bargaining decisions on sentencing outcomes, including racial disparities.54 However, national studies have found that Black people are less likely to receive charges or offers for non-custodial sentences during the plea-bargaining process than White people.55 Given that 99 percent of cases in Vermont are resolved by plea bargains, the role of state’s attorneys’ offices in the charging and plea-bargaining process is an important area of focus for understanding and addressing racial disparities in sentencing outcomes.56
Guidance for state’s attorneys should
- Address when and when not to charge;
- Provide structure on what to charge given specific circumstances and factors;
- Prioritize diversion and non-custodial responses; and
- Provide a framework for guiding discretion during the plea-bargaining process.
Prosecutors in other jurisdictions have proactively sought to reduce racial disparities by adopting internal guidance to provide structure for decision-making during the charging and plea-bargaining process; Vermont’s state’s attorneys should consider adopting this type of approach. Like non-binding sentencing guidance for judges, this type of guidance for state’s attorneys maintains the use of discretion and can be limited to specific offenses where racial disparities are most pronounced, to have the most targeted impact.
To monitor implementation of internal guidance, Vermont state’s attorneys’ offices should build on existing efforts to standardize collection of prosecutorial data, aim to regularly collect and examine charging and plea-bargaining data, and consider establishing a process for internal charge review prior to filing. Several jurisdictions in other states have successfully adopted internal guidance to guide prosecutorial decision-making for the purpose of achieving policy goals, including reducing racial disparities. For example, the Milwaukee District Attorney’s Office eliminated disparities in drug paraphernalia charges by establishing guidance that prioritized diversion or dismissal.57 They coupled this guidance with a limited internal charge review process as well as regular data collection and monitoring to benchmark progress. The Philadelphia District Attorney’s Office implemented sentencing policies governing charging and plea-bargaining decisions that resulted in decreased disparities in community supervision sentencing.58
Recommendation 5: Improve the collection, analysis, and availability of race and ethnicity data to inform ongoing training and decision-making.
Vermont’s Justice Reinvestment II legislation, Act 148 (2020), tasked the Racial Disparities in the Adult and Juvenile Justice System Advisory Panel (RDAP) and other stakeholders with studying and making recommendations regarding gaps and challenges in race and ethnicity data collection. RDAP has since delivered two reports to the legislature recommending the creation of an Office of Racial Justice Statistics (Office) to manage the collection and analysis of criminal justice-related race and ethnicity data.59
Several of the following recommendations support key components of the RDAP proposal for the Office as described in its November 2021 report to the Vermont legislature. If sufficiently resourced, the Office would be a comprehensive, first-of-its-kind entity that will provide Vermont with a more complete understanding of how disparities compound as a person moves through the system, as well as the information to develop targeted, data-driven policy reforms.
Expand availability of Hispanic ethnicity data to law enforcement and the courts. The data that the Vermont Judiciary receive from law enforcement do not currently include Hispanic ethnicity. When ethnicity data are not collected in addition to race it can result in significant undercounting of the Hispanic population.60 For example, in Vermont, it was only after the DOC began collecting ethnicity data separate from race in August 2020 that it became apparent that Hispanic people were overrepresented in certain corrections populations.61 Specifically, in January 2022, the proportion of the DOC corrections population incarcerated or supervised in the community who identified as Hispanic was 10.4 percent and 7 percent, respectively. The percentage of Hispanic people represented in each of these corrections populations is notably higher than Vermont’s general Hispanic population, which is approximately 2 percent.62 It is possible that once the Vermont Judiciary begins to collect Hispanic ethnicity data, additional disparities will come to light. To better understand and address disparities at sentencing for people who identify as Hispanic, Vermont must ensure that accurate ethnicity data are available in the court’s data system.
Invest in staffing and system improvements necessary to increase future data collection and analysis capacity. Whether through the Office of Racial Justice Statistics or a similar mechanism, addressing gaps in racial and ethnic disparity data will require targeted, long-term investments in the people and infrastructure necessary to collect, share, and analyze quality information. Additionally, individual agencies and organizations may also require funding for system upgrades to improve initial data collection and make information sharing possible.
Collect and analyze sentencing data statewide and by judicial district. Vermont should collect race and ethnicity data for each key decision-making point in the court process, including case inflow, conviction, incarceration, and sentence length. Comprehensive data collection should also include information on charging and plea-bargaining decisions.
Identify opportunities to publish racial disparity data, including an annual report to benchmark and monitor progress. Racial disparity data should regularly be made available to the public to promote transparency and accountability. Data should be in an accessible format that includes critical context for the public to understand and engage with the information.
Engage impacted communities in collecting quantitative and qualitative data as well as in developing and implementing racial disparity-related policy changes. RDAP’s November 2021 report emphasized the importance of building relationships with impacted communities and ensuring they are meaningful partners at each stage of the data collection and analysis process to avoid perpetuating practices that reflect existing systemic racism.63 To provide critical context for quantitative data, Vermont should also consider collecting qualitative data to better understand the lived experiences of BIPOC impacted by the criminal justice system.
Use data and community engagement to inform judicial training to support consistent decision-making. Even when cases are resolved by plea bargain, judges still have significant authority during the sentencing process, including the ability to question or refuse a plea. Quantitative and qualitative data can help the Vermont Judiciary identify training opportunities for judges to increase their understanding of how to identify and address racial disparities from the bench, as well as generally support consistency in decision-making across the state.
42. Susan Nembhard and Lily Robin, Racial and Ethnic Disparities throughout the Criminal Legal System, A Result of Racist Policies and Discretionary Practices (Washington, DC: Urban Institute, 2021).
43. Mitchell and Caudy, “Examining Racial Disparities in Drug Arrests”; Rothwell, “Drug Offenders in American Prisons: The Critical Difference Between Stock and Flow”; Travis, Western, and Redburn, “The Growth of Incarceration in the United States: Exploring Causes and Consequences.”
44. Magnus Lofstrom, Brandon Martin, and Steven Raphael, “Effect of Sentencing Reform on Racial and Ethnic Disparities in Involvement with the Criminal Justice System: The Case of California’s Proposition 47,” Criminology and Public Policy 19 (2020): 1165–1208.
45. Oregon Criminal Justice Commission, “Update to Possession of Controlled Substances Report” 2019, https://www.oregon.gov/cjc/CJC%20Document%20Library/2019PCSReport.pdf.
46. Act 142 General Assembly of the State of Vermont, Regular Session (2018) https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT142/ACT142%20As%20Enacted.pdf.
47. Brian Elderbroom and Julia Durnan, Reclassified, State Drug Law Reforms to Reduce Felony Convictions and Increase Second Chances (Washington, DC: Urban Institute, 2018). Alaska later repealed reclassification of drug possession offenses.
48. Analysis of 2014–2019 Vermont Judiciary data conducted by The Council of State Governments (CSG) Justice Center, November 2021.
50. Kelly Lyn Mitchell, “State Sentencing Guidelines: A Garden Full of Variety,” Federal Probation 81 (2017); Dale Parent, et al., “The Impact of Sentencing Guidelines” (Washington, DC: National Institute of Justice, 1996); Michael Tonry, “Fifty Years of American Sentencing Reform: Nine Lessons,” Crime and Justice 48 (2019).
51. Analysis of FY2015-FY2019 Vermont Judiciary disposition data by The Council of State Governments Justice Center, September 2020.
52. Mauer and Ghandnoosh, Incorporating Racial Equity in Criminal Justice Reform.
53. Charity Clark (Chief of Staff, Vermont Attorney General’s Office), in discussion with the authors, November 2021.
54. John F. Pfaff, “Prosecutorial Guidelines” in Reforming Criminal Justice, ed. Erik Luna (Phoenix: The Academy for Justice, 2017), 101–120.
55. Ram Subramanian et al., In the Shadows: A Review of the Research on Plea Bargaining (New York: The Vera Institute of Justice, 2020).
56. Analysis of FY2015-FY2019 Vermont Judiciary data by The Council of State Governments Justice Center, November 2019.
57. Mauer and Nazgol, Incorporating Racial Equity into Criminal Justice Reform.
58. The Philadelphia District Attorney’s Office, Ending Mass Supervision: Evaluating Reforms (Philadelphia: The Philadelphia District Attorney’s Office, 2021), https://www.docdroid.net/rWxCb15/dao-supervision-report-pdf.
59. Racial Disparities in the Criminal and Juvenile Justice Systems Advisory Panel, Report of the Racial Disparities in the Criminal and Juvenile Justice Systems Advisory Panel concerning Act 65.
60. Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons.
61. Analysis of Vermont Department of Corrections October 2021 population snapshot data by The Council of State Governments Justice Center, December 2021.
62. Analysis of Vermont Department of Corrections data January 2022 and 2021 U.S. Census Bureau State Population by Characteristics data conducted by The Council of State Governments (CSG) Justice Center, February 2022.
63. Racial Disparities in the Criminal and Juvenile Justice Systems Advisory Panel, Report of the Racial Disparities in the Criminal and Juvenile Justice Systems Advisory Panel concerning Act 65.