Mark Hughes, Executive Director, Justice For All

I am deeply disappointed with the manner in which the Attorney General has addressed Kiah Morris’ request for an investigation. V.S.A. 13, 1023 is simple assault.  This and potentially aggravated stalking clearly are crimes committed in this case.  13 V.S.A, 1458 provides injunctive reliefs despite any charges being brought against the “alleged” perpetrator.  Instead of prosecuting this case, the Attorney General defended and judged it!   The resulting new “Bias Incident Reporting Protocol” is deeply problematic. There was no community stakeholders’ coordination in this process. This is indicated by there being no civilian reporting process.  I guess they never thought about the potential of a “bias incident” being committed by law enforcement.  The protocol internalizes all processes to law enforcement.  The person filing the claim has no visibility or involvement in critical referral (HRC, OCR, ACLU, etc…) decisions. Finally, who collects the data?

It’s so sad that Kiah, James and Jamal would be traumatized yet again and let down by the system on the same day.  Sadder is that it was all too predictable.  There never seems to be a problem figuring out how to protect white folks (alleged perpetrator or victim) and their property throughout all history.  There has never seemed to be a problem finding a law that could be applied to prosecuting black folks.  In cases where there hasn’t been a law to prosecute black people, we have been a nation that simply created them.  All this as white people nervously exclaim “all lives matter” when we try to remind them that black lives matter.

I know that many are wondering where we go from here. First, T.J., apply and prosecute the law in this case and change law if necessary to address future occurrences (13V.S.A. 1454 & 1458 and 9 V.S.A 4501-4507).  Secondly, Pro Tempe Ashe, Speaker Johnson, Chairwoman White and Chairwoman Copeland-Hanzas, get a handle on civilian oversight of law enforcement by starting with public hearings on civilian oversight of law enforcement in this state (FIPP included)!  Third, Chairman Sears and Chairwoman Grad, join them and conduct public hearings on the implementation progress on the only laws designed to address systemic racism, Act 54 (2017), Racial Disparities in the Criminal and Juvenile Justice System Advisory Panel and Act 9 (2018), Racial Equity in State Government. Finally, Speaker Johnson and Pro Tempe Ashe, embrace fairness, equity and diversity in Outcome Indicators in the legislature and lead by prioritizing and championing legislation to meet these objectives.   The work required here is the same as the work required addressing all racism in this nation and the good news is that Vermont has already started.

There was a Vermont Democratic Party gathering at the Hilton Hotel in Burlington on November 9^th, 2016.  Word came in on the results of the presidential election and T.J., you looked me in the eyes and said “Don’t worry Mark.  I’ll protect you”.  Well, Mr. Attorney General, here we are and I need you to be true to your word.  Protect me.

#protectme

The Vermont legislature passed Act 164 (2018) an act relating to bail reform. Section 6 of this law directed an “Incarceration Rates of People of Color Study”. The Vermont legislature passed Act 164 (2018) an act relating to bail reform. Section 6 of this law directed an “Incarceration Rates of People of Color Study”. What follows is a critical analysis of that report.

Act 164 Sec. 6. INCARCERATION RATES OF PEOPLE OF COLOR; STUDY
COMMITTEE; REPORT

(a) Study Committee. The Commissioner of the Department of
Corrections, the Commissioner of the Department of Public Safety, the
Attorney General, the Executive Director of the Department of State’s
Attorneys and Sheriffs, and the Director of the Vermont State Police shall meet during the 2018 legislative interim to examine data regarding people of color who are incarcerated in Vermont. To the extent possible, the Committee shall also review data regarding people of color incarcerated in Maine and New Hampshire.

(b) On or before October 15, 2018, the committee shall report to the Joint
Legislative Justice Oversight Committee on:
(1) data regarding all nonwhite offenders in the custody of the
Department of Corrections, including:
(A) demographic information about the offender, including race and
ethnicity and all known places of residence;
(B) the crime or crimes for which the offender is serving a sentence
or being detained; and
(C) the length of the sentence being served by the offender or the
length of his or her detainment;
(2) sentence length comparison data between white and nonwhite
offenders who committed the same offense; and
(3) comparison data among Vermont, Maine, and New Hampshire
regarding sentence lengths and incarceration rates of people of color.

Analysis of the Vermont Department of Corrections Report Requested by the Legislature in Act 164 (2018), Section 6
 
1.  The report request was to examine data regarding “non-white offenders “in custody”.  The report expanded the scope to all which “were” incarcerated in 2017, hence providing misleading demographic information suggesting progress of a reduction of 11% African American incarceration to that of 8.5%. 
 
2.  The Executive Summary of the Report states that the commissioning authority is ACT 163 (2018).  It is actually ACT 164.

3.  The report is cited as a “preliminary report” but no follow-on intent is communicated.

4.  ACT 164 calls for race, ethnicity of offenders.  The report moves beyond the scope of this request to include gender and age, while failing to provide all data requested.
 

5.  The report acknowledges a “flawed” data collection process in DOC.
 
6.  A poorly explained Analytical algorithm referred to as “Chi Square Goodness Fit Tests” are used to arrive at the conclusion that the proportion of incarcerated blacks were under the so called “hypothesized” rates in at least one instance. 
 

7.  DOC reported not having sentencing length data for 2017.
 
8.  Additional unknown and poorly explained analytical algorithms referred to as the “Chi Square Test of Independence”, “Independent Sample T-Test”, “One-way Analysis Variance ”were used to arrive at the detrimental conclusions that there are significant differences in:
 
a.  frequency of charges issued to white and black inmates.
b.  frequency of drug charges issued to white and black inmates.
c.  sentence length between white and black inmates.         
d.  sentence length across six race categories.
e.  frequency of Disciplinary Reports issued to white and black inmates.

9.  Interstate comparison data is confusing and inconclusive.
 
Conclusion

ACT 134 (2012) requested similar data. The report, delivered in 2015 included unsubstantiated assertions and was largely inconclusive due to unavailability of data.

This report also fails to provide the substantiating data to support the conclusions.  The black-box algorithms discussed in items (6) and (8) are analogous to “not showing ones work” to some very serious problems.  Also troubling is the fact that (unlike previous reporting) the data set includes all personnel that entered the system in 2017.  This fails to take into account that 80% of inmates are incarcerated for periods of longer duration and at any given day black people make up about 11% (not 8.5%) of the prison population.

Finally, the development of this report was absent vital stakeholders throughout the process.  Community members (specifically people of color) should have been involved.  This could have been easily accomplished by simply routing this request to the Racial Disparities in the Criminal and Juvenile Justice System Advisor Panel.

Mark Hughes, ED, Justice For All
 
 

 
Mark Hughes,
Executive Director
Justice For All

Our Justices courageously interpreted the constitution with a blind eye towards justice.  They chose right over easy.

The Battle Against the War on Drugs

The Vermont Supreme Court issued a monumental decision of seismic proportion a couple weeks ago in Zullo vs. the State of Vermont. As legal scholars grapple with the ramifications of Article 11, monetary damages and search and seizure, the Attorney General is still muddling through this voluminous decision.  The decision rambles on about reasonable suspicion resulting in the smell of “a faint odor of burnt marijuana”, the idea of Article 11 being “self executing” (enabling Gregory to file suite against the state), “bad faith” and “unlawful animus”.  The one that thing can be said of this historic decision is that it is complicated and even befuddling legal experts. With all this to unpack it is probably fair to say that this State decision is comparable to Brown vs. the Board of Education at a national level.

This finding taught us that search and seizure protection in Vermont is greater than those offered by the US Constitution. Our Justices courageously interpreted the constitution with a blind eye towards justice.  They chose right over easy.  Interestingly what lies at the center of this case is a black man, drugs (suspicion) and a law enforcement officer.  This case started with yet another traffic stop, and though seemingly absent use of force, the force exerted caused traumatic impact. Gregory was one of the fortunate few.  He was able to negotiate the maze of confusion and find remedy. Make no mistake about it; there is nothing normal or trivial about his endeavor.  It was a miracle, thanks to the Vermont ACLU a private law firm and a number of friends of the court through an amicus brief.  

Thousands of cases never see the inside of a courtroom. Black and brown people in Vermont faced with lost civil liberties are often left traumatized and paralyzed. Now is the time for the legislature to take action.  The legislature should take up the bill expanding the Human Rights Commission with the addition of a litigator, a community outreach director and funding to enable Community Justice Center intake.  This bill calls for Vermont to join the 30 states that have made racial profiling illegal. The legislature must also conduct public hearings to determine the progress of the implementation of the work that has been accomplished in Act 9 (2018), Racial Equity Panel (and Director) and Act 54 (2017), Racal Disparities In the Criminal and Juvenile Justice System Advisory Panel. 

Finally, when discussions on regulation and legalization of marijuana arise (as is inevitable), hopefully we won’t forget the story of the black man, law enforcement officer and drugs.  There should be no regulation or taxation of marijuana without addressing the harm of the past and providing a hope for the future for black and brown people.  The moral arc of the universe is indeed long and bends toward justice in Vermont.  Let the battle against the war on drugs continue in the Green Mountain State.

FOR IMMEDIATE RELEASE 

Contact: Mark Hughes, Justice For All Executive Director: 802.532.3030

Racial Justice Reform Coalition Changes Name, Calls for Change

Montpelier, Vermont, January 8, 2018 – The Vermont Racial Justice Alliance (the Alliance) previously the Racial Justice Reform Coalition, that advanced Act 54 (2017), Racial Disparities in the Criminal and Juvenile Justice System Advisory Panel and Act 9 (2018), Racial Equity Panel (and Director), today announced its legislative agenda, “Change Vermont:. The agenda puts forward bills abolishing constitutionalized slavery and establishing a commission to provide recommendations on reconciliation.

“We should not excuse ourselves from our responsibility for this fight. It’s time for us to recognize that racism is both a tool of oppression to harm people of color and the most historically successful instrument of oppressing and obstructing the progress of money poor white folk” said Netdahe Stoddard, a white member of the Alliance. The Alliance is moving forward bills to expand the Human Rights Commission, implement ethnic studies standards, prohibit racial profiling, roll out consistent standards for law enforcement use of force and to update Act 9. Nico Amador of Vermont ACLU said, “People of color have taken the leadership in advancing new approaches to addressing racial justice issues across the state of Vermont. It is our hope that constituents support the leadership”

Alliance members will be at the “Advancing the People’s Platform in Vermont” forum on Wednesday, January 9, 2019 from 10:45 until noon discussing the platform.

About Justice For All
Justice for All pursues racial justice within Vermont’s criminal justice system through advocacy, education, and relationship building.

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