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Doing justice to the dream

By Robert Appel

Posted January 19, 2007

As we celebrate the life and work of Martin Luther King, Jr., let us reflect upon his famous words, “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

An analysis of how race plays out in the criminal justice field, both nationally and locally, provides some indication of whether King’s dream has been fulfilled.

Not surprisingly, the issue of racial disparity has been more extensively studied on a national level than within Vermont. Two-thirds of the people in prison in the United States are now members of racial and ethnic minority groups. For African-American males in their 20s, one in every 8 is in prison or jail on any given day. These trends have been intensified by the disproportionate impact of the “war on drugs,” in which three-fourths of all persons in prison for drug offenses are people of color. African-American males are incarcerated at more than six times the rate of white males, and for Hispanic males the rate is more than double the rate of white men. African-American females are incarcerated at three times the rate of white females and Hispanic females at nearly double the rate.

According to the Sentencing Project, a national organization working for a fair and effective criminal justice system, an African-American male born today has a one in three chance of spending time in prison at some point in his life if current trends continue. Furthermore, almost half of U.S. inmates are African-American as compared to African-Americans’ 12 percent share of the overall U.S. population.

Vermont remains one of the whitest states in the United States. According to Census Bureau data for 2005, Vermont has a population that is 96.6 percent white (tied with Maine) as compared with a national figure of 3 of 4 persons being white. The Black population of Vermont is reported to be seven-tenths of one percent. Nonetheless, according to the Sentencing Project, Vermont ranks second only to Iowa in the rate of racial disparity in incarceration with African-Americans incarcerated at a rate 12.5 times more per 100,000 residents than whites.

This significant finding is corroborated by data published by the Vermont Department of Corrections (DOC) showing that 8.4 percent of all Vermont inmates incarcerated on June 1, 2006 by the DOC were African-American, a rate more than 12 times greater than state’s African-American population rate. State prison data also reveals that 10 years ago, the percentage of its African-American inmates was 4.5 percent, roughly half of the current rate. These disparities were previously the subject of a preliminary study by the Vermont Center for Justice Research in 2002. Unfortunately, the study was never completed to consider prior criminal history and seriousness of the offense as a means to explore these gross disparities.
The question of whether the discriminatory exercise of discretion by criminal justice professionals results in these significant racial disparities remains largely unanswered. Law enforcement discretion to stop and investigate persons of color has been the subject of wide-ranging discussions in Vermont in the past year.

For example, more than 2,000 Mexican nationals are reported to be filling the present need for dairy farm labor here in Vermont.

In Addison County, both Mexican workers and their employers have expressed concerns that if a Mexican farm worker is seen by law enforcement officers, there is a substantial likelihood that the Mexican will be stopped, presumably based solely on skin color, and questioned about his immigration status. This is reported to occur even though immigration violations are usually a civil offense and a Vermont officer has discretion whether or not to investigate such a violation.

At a recent immigration forum held in Montpelier (sponsored by the Central Vermont Anti-Racism Study Circles), a Mexican national recounted being stopped while driving in Addison County. After producing a valid North Carolina driver’s license, he was nonetheless immediately taken into custody, turned over to the U.S. Border Patrol for detention, and is now facing deportation.

When a farm worker is seized and detained, the herd goes unmilked, spawning further stress on Vermont’s already strapped dairy industry. Interviews of Mexican workers document an overwhelming sense of isolation, based on the well-founded fear of leaving the barn for religious, medical, or social services.

In addition, there was much concern expressed about the U.S. Border Patrol checkpoint on Interstate 91 in Hartford that reportedly resulted in the disproportionate detention of non-white travelers, but no terrorists, the supposed subjects of the checkpoint. For the time being, the checkpoint has been discontinued purportedly due to a lack of funding rather than a lack of desired results.

Efforts to have Vermont law enforcement agencies adopt a meaningful anti-bias policing policy have had varied results.

By way of example, the City of Burlington’s policy prohibits the investigation of suspects based solely on their race without further objective evidence of criminal activity. The policy has been interpreted to prohibit investigation of any person’s immigration status without some independent objective suspicion of other criminal activity.

However, a model policy offered by Vermont’s Department of Public Safety and reviewed by Vermont’s Law Enforcement Advisory Board falls substantially short of the U.S. Department of Justice’s guidance against racial profiling that was issued in June 2004. The federal policy directs officers not to rely on race as a motivating factor in a stop unless there is information available as to the race of an identified suspect. The Vermont model policy appears not to explicitly prohibit the use of color as a component of an officer’s decision to make an investigative stop.

Remembering King’s work and legacy, we as Vermonters should redouble our collective efforts to ensure that as Vermont becomes increasingly diverse, that promise of equal treatment of all persons be honored.
Vermont has a long history of providing leadership in pursuing “full civil and human rights for each inhabitant of this state,” in the words of the state’s Human Rights Commission Act. Let each of us commit to do what we can, both as individuals and in our communities, to bring King’s dream to fruition.

Robert Appel is the former defender general of Vermont, and is currently the executive director of the Vermont Human Rights Commission.