The Justice Reinvestment Initiative in Action: Analysis Examines Vermont’s Racial Equity in Sentencing Outcomes

In Vermont, Black people are six times more likely than White people to be represented in the sentenced incarcerated population. This is one of several findings in Vermont’s recent racial equity in sentencing analysis that was completed as part of the state’s second round of the Justice Reinvestment Initiative (JRI). Vermont is the first state to use a JRI approach to do an in-depth analysis of racial disparities in the criminal justice system.

In July 2020, Vermont Governor Phil Scott signed a landmark bipartisan criminal justice bill. Resulting from the state’s Justice Reinvestment II Initiative (JR II), the legislation aimed to reduce recidivism by restructuring the state’s approach to community supervision and launched a new effort to examine racial disparities in Vermont’s criminal justice system. The JRI effort was led by The Council of State Governments (CSG) Justice Center and funded by the U.S. Department of Justice’s Office of Justice Programs, Bureau of Justice Assistance (BJA) and The Pew Charitable Trusts.

The state moved swiftly to implement the changes in partnership with the CSG Justice Center.

Earlier analysis conducted by the CSG Justice Center as part of the JRI process found initial evidence of Black-White racial disparities in the court and corrections systems. Given these findings, Vermont’s JR II Working Group requested further study of racial disparities in sentencing to investigate patterns over time and provide insight into the drivers behind them.

Key Findings and Recommendations

CSG Justice Center staff conducted this work between January and December 2021, analyzing data for court cases disposed between 2014 and 2019. Key findings include the following:

• Black people are six times more likely than White people to be represented in the sentenced incarcerated population.
• Black people are defendants in criminal cases at higher rates than White people. Annually, Black people are over 14 times more likely to be a defendant in a felony drug case and over 7 times more likely to be a defendant in a case involving crimes against person(s), relative to White people.
• Once before the court, Black people are not more likely than comparable White people to be convicted, for most offenses, or sentenced to longer incarceration terms for any offense. This suggests that these decision-making points are not major drivers of incarceration disparities in Vermont.
• Importantly, however, when similarly situated Black and White defendants are compared, there are statistically significant disparities in who receives an incarceration sentence. The most dramatic racial disparities are seen for felony property and felony drug offenses, where Black people are 18 percentage points more likely to receive an incarceration sentence than comparable White people. This result is consistent when analysis is restricted to Vermont residents alone and accounts for in-state criminal history in addition to other key case and defendant characteristics.

To support Vermont leaders in taking action to advance racial equity in the state’s criminal justice system, the CSG Justice Center proposed five key recommendations:

1. Apply a race equity lens to the reclassification of drug offenses. These findings mirror national trends that show although Black and White people use and sell drugs at similar rates, Black people are more likely to be arrested and incarcerated for drug offenses. Vermont has an opportunity to use the findings of this analysis to apply a racial equity lens to the drug offense classification process by (1) reclassifying lower- to mid-level felony drug possession offenses to misdemeanors and (2) reevaluating the threshold of the highest level of possession and sales to better reflect significant amounts of drugs intended for distribution.
2. Establish nonbinding sentencing guidance or presumptive probation for certain drug and property offenses. 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.
3. Examine racial disparities in diversion and pretrial services. National research shows that Black, Indigenous, and People of Color are less likely to be diverted from incarceration than White people. However, the data to understand whether these same disparities exist in Vermont are not readily available. The Vermont Attorney General’s Pretrial Services and Court Diversion Report should be required to publicly report race and ethnicity data for people who are eligible, receiving, and declining diversion and pretrial services.
4. Develop internal guidance to increase consistency in charging and plea-bargaining decisions within state’s attorneys’ offices. Like nonbinding sentencing guidance for judges, creating guidance for state’s attorneys supports the use of discretion and can be limited to specific offenses where racial disparities are most pronounced. State’s attorneys’ offices should also regularly collect and examine charging and plea-bargaining data as well as consider establishing a process for internal charge review prior to filing.
5. Improve the collection, analysis, and availability of race and ethnicity data to inform future training and decision-making. Vermont must ensure that accurate race and ethnicity data are available in the court’s data system by doing the following:
   • Expand availability of Hispanic ethnicity data to law enforcement and the courts.
   • Invest in staffing and system improvements necessary to increase future data collection and analysis capacity.
   • Collect and analyze sentencing data statewide and by judicial district.
   • Identify opportunities to publish racial disparity data, including an annual report to benchmark and monitor progress.
   • Use data and community engagement to inform judicial training to support consistent decision-making.

Next Steps

As a result of the racial equity analysis, the Vermont Supreme Court established a Commission on Diversity, Equity, and Inclusion (DEI), which is designed to tackle disparities in Vermont’s court system and judicial practices. The Commission will address why disparities are occurring, study solutions, and implement changes.

Vermont also created the Division of Racial Justice Statistics during the 2022 legislative session. The division was recommended by the Racial Disparities in the Criminal and Juvenile Justice System Advisory Panel as part of a report that examined gaps in race and ethnicity data in the state and determined solutions to fill those gaps, which was required by Vermont’s JRI bill. Under the Executive Director of Racial Equity, the division is tasked with collecting and analyzing data related to systemic racial bias and disparities within the criminal and juvenile justice systems. The division will create, promote, and advance a system and structure that provides access to appropriate data and information to center racial equity. The data will then be used to inform policy decisions that work toward the amelioration of racial disparities across various systems of Vermont’s state government.

To learn more about the racial equity in sentencing analysis, read the full report.

This project was supported by Grant No. 2019-ZB-BX-K002 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Department of Justice’s Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the SMART Office. Points of view or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.