On November 15, 2023

Second-look legislation can make Vermont’s legal system more humane

 

By Jessica Brown 

Editor’s note: Jessica Brown is an assistant professor of law and director of the Center for Justice Reform at Vermont Law and Graduate School in Sharon. Earlier, she was a public defender for 24 years in New Hampshire and Vermont, in both the state and federal legal systems. 

Vermont thinks of itself as a progressive state. When George Floyd was murdered in 2020, protests erupted from Burlington to Brattleboro. Legislators and advocates called for a more just, humane policing and criminal legal system — and rightly so.

 It’s now been more than three years since those protests, and some progress was made. 

But despite those actions, there are still appalling racial disparities in Vermont’s criminal legal system. While only 1.5% of the state’s population is Black, approximately 10% of the incarcerated population is Black. 

At the same time, over the past two decades, Vermont has increased its reliance on harsh, lengthy sentences. The number of people serving life without the possibility of parole has increased substantially, with nearly twice as many people serving life without parole in Vermont in 2020 as in 2003 — and data shows there is a racial disparity when it comes to who receives a life sentence. 

In Vermont, one in every six Black men in prison is serving life in prison or de facto life in prison due to their age or illness.

Lengthy sentences are not an effective deterrent to crime, and the costs for relying on life sentences far outweigh their hoped-for benefits. 

In fact, so many people have been sentenced to lengthy sentences in Vermont that our state’s Department of Corrections contracts with a private prison company in Tutwiler, Mississippi, to house incarcerated individuals out-of-state.

This situation is racist, and it is appalling. Vermont can and must do better. 

The first step would be to make Vermont’s legal system more just and more humane.

It starts with passing Senate Bill 155, “An act relating to eliminating life without parole and implementing second look sentencing.” This bill would create a universal opportunity for a “second look” at criminal sentences by allowing all individuals to petition a court for resentencing after they have served the lesser of 10 years in custody of the Department of Corrections or at least 50 percent of their sentence, provided they were sentenced to at least five years of incarceration, or upon the consent of the prosecutor. 

There is a process involved with these petitions. Judges would consider every individual’s history, rehabilitation, disciplinary record while incarcerated, the age of the incarcerated person at the time of the offense, the nature and circumstances of the offense, and any other information the court deems relevant.

In other words, Senate Bill 155 would simply create a petition for a review. It is not a “get out of jail free” card. 

That is an important distinction. Critics of Second Look legislation bring up egregious examples of people who should never get out of prison, citing people who could still present a threat to society. These people would not be getting out of prison under Senate Bill 155.

Senate Bill 155 is also evidence-based policy — it isn’t just moralizing. For example, we know the impulse to engage in crime — particularly violent crime — is highly correlated with age. By an individual’s early 40s, the impulse to commit crime has tapered off significantly, even among those who’ve committed a series of violent offenses. There is also the obvious fact that people’s physical ability to commit crime, especially violent crimes, decreases dramatically as they age. 

In light of this information, it’s worth considering that the average age of the population serving life without parole is 55 years old.

Contrary to the rhetoric that has resurfaced in recent years, it is not smart policy to imprison people long past their proclivity — or even physical ability — to commit crime. In fact, it’s an incredibly poor use of resources that would be better spent on solutions that actually prevent crime, like investing in food security, housing, and other necessities.

Let’s let the facts and data guide our path to a more just, humane criminal legal system by passing Senate Bill 155. And it is also in line with the humane and compassionate values of our Brave Little State.

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