been the target of racial profiling and racist comments, He described perceived bias-driven
incidents in many aspects of his daily life, including driving, shopping, engaging in recreational
activity, and his housing situation.

Susanna McCandless, Lecturer, Department of Geography, College of Arts and Sciences.
University of Vermont, and Farm Worker Assistance

Ms. McCandless testified that she works with Latino and Mexican farm workers. She said that
these workers live in isolation and fear because their visibility in small towns and their illegal
status renders them unable to leave the farms on which they work to engage in the most basic
human activities. Ms. McCandless acknowledged that the unavailability of visas under present
immigration policy is a matter that can only be resolved at the federal level.

Antoinette Bennett-Jones, Member of the Public

Ms. Bennett-Jones, a pregnant African American woman, advised that she had recently relocated
to Burlington from Florida to have her baby. She testified that she was the victim of an allegedly
racially motivated traffic stop and physical assault by a Williston police officer. The officer, she
said, directed that she pull her vehicle over in the parking lot of a Williston Wal-Mart, where she
and her sister planned to pick up diapers for theit nephew. Ms. Bennett-Jones charged that the
officer failed to cite a legitimate reason for the stop, although he told her that the car inspection
sticker was peeling. A newspaper article stated that she received a $314 ticket for "disobedience
to a police officer,” but no traffic citation. The newspaper also reported that, after Ms. Bennett-
Jones left the scene, she was diagnosed with a sprained wrist, according to discharge papers from
Fletcher Allen Medical Center.”* Tonya Bennett, Ms. Bennett-Jones’ sister, offered corroborating
testimony to the panel.

Ron Redmond, Executive Director, Church Street Marketplace

Mr. Redmond described an advocacy effort by the Peace and Justice Center in Burlington
relating to racial profiling by merchants. Specifically, Church Street Marketplace merchants
were asked to sign a “Statement of Goodwill” affirming their intent to treat all customers with
fairness and dignity and to refrain from targeting persons of color for special surveillance.

Mr. Redmond further stated that he has been approached by persons of color who report
perceived racial profiling activity; within the past few years, he recalled three instances in which
he was asked to intercede with a merchant. He shared his belief that it is important to educate
businesspeople about “White privilege” issues.

Written Comments Submitted by Public

Allen Gilbert, Executive Director, American Civil Liberties Union of Vermont

Mr. Gilbert submitted written testimony to the Committee, attached as Appendix A. His
statement advised that the Vermont chapter of the American Civil Liberties Union has tracked
the racial profiling issue for a number of years, including consideration of data collection. He
observed that without hard data it is impossible to determine whether, and to what extent, racial

28 Hirschfeld, supra note 26.

15



Appendix: B

Middlebury Police Department
General Order
Subject: Undocumented Foreign Nationals Number: 2.48
Effective Date: 10-30--07

Approved & Ordered:
Chief of Police

I. Policy - Undocumented Foreign Nationals

The Middlebury Police Department exists to provide equality of service to all
persons regardless of race, creed, nationality, sexual orientation, gender, or
ethnic background. The Department operates within the scope of its jurisdiction
and authority as granted by the State of Vermont and the charter of the Town of
Middlebury.

The Department provides services consistent with its mission to all persons
regardless of citizenship status, that is, the reduction of crime and disorder,
improving highway safety, and assisting those in need.

It is essential to the mission of the Middlebury Police Department that victims
report crimes and fully cooperate in investigations; that witnesses come forward
and provide testimonial evidence; that persons report suspicious activity and
other information to reduce crime and disorder; and that. help is summoned
when needed. These activities must be undertaken without hesitation and
without fear that the victim, witness, or reporting person will be subject to
prosecution or deportation for no reason other than immigration status.

Therefore, Department employees will act first and foremost in the best
interests of our community and our mission when dealing with undocumented
foreign nationals who come to the department for help or to make reports,
giving full priority to public safety and justice concerns in preference over rigid
enforcement of immigration regulations.

With respect to contact with undocumented foreign nationals, the department
will act and refer undocumented foreign nationals to the respective Federal
agency only when:

A, The person is known to have committed a crime against the statutes
of the State of Vermont or is sought for prosecution by another
jurisdiction; or

B. The person is suspected of conduct or conspiracy that is criminal in
nature [other than that person’s own immigration status] or which
undermines homeland security; or

4¢ Undocumented Foreign Nationals 2.48



Finding 6: Equipment

Video camera recording devices are valuable tools to protect public safety and the personal
safety and credibility of law enforcement officers. The public’s confidence in law enforcement is
boosted when it knows that police-public contacts during traffic stops are being recorded. Video
recording can directly demonstrate an officer's actions as well as those of the person being
detained or transported; it can show that officers are not engaging in proscribed behavior, and in
the event of such behavior provide necessary documentation to facilitate supervisory measures.
Recordings can also enhance officer safety and provide exonerating evidence when an officer is
falsely accused of misconduct. Routine review of the tapes allows supervisors to monitor
conduct and identify and improve officer interactions with the public.

All front-line cruisers for Vermont State Police have video equipment. The cameras are used to
audit traffic stops and motor vehicle searches to provide professional feedback and corrective
action for officers as well as corroborate citizen reports of trooper conduct during traffic stops.
As a result, the cameras are used to hold troopers accountable to State Police policies and its
code of conduct.

Many local Vermont police department vehicles, however, do not have cameras. And even where
+ vehicles do have video cameras, the video recordings are not necessarily properly preserved or
readily available.

Recommendation 6:

The Committee recommends that video cameras be installed in all front-line patrol vehicles and
that the equipment receives adequate routine maintenance to ensure consistent operation. The
Committee recognizes that the costs of video camera installation and maintenance are
significant, but believes that they will remain a good investment when balanced against the
protection they provide both to police and to the public.

As video recording is instituted, law enforcement agencies should develop policies and

procedures to safeguard patrol car videotape evidence and ensure that the videotapes are
preserved.

32



DEPARTMENT DIRECTIVE 06.10 page 3

UL

VI.

VII.

E. Provide officer’s name and badge number verbally, when requested.
Officers may also provide the information in writing or on a business card.

F. Apologize and/or explain if the officer determines that the reasonable
suspicion was unfounded (e.g. after an investigatory stop).

COMPLIANCE

The Burlington Police Department is committed to providing periodic cultural

competency training for its officers. It is the goal of this department to ensure that

all employees are sensitive to, and aware of, cultural diversity issues and what

constitutes biased policing,

The Burlington Police Department is committed to the vigorous investigation of

complaints of this nature and violations of this policy shall result in disciplinary

action as set forth in the Department’s Rules and Regulations (10-DD06.04) and

Discipline (02-DD06,12).

SUPERVISION AND ACCOUNTABILITY

Supervisors shall ensure that all personnel in their command are familiar with the

content of this policy and are operating in compliance with it.

CANCELLATION

This directive rescinds 01-DD02-01 dated March 3, 2002.

SOURCE

Racially Biased Policing: A Principled Response, from Police Executive Research
Forum and COPS Office.

International Association of Chiefs of Police website

CONTRIBUTORS

Chief Thomas R. Tremblay
Nancy Goss Sheahan, Esq.

41



e During the spring of 2007, the Burlington Police Department, Burlington City Council
officials, two state legislators, moderator T.J. Donovan (Chittenden County State’s
Attorney), and the Executive Director of the Vermont Human Rights Commission met
with approximately 50 members of the public — one-quarter of whom were described by a
local weekly as recent immigrants and local established residents of color — to discuss
race and law enforcement issues. A media report stated that Attorney Donovan convened
the meeting in response to a Burlington Free Press Op-Ed piece in which Hal Colston,
Director of NeighborKeepers, a non-profit, anti-poverty organization in Burlington,
described his experience of “driving while black.” One of the state representatives
expressed his intention to introduce a bill during the upcoming legislative session that
would generate data for analysis of racial profiling issues.

© On June 6, 2008, the Uncommon Alliance issued a press release announcing the first of a
series of public forums to advise the community of the initiative of four local police
departments — Burlington, South Burlington, Winooski, and the University of Vermont —
to have law enforcement officers collect drivers’ race data during motor vehicle stops.
The stated objective of the data collection process was to assist law enforcement agencies
in analyzing whether individual officers are engaging in stops that may be based on racial
bias instead of observed conduct and thus “to promote accountability and transparency of
law enforcement officers, especially when dealing with members of minority
communities.” An editorial that appeared in the Burlington Free Press on June 12, 2008,
commended the initiative, noting the inadequacy of “anecdotal” information and the need
for data that either validates or dispels racial profiling concerns. The editorial urged
commencement of a state-wide program. The supervising attorney in the Chittenden
County Public Defender’s Office agreed with the call for a state-wide program,
commenting that race bias infiltrates all levels of the criminal justice system, from initial
traffic stops to bail hearings to sentencing.”

¢ On June 12 and July 17, 2008, this Committee convened briefings to hear more from law
enforcement representatives, governmental officials, scholars, advocacy group
representatives, community representatives, and members of the public about racial
profiling issues in Vermont.

> Mike Ives, “Burlington Officials Address Discrimination, Again,” Seven Days, Local Matters, May 30, 2007,
available at http://www.7dvt.com/2007/Burlington-officials-address-discrimination-again (Jast accessed May 27,
2009). .

26 Peter Hirschfeld, Vermont Police Accused of Racial Bias, Barre-Montpelier Times Argus, June 15, 2008. The
article also quotes Robert Appel, Executive Director of the Vermont Human Rights Commission, as citing racial
disparities in imprisonment and stating that African-American men are represented in the inmate population in
Vermont at a rate 12.5 times greater than their presence in the general Vermont population.



(f) On the commencement of an investigation by a law enforcement agency of a
complaint described by Subsection (b)(3) in which a video or audio recording of the
occurrence on which the complaint is based was made, the agency shall promptly provide
a copy of the recording to the peace officer who is the subject of the complaint on written
request by the officer.

Art. 2.133, REPORTS REQUIRED FOR TRAFFIC AND PEDESTRIAN STOPS.
(a) In this article:

(1) "Race or ethnicity" has the meaning assigned by Article 2.132(a).

(2) “Pedestrian stop" means an interaction between a peace officer and an
individual who is being detained for the purpose of a criminal investigation in which the
individual is not under arrest.

(b) A peace officer who stops a motor vehicle for an alleged violation of a law or
ordinance regulating traffic or who stops a pedestrian for any suspected offense shall
teport to the law enforcement agency that employs the officer information relating to the
stop, including:

(1) a physical description of each person detained as a result of the stop,
including:

(A) the person's gender; and

(B) the person's race or ethnicity, as stated by the person or, if the person does
not state the person's race or ethnicity, as determined by the officer to the best of the
officer's ability;

(2) the traffic law or ordinance alleged to have been violated or the suspected
offense;

(3) whether the officer conducted a search as a result of the stop and, if so,
whether the person detained consented to the search;

(4) whether any contraband was discovered in the course of the search and the
type of contraband discovered;

(5) whether probable cause to search existed and the facts supporting the
existence of that probable cause;

(6) whether the officer made an arrest as a result of the stop or the search,
including a statement of the offense charged;

(7) the street address or approximate location of the stop;
and

(8) whether the officer issued a warning or a citation as a result of the stop,
including a description of the warning or a statement of the violation charged.

Art. 2,134, COMPILATION AND ANALYSIS OF INFORMATION COLLECTED.

(a) In this article, "pedestrian stop" means an interaction between a peace officer and an
individual who is being detained for the purpose of a criminal investigation in which the
individual is not under arrest.

(b) A law enforcement agency shall compile and analyze the information
contained in each report received by the agency under Article 2,133. Not later than
March 1 of each year, each local law enforcement agency shall submit a report containing
the information compiled during the previous calendar year to the governing body of
each county or municipality served by the agency in a manner approved by the agency.

St



General Order: PR-346
South Burlington Police Department

D. All sworn employees are required to report allegations, complaints, or knowledge of a
suspected violation of this policy to their Chief or his designee, Failure to report a violation
in accordance with policy, and the Department’s Rules and Regulations shall be considered
a separate violation of this policy.

E. The Department shall investigate reports of violations of this policy in accordance with its
policies and procedures regarding investigations of police conduct.

346.4.0 Administrative Review

A. An ongoing administrative review will take place by the Prevention Services Division
Manager.

B. The PSD Manager will include in his/her monthly report to the Chief of Police a summary
of any biased based complaints that were received and the actions taken during the previous
month,

Cc. During the annual review of citizen’s complaints by the Administrative Services Division
Manager he/she will make note of any patterns that suggest a need for further investigation
and/or additional training. These results will be included in the annual report by the ASD
Manager.

Approved By:____ Chief Trevor Whipple

Date Approved: April 30, 2007

Page 3
Reference: 1.2.9 Last modified: April 30, 2007
Effective: November 1, 2003 Last reviewed: April 30, 2007

49



Appendix: E

General Order: PR-346
South Burlington Police Department

Biased Free Policing

The purpose of this written directive is to establish the department’s policy prohibiting bias
policing, reaffirm the department’s commitment to unbiased policing, and to reinforce procedures
that will secure our commitment and serve to assure the public that our department is providing
services and enforcing laws in a manner that is equitable.

Definition of Bias Policing
The stopping, detaining, searching, seizing, questioning, arresting, of any person, based
solely upon the race, religious beliefs, sex, age, national origin, sexual orientation,
disability; or, the failure to adequately investigate, enforce or respond to a violation of law
or complaint based solely on race, religious beliefs, sex, age, national origin, sexual
orientation or disability; or, the failure to treat a person in a respectful or professional
manner based solely upon race, religious beliefs, sex, age, national origin, sexual
orientation, or disability.

346.1.0 Policy

A. No member of this agency shall engage in bias policing. Such practices are in violation of
law, department policy, and/or law enforcement ethics, and are strictly prohibited.

B. Notwithstanding the above, race, religious beliefs, sex, age, national origin, sexual
orientation, or disability may in some combination with each other or with other descriptors,
facts and circumstances, form the basis of reasonable suspicion or probable cause. Race,
religious beliefs, sex, age, national origin, sexual orientation, or disability may, in some
combination with each other or with other descriptors, facts and circumstances, serve to
identify a person. All enforcement action must be authorized by law. For example, one
standard for stopping and detaining a person, or continuing the detention of a person, is
articulable, reasonable suspicion that the person has committed, is committing, or is about
to commit a violation of the law.

Cc. All employees are expected to be diligent in the execution of their duties that may include
investigating suspicious persons, vehicles, and circumstances, enforcing the laws, and,
where appropriate, lawful stopping, detaining, questioning, searching, seizing and/or
arresting a person.

D. Employees will, as necessary and professionally appropriate, use techniques and strategies
to advance the reality of unbiased policing. These techniques and strategies include, but are

not limited to:

1. Be courteous, polite, and professional.

Page 1
Reference: 1.2.9 Last modified: April 30, 2007
Effective: November 1, 2003 47 Last reviewed: April 30, 2007



outcome will “not only increase the transparency of the criminal justice system, but serve as a
valuable internal management tool for the police.” He called it “remarkable” that community
partners, in a grassroots effort, created this commitment, observing that the goal was
accomplished by an acknowledgement that “change, while difficult, can occur when an
incremental approach is taken.”

Mr. Donovan urged that this work extend beyond police departments to prosecutors, who he
believes should be accountable to the public and make decisions based on public safety
considerations. He stated that race should never be a factor in their decisions, although it is
nonetheless important to understand the role that both race and poverty have played in our
society and the criminal justice system. Finally, Mr. Donovan commented that prosecutors’
offices should be staffed in a manner that reflects the communities they serve, and he shared his
progress to date toward that goal.

Panel Two: Questions and Answers

A Committee member asked Mr. Sorrell to elaborate upon his comment that racial bias has not
been found in the judicial system. Mr. Sorrell replied that he has not encountered compelling or
convincing allegations from defense counsel, juries, or judges that persons of color are being
prosecuted at higher rates than Whites. He acknowledged, however, that incarceration data raise
questions, He also mentioned previous legislative consideration of data collection, but recalled
that some persons expressed personal privacy concerns when an initiative was under
consideration.

Ms. Saxman commented that it is extremely problematic to accuse a judge of racial bias, stating
that no allegation “will upset a judge more.” She also noted that bias is difficult to prove. She
has, however, seen judicial comments in trial transcripts that caused her concern.

In responding to a question regarding the juvenile justice system, Ms. Saxman cited the absence
of data collection and the prevalence of anecdotal evidence. She mentioned one study that found
differential referral rates of minority youth to diversion programs. She also noted that minority
children in detention appear to be less likely to be sent home due to perceptions of increased risk
in their home environments.

A Committee member asked the panel whether it supported or opposed mandatory data
collection. Mr. Donovan stated that he does not believe that data collection should be mandated,
because the police departments participating voluntarily in Chittenden County will become the
best advocates of the practice with other state law enforcement agencies. He also expressed
concern about an unfunded mandate.

Attorney General Sorrell stated that it would be helpful if the Legislature appropriated funds to
support data collection, including experts as necessary. He also said that law enforcement
agencies will face staffing challenges associated with the need to do in-depth analysis of massive
records, particularly if a study were to cover post-arrest proceedings in addition to traffic stops.
He asked whether a prospective study might be more productive, insofar as it may improve
prospects for ensuring the best quality data.

19



C. On incidental contact should the officer have reason to believe human
trafficking or other criminal activity is afoot, or when the officer would
otherwise have cause to seek identification and the person has no
credible means of identification nor any U.S. citizen or consular
official to provide identification, country of citizenship, residence, and
purpose for their presence in the U.S.

I. Mexican Citizens

A. Matricula Consular de Alta Seguridad (Mexican Consular ID Card)

The government of Mexico provides a means of documenting, registering,

and identifying Mexican nationals living and working outside of Mexico. The
Middlebury Police Department accepts the validated Mexican Consular ID card,
or “Matricula Card” as proof of identity and documentation.

I. Complaints / Information

A. Referral to Federal Agency

On receipt of a third-party complaint or information of undocumented foreign
nationals, in the absence of any other criminal activity, log the information in
the department dispatch records and refer the information to the Bureau of
Immigration and Customs Enforcement.

B. Investigation

On receipt of a complaint or information of undocumented foreign national(s)
suspected of criminal activity, assign an officer to investigate with a follow-up
report to the Bureau of Immigration and Customs Enforcement or other
applicable law enforcement agency.

IV. Consular Notification

The provisions of the U.S, Department of State publications “Diplomatic and

Consular Immunity” and “Consular Notification and Access” are adopied by this
department as procedures for managing foreign nationals.

A Rights of Foreign Nationals

1, Whenever a foreign national is arrested or detained, advise the
foreign national of the right to consular notification and access.

2 Undocumented Foreign Nationals 2.48

37



Table of Contents

Panel Two
Public Comment .

Racial Profiling Briefing, July 17, 2008, Montpelier, Vermont

Panel One... .ccssccssesesseessscsessessessvesessssvsssesseessesassucsscsuceessnssassucsucssceseeneessesnssscsneesscsssesenseseeentes 16
Panel TWO veccesesesssesesssssssrssssssseseseesssessnsnssesssseesssesnssesscsesssaeanenesessssesassesnesesieessensseeneavenesses ees 17
Panel Three ....ceesessessessessessessessrssesseesssssnsseessessssssssessessessessesessassesssessessecsesseeasusseesaseneseesesenses 20
Patel Four ...sceessessssssesssesssecssssssessssssssesseecasecsssessseeseesneesucsssessassevsssessassansesasessessssecassecsneeasessnees 23
Chapter Four: Findings and Recommendations .........c:cssssssessessessssssseesessesseeseessesseessecsseseaneesesenses 26
Preface

Findings and Recommendations.

Conclusion

Appendix A: Testimony from Allen Gilbert, Executive Director, ACLU-VT vcs 35
Appendix B: Middlebury Police Department General Order, Undocumented Foreign Nationals36
Appendix C: Burlington Police Department Department Directive....cceeesesseesseensseeseeneeeeee 39
Appendix D: New Jersey Attomey General Directive, “Official Statewide Policy Defining and
Prohibiting the Practice of ‘Racially-Influenced Policing’? ....ccccsessssesessssseesesseessessesneeseeseen 43
Appendix E: South Burlington Police Department Bias Free Policing Policy... 47
Appendix: F Texas Code of Criminal Procedure, Articles 2.131 to 2.138.....scscsssssecsseeseecneeeees 50

vii



It is recommended that the Vermont Criminal Justice Training Council certify these programs ~
and their instructors to ensure high-quality training consistent with best practices nationally.
Ultimately, anti-bias training must be designed to address the assumptions, perceptions, and bias
issues encountered in police work and must also provide law enforcement officers with training
on stop, search, and seizure issues as they relate to bias in police work, including cultural
differences.

Finding 5: Data Collection

Because Vermont does not mandate race data collection, and only a few law enforcement
agericies are collecting data voluntarily, it is not possible to assess statistically the extent of the
problem of racial profiling in Vermont. Instead, the public and the Committee have anecdotal
evidence that, while important, better reflects beliefs about racial profiling than statistically
demonstrable facts.

The Committee concludes that the collection of race data for traffic stops by all law enforcement
agencies will lead to more effective policing. Race data collection would provide valuable
information as to the nature and extent of any problem that might exist. In particular, data
collection could provide law enforcement agencies with early warning systems that identify
racial profiling behavior and deter inappropriate conduct. Data collection could also enhance
community confidence and reduce misperceptions about the nature and extent of profiling
activity that some members of the community hold.

Recommendation 5:

The Committee strongly endorses the practice of data collection, and it considered at length
whether data collection should be mandatory or voluntary. The Committee found no simple
answer to this question. A law mandating collection could standardize the types of data collected
and provide consistency in data collection, input, analysis, and reporting, thus promoting more
accurate and statistically significant comparisons. A mandate would also promote transparency
on an issue of great concern to many community members regarding an important aspect of law
enforcement activity. A mandatory system would be cost-effective insofar as it avoids the pitfalls
associated with comparing different collection, input, analysis and reporting methods, and using
different services for data analysis. It would also ensure consistency in the quality of the data
collected. Requiring all law enforcement agencies to collect race data for traffic stops would be
the most consistent and fair approach and provide optimal data control and reliability.

Disadvantages to mandatory data collection include the perceived implication that Vermont law
enforcement officers engage in discriminatory policing methods and therefore cannot be relied
upon to institute appropriate voluntary monitoring. In addition, a single approach to data
collection may not fit the needs of all local law enforcement agencies, particularly those of small
or rural communities.

The primary advantage of voluntary data collection is that it is more likely to gather the support,
and therefore cooperation, of rank-and-file officers who are required to use it. Those who engage
in programs voluntarily may be more inclined to feel invested in them and are therefore more
likely to support and follow applicable protocols. The Committee heard testimony that when the

30



profiling exists in Vermont. His organization receives a number of related complaints annually
regarding the law enforcement activities of officers at the local, state, and federal level.

Mr. Gilbert commended the Burlington-area police departments that are slated to begin data
collection. He noted that some criminal justice experts believe that such efforts are most
effective when, as in this instance, they are undertaken voluntarily; however, he said that,
eventually, the practice may need to be mandated by statute if comprehensive data collection is
the goal.

The issue of police accountability needs to be addressed more generally, Mr. Gilbert stated. He
recommended establishing complaint avenues independent of the law enforcement agencies and
the bodies that oversee them, including the State Attorney General’s office. He shared his view
that the results of internal police investigations should be publicly disclosed.

Mr. Gilbert noted that the vast majority of Vermont law enforcement officers are fair, effective
and professional in the exercise of their duties. He stated that all officers suffer when there is a

public perception of the presence of a few “bad actors” who are not held accountable. He urged
the creation of an independent agency, ombudsperson, or civil rights officer to whom members
of the public can turn as an alternative to civil litigation.

Racial Profiling Briefing, July 17, 2008, Montpelier, Vermont

After its June briefing, the Vermont Advisory Committee determined that it needed to hear from
additional speakers on the issue of racial profiling. At its second briefing, perspectives were
offered by additional public officials, law enforcement personnel, scholars, and community
representatives. The Deputy Consul from the Mexican Consulate spoke on the first panel; the
Vermont Attorney General, a State’s attorney, and a public defender spoke on the second panel.
The third panel included two police chiefs, a representative from a sheriffs’ department, and a
trainer from the police academy. Finally, the briefing concluded with a law professor, two
community representatives, and the chair of the New Jersey Police Advisory Committee on
Police Standards.

Panel One

Amparo Anguiano, Deputy Counsel, Mexican Consulate

Ms. Anguiano is assigned to the Boston office of the Mexican Consulate. The office covers all.
New England states with the exception of Connecticut, which has the highest concentration in
New England of Mexican residents.

Ms. Anguiano indicated that, since the 2000 Census, when approximately 36,600 Mexicans were
identified in the region, the number of residents of Mexican origin has increased dramatically,
nearing 50,000 by the end of 2005. Over half of this population, she said, is in Maine;
approximately 2,000 persons of Mexican origin are believed to be in Vermont. Some Mexicans
come to New England from Mexico; others migrate from locations in the U.S. Many have U.S.-
born children, and some were born in the U.S. The population includes people in lawful
immigration status and those without documentation.

16



programming, but that there are financial and staffing challenges with respect to curriculum
development and the availability of qualified and effective trainers. She also explained that the
recruit training program has pre-established minimum requirements.

A Committee member asked the panel whether it favored data collection and cruiser videotape
mandates. Chief Whipple observed that a mandate could be viewed as evidence of distrust, and
he expressed concern that it would engender resistance from law enforcement officers. He stated
that he believes that a model such as the Uncommon Alliance is preferable, and that Alliance
participants have offered suggestions regarding data collection and analysis, including inquiry
into what circumstances precipitated a stop. He offered a cautionary note about the legislative
process, noting that legislative outcomes do not always best reflect the intent of those seeking
legislative action. In conclusion, Chief Whipple recommended that the Chittenden County
initiative be viewed as a pilot program from which experience can be gained for future
endeavors, including legislation should that prove necessary. He urged that models be
implemented that foster relationship-building and nurture trust.

In response to the same question, Sheriff Hill expressed concern about an unfunded mandate. He
identified budget constraints and the contract-revenue model that generates financial support for
sheriff's office operations. Chief Hanley echoed concerns about mandates and noted that raw
data can be manipulated to generate various outcomes; instead, he said, he favors good
recruitment and candidate screening practices that include vetting for racial bias. Chief Hanley
identified various informal channels through which he, with years of Middlebury Police
Department experience, receives feedback on the performance of individual officers and his
department; he also proactively seeks information from migrant workers and the Mexican
Consulate, Finally, Chief Hanley stated, although the department uses videotaping in its patrol
cars, there are resource constraints affecting its ability to ensure system operation and
maintenance.

A Committee member inquired about the availability of effective means to publicize complaint
channels. Chief Whipple commented that individuals may be reluctant to come forward due to
the perceived power differential between a law enforcement agency and members of the public;
he has, however, worked with the Refugee Resettlement Program and Uncommon Alliance
participants to keep channels of communication open. He said that he has also met with refugees
to explain individual rights as well as to identify complaint mechanisms. He views the Vermont
Human Rights Commission as a neutral agency whose role is to provide an avenue for
expression of concerns and complaints. He underscored that it is important to have options rather
than a single channel for redress.

A Committee member re-opened discussion of the interface between federal Homeland Security
initiatives and the work of state and local law enforcement agencies. Chief Hanley commented
that no one is legally required to carry identification unless driving a vehicle, but that such
information is requested when police are investigating a suspected crime. If an undocumented
person is believed to have committed a crime, Chief Hanley added, the Middlebury Police
Department will contact an appropriate federal agency. He also noted that his department refers
occasional anonymous tips about “illegal aliens” to a federal agency. Chief Hanley clarified,
however, that all possible violations of federal law are referred to an appropriate federal agency,

22



warranted.” He noted that, although African Americans comprise approximately one percent of
the population of Vermont, 2007 State Department of Corrections data reflected that African
Americans constituted approximately 10 percent of persons incarcerated, and Mr. Sorrell
characterized as “legitimate” questions arising from these data. Among the issues presented, he
suggested, is whether, based on similar facts, Vermont prosecutors charge Aftican Americans at
higher rates than other potential defendants. He also recommended for study the relative
conviction rates and sentencing of African American and non-African American defendants.

In closing, Mr. Sorrell stated that he has not heard compelling or convincing allegations of racial
bias in the post-arrest criminal justice system in Vermont; however, to ensure that equal rights
and justice are being accorded to all, he looked forward to participating in any study that seeks
answers to the questions identified as well as others reasonably posed.

Anna Saxman, Deputy Defender General, Office of the Defender General

Ms. Saxman identified herself as the former chair of the Racial and Ethnic Bias Subcommittee of
the Vermont Supreme Court Access to Justice Committee. She stated that the nature and extent
of racial profiling in the state should be investigated because there is only anecdotal — and not
statistical — information available.

Much of what is happening, Ms. Saxman observed, is “invisible” insofar as it may involve
surveillance in addition to detention and atrest activity. She cited possible differential treatment
of persons stopped for suspicion of routine infractions, such as speeding. She emphasized the
importance of knowing how prevalent differential treatment is, if it exists, because the state will
be adversely impacted if it has a reputation for racial harassment of visitors and residents. She
commended the voluntary data collection initiative in Chittenden County.

Ms. Saxman believes that examination of racial profiling should encompass all aspects of the
criminal justice system, including the types of charges; criteria for bail-setting, including
community ties and flight risk; and sentencing. She urged that steps be taken to increase minority
representation in jury pools, and she identified pretrial detention as an area in need of study, due
to its effect on the ability of detainees to make effective use of defense counsel. Ms. Saxman
cited as an important concern the examination of issues of race in the juvenile justice system.
Finally, she noted that the Public Defender’s Office provides training to attorneys and
investigators regarding racial bias and cross-cultural competency.

T.J. Donovan, State’s Attorney, Chittenden County

Mr. Donovan stated that racial profiling concerns have been a priority of his since his election to
office in November 2006. He convened a community forum in May 2007, addressing “Race in
the Criminal Justice System.” The impetus for the forum was Mr. Colston’s “My Turn” piece in
the Burlington Free Press, in which Mr. Colston recounted a personal experience of profiling.
Mr. Donovan is also participating in the Uncommon Alliance, an initiative that he characterized
as successfully bringing together members of the minority community and law enforcement
officials to discuss “openly and honestly” the issue of race and law enforcement accountability.

Commending the voluntary decision of the police departments of Burlington, South Burlington,
Winooski and University of Vermont to begin data collection, Mr. Donovan said that the

18



police devise their own data collection systems they tend to include more variables than those
present in mandatory systems.

There are, however, disadvantages to voluntary data collection. Agencies may choose not to
institute the practice, even if doing so is in the best interests of the agency and the community. It
is a reasonable concern that law enforcement agencies most likely to engage in profiling may be
least likely to collect data voluntarily. In addition, voluntary data collection often results in law
enforcement agencies collecting different information, which makes statistically significant
comparisons and analysis of the data difficult or impossible. Without participation by all
agencies, and without a data collection system used consistently across agencies, the data
collected cannot yield a full understanding of the extent of racial profiling in the state, thus
compromising its usefulness in assessing how best to address the problem. There is also the
possibility that persons of color will assume that agencies that do not participate in voluntary
data collection do not take civil rights concerns seriously.

After weighing the advantages and disadvantages of mandatory data collection, the Committee
recommends a multi-level approach. First, it recommends that the Vermont State Police be
required to collect this data. The State Police provide primary police services to approximately .
45 percent of the state’s population, covering 80 percent of its landmass. The agency processes
approximately 75 percent of the emergency calls in Vermont. Also, the majority of interactions
between Vermont state troopers and the community involve highway stops. Because the State
Police are Vermont’s largest law enforcement service provider and have the highest volume of
interactions with vehicle drivers, the State Police are in the best position to collect significant
statistical data. It should be noted that the State Police already have video cameras in all front-
line patrol cars for the purpose of protecting troopers from personal danger and from unfounded
claims of inappropriate conduct.

Second, the Committee recommends that all other law enforcement agencies in the state be
strongly encouraged to voluntarily collect race data. Again, implementing the practice of data
collection will assist both law enforcement agencies and the public in understanding the nature
and scope of alleged bias-based policing. This step may instill public confidence, creating a
foundation for optimally effective law enforcement.

While the Committee believes that it is good public policy to support grassroots, community-
based initiatives that generate data collection efforts such as those currently undertaken by four
of Vermont’s police agencies, it is concerned that many law enforcement agencies may not
collect data collection voluntarily. Although the Committee believes that it is preferable for law
enforcement agencies to take the lead, giving them the opportunity to customize the process in a
manner responsive to local conditions and to be perceived by the community as proactive with
respect to profiling issues, the concern remains that voluntary data collection may be inadequate
to address the issue. Additionally, waiting until data collection is mandated may force the
agencies into a defensive position that might be hard to overcome. Nonetheless, if all law
enforcement agencies in the state have not voluntarily instituted data collection by 2012, the
Committee recommends that the Vermont Legislature mandate data collection, or minimally,
refer this recommendation to a state oversight commission, were one to be established. Such a
requirement will ensure control of and confidence in the data and be fair and consistent both to
law enforcement agencies and the public.

31



absence of a legally mandatory link between policy and training. A panel member noted that
there is no central repository in Vermont for adopted policies.

Panel Two

Hal Colston, Executive Director, NeighborKeepers

Mr. Colston is presently Executive Director of NeighborKeepers, a non-profit, anti-poverty
organization in Burlington, Vermont. He observed that, although Vermont demographics are
changing, the state is “a generation behind” in learning about race bias issues, including racial
profiling, He characterized racial profiling as being “epidemic,” and stated that he has known
people who have left the state due to racial climate concerns. He also indicated that he and his
sons, as African Americans, have been subjected to law enforcement action based on racial
profiling.

Mr. Colston characterized the Uncommon Alliance as a forum within which to discuss racial
profiling issues and to identify solutions, citing the imminent data collection project. The
objective of this grassroots and law enforcement leadership effort is, he said, to make Vermont a
safe and inclusive place for all. He reminded the panel of Martin Luther King’s statement that
“whatever affects one directly, affects all indirectly.”

Laura Fishman, Associate Professor, Department of Sociology, University of Vermont

Dr. Fishman, who identified her areas of expertise as sociology and criminality, stated that she
has done work in the Vermont prison system since the 1970s. When she first began her studies,
she said, there were no persons of color incarcerated; now, inmate demographics resemble those
of a major urban area.

She urged that one must examine policy, and not only the actions of individual officers, when
considering race bias issues. She also called attention to the general racial climate, including the
influence on it of media perpetuation of stereotypes.

Robert Walsh, author and adjunct faculty member

Mr. Walsh initially completed a career in the U.S. Marine Corps, retiring with the rank of
Lieutenant Colonel. During the years 1980-95, he taught African American history at South
Burlington High School in Vermont and was a member of the Vermont House of Representatives
from 1983-89, He is currently a member of the adjunct faculty of the University of Vermont.

Mr. Walsh is the author of “Through White Eyes: Color and Racism in Vermont” and is engaged
in a Vermont African American history project that includes teacher training. He observed that,
in general, traditional approaches to American history do not adequately address the African
American experience. Without an adequate education about this experience, Mr. Walsh stated,
on graduation Americans enter the workforce influenced by stereotypes. He posited that law
enforcement officers’ attitudes about race are affected by this educational deficit and, in
particular, their inadequate understanding of the root causes of discrimination. Mr. Walsh noted
that data collection will not itself address this shortfall, and recommended that the state Police
Academy add African American history to its training curriculum.

13



A focus on efficacy may ultimately provide the most cogent arguments for change in law
enforcement practices involving racial profiling. For example:

e Although overt racism is declining in this country, studies demonstrate the continuing
prevalence of racial biases, including those that may be subconsciously motivated.'®
These biases affect eyewitness suspect descriptions; which influence law enforcement
activity, In addition, individual law enforcement officers may harbor biases when
responding to or acting independently of eyewitness reports.

e The creation of accurate suspect descriptions is essential to effective investigations, The
quality of the training that law enforcement officers receive about conducting witness
interviews may not be adequate; one research team recommended that formal training
should encompass medico-scientific advances in memory and cognition skills.!7

° Studies demonstrate that law enforcement officers use race in surveillance and when
conducting traffic stops. These practices have a disproportionate impact on persons of
color, resulting in their increased distrust of the law enforcement and criminal justice
systems.|* Perhaps as compelling from a law enforcement standpoint, hit rate data
emanating from several studies suggest that race-based stops and searches of minorities
yielded fewer hits on a percentage basis than traditional, behavior-based stops of whites,
giving rise to the question of whether using racial and ethnic profiles is, in fact, an
effective crime-fighting tool.’

In sum, when police use race as a proxy for criminal suspicion, not only is it ineffective but it
puts the general public at risk. If law enforcement officials focus on race while other significant
and relevant features go overlooked and unnoticed, it makes it more likely that a criminal who
does not “fit the profile” will not be identified and apprehended. Additionally, it is clear that

relegates some Vermonters to second-class citizen status. It sows distrust of all police and breeds contempt for the
rule of law....”). -

16 Priyamvada Sinha, Police Use of Race in Suspect Descriptions: Constitutional Considerations, 31 N.Y.U. REV. L.
& SOc. CHANGE 131, 132 (2006).

17 Ronald P. Fisher, R. Edward Geiselman & David S. Raymond, Critical Analysis of Police Interviewing
Techniques, 15 J. POLICE ScI. & ADMIN. 177, 185 (1987). See also remarks of Dr. Laura Fishman in Chapter Three
of this report.

8 As one expert observed, “While no one can know the motivation of each individual trooper in conducting a traffic
stop, the statistics ... representing a broad and detailed sample of highly appropriate data, show without question a
racially discriminatory impact on blacks. ... The disparities are sufficiently great that, taken as a whole, they are
consistent and strongly support the assertion that [police] targeted the community of black motorists for stop,
detention, and investigation.” Report of Dr. John Lamberth (plaintiff's expert), Wilkins v. Md. State Police (D. Md.
1993) (Civ. No. MJG 93-468) (cited in David A. Harris, Profiles in Injustice: Why Racial Profiling Cannot Work 62
(2002)).

' David A. Harris, Symposium: New Approaches to Ensuring the Legitimacy of Police Conduct: Racial Profiling
Redux, 22 St. Louis U. Pus. L. REV. 73, 82-83 (2003). For a sophisticated analysis of the complexity of racial
profiling issues — including interpreting “hit rates” — and a discussion of the Harris thesis, see Bernard E. Harcourt,
Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature of Criminal
Profiling More Generally, 71 U. CHI. L. REV. 1275 (2004).



citizen input mechanisms. The Committee endorses the process used by the New Jersey
Advisory Committee on Police Standards as a model for the development of recommendations
regarding racial profiling issues.

Finding 2: Policy Development

For there to be accountability, there must be clear law enforcement agency anti-bias policies. The
anti-bias policies among Vermont law enforcement agencies differ substantially. The Burlington
Police Department has a directive that commits to unbiased policing and assures the public that it
is “providing service and enforcing laws in an equitable and impartial way.” Likewise, a
Middlebury Police Department policy recognizes that public safety and justice are preferred over
the “rigid enforcement of immigration regulations” and intends, in part, to mitigate fears among
community members of police prosecution or potential deportation based on actual or perceived
national origin. There are, however, law enforcement agencies in the state that do not have anti-
bias policies.

Recommendation 2:

The Committee recommends that the Vermont Attorney General, in consultation with local and
state law enforcement agencies and other stakeholders, develop and issue a policy template
addressing anti-bias policing. The policy used by the Burlington Police Department, “Racially
Biased Policing: A Principled Response,” attached as Appendix C, and the Directive of the New
Jersey Attorney General, “Official Statewide Policy Defining and Prohibiting the Practice of
‘Racially-Influenced Policing,’” attached as Appendix D, are useful models. All Vermont law
enforcement agencies are strongly encouraged to adopt such policies.

The policies must clearly define and prohibit discriminatory profiling and state that law
enforcement activity must be based on a reasonable suspicion that the person being detained
committed an offense. The definition of bias-policing found in the South Burlington Police
Department’s “Bias Free Policing Policy,” attached as Appendix E, provides an example of a
comprehensive description of prohibited police conduct.

An effective policy will also establish expectations for conduct and disciplinary procedures for
officers who engage in inappropriate profiling and will provide complaint channels for persons
who believe they have been the target of inappropriate profiling.

Finding 3: Legislation

Vermont does not have a specific state statute that bans racial profiling. However, the use of race
or ethnicity as the sole factor in deciding to stop, question, or arrest an individual ~ unless race or
ethnicity is part of an identifying description of a specific suspect for a specific crime — violates
the civil rights of that individual.

Many states have laws that ban racial profiling of motorists and pedestrians; many of these laws,
however, are inadequate because they fail to fully define the problem.

Recommendation 3:
The Committee recommends that the Vermont Legislature consider legislation that prohibits
profiling of motorists and pedestrians solely on the basis of actual or perceived race, ethnicity, or

28



Panel Four: Questions and Answers

The Committee advanced questions regarding any connection between the climate in Vermont
public schools and racial profiling issues. Professor Mello, who discussed the 1999 and 2003
reports of the Vermont Advisory Committee in his written testimony, found a direct link between
problems with the racial climate in Vermont schools and concerns about racial profiling,
observing that Vermont law enforcement officers are likely products of Vermont schools. Ms.
Muderhwa said that American students should be educated about the refugee experience — and,
in particular, what compels refugees to flee their countries — as a means of heightening
awareness and understanding.

Professor Mello noted that Mr. Sorrell carefully distinguished between police activity that leads
to arrests (e.g., stops) and post-arrest processing through the criminal justice system (stages
including the exercise of prosecutorial discretion, plea bargaining, trials, and sentencing).
Professor Mello reiterated his recommendation that a comprehensive study be conducted to
examine the nature and extent, if any, of racial profiling and/or bias in both law enforcement and
the criminal justice system as a whole.

Mr. Johnson posited that racial bias in law enforcement be scrutinized through both study of data
on police behavior during stops and other enforcement activity and review of public policy
decisions, such as the relative priority of law enforcement and prosecution of types of criminal
conduct, such as drug-dealing, and their relationship to policing activities. He emphasized that
accountability and transparency help to build trust and facilitate discussions between law
enforcement agencies and the community. He also clarified that the New Jersey consent decree
applied only to the New Jersey State Police, not to county or municipal police entities, although
the New Jersey Report does recommend data collection and videotaping as best practices for all
law enforcement agencies.

25



racial profiling i is found to be occurring, remedies can be fashioned to address it promptly and
effectively.”® The task force was not established, nor has the state enacted a law that specifically
bans racial profiling.’

In June and July 2008, the Vermont State Advisory Committee (“Committee”) held two public
briefings to hear from law enforcement representatives, governmental officials, scholars,
advocacy group representatives, community representatives, and others about possible profiling
problems in Vermont and to explore possible solutions. The first briefing primarily focused on
police stops and possible racial profiling. After the briefing concluded, the Committee decided to
convene another briefing to invite state officials, additional members of law enforcement, and
members of advocacy groups to continue the discussion about racial profiling. The Committee
wanted to learn more about potential bias throughout the criminal justice system, starting with
the possible over-identification of people of color for traffic stops and continuing through to
post-arrest and post-detention decisions.

Chapter One: Background on Racial Profiling — The National Context

In the early 1990s, and through the start of the new century, complaints of racial profiling or
“driving while black” gained national attention.® A number of states, including New Jersey,
Maryland, Pennsylvania, Florida, Colorado, and Connecticut, were parties to civil actions
resulting from complaints of racial profiling. As a result of the litigation, some law enforcement
agencies were placed under consent decrees, while other jurisdictions passed legislation relating
to racial profiling; in addition, other agencies voluntarily developed and entered into data

§ See id.

7 The Bill was referred to the Government Operations Committee; no action was taken. Vermont State Legislature,
“The Vermont Legislative Bill Tracking System. Current Status of a Specific Bill or Resolution 2001-2002
Legislative Session.” http://www. leg. state. vt.us/database/status/summary.cfn?Bill=H.0407&Session=2002.

° ‘The issue of racial profiling is not limited to traffic stops. There are many venues distinct from law enforcement in
which concerns about the use of racial profiling are expressed, such as surveillance of persons in retail shops and
traveler searches. For example, in 2000 the General Accounting Office found that African American women were
nine times more likely than white women to be subjected to x-ray searches by U.S, Customs officials. U.S. Gov’T
ACCOUNTABILITY OFFICE, U.S. CUSTOMS SERVICE: BETTER TARGETING OF AIRLINE PASSENGERS FOR PERSONAL
SEARCHES COULD PRODUCE BETTER RESULTS, GGD-00-38 (2000).

° There were cities alleged to engage in racial profiling as well. For example, in Cincinnati, Ohio, the Department of
Justice (“DOJ”) joined a lawsuit filed by the ACLU and the Cincinnati Black United Front, alleging that police used
excessive and deadly force against African Americans more often than against non-minority citizens. DOJ
subsequently negotiated a Memorandum of Agreement that settled the suit. In Columbus, Ohio, DOJ investigated
the allegation that the city and the law enforcement office of Columbus engaged in a practice of racial profiling and
using excessive force against minority citizens at a higher rate than against non-minority citizens. DOJ subsequently
accepted a proposal by the Columbus mayor that included a promise to implement significant changes and
improvements to the police department’s policies and procedures, In Illinois, the City of Highland Park entered into
aconsent decree after “the policies, practices, and customs of the Highland Park Police Department were found to
target persons on the basis of race or ethnicity for surveillance, stops, detentions, interrogations, requests for consent
to search, and searches.” Data Collection Resource Center at Northeastern University, Legislation and Litigation:
DOJ Investigations,” http:/Ayww.racialprofilinganalysis.neu.edw/legislation/doj.php (last accessed May 29, 2009.



Introduction

An African American graduate student was here in Vermont for a year. During
that year, he was stopped 13 times by the police, never given a traffic ticket,
never arrested for anything. Apparently he was violating no laws, yet he was
regularly subjected to stops.

On his first day in Vermont, he was stopped twice. What message are we
sending to people?*

The topic of racial profiling — the t use of race as the basis for law enforcement decision-making
— has been a prominent, provocative, and sensitive issue for many years. In February 2001,
President Bush called for an end to racial profiling, stating “It's wrong, and we will end it in
America.”? President Obama wants to “ban racial profiling by federal law enforcement agencies
and provide federal incentives to state and local police departments to prohibit the practice.”

In addition to being “wrong,” racial profiling is an ineffective law enforcement practice steeped
in racial and cultural stereotypes and erroneous assumptions about the propensity of people of
color to commit particular types of crimes. Many people of color have experienced the
humiliation of being unfairly targeted while driving, flying, shopping, or even walking.

Tn 2001, the “End Racial Profiling Act of 2001” was introduced in the United States Senate.’ The
bill recognized that “statistical evidence from across the country demonstrates that racial
profiling is a real and measurable phenomenon.” The bill was not passed that year, or when it
was reintroduced in 2004 and 2007.

In Vermont, in 2001, House Representative Michael Kainen introduced a bill acknowledging that
“the practice of ‘racial profiling,’ the disparate treatment of any person on the basis of race or
ethnic origin by a law enforcement officer acting in an official capacity, has become a significant
problem in many areas of the country.”> He noted that Vermont continues to become more
racially and ethnically diverse and recommended the creation of a task force to examine the issue
of racial profiling to allow “officials [to] assess the extent of racial profiling in Vermont so that if

' Anna Saxman, testimony before the Vermont State Advisory Committee to the U.S. Commission on Civil Rights,
briefing, Montpelier, VT, July 17, 2008, transcript, p. 34,

? «President George W. Bush, Address before A Joint Session of the Congress on Administration Goals,” 37
WEEKLY COMP. PRES. Doc. 9 (Feb. 27, 2001). Attorney General John Ashcroft stated he agreed with President Bush
and that “[u]sing race... as a proxy for potential criminal behavior is unconstitutional, and it undermines law
enforcement by undermining the confidence that people can have in law enforcement.” United States Department of
Justice, Fact Sheet, http://www.usdoj.gov/opa/pr/2003/June/racial_profiling_fact_sheet.pdf (last accessed Apr. 27,
2009. Despite the admission that racial profiling was “wrong,” the administration subsequently used racial profiling
in public policies such as the National Security Entry/Exit Registration System, which required male visitors over
age 16 from 24 Arab and Muslim countries and North Korea to register and submit to interrogation.

“The White House, Civil Rights Agenda,” http:/Avww.whitehouse.gov/civil_rights/ (last accessed May 27, 2009).
‘End Racial Profiling Act of 2001,” S. 989, 107th Cong, (2001).

“An Act Relating to the Establishing of a Racial Profiling Task Force,” H. 407, Gen. Assem., Gen. Sess. (Vt.
2001), available at http//www.leg,state. vt.us/DOCS/2002/BILLS/INTRO/H-407.HTM (last visited May 27, 2009).



Sherwood Smith, Lecturer, Integrated Professional Studies Department, College of Education
and Social Services, and Director, Center for Cultural Pluralism, University of Vermont

Dr, Smith testified that he teaches courses in human development, including cultural influences.
He noted that people working for change are in “different developmental places,” and that one
challenge in addressing racial profiling is that it can be engaged in by officers who are not
conscious of their own bias (as compared with “conscious racial bigots”).

Dr. Smith then observed that an officer can find a factually valid reason to stop virtually anyone;
thus, the question is not whether a stop is justified but rather what motivated it. He urged that
care be used in the design of data collection studies, including consideration of the use of both
qualitative and quantitative information.

Training is critical to change behavior and to “experiment with new behaviors,” Dr. Smith stated.
He underscored the importance of forums where issues such as racial bias can be aired to raise
awareness and to identify obstacles to change.

Panel Two: Questions and Answers

Dr. Fishman amplified her remarks, underscoring the importance of recognizing class and gender
as well as race issues, and distinctions between immigrant and non-immigrant minorities,
particularly insofar as newer residents may have English language difficulties. With respect to
law enforcement officer training, Dr. Fishman identified receptiveness as critical to training
effectiveness, commenting, “people will only change when they are receptive to doing so.” She
emphasized a special need for training law enforcement officers in witness identification, as
studies have shown that officers are generally no more accurate than members of the public. She
observed that this skill is pivotal in data collection work as well.

Dr. Smith stated that, although training is useful, people must recognize that the entities offering
training may themselves be affected by systemic bias, or maybe so perceived by others. He
suggested that understanding “White racial identity” is vital in training. Dr. Smith added that
quality relationships between law enforcement officials and the people whom they serve are
important (citing the community policing approach in Burlington as a positive example); law
enforcement officers, he said, must have a presence in the community for more than law
enforcement purposes.

Mr. Colston observed that the increasing demographic diversity of the state is not well-reflected
in the ranks of state leaders and until that changes, change will not come. Specifically, he
expressed concern that leaders make decisions affecting people of color without experience and
familiarity with them.

Public Comment

Andy Santiago, Member of the Public

Mr. Santiago, a Brooklyn native raised in Hawaii, testified that he has lived in Vermont for three
years. He is of Puerto Rican descent. He moved to Vermont in search of a better life for his
three-year-old daughter who has disabilities. He stated that he loves Vermont, but believes he has

14



In June 2003, acting on President Bush’s directive, the Department of Justice issued guidance
that “bar[red] federal law enforcement officials from engaging in racial profiling ~ even where
such profiling would otherwise be permitted by the Constitution and laws. Specifically, the
guidance provides that in making routine law enforcement decisions — such as deciding which
motorists to stop for traffic infractions — consideration of the driver's race or ethnicity is
absolutely forbidden.”!? Federal agencies, rather than state and local law enforcement agencies,
are the front-line responders to national security threats.

The primary relevance of “racial profiling” in the state and local context involves the use of race
as a factor in the description and/or apprehension of persons suspected of violating state or local
laws.'* This use of race occurs in the context not only of detaining a single individual but, in
some situations, of creating a “dragnet” that implicates many innocent persons.

The argument advanced against the use of racial profiling in state and local law enforcement
identifies both moral and pragmatic considerations. As the Department of Justice Guidance on
racial profiling observes:

Racial profiling in law enforcement is ... ineffective. Race-based assumptions in
law enforcement perpetuate negative racial stereotypes that are harmful to our
rich and diverse democracy, and materially impair our efforts to maintain a fair
and just society. ... The use of race as the basis for law enforcement decision-
making clearly has a terrible cost, both to the individuals who suffer invidious
discrimination and to the Nation, whose goal of ‘liberty and justice for all’
recedes with every act of such discrimination.'*

8 Department of Justice, “Justice Department Issues Policy Guidance to Ban Racial Profiling,” available at
http://www .usdoj.gov/opa/pr/2003/June/03_crt_355.htm (last accessed June 22, 2009).

“4 Despite the common themes that underlie the use of any racial profiling, a distinction has been drawn in many
quarters between national security and other law enforcement activities. For example, in a 2003 policy statement,
DOJ sanctioned its use in national security defense, but restricted its use in other types of domestic law enforcement.
See “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” supra note 10 (“The above
standards do not affect current Federal policy with respect to law enforcement activities and other efforts to defend
and safeguard against threats to national security or the integrity of the Nation's borders, to which the following
applies:

In investigating or preventing threats to national security or other catastrophic events (including the
performance of duties related to air transportation security), or in enforcing laws protecting the integrity of
the Nation's borders, Federal law enforcement officers may not consider race or ethnicity except to the
extent permitted by the Constitution and laws of the United States”).

15 14, Tim Bombardier, Chief of the Barre Police Department and former Captain and Assistant Commander of the
Criminal Division of the Vermont State Police, made precisely this point in a Barre-Montpelier Times Argus article
covering racial profiling. The Chief stated that the best reason for avoiding racial profiling, “other than that it’s
wrong” is that it does not reflect good police work: officers must examine the ‘totality of the circumstances’ when
conducting investigations, including traffic stops and focusing on race interferes with an officer’s ability to detect
more pertinent information. Peter Hirschfeld, “Vermont Police Accused of Racial Bias,” Barre-Montpelier Times
Argus, June 15, 2008. See also Michael Mello, written testimony to Vermont State Advisory Committee to the U.S.
Commission on Civil Rights, June 12, 2008, pp. 4-5 (“Racial profiling is profoundly wrong. It is racism unworthy of
the United States and of Vermont. Racial profiling corrodes the community trust essential to police work. It



Ms. Saxman agreed that a prospective approach would be best, advising that the Honorable
Justice Denise Johnson, Associate Justice of the Vermont Supreme Court, has led an initiative
designed to examine these issues. She said that many states have done similar criminal justice
system studies. She characterized as important the collection of data from the courts as well as
law enforcement agencies, stating that a well-designed study that is devised by qualified
sociologists and statisticians would be valuable. Mr. Sorrell expressed support for such an
endeavor.

A Committee member inquired about constraints on the ability or willingness of possible victims
of racial bias to come forward with their concerns. Ms. Saxman identified some of the avenues
available, such as the Vermont Human Rights Commission and defense counsel in criminal
cases. She noted, however, that municipal police departments do not typically have citizens’
review boards. Mr. Sorrell replied that, in Vermont, police commissions are intended to function
in a role similar to citizens’ review boards, and that the State Department of Public Safety has a
statutorily mandated Advisory Committee comprised of civilians.

Panel Three

Thomas Hanley, Chief, Middlebury Police Department

Chief Hanley described Middlebury Police Department policy governing law enforcement and
foreign nationals, attached as Appendix B. The policy recognizes that, when undocumented
foreign nationals come to the police department for help or to make reports, full priority should
be given to public safety and justice rather than rigid enforcement of immigration regulations,
that latter which is a federal responsibility. He added that the written policy formalized how his
department had been dealing with the issue for many years, commenting that in fact, the policy
dovetails with the policy his department adopted eight years before, “which specifically dealt
with the issue of racial profiling, specifically prohibiting it as a means of police work.”

Trevor Whipple, Chief, South Burlington Police Department

Chief Whipple has been in his position for two years, coming into a department that is facing
charges of racial bias. He has participated actively in the Uncommon Alliance, and characterized
it as a model for other communities, working to the mutual benefit of community members and
law enforcement and inclusive of persons of color as well as law enforcement agency personnel.
He cited as among its benefits not only the exchange of information and perspectives, but
relationship- and trust-building. He strongly supports the data collection initiative that is slated to
begin shortly.

Chief Whipple identified challenges his department faces in the recruitment of a diverse
complement of officers, noting that he has expanded recruitment to the Boston area. Efforts to
date have yielded substantial progress with respect to the hiring of female officers, but not
persons of color, although three officers of color are now on staff. He also underscored the
importance of effective candidate screening for bias and compliance with the non-bias policy as
a criterion to consider in promotions.

20



Racial Profiling
in Vermont

Briefings Before
the Vermont Advisory Committee to the
United States Commission on Civil Rights

Briefing Report



Appendix: D

ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NO. 2005-1

ESTABLISHING AN OFFICIAL STATEWIDE POLICY DEFINING AND PROHIBITING
THE PRACTICE OF “RACIALLY-INFLUENCED POLICING” - .

WHEREAS, selective enforcement, the discredited practice that is-commonly
‘referred to as “Racial Profiling,” is a longstanding criminal justice issue that needs to be
addressed by every police agency in every Jurisdiction throughout the nation; and

WHEREAS, itis the s sworn duty of every police agency and officer to protect the
civil rigtits of all persons, and to safeguard the inalienable right to the equal protection
- of the laws; and

WHEREAS, if a police officer were to rely upon a person’s race or ethnicity when

making decisions and exercising law enforcement discretion, the result would be to

. undexmine public confidence in the fairness and integrity of the criminal justice system,

alienate significant segments of our society, foster disrespect for law enforcement

authority and the institutions of government, and ultimately erode public support for law
enforcement efforts to investigate and deter crime; and -

. WHEREAS, the law of seléctive enforcement under the Equal Protection Clause
of the Fourteenth Amendment of the United States Constitution is complex and evolving.
While judicial decisions interpreting the Constitution serve as important guideposts for
the law enforcement community, the courts are not the sole guardians of the
Constitution; the Executive Branch is equally sworn to uphold it. Furthermore, in New
Jersey the Attorney General may establish law enforcement policies designed to
safeguard civil rights that go beyond the requirements of federal and State constitutional
jaw. Itis, therefore, appropriate to promulgate a uniform and comprehensive statewide
policy that explains in clear terms when and ‘under what circumstances police officers
are permitted to consider, and are prohibited from considering, a person ’s race or
ethnicity; and ~

WHEREAS, the documented success of the New Jersey State Police in addressing

the racial profiling issue by establishing a clear nondiscrimination policy, and by -

: providing state-of-the-art training and effective management to all State Police members

can and should serve as a model to be followed by other law enforcement agencies in New
Jersey and throughout the nation; and

WHEREAS, the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., provides
that it is the responsibility of the Attorney General, as the chief law enforcement officer
of the State, to ensure the uniform and efficient enforcement of the criminal laws;

Now, THEREFORE, 1, PETER C, HARVEY, Attorney General of the State of New

Jersey, by virtue of the authority vested in me by the Constitution and by the Criminal
Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., do hereby DIRECT the following:

43



Harassment in the Vermont Public Schools. The Committee issued a follow-up report in
October 2003, the result of which was the enactment of statutory provisions, effective
July 1, 2004, that addressed harassment in Vermont schools and incidents based on or
motivated by a student or student’s family’s actual or perceived status, including race,
creed, color, or national origin.

e In2003, the Vermont Center for Justice Research conducted research on disparities in the
criminal justice system and issued a Teport titled “Exploring the Dynamics of Race and
Crime Using Vermont NIBRS Data.””! The report concluded that in Vermont “Blacks
experienced a significantly higher likelihood of arrest than whites or other minorities for
all offense types except crimes against society.” ”

«© In 2003, the U.S. Customs and Border Patrol, a subdivision of the Department of
Homeland Security, instituted traffic “checkpoints” on I-91 south of White River
Junction, generating inquiries and complaints about racial profiling to the Vermont
American Civil Liberties Union. A Vermont ACLU advisory noted that, although the
Border Patrol denied engaging in racial profiling, “anecdotally it appears that Caucasians
of European descent are rarely detained for extensive questioning, while people of color,
Hispanics, Middle Easterners, and Asians are singled out. Op-Ed pieces in The Boston
Globe and other papers characterized the I-91 stop ‘The Whiteness Checkpoint.”””?

e In 2003, the Burlington Anti-Racism Coalition (BARC) was founded, stating it would
focus its efforts on legislation, action, and “study circles.” It became active in lobbying
for anti-racial harassment legislation governing public schools. It asked merchants in the
major municipal retail district, Church Street Marketplace, to sign a “Statement of
Goodwill,” affirming their intent to treat all customers with fairness and dignity and to
refrain from targeting persons for special surveillance on the basis of their color, creed, or
national origin. Over 55 merchants cooperated with the request.

e Also in 2003, BARC, assisted by the Connecticut-based Study Circles Resources Center,
planned and delivered a series of “study circles” on racism. A wide array of community
groups and persons (representing grassroots activists, the school district, local and state
officials, United Way, the Center for Community and Neighborhoods, local media, and
others), totaling approximately 250 individuals, participated in 20 circles. The initiative
resulted in the creation of action groups to address schools; businesses; housing; media;

2! William Clements, VERMONT CENTER FOR JUSTICE RESEARCH, EXPLORING THE DYNAMICS OF RACE AND CRIME
USING VERMONT NIBRS DATA: EXECUTIVE SUMMARY (Jan. 2003), available at

http:/Avww jrsainfo.org/ibrre/background-status/Vermont/vermont_race.pdf (last visited May 27, 2009). Examples
of crimes against society include drug and drug equipment violations, weapons law violations, gambling,
pornography, and prostitution offenses.

2g.

23 ACLU of Vermont, Border Patrol Stops, http://www.acluvt.org/issues/border_patrol_stops.php (last accessed May
27, 2009), See also Testimony of Leslie Holman, Esq., immigration attorney, Vermont Advisory Committee
Hearing, Montpelier, Vermont, March 31, 2006 (disproportionate detention of minority persons).



using race as the sole or a primary factor adversely impacts the relationship between law
enforcement agencies and persons of color in the community, undermining trust and cooperation
in law enforcement efforts. Finally, reliance on race in the identification of suspects may
compromise the efficacy of investigations and ultimately the integrity of the criminal justice
system.

Chapter Two: Background on Racial Profiling - The Vermont Context

As of 2009, the Vermont population was estimated to be 621,270, an increase of 2.0 percent over
the 2000 census. The U.S. Census Bureau reported the following race/ethnicity data: White: 96.5
percent; Asian: 1.2 percent; Hispanic or Latino origin: 1.3 percent; persons reporting two or
more races: 1.1 percent; Black: 0.8 percent; American Indian and Alaska Natives: 0.4 percent;
foreign-born persons (year 2000); 3.8 percent.” Among those foreign-born is a significant and
growing refugee population comprised of persons from various and diverse countries, including
Bosnia, Bhutan, Burma, Burundi, China, the Congo, Iraq, Russia and former Soviet Union
republics, Somalia, Sudan, Togo, and Vietnam.

Several initiatives sought to identify and address challenges faced by the small but growing
populations of persons of color in Vermont.

e During the 2001-2002 Legislative Session, H.407, as noted above, was introduced. Its
sponsor sought to create a task force to examine racial profiling and disparate treatment
of persons on the basis of race or ethnic origin by any law enforcement officer acting in
an official capacity in Vermont. The bill envisioned that the task force would report its
findings and recommendations to the General Assembly and the Governor. The
legislative effort did not succeed.

e In2002, the Burlington Police Department adopted a “bias-free” policing policy. The
policy affirmed the department’s commitment to unbiased policing, prohibiting officers,
except in limited circumstances, from considering race, ethnicity, gender, or other
potentially improper criteria when making law enforcement decisions.

« In 2002, the Vermont Advisory Committee to the U.S. Commission on Civil Rights
embarked upon a review of initiatives taken in response to its 1999 report, Racial

2° UJ.§, Census Bureau: State and County QuickFacts (last rev. Jan. 2, 2008). These data contrast starkly with the
following 2006 U.S. race/ethnicity data: White: 80.1 percent; Hispanic/Latin: 14.8 percent; Black: 12.8 percent;
Asian: 4.4 percent; American Indian/Alaska Native: 1.0 percent; foreign-born persons (year 2000): 11.1 percent.
Similar data appear in a Demographic and Economic Profile on Vermont updated by the Rural Policy Research
Institute, Truman School of Public Affairs, University of Missouri-Columbia in November 2006: State population of
623,050 in July 2005 (up 2.3 percent from the 2000 Census); White: 96.9 percent ; Hispanic: 1.1 percent; Asian: 1.0
percent; African-American: 0.6 percent. The latter study notes that many areas in Vermont have experienced
significant growth in the number of Hispanic residents during past 15 years; in nine counties, the Hispanic
population more than doubled between 1990 and 2005, Studies also show that, except for Native Americans, non-
White residents overwhelming reside in Chittenden County. Center for Rural Studies, Vermont Center for
Geographic Information, Vt. Indicators Online (last rev. Aug. 18, 2006).



Appendix: C

BURLINGTON POLICE DEPARTMENT
DEPARTMENT DIRECTIVE Number: 01-DD06.10

Date Issued: 3/3/2002 Reviewed Date: 3/14/2006

Subject: BIAS FREE POLICING/POLICE SERVICES New:

Amends:
Chapter: ol —_

_X_ Rescinds: 01-DD02-01

Authorized Signatures:

Chief of Police:

Thomas R. Tremblay Page 1 of 4

Legal Counsel:

Nancy Goss Sheahan, Esq.

POLICY: — The Burlington Police Department shall not condone the use of any bias
based policing in the services our employees provide the community in
connection with our law enforcement activities.

PURPOSE: The intent of this policy is to reaffirm Burlington Police Department’s
commitment to unbiased policing, to clarify the circumstances in which
officers can consider race, ethnicity, gender or other potentially improper
criteria when making law enforcement decisions, and to reinforce
procedures that serve to assure the public that we are providing service
and enforcing laws in an equitable and impartial way.

CONTENTS: 1. Policing Impartially _
Il. Preventing Perceptions of Biased Policing
Tl. Compliance
TV. Supervision and Accountability
V. Cancellation
VI. Sources
VIL. Contributors

IL POLICING IMPARTIALLY

A. Definition of “Bias-Based Policing” — conduct by law enforcement officers
motivated solely by an individual's race, ethnicity, gender, age, sexual
orientation, religion, disability, socioeconomic level, or other potentially
improper criteria.

39



resource to county and local law enforcement agencies in policy development, provision of
quality in-service officer training, development of data collection protocols and appropriate
means of data analysis, and access to grants information, thus performing a coordinating and
enfranchising role. Collaboration between law enforcement agencies, such as the police
departments involved in the Uncommon Alliance project, also provides a model for other
agencies as they seek to address the work ahead.

Findings and Recommendations

Based on the record established in these briefings, the Vermont Advisory Committee offers the
following Findings and Recommendations on accountability, policy development, legislation,
data collection, training and education of police officers, and other measures that it believes will
move Vermont forward in addressing issues of racial profiling.

Finding 1: Accountability

Accountability is a vital element of policing. Law enforcement officers are better able to achieve
their goals of protecting the public safety, enhancing the quality of neighborhood life, and
serving community needs if they are trusted by the communities they serve. To fulfill its mission
to “protect and serve,” law enforcement agencies must thus implement strategies that improve
community trust, including effective accountability procedures.

The Committee learned that members of some Vermont communities are frustrated with the
availability and quality of accountability and oversight mechanisms of law enforcement
agencies. Specifically, the Committee heard frustrations and grievances expressed about the
quality of the complaint and response systems. ‘The Committee shares this concern — officers and
law enforcement agencies should be held to account for their actions —and concurs with public
officials who testified that, in complaint and response systems, some form of citizen input would
improve the oversight and resolution process.

Recommendation 1:

The Committee recommends that each law enforcement agency at the state, county, and local
level develop a visible and readily accessible complaint redress system responsive to individual
complaints, A joint effort by citizens, advocates, government officials, and law enforcement
agencies to publicize available channels for complaint resolution is needed. Complainants are
entitled to know the outcome of their complaints, and information about the number of
complaints levied against police departments and their resolution must be publicly available,
consistent with appropriate and applicable personnel policies of law enforcement agencies.

The Committee further recommends that the Legislature convene and appropriately empower an
oversight commission charged with monitoring, local and statewide initiatives to address racial
profiling, including adoption of anti-bias policies, collection and analysis of data on police traffic
stops, complaint procedures and outcomes, and relevant certification and in-service training
programs for law enforcement personnel. This commission would make specific
recommendations to the Legislature regarding appropriate next steps, such as mandatory data
collection, maintenance of video recordings taken during law enforcement activity, officer
certification and in-service training programs, and complaint resolution procedures, including

27



1. Official State Policy Prohibiting Discriminatory Policing

: a. No police agency or sworn officer or civilian employee of a police agency,
while operating under the authority of the laws of the State of New Jersey, shall engage
in or tolerate any practice or act constituting “racially-influenced policing” as described
in Section 2 of this Law Enforcement Directive.

b, Every police agency operating under the authority of the laws of the
State of New Jersey shall, within 60 days of the effective date of this Directive,
promulgate and enforce a Rule, Regulation, Standing Operating Procedure, Directive or
“Order, in a form as may be appropriate given the customs and practices of the agency,
which shall prohibit all sworn officers and civilian employees of the agency from engaging
in or tolerating any practice or act constituting racially-influenced policing as described
in Section 2 of this Law Enforcement Directive. Such Rule, Regulation, Standing
Operating Procedure, Directive, or Order shall be consistent with the provisions of this
Law Enforcement Directive, and with. the training materials distributed by the Division
. Criminal of Justice in the Attorney General’s Office, pursuant to Section 3a of this
Directive, and shall provide that any sworn officer or civilian employee of the agency who
imowingly violates the agency’s Rule, Regulation, Standing Operating Procedure,
Directive or Order shall be subject to discipline,

2. Conduct Constituting Racially-! Influenced Policing

a. A sworn officer or civilian employee of a police agency acting under the
authority of the laws of the State of New Jersey. shail not consider a person’s racé or
ethnicity as a factor in drawing an inference or conclusion that the pérson may be
involved in criminal activity, or as a factor in exercising police discretion as to how to
stop or otherwise treat the person, except when responding to a suspect-specific or
investigation-specific “Be on the Lookout” (B.O.LO.) situation as described both in this.
Directive and in training materials developed by the Division of Criminal Justice
pursuant to Section 3a of this Law Enforcement Directive. :

b. Nothingin this Law Enforcement Directive shall be construed in any way
to prohibit a police agency or sworn officer or civilian employee from taking into account
a person’s race or ethnicity when race or ethnicity is used to describe physical

- characteristics that identify a particular individual or individuals-who is/are the subject
of a law enforcement investigation, or who is/are otherwise being sought by a law
enforcement.agency in furtherance of a specific investigation or prosecution.

3. Development and Disseminati Training Materials and Curricul

a. The Division of Criminal Justice shall within.30 days of the effective date
of this Law Enforcement Directive develop and disseminate initial. training materials,
which shall consist of a video presentation in a DVD format and accompanying written
reference materials (a Companion Guide and Skills Assessment), that explain and
discuss the nondiscrimination policy set forth in this Law Enforcement Directive. A copy’
of these initial training materials shall be provided without cost to every police agency
operating under the authority of the laws of the State of New Jersey. The Division of

2

44



Chapter Four: Findings and Recommendations

Preface

In its last report on racial harassment in Vermont schools, the Vermont Advisory Committee
observed, “Vermont has not escaped the racial prejudice that has afflicted our nation for
centuries.” Although much of the focus of the briefings convened by the Committee for this
report was on police conduct and racial profiling by law enforcement officers, there is anecdotal
evidence that racial profiling also occurs in other aspects of daily life, such as shopping and
traveling. It occurs both in Vermont and in our society at large and ranges from the subtle to the
overt. That people of all races should be treated with respect, dignity, and fairness is fundamental
to good police work and essential to a just society.

By virtue of their position and standing and the power with which they are invested, law
enforcement officers are held to higher standards of conduct than the general public and have a
special obligation to the communities they are charged to protect. They bear a heavy burden to
understand, respect, and communicate fairly with diverse members of a community. When police
use race or ethnicity as a proxy for criminal suspicion, it puts everyone at risk; officers may, for
example, overlook relevant factors in an investigation, which could allow a criminal who does
not “fit the profile” to go unnoticed. Moreover, when members of a community feel
misunderstood or threatened, police effectiveness may be undermined because individuals are
afraid to report crimes or may be reluctant or unwilling to provide law enforcement with the
assistance and information that is vital to solving crimes.

In sum, there is considerable anecdotal evidence that people of color feel disproportionately
targeted not only by law enforcement but when engaging in other life activities. The Committee
heard from people who maintained that police targeted them because of the color of their skin or
their perceived ethnicity. Others told of family members or friends who believed they were
singled out because of their race or ethnicity. The emotional consequences of this perception can
be severe and give rise to alienation and mistrust of our institutions, particularly law
enforcement. Police action based solely on racial and ethnic profiling violates the right of the
persons targeted and undermines the basic law enforcement objective of protecting the public
safety.

On the other hand, the suggestion that a law enforcement officer is intentionally discriminating
against the people he or she is sworn to protect understandably offends police officers and causes
defensiveness on their part. Many law enforcement officers are as passionate in their belief that
racial profiling does not occur as are those within the minority community who believe it does.
The dilemma is how to address both beliefs without exacerbating existing tensions. In short, it is
important to clarify the status of racial profiling in Vermont, and data collection and analysis will
provide additional insight into this question.

The Committee acknowledges that the allocation of adequate resources is critical to the success
of any policy or legislative initiative. Simply stated, unfunded mandates are unlikely to succeed.
While recognizes the resource constraints affecting the State and its municipalities, the
Committee recommends that the State, through appropriate agencies, assist by serving as a

26



collection projects to assess the extent of the problem. A broad and diverse spectrum of political
leaders, the courts, and the public “condemned” racial profiling. '°

Concerns about racial profiling increased after the destruction of the World Trade Center towers
and the launch of “the war on terror,” which resulted in an expansion of police powers and the
erosion of constitutional protections for many individuals, especially immigrants from
predominantly Muslim countries. The most sweeping of the federal initiatives are the USA
PATRIOT ACT"! and the REAL ID Act.’

10 «Racial profiling” is variously defined, and the definition is itself controversial. Vermont Attorney General
William Sorrell stated as follows: “Racial profiling, in the narrow sense, refers to a police practice of consciously or
unconsciously identifying a particular racial or ethnic group as being more likely than others to be guilty of, or more
prone to, committing criminal acts.” William Sorrell, testimony before the Vermont State Advisory Committee to
the U.S. Commission on Civil Rights, briefing, Montpelier, VT, July 17, 2008, transcript, p. 28 (hereafter cited as
Briefing Transcript). This definition is consistent with that of the Congressional Research Service, which defines
racial profiling as “the practice of targeting individuals for police or security interdiction, detention, or other
disparate treatment based primarily on their race or ethnicity, in the belief that certain minority groups are more
likely to engage in unlawful behavior.” Library of Congress, Congressional Research Service, “Racial Profiling:
Issues and Federal Legislative Proposals,” available at https//www.policyarchive.org/handle/10207/1937 (last
accessed May 27, 2007). Perhaps most revealing of the acceptance of the concept of racial profiling is that, in 1999,
the Oxford American Dictionary provided a definition of racial profiling for the first time: “Racial profiling: an
alleged police policy of stopping and searching vehicles driven by people from particular racial groups.”

Generally, as used in this report, the term concerns “the invidious use of race or ethnicity as a criterion in conducting
stops, searches and other law enforcement investigative procedures, It is premised on the erroneous assumption that
any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular
individual of another race or ethnicity.” Civil Rights Division, Department of Justice, Guidance Regarding the Use
of Race by Federal Law Enforcement Agencies, 2003, available at
http:/Awww.usdoj.gov/crt/split/documents/guidance_on_race.php (last accessed May 27, 2009). Another definition is
found in a paper that explores under what, if any, circumstances race may be used legitimately by law enforcement
officials: “any police-initiated action that relies on the race, ethnicity, or national origin and not merely the behavior
of an individual.” Mathias Risse, Racial Profiling: A Response to Two Critics 2 John F. Kennedy School of
Government, Harvard University, Faculty Research Working Papers Series, RWP06-042 Sept. 2006), available at
http://ksgnotes | harvard.edu/Research/wpaper.nsf/rwp/RWP06-042/$File/rwp_06_042_risse_SSRN.pdf (last
accessed May 27, 2009).

'! Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001, Pub. L, No. 107-56, 115 Stat. 272 (2001).

" Making Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief,
Pub. L. No. 109-13, 119 Stat. 231 (2005). Additionally, in September 2008, Attorney General Michael Mukasey
significantly expanded the authority of the FBI to use intrusive investigative techniques to collect information about
innocent Americans. See Department of Justice, THE ATTORNEY GENERAL'S GUIDELINES FOR DOMESTIC FBI
OPERATIONS, http:/Avww.justice.gov/ag/readingroom/guidelines.pdf (last access June 9, 2009). In the past, “the FBI
could use these techniques — tasking informants, pretext interviews, and physical surveillance — only when it had
some suspicion of criminal activity or a threat to national security relating to a specific individual or a group.” CDT
Policy Post 14.16: Investigative Guidelines Cement FBI Role as Domestic Intelligence Agency, http:/Avww.mail-
archive.com/cdt-announcements@cdt.org/msg00556.html (last accessed July 14, 2009). Because the Guidelines
allow investigations without particularized suspicion, they may “increase the risk that agents will substitute for
evidence of crime their own assumptions and even prejudices about who should be investigated, thus increasing the
risk of racial profiling.” Jd.



Ms. Anguiano commented that many Mexicans in New England live in isolated, homogeneous
settings. Because they are highly visible in public, she believes that members of this population
are “highly vulnerable” — although not necessarily subject — to racial profiling. The Mexican
Consulate has initiated a mobile visits program to provide services to Mexicans in rural areas;
however, participation rates vary, with higher Vermont participation in Addison County than
Franklin County during recent outreach attempts.

Regarding immigration law enforcement, Ms. Anguiano said that the nature and extent of
patticipation by state and local officials is highly variable throughout the region. In Rhode
Island, for example, the Governor issued an Executive Order requiring compliance with
immigration law eligibility verification on the part of state agencies and contractors. By contrast,
in 2008, the Governor of Massachusetts announced an initiative to integrate immigrants and
refugees into communities throughout the state.

In Vermont, Ms. Anguiano testified, the State Police and the Department of Corrections are
expected to provide secondary assistance, such as detention or transport services, to federal
agencies, including the U.S. Border Patrol and Immigration and Customs Enforcement (“ICE”).
She noted that Vermont recorded the highest number of arrests of Mexicans in the region (82) ~
a statistic she called “striking” in a state that has so few Mexican residents. Ms. Anguiano added,
however, that arrest statistics are compiled by the Border Patrol and ICE, which transmit the data
to the Consulate, and it is unclear whether other states were underreporting this information.

She commended the Middlebury Police Department policy on undocumented foreign nationals,
which she characterized as a “balanced and pragmatic approach” that recognizes basic rights of
foreign nationals, such as access to consular services.

Panel Two

William Sorrell, Attorney General, State of Vermont

Mr. Sorrell first offered that “racial profiling, in the narrow sense, refers to a police practice of
consciously or unconsciously identifying a particular racial or ethnic group as being more likely
than others to be guilty of, or more prone to, committing criminal acts.” He noted that such
identification can result in relatively high levels of traffic stops and/or increased levels of
suspicion of wrongdoing when police interact with members of the particular racial or ethnic

group.

Mt. Sorrell explained the jurisdiction of the Attorney General’s Office, noting that because
neither the Vermont State Police nor the Vermont State Attorneys report to the Attorney General,
he would address the more general issue of racial bias in the criminal justice system instead of
the specific question of racial profiling.

Mr. Sorrell observed that Vermont has some of the most expansive anti-discrimination laws in
the country; Vermont courts have reinforced the principle of equal rights for all citizens; the
Vermont Human Rights Commission is active; and the Vermont Supreme Court has a
Committee on Fairness and Equal Access to Justice. He nevertheless cautioned that “vigilance is

17



departments, the Chittenden County State’s Attorney, and the Vermont State Police. The stated
purpose of the Uncommon Alliance is to improve the interactions between police officers and
members of racial and ethnic and religious communities. The next step will be to look at the data
and understand what they mean. According to the South Burlington police chief, however,
already there has been a “huge improvement in our relationship with the community of color just
from having the discussion, not to mention actually putting the plan in motion.” ‘This is further
proof of the effectiveness of perception in addressing matters of bias.

Collecting data on police traffic stops, however, does not address all aspects of racial profiling
concerns ~ it is instead a starting point on the continuum of examining how persons progress
through Vermont’s criminal justice system. If people of color are disproportionately subject to
traffic and pedestrian stops by police, disparities also may be occurring at other stages of the
criminal justice system. The Committee learned that these disparities do, in fact, exist. Although
the Committee briefings focused mostly on the issue of racial profiling with respect to
surveillance and detention, there was discussion of the larger problem of racial bias and
disparities in the criminal justice system, including the juvenile justice system and extending to
criminal charging decisions, bail determinations, and sentencing. Officers of the court are not
necessarily immune from preconceived notions concerning race and may make assumptions,
consciously or unconsciously, as a result of cultural bias or misunderstanding.

The Attorney General suggested that there should be further inquiry into prosecution decisions,
jury function, and sentencing outcomes. Specifically, he suggested that we need to ask whether,
given similar evidence of the commission of a crime, prosecutors in Vermont charge African
Americans and other persons of color at higher rates than white defendants; whether defendants
of color who choose to go to trial are convicted at higher rates than white criminal defendants;
and whether defendants of color are systematically treated more harshly than Caucasian
defendants at sentencing. The Committee agrees that these questions warrant further inquiry.
Until there is careful examination of patterns of traffic stops, prosecution decisions, and the other
discretionary points in our criminal justice system, we will not have a full understanding of the
nature and extent of any racial bias in the administration of justice in Vermont.

Our lawmakers, public officials, and law enforcement agencies must work together to develop
policies, laws, and accountability measures that effectively combat both active racial profiling
and perceived bias. In the end, the issue is one of safety, equity, and fairness — for both law
enforcement officials and the members of the public they are charged to serve and protect.

34



Appendix: A

of VERMONT.

Testimony From Allen Gilbert, ACLU-VT executive director
To Vermont Advisory Committee, U.S. Commission On Civil Rights,
Burlington, Vt., June 12, 2008

The American Civil Liberties Union of Vermont has tracked the issue of possible
racial profiling in Vermont for a number of years. We have been involved in
discussions around the issue and around the question of collection of racial data.

Without statistics it is impossible to determine whether, and to what extent, racial
profiling exists in Vermont. Anecdotally, the ACLU-VT receives a number of
racial profiling complaints every year. The complaints concern law enforcement
officers on the local, state, and federal level.

We applaud the recent decision of some Burlington area police departments to
begin, voluntarily, to collect racial data when making stops. Some criminal justice
experts believe data collection efforts are most effective when undertaken
voluntarily, as opposed to a mandate through statute. However, we know that to
have a fuller picture of any racial profiling, we need data from departments
around the state. Eventually, statutory requirements may have to be put in place if
comprehensive data collection is the goal.

We believe there is an issue concerning law enforcement that is beyond possible
racial profiling and which Vermont needs to face. That is the issue of police
accountability generally. Vermont does not license police officers, so there is not
the oversight that is applied to most professionals in the state. Citizens have no
place to file complaints, other than with the departments themselves or with the
local bodies that oversee them. These avenues of redress are often seen by citizens
as less-than-neutral. The Attorney General’s Office is similarly not seen as a
neutral arbiter or investigator, since it is part of the law enforcement community.
Additionally, at times law enforcement has attempted to erect barriers to
disclosure of internal police investigations, as happened this year in the Vermont
Legislature.

We believe that the vast majority of Vermont law enforcement officers are fair,
effective, and professional. However, all officers suffer when there is a public
perception that the few bad actors are not held accountable and sanctioned.
Currently in Vermont, citizens must usually resort to civil litigation when they
complain of mistreatment. This has certainly been true in the area of use of force,
where oversight of the use of weapons such as Tasers has been inadequate. There
should be some agency, ombudsman, or civil rights officer to which members of
the public can turn for redress.

35



Appendix: F

Appendix: F Texas Code of Criminal Procedure, Articles 2.131 to 2.138

Act. 2.131. RACIAL PROFILING PROHIBITED.
A peace officer may not engage in racial profiling.

Art. 2.132. LAW ENFORCEMENT POLICY ON RACIAL PROFILING.
(a) In this article:

(1) "Law enforcement agency" means an agency of the state, or of a county,
municipality, or other political subdivision of the state, that employs peace officers who
make traffic stops in the routine performance of the officers’ official duties.

(2) "Race or ethnicity" means of a particular descent, including Caucasian,
African, Hispanic, Asian, or Native American descent.

(b) Each law enforcement agency in this state shall adopt a detailed written
policy on racial profiling. The policy must:

(1) clearly define acts constituting racial profiling;

(2) strictly prohibit peace officers employed by the agency from engaging in
racial profiling;

(3) implement a process by which an individual may file a complaint with the
agency if the individual believes that a peace officer employed by the agency has
engaged in racial profiling with respect to the individual;

(4) provide public education relating to the agency's complaint process;

(5) require appropriate corrective action to be taken against a peace officer
employed by the agency who, after an investigation, is shown to have engaged in racial
profiling in violation of the agency's policy adopted under this article;

(6) require collection of information relating to traffic stops in which a citation is
issued and to arrests resulting from those traffic stops, including information relating to:

(A) the race or ethnicity of the individual detained; and

(B) whether a search was conducted and, if so, whether the person detained
consented to the search; and

(7) require the agency to submit to the governing body of each county or
municipality served by the agency an annual report of the information collected under
Subdivision (6) if the agency is an agency of a county, municipality, or other political
subdivision of the state.

(c) The data collected as a result of the reporting requirements of this article shall
not constitute prima facie evidence of racial profiling.

(d) On adoption of a policy under Subsection (b), a law enforcement agency shall
examine the feasibility of installing video camera and transmitter-activated equipment in
each agency law enforcement motor vehicle regularly used to make traffic stops and
transmitter-activated equipment in each agency law enforcement motorcycle regularly
used to make traffic stops. If a law enforcement agency installs video or audio equipment
as provided by this subsection, the policy adopted by the agency under Subsection (b)
must include standards for reviewing video and audio documentation.

(ec) A report required under Subsection (b)(7) may not include identifying
information about a peace officer who makes a traffic stop or about an individual who is
stopped or arrested by a peace officer. This subsection does not affect the collection of
information as required by a policy under Subsection (b)(6).

50



including, for example, suspicion of counterfeiting, because local law enforcement agencies lack
jurisdiction over. such matters.

Sheriff Hill observed that if, in the course of a vehicle stop, a driver is asked for and cannot
produce a license, registration, and proof of insurance, the absence of appropriate documentation
may result in a federal agency contact. He noted that the sheriff's office lacks access to a federal
database to determine if someone is documented.

Chief Whipple stated that ICE can direct a local law enforcement agency to detain an individual
for suspected violation of federal law.

Panel Four

James Johnson, Chair, New Jersey Advisory Committee on Police Standards

Mr. Johnson, who is a partner in the law firm of Debevoise & Plimpton, LLP, began his
comments with a brief description of the events that led to the establishment of the New Jersey
Advisory Committee on Police Standards (“Advisory Committee on Police Standards”),
Pursuant to a consent decree, the New Jersey State Police were directed to identify and
implement steps to eliminate the fact, appearance, and risk of racial profiling in the performance
of duties. The many initiatives undertaken in New Jersey over the several years since the decree
are comprehensively documented in the New Jersey Advisory Committee on Police Standards
report.

Mr. Johnson derived a number of conclusions from the work of the Advisory Committee on
Police Standards. First, while recognizing the nobility of their public service, he noted the
tendency of law enforcement agencies to be self-protective — sometimes to an extent not in their
self-interest — and observed that “oversight ensures accountability.” Second, he underscored the
importance of transparency. Law enforcement, he said, serves best when functioning as part of
its community; if community members are unclear why certain law enforcement decisions or
tactics are used, or where to direct concerns and complaints, they will lack trust, a key
component of effective law enforcement.

Mr. Johnson explained that the Advisory Committee on Police Standards held six hearings and
took testimony from a wide array of witnesses — community members as well as experts — and
derived findings from this comprehensive briefing process. The resulting recommendations were
reached by consensus and included steps such as data collection and use of video-cameras in
patrol cars. These data, he explained, not only protect officers from physical harm and
unfounded charges of misconduct, but provide an excellent self-study foundation for officer
counseling and management. The New Jersey outcome, Mr. Johnson believes, was a good one,
and he commended the Advisory Committee on Police Standards for the quality of its work.

Michele Jenness, Vermont Refugee Assistance

Ms. Jenness urged that clear boundaries be maintained between the enforcement of criminal law
and the enforcement of immigration law. She noted that local police department policies that bar
officers from secking to enforce federal immigration requirements are consistent with federal

23



(c) This article does not affect the collection or reporting requirements under
Article 2.132.

Art. 2,136. LIABILITY.

A peace officer is not liable for damages arising from an act relating to the collection or
reporting of information as required by Article 2.133 or under a policy adopted under
Article 2.132.

Art. 2.137. PROVISION OF FUNDING OR EQUIPMENT.

(a) The Department of Public Safety shall adopt rules for providing funds or video and
audio equipment to law enforcement agencies for the purpose of installing video and
audio equipment as described by Article 2.135(a)(1)(A), including specifying criteria to
prioritize funding or equipment provided to law enforcement agencies. The criteria may
include consideration of tax effort, financial hardship, available revenue, and budget
surpluses. The criteria must give priority to:

(1) law enforcement agencies that employ peace officers whose primary duty is
traffic enforcement;

(2) smaller jurisdictions; and

(3) municipal and county law enforcement agencies,

(b) The Department of Public Safety shail collaborate with an institution of
higher education to identify law enforcement agencies that need funds or video and audio
equipment for the purpose of installing video and audio equipment as described by
Article 2.135(a)(1)(A). The collaboration may include the use of a survey to assist in
developing criteria to prioritize funding or equipment provided to law enforcement
agencies.

(c) To receive funds or video and audio equipment from the state for the purpose
of installing video and audio equipment as described by Article 2.135(a)(1)(A), the
governing body of a county or municipality, in conjunction with the law enforcement
agency serving the county or municipality, shall certify to the Department of Public
Safety that the law enforcement agency needs funds or video and audio equipment for
that purpose.

(d) On receipt of funds or video and audio equipment from the state for the
purpose of installing video and audio equipment as described by Article 2.135(a)(1)(A),
the governing body of a county or municipality, in conjunction with the law enforcement
agency serving the county or municipality, shall certify to the Department of Public
Safety that the law enforcement agency has installed video and audio equipment as
described by Article 2.135(a)(1)(A) and is using the equipment as required by Article
2.135(a)(1).

Art. 2,138. RULES.
The Department of Public Safety may adopt rules to implement Articles 2.131-2.137.

53



Vermont Advisory Committee to
the U.S. Commission on Civil Rights

Curtiss Reed Jr., Chairman

West Brattleboro

Francine T. Bazluke
Essex Junction

John H. Bloomer
Wallingford

Luther M. Brown
Rutland

Ellen Mercer Fallon
Middlebury

Ann Hagman Cardinal
Morrisville

Leslie Ann Holman
Burlington

Gary A. Kowalski
Burlington

Terrance D. Martin
Brattleboro

Acknowledgments

Marion Milne
West Topsham

Cheryl W. Mitchell
New Haven

Tara A. O’Brien
Brattleboro

Eric D. Sakai
Randolph

Stefanie L. Sidortsova
Westford

Diane B. Snelling
Hinesburg

Tracey H. Tsugawa
Williston

R. Stewart Wood
Quechee

The Vermont Advisory Committee thanks the briefing participants. It also thanks Trevor
Whipple, Police Chief of South Burlington, for his assistance with this report, Thomas D.
Mercurio for copyediting the report; and Lia Garvin for designing the cover. The Committee
expresses its appreciation to Barbara de La Viez for her assistance in planning and holding the
briefings and in drafting and producing the report and to members Francine Bazluke and Eric D.
Sakai for their assistance with the drafting of the report.

The Committee gratefully acknowledges the University of Vermont for assistance in convening
the June 12, 2008, briefing.



DEPARTMENT DIRECTIVE 06.10 page 4

Janet Murnane, Esq.

Deputy Chief Walter C. Decker
Deputy Chief Stephen J. Wark
Lieutenant Kathleen P. Stubbing
Cpl. Stephen Dixon

Captain Lianne M. Tuomey, UVMPS
Chief Alana M. Ennis, resigned

42



DEPARTMENT DIRECTIVE 06.10 page 2

Il.

B. _ Investigative detentions, traffic stops, arrests, searches and property seizures
by officers will be based on a standard of reasonable suspicion or probable
cause in accordance with the Fourth Amendment of the U.S. Constitution.
Officers must be able to articulate specific facts and circumstances that
support reasonable suspicion or probable cause for investigative detentions,
traffic stops, arrests, nonconsensual searches, and property seizures.

C. Except as provided in LD, officers shall not:

1. consider race, ethnicity, gender, or other potentially improper criteria
in establishing either reasonable suspicion or probable cause;

2. consider race, ethnicity, gender, or other potentially improper criteria
in deciding to initiate even those nonconsensuai encounters that do not
amount to legal detentions or to request consent to search.

D. Officers may take into account the reported race, ethnicity, gender or other
potentially improper criteria of a specific suspect or suspects based on
relevant information that links a person or persons of a specific race,
ethnicity, gender or other potentially improper criteria to a particular
unlawful incident(s). Race, ethnicity, gender or other potentially
improper criteria can never be used as the sole basis for probable cause
or reasonable suspicion or motivating factors in making law
enforcement decisions.

PREVENTING PERCEPTIONS OF BIASED POLICING

In an effort to prevent inappropriate perceptions of biased law enforcement, each
officer shall do the following when conducting pedestrian and vehicle stops:

A. Be courteous and professional

B. Introduce him/herself to the citizen (providing name and agency affiliation),
and state the reason for the stop as soon as practical, unless providing this
information will compromise officer or public safety. In vehicle stops, the
officer shall provide this information before asking the driver for his or her
license and registration.

C. Ensure that the detention is no longer than necessary to take appropriate
action for the known or suspected offense, and that the citizen understands

the purpose of reasonable delays.

D. Answer any questions the citizen may have, including explaining options for
traffic citation disposition, if relevant.

40



Chapter Three: Summary of Racial Profiling Briefing Participants

Racial Profiling Briefing, June 12, 2008, Burlington, Vermont

The Vermont Advisory Committee invited public officials, law enforcement personnel, scholars,
community representatives, and the public to present on the topic of racial profiling. The first
panel included three police chiefs, the executive director of the Human Rights Commission, and
a public defender; the second panel included scholars and community representatives; and the
third panel was open for members of the public to make statements to the Committee.

Panel One

Michael Schirling, Chief of Police, City of Burlington

Chief Schirling acknowledged that racial profiling was a deliberate police practice in the 1980s,
only later to be found ineffective. He also observed that racial profiling exists both in reality and
perception. Chief Schirling noted that his predecessor, Thomas Tremblay, the current
Commissioner of the Vermont Department of Public Safety, launched initiatives designed to
identify the presence and impact of racial profiling. Chief Schirling expressed his own
commitment to addressing racial bias in police activity and his recognition of the importance of
trust-building and transparency as his Department undertakes steps to do so. He outlined the
following priorities: examine, through data collection and analysis, law enforcement practices
such as traffic stops; screen officer candidates intensively; hire personnel who do not manifest
overt racial bias; identify supervisory officers who can promote interracial understanding and
good race relations with and in the community; and offer effective training and education for
officers on a continuing basis.

Col. James W. Baker, Director, Vermont State Police

Colonel Baker advised that the Vermont State Police is the largest law enforcement agency in the
state. It provides primary police services to approximately 45 percent of the population, and also
operates emergency communication answering and dispatching services that review and process
approximately 75 percent of the emergency calls in Vermont. These services, and the agency’s
coverage of about 80 percent of the state land mass, bring State Police into contact with a large
segment of residents of, as well as visitors to, Vermont. Colonel Baker observed that the state
population is today more diverse than it was a decade ago, and that this trend is likely to
continue.

Colonel Baker is responsible for the rules, regulations, policies, practices, and processes that
govern the conduct of State Police officers. He said that he supports statements that make clear
to all that bias in policing in unacceptable; he also noted that it is an ongoing process to render
the Vermont State Police a “culturally competent” organization.

Colonel Baker then outlined actions that have been implemented and are designed to address
racial bias concerns: (L) issuance of a statement of vision and expectation that all persons be
treated with respect and dignity, and without the influence of bias; (2) adoption of a Non-Bias
Policing policy; (3) installation of video cameras in State Police cars and requiring their use for
all traffic stops; (4) appointment of a standing committee to audit traffic stops that result in

10



(c) A report required under Subsection (b) must include:

(1) acomparative analysis of the information compiled under Article 2.133 to:

(A) determine the prevalence of racial profiling by peace officers employed by
the agency; and

(B) examine the disposition of traffic and pedestrian stops made by officers
employed by the agency, including searches resulting from the stops; and
: (2) information relating to each complaint filed with the agency alleging that a
peace officer employed by the agency has engaged in racial profiling.

(d) A report required under Subsection (b) may not include identifying
information about a peace officer who makes a traffic or pedestrian stop or about an
individual who is stopped or arrested by a peace officer. This subsection does not affect
the reporting of information required under Article 2.133(b)(1).

(e) The Commission on Law Enforcement Officer Standards and Education shall
develop guidelines for compiling and reporting information as required by this article.

(f) The data collected as a result of the reporting requirements of this article shall
not constitute prima facie evidence of racial profiling.

Art. 2.135. EXEMPTION FOR AGENCIES USING VIDEO AND AUDIO
EQUIPMENT.

(a) A peace officer is exempt from the reporting requirement under Article 2.133 and a
law enforcement agency is exempt from the compilation, analysis, and reporting
requirements under Article 2.134 if:

(1) during the calendar year preceding the date that a report under Article 2.134 is
required to be submitted:

(A) each law enforcement motor vehicle regularly used by an officer employed
by the agency to make traffic and pedestrian stops is equipped with video camera and
transmitter-activated equipment and each law enforcement motorcycle regularly used to
make traffic and pedestrian stops is equipped with transmitter-activated equipment; and

(B) each traffic and pedestrian stop made by an officer employed by the agency
that is capable of being recorded by video and audio or audio equipment, as appropriate,
is recorded by using the equipment; or

(2) the governing body of the county or municipality served by the law
enforcement agency, in conjunction with the law enforcement agency, certifies to the
Department of Public Safety, not later than the date specified by rule by the department,
that the law enforcement agency needs funds or video and audio equipment for the
purpose of installing video and audio equipment as described by Subsection (a)(1)(A) and
the agency does not receive from the state funds or video and audio equipment sufficient,
as determined by the department, for the agency to accomplish that purpose.

(b) Except as otherwise provided by this subsection, a law enforcement agency
that is exempt from the requirements under Article 2.134 shall retain the video and audio
or audio documentation of each traffic and pedestrian stop for at least 90 days after the
date of the stop. If a complaint is filed with the law enforcement agency alleging that a
peace officer employed by the agency has engaged in racial profiling with respect to a
traffic or pedestrian stop, the agency shall retain the video and audio or audio record of
the stop until final disposition of the complaint.

52



Gary Margolis, Chief of Police, University of Vermont Police Services

Chief Margolis explained that the University of Vermont (“UVM”) Police Services unit is one of
the largest full-service law enforcement agencies in the state and that its accreditation from the
Commission on Accreditation for Law Enforcement Agencies (“CALEA”) is in part dependent
upon its adoption of policies that address racial profiling.

He reviewed the history of a 2003 incident during which a UVM officer drew a gun on an
African American student the officer mistakenly believed to be a suspect in a robbery. The
Department terminated the officer, and the Chief initiated intensive officer training regarding
racial profiling, enlisting the advice of expert Jack McDevitt of the Racial Profiling Data
Collection Center at Northeastern University.

Chief Margolis stated that he was involved in the development of an anti-bias policy statement
that now serves as a model for law enforcement agencies throughout the state. He also shared his
belief that, notwithstanding potential shortfalls associated with data collection processes and
analysis, undertaking data collection is an important basis for “open dialogue” between law
enforcement officials and community members. He predicted that the Uncommon Alliance, in
which he is participating, will serve as a model for other Vermont municipalities, enhancing the
awareness of law enforcement personnel of racial profiling issues.

Margaret Jansch, Chittenden County Public Defender

Ms. Jansch advised the Committee that her office handles 5,000-6,000 criminal cases annually.
The office is the largest public defender unit in the state, and Burlington has the largest minority
population in Vermont. With respect to racial profiling and criminal justice, Ms. Jansch indicated
that her information is anecdotal and that, in her view, data collection is essential. She offered
strong support for the use of video cameras in officer vehicles, but commented that the
videotapes are not always available or produced upon the request of defense counsel.

Ms. Jansch expressed concern about the prevalence of traffic stops involving young African
American men and said that many of her office’s cases are drug prosecutions arising out of these
traffic stops. She stated that young African American males in late-model cars are at high risk of
a traffic stop and that she has filed motions to dismiss cases on the ground that the rationale
offered for stops was pretextual. She also expressed her view that race-based sentencing
disparities existed. ,

Panel One: Questions and Answers

In response to a Committee question, the two police chiefs and Colonel Baker reported rising
success in the recruitment of female officers but continuing challenges with respect to
recruitment of non-White officers.

Discussion next turned to model policies. One of the panelists stated that many policies prohibit
stops based solely on an individual’s membership in a protected class. Mr. Appel again favorably
cited the 2003 U.S. Department of Justice guidance statement, reiterating his belief that limiting
the prohibition to stops based “solely” on race is unduly restrictive. He also criticized the

12



and have committed to collect traffic stop data statewide. The Committee makes this
recommendation because the State Police are Vermont’s largest law enforcement service
provider, have the highest volume of interactions with vehicle drivers, and are in the best
position to collect significant statistical data. Other Vermont law enforcement agencies
should voluntarily collect traffic stop data in order to ensure transparency and build
public confidence in their integrity, fairness, and professionalism.

The Vermont Attorney General, in consultation with local, county and state law
enforcement agencies and other stakeholders, should develop and issue a model bias-free
policing policy that defines professional standards and expectation, establishes an early
intervention system for complaints and concerns, and provides remedial steps, including
disciplinary action as appropriate, for policy violations. All law enforcement agencies
should adopt a version of the model policy. Law enforcement agencies should also
develop a visible and readily accessible complaint redress system responsive to
individual bias complaints.

Mandatory comprehensive training on anti-bias policing should be expanded at the police
academy for officer certification and continue by means of in-service training throughout
a police officer’s career.

Video cameras should be installed in all front-line patrol vehicles and used to record all
motor vehicle stops. The equipment must be properly maintained and recordings retained
for an appropriate period of time.

Police departments should strive to develop police-community partnerships, such as the
Uncommon Alliance, that promote bias-free law enforcement practices and mutual
understanding and respect between the police and the public.

The Vermont Legislature should consider legislation that prohibits profiling of motorists
aid pedestrians solely on the basis of actual or perceived race, ethnicity, or national
origin, The Legislature should further consider convening and appropriately empowering
an oversight commission charged with monitoring local and statewide initiatives to
address racial profiling.

The Committee’s findings and recommendations are detailed in the accompanying report.

The Committee believes this report will enhance public understanding of the challenges racial
profiling poses for law enforcement and the public, particularly persons of color, and identify
steps that might be taken by law enforcement agencies to improve accountability measures,
increase the effectiveness of law enforcement practices, and build trust between the community
and law enforcement agencies.

Sincerely,

Curtiss Reed, Jr., Chairperson
Vermont Advisory Committee

iv



Conclusion

The Vermont Advisory Committee first looked at the issue of racial profiling at its March 2006
briefing. At that time, it learned that some members of the community felt targeted by law
enforcement because of their race or nationality. As a result of these findings, the Committee
convened additional briefings to gather more information about the extent of racial profiling in
Vermont and to consider remedies to address the problem. The Committee learned that there
remains a strong perception, particularly among persons of color, that police use racial profiling
when making traffic and pedestrian stops. This perception extends also to how criminal matters
are handled at other stages of the Vermont criminal justice system. At the same time, the
Committee learned that many chief officers of Vermont’s law enforcement agencies are
committed to addressing this issue proactively and effectively.

Racial profiling and the public perception of racial profiling undermine the trust and cooperation
that must exist between law enforcement agencies and the communities they serve. Preventing
both actual and perceived profiling are equally important goals.

There appears to be a broad consensus that racial profiling, defined by Vermont’s Attorney
General as the “police practice of consciously or unconsciously identifying a particular racial or
ethnic group as being more likely than others to be guilty of, or more prone to, committing
criminal acts,” has no place in law enforcement. A police officer does not engage in racial
profiling every time he or she stops a person of color. But if the conscious or unconscious motive
for the stop is the individual’s race, color, or ethnic background, there is cause for concern that
racial profiling has tainted police practice. There is ample evidence that racial profiling is not an
effective law enforcement method and that in fact it distracts from the critical focus: stemming
actual criminal behavior.

Discussions about racial profiling, however, often concentrate exclusively on the presence or
absence of racial animus in conducting traffic stops; the focus is often on whether police officers
are motivated by bias. These discussions often do not lead to solutions and may only result in
some members of the public asserting, and police denying, that racial profiling occurs.
Additionally, whether racial profiling is a matter of perception or reality may not ultimately
matter if there is widespread belief that it occurs. Therefore, the dialogue must move past
perception, rhetoric, and accusation and to comprehensive action that includes law enforcement
officers and members of the community working together to build trust. A perception of
cooperation and fairness can do much to counter, and perhaps eliminate, a perception of bias. In
turn, that perception will strengthen community trust in law enforcement, encourage true
cooperation, and allow and assist law enforcement to achieve its central and necessary goal,
protecting the public.

In Vermont, a few law enforcement agencies have been working toward creating and
implementing effective solutions. While jurisdictions around the country have been forced,
through lawsuits and consent decrees, to collect data on traffic stops, four Vermont jurisdictions
have voluntarily begun a program to collect data, This program grew out of the grassroots efforts
of the Uncommon Alliance, an organization comprised of local citizens working in association
with the Burlington, South Burlington, University of Vermont, and Winooski police

33



W. Sam Hill, Sheriff, Washington County Sheriff's Department

Sheriff Hill reported that 13 (county-based) sheriffs departments helped to prepare him for the
briefing. He spoke with personnel from each county and believes that sheriffs throughout the
state take seriously the issue of bias-free policing.

Estimating that approximately 50 percent of the sheriff departments have anti-bias policies, he
said that departments are not seeing problems with, or receiving complaints of, racial bias. One
sheriffs department, he noted, has an ethics policy that it believes, with training, is adequate.

Sheriff Hill stated that he believes that, if there were racial bias concerns and complaints, his
department would be aware of them, as there are many local channels of communication,
including town offices, constables, board members, and the department itself. He emphasized the
importance of effective training to ensure that department personnel discharge their
responsibilities appropriately.

The Sheriff described the scope of departmental operations: departments typically have contracts
with specific municipalities within the county to perform either discrete or comprehensive patrol
services. He cited highway safety as a major area of service. Another function of the departments
is to transport juveniles, mental health patients, and others from places of detention to the courts

—a highly stressful task, for which they receive training.

Cindy Taylor-Patch, Training & Curriculum Coordinator,

Vermont Criminal Justice Training Council

Ms. Taylor-Patch described the general scope of services the Council provides, which involves
curriculum development and recruitment and in-service training for Vermont law enforcement
personnel. She explained that the two-hour recruit training program on racial awareness
encompasses racial profiling and that this is the only segment in the initial training devoted to
bias prevention.

Panel Three: Questions and Answers

Committee members asked questions regarding the extent to which state and local law
enforcement agencies engage in immigration enforcement. Sheriff Hill replied that sheriffs on
full patrol respond to complaints in the same manner as municipal police officers; thus, ifa
sheriff believed that a situation posed a national security threat, ICE or another federal agency
with jurisdiction would be contacted. Chief Whipple stated that his department has no regular
interactions with ICE and does not “police at the federal level.” He said that, if an individual is
under suspicion for an offense that is within the jurisdiction of his department and the suspect is
believed to be undocumented, contact would be made with ICE or the U.S. Border Patrol. Chief
Hanley commented that if an undocumented person is brought into custody, the appropriate
consulate is notified so that it can render services, and then a transfer is made to federal
authorities or a holding facility.

Committee members questioned Ms. Patch-Taylor about the adequacy of the racial awareness

training. She acknowledged that the two-hour block did not provide a substantial training
opportunity, and stated that additional training could be offered as part of in-service

21



Letter of Transmittal

Vermont Advisory Committee to
the U.S. Commission on Civil Rights

Members of the Commission
Gerald A. Reynolds (Chairman)
Abigail Thernstrom (Vice-Chairman)
Todd F. Gaziano

Gail Heriot

Peter N. Kirsanow

Arlan D. Melendez

Ashley L. Taylor, Jr.

Michael Yaki

Martin Dannenfelser, Staff Director

The Vermont State Advisory Committee submits this report, Racial Profiling in Vermont, as part
of its responsibility to advise the Commission on civil rights issues in Vermont. The Committee
approved this report in a vote of 17 to 0.

In June and July 2008, the Committee invited law enforcement representatives, government
officials, scholars, advocacy group representatives, community representatives, and the public to
participate in the briefings. The Committee learned that there remains a strong perception,
particularly among persons of color, that actual or perceived race, ethnicity, or national origin is
used as the basis for law enforcement decision-making for traffic and pedestrian stops. At the
same time the Committee learned that the leadership of many of Vermont’s law enforcement
agencies is committed to addressing this issue head-on.

The Committee recognizes that issues of racial profiling and bias-based policing have long been
challenging ones for law enforcement, policy-makers, and the public. Discussions about racial
profiling often concentrate exclusively on the presence or absence of racial animus in conducting
traffic stops. A focus on this aspect of racial profiling often does not lead to constructive
dialogue or effective solutions and may only result in some members of the public asserting, and
police denying, that racial profiling occurs. The Committee, therefore, wanted the dialogue to
move past perception, rhetoric, and accusation to a comprehensive approach that includes law
enforcement and the community working together to build trust. Thirty percent of Vermont’s
population growth between 1990 and 2006 is attributed to ethnic and racial minorities, including
immigrants. The Committee is concerned that inaction or ineffective action with regard to racial
profiling will breed greater distrust between law enforcement and persons of color as Vermont’s
population grows more multiracial, multiethnic, and multilingual.

Based on the briefings, the Committee offers the enclosed report and recommendations:
© The Vermont State Police should promptly begin collection traffic stop data collection.

State officials testified that they have been developing a system for race data collection

iii



Criminal Justice may periodically review and update these training materials to account
for new developments in the law. .

: b, The Division of Criminal Justice shall within 90 days of the effective date
of this Law Enforcement Directive develop curricula on the subject of racially-influenced
policing for use in the pre-service training of police recruits. The Division shall submit
this curricula to the Police Training Commission, for its approval for use at all Police
Academies that are subject to the jurisdiction of the Police Training Commission.

“¢. In order to institutionalize and build upon the successful reforms that
have already been undertaken by the New Jersey State Police, the Division of State Police
shall include the curricula developed by the Division of Criminal Justice on the subject
of racially-influenced policing in the pre-service training of Trooper recruits in the State
Police Training Academy. This comprehensive training on racially-influenced policing
shall be included for all recruits who attend the State Police Academy in any class

. beginning on or after September 1, 2005. so Lo

4, Confirm: ation of Initial In-Service Training

a, Every police officer operating under the authority of the laws of the State
of New Jersey, regardless of rank or duty assignment, shall participate in the training
program developed by the Division of Criminal Justice within 180 days of the employing
agency’s receipt of the training materials described in Section 3a of this Law Enforcement
Directive, The Chief Executive of every police agency operating under the authority of
the laws of the State of New Jersey shall also designate those civilian employees of the
agency (¢.g., dispatchers) who will participate in this initial training program. A person
shall be deemed to have participated:in the training program by viewing the entire video
presentation developed by-the Division of Criminal Justice, or by reading the entire.
contents of the Companion Guide, The viewing of the video presentation may be done
at such location(s) or’ time(s) as may be approved by the Chief Executive of the law -
enforcement agency, and may be accomplished in multiple sessions at which one or more
employees view a selected portion of the video presentation during any one session,

b, Within 180 days of receiving a copy of the training materials described
+ in Section 3a: of this Law Enforcement Directive, the Chief Executive of every police
agency operating under the authority of the laws of the State of New Jersey shall confirm
in writing to.the Attorney General that all sworn personnel and all appropriate civilian
employees of the agency have either viewed the video presentation or read the entire
Companion Guide, The Division of Criminal Justice shall prepare and disseminate forms

- to facilitate the confirmation process for State, county and local police agencies.

45



national origin. The above-mentioned anti-bias policies developed by local law enforcement
agencies provide a useful starting point; in addition, the Texas statute prohibiting racial profiling,
attached as Appendix F, is a comprehensive law on which legislation could be modeled.

Finding 4: Training of Jaw enforcement personnel

As a part of the initial certification process for law enforcement personnel, the total number of
hours for basic training at the police academy is over 900 hours, including 100 hours of post-
basic instruction. The time allotted for cultural awareness training is only two hours. The
Committee recognizes that there are resource constraints that affect the curriculum provided by
the Vermont Criminal Justice Training Council for police candidates, but also concludes that the
number of hours allocated to, and the content of, racial awareness training are insufficient. There
is also inconsistent post-academy training across law enforcement agencies regarding anti-bias
training and cultural awareness.

The Committee concludes that racial and ethnic differences generate complex emotions and
reactions, both conscious and unconscious, arising out of a lifetime of experience and
socialization. For that reason, awareness training cannot be effectively conducted in a single-
session format as part of an officer certification program, particularly one that has demonstrated
resource and time constraints. The Committee also finds that continuing in-service training is
necessary in light of fast-changing Vermont demographics, because awareness of the diverse
cultures of incoming residents and visitors will improve the ability of law enforcement officers to
engage in bias-free policing and ultimately to advance public safety.

Recommendation 4:

The Committee recommends that educational and training measures be designed to address racial
profiling in law enforcement and that law enforcement agencies emphasize the prohibition on
racial and ethnic profiling to recruits and experienced officers. These agencies also need to
ensure that their officers understand agency policy on anti-bias policing, have copies of the
policy, and follow the procedures established by the policy.

Adequate training is the first step in the process of creating awareness and establishing
performance expectations. Comprehensive training must begin in the academy and continue
throughout a police officer’s career. The Committee also recommends that the Vermont Criminal
Justice Training Council expand the number of hours dedicated to anti-bias and cultural
awareness training required for initial certification. The Committee recommends that a mandated
minimum number of in-service training hours be devoted to bias-related training and that it be
over a specified time period, such as at two-year intervals, for officers to retain their certification.

The Committee further recommends that programs offer awareness training on ethnic, racial, and
cultural sensitivity issues with which officers are required to deal when interacting with the
general public and that the training use a variety of strategies, including videos, real-life
scenarios of police contacts and stops, and interactive sessions. Training must provide feedback
to officers, Additional training sessions should be provided to officers whose conduct has been
identified by supervisors to be problematic on this issue.

29



2, In some cases, consular notification is mandatory and the
officer must make the notification. In other cases, once
advised, the foreign national has the option as to whether or
not to notify the consulate. This is dependent on the agreement
between the US Government and the particular country. Refer
to the list of mandatory notification countries found in the
document “Consular Notification and Access” by the US
Department of State.

a. Non-mandatory notification

¢ Offer, without delay, to notify the foreign national’s
consular officials of the arrest/detention.
Suggested statements and translations are found
in Part 4 of “Consular Notification and Access”

e Onrequest, notify the nearest consular officials of
the foreign national’s country without delay. Part 6
of “Consular Notification and Access” contain
consulate and embassy contact information.

b. Mandatory notification

* Notify the foreign national’s nearest consular
officials, without delay, of the arrest/detention. Part
6 of “Consular Notification and Access” contains
contact information. Sample FAX notification forms
are in that document as well.

« Tell the foreign national you are making the
notification.

3, Provide the foreign national with access to embassy or consular
officials without delay when notification is mandatory or requested
by either the foreign national or embassy/consular officials.

B. Documentation.

Make a written record of the notification or offer of notification and actions
taken. Include this record with the incident report.

Vv. Assist to Other Agencies

The Middlebury Police Department will provide mutual aid assistance, in a
support role, on request to other law enforcement agencies in the investigation
of immigration violations within the scope of department policies. In the

absence of criminal activity or homeland security concerns, the department will
not intercede without the active presence of the requesting law enforcement

agency.

3 Undocumented Foreign Nationals 2.48

38



policy. She also commented that enforcement of immigration law needs to remain a federal
responsibility to allow local police to focus on their primary duties.

Observing that immigrants and refugees confront racial and xenophobic biases, Ms. Jenness
stated that when local law enforcement officers ask those whom they have detained and who
“look like immigrants” about their status, this activity raises serious civil rights concerns. Based
upon anecdotal reports, Ms. Jenness said, this activity occurs with enough frequency to raise
concerns about a pattern and practice of racial profiling. She also identified serious public safety
issues arising out of the fact that immigrants are hesitant to use police emergency services, even
to report crimes, for fear that they or family members could be deported.

Since 1992, Ms. Jenness testified, Vermont Refugee Assistance has provided legal counsel to
immigrants being held in the custody of what is now the U.S. Department of Homeland Security.
It provides weekly presentations to male immigrants held in the Franklin County jail in St.
Albans and, on a needs basis, to female immigrants held in Dale Correctional Facility in
Waterbury. The great majority of these immigrants, she said, are in civil removal proceedings.

Naweza Muderhwa, Program Specialist, Association of Africans Living in Vermont

Ms. Muderhwa told the Committee that she immigrated to Vermont in 1996, when she was 13
years old. She described an altercation arising out of a racial slur that her brother had as a young
child, and the insensitive, if not hostile, treatment from the Burlington police officer who
responded. She stated she lost confidence in the police as a result. In addition, she observed,
many persons of color in the community have had similar experiences and lack trust in local law
enforcement. Ms. Muderhwa stated that immigrants view the United States as a country that
engenders hope, and commented that she and others should not be struggling here because they
are immigrants or persons of color.

Michael Mello, Professor of Law, Vermont Law School

Professor Mello noted that the Committee heard considerable testimony about needed data, but
there is, nevertheless, significant anecdotal reports of racial profiling and bias. He has heard
similar stories over 20 years at the law school from international students, especially after 9/11.
He also cited the Brattleboro ALANA Organization study addressing interactions between the
Brattleboro-area persons of color and the Brattleboro Police Department, characterizing it the
next best thing to “hard data.”

Professor Mello commented on the stark contrast between the comments offered by law
enforcement officials and those of civilians with respect to the issue of racial profiling. He said
that, although he believes that both are being honest in their descriptions, the only way to “bridge
the reality divide” is to collect and analyze data. Professor Mello urged consideration of a state-
wide data collection mandate, observing that voluntary data collection initiatives are rare.

Professor Mello recommended several actions: collect data on traffic stops; video and audio-tape
all vehicle stops; provide anti-bias training for all Vermont law enforcement officers; establish
and fund an oversight committee similar to the New Jersey Advisory Committee on Police
Standards, which report he described as a model; and conduct a comprehensive study of racial
profiling in the state of Vermont

24



government and civic participation; community resources; community awareness and
education; and celebrations, arts and culture.

© In 2004, the ALANA Community Organization, located in Brattleboro, Vermont,
disseminated a survey designed to examine the nature of the interactions between ethnic,
racial, and linguistic minority households and the Brattleboro Police Department
(“BPD”).”* It found, that the statistical data supported anecdotal evidence of
disproportionate contact between those households and the BPD, and that over 80 percent
of the respondents felt that racial profiling was occurring (with 52.4 percent
characterizing it as a “serious problem”). ALANA initiated the survey in response to a
BPD survey of voters at the polls in March 2003, the results of which, the BPD
maintained, demonstrated the adequacy of Departmental policies and procedures. The
Police Chief questioned the focus of the survey on police misconduct that allegedly
occurred two years prior and noted that the Department had since adopted a bias-free
policy. Controversy persisted as to whether a Civilian Police Communications
Committee, established to address complaints against police officers, had adequate
investigative powers and whether data were available to track concerns regarding
disparate treatment based on minority status.

¢ In 2005, an initiative known as the “Uncommon Alliance” started in Chittenden County.
‘The Alliance engages community activists and residents, clergy, the State’s Attorney’s
office, legislators, the Vermont Human Rights Commission, the Vermont State Police,
refugees, neighboring police department personnel, and others on issues relating to the
experiences of African Americans, African refugees, and other ethnic minorities with
respect to law enforcement, with a special focus on racial profiling. The group
established a steering committee comprised of racial, ethnic, religious, and national
minorities whose members provide guidance to Uncommon Alliance committees and
who also report back to Alliance participants on developments. The committees address
data collection (planning and collaborating on a race data collection pilot program; data
collection commenced on January 1, 2009); outreach; training (working collaboratively
with law enforcement officials to design training for officers that improves their ability to
provide bias-free policing); legislation; youth; and identification (assisting persons whose
primary language is not English in interactions with police).

¢ In 2006, the Vermont Advisory Committee to the U.S. Commission on Civil Rights
convened a briefing to examine issues affecting immigrants and refugees in Vermont.
Although the Committee focused on the adequacy of social services and other resources
available, including health care, education, housing, employment, and legal
representation, especially for those who have limited English proficiency, it heard
testimony that Mexican farm workers were subjected to discrimination and the constant
fear of deportation or intimidation by local authorities. The Committee also heard
testimony that individuals are often “targeted based on their race or ethnicity because
they are members of a certain minority group and are supposedly more likely to engage
in unlawful behavior or be present in the U.S. illegally.”

4 ALANA stands for African, Latino, Asian, Native American.



5 Notification of Criminal Investigation: - Prosecutions for Offici

Deprivation of Civil Rights.

Whenever a law enforcement agency conducts a criminal investigation into
possible commission of the crime of official deprivation of civil rights in violation of
NwJ.S.A. 2C:30-6, or pattern of official misconduct in violation of N.J.S.A. 2C:30-7 which
is based on two or more violations of N.J.S,A. 2C:30-6, the law enforcement agency shall
promptly notify the Director of the Office of Government Integrity, and shall provide such
information as the Office of Government Integrity may require, Whenever.a prosecuting
authority files a complaint, accusation or indictment charging a violation of N.J.S.A.

* 20:30-6, or NJ.S.A,°2C:30-7 which is based on two or more violations of NJ.S.A. -
2C:30-6, the prosecuting authority shall promptly notify the Director of the Office of
Government Integrity, and shall forward a copy of the charging documents to the. -
Director. When the Director is notified of a criminal investigation or, the filing of a
criminal charge, the Office of Government Integrity shall promptly review the matter, and
take such action as it determines to be appropriate, The Office of Government Integrity,

’. in consultation with the Division of Criminal Justice and the County Prosecutors, may

issue standards and procedures for these notifications and for its review. of the offenses
covered under this Section.

6. Questions and Controversies

All questions concerning the interpretation, implementation or enforcement of this
Law Enforcement Directive shall be addressed to the Attorney General or his designee.

7. Effective Date

This Law Enforcement Directive shall take effect immediately and shallremainin ©
full force and effect unless and until repealed, amended, or superceded by Order of the
Attorney General, : . .

ND a C. Harvey
. ttorney General

46



General Order: PR-346
South Burlington Police Department

2. During an encounter, provide the employee’s name and agency affiliation to citizens who
are the subject of the action; or, answer questions posed by the citizen.

3, Ensure that the lengths of traffic stops, investigative detentions, field contacts, etc., are no
Jonger than is reasonably necessary to take appropriate action.

4, Requesting the presence of supervisory or administrative ranked officers, or providing the
name and contact information for the supervisor, to allow citizens to voice their field
contact or enforcement related concerns

5. Notwithstanding the above, an officer should not offer any or all of the above if she
believes that to do so may result in harm to property or to a person, including herself; or, if
doing so is impractical; or, is prohibited by law, contract, policy; or, may jeopardize or
prejudice an investigation, prosecution or legal/ personnel/ disciplinary action.

346.2.0 Training

Each member shall receive training on biased based issues as they relate to performing
legitimate police duties. Topics included in the training will be making field/traffic
contacts, asset seizures, and property forfeitures (Note: See Appendix on page 4 for DEA
Adoption Guidelines regarding asset seizures).

It will be the responsibility of the Office of Professional Standards to ensure that members
will be given the chance to receive annual training on related issues. The annual training
will include a review of the department’s policy on biased based profiling and any
applicable legal updates that relate to this issue.

346.3.0 Policy Compliance

Violations of this policy may result in corrective action, and/or disciplinary action pursuant
to the Department’s Rules and Regulations. Disciplinary action may include letter of
reprimand or warning, probation, transfer, demotion, suspension, and dismissal.

Supervisors shall ensure that all personnel in their command are familiar with the content of
this policy. Supervisors should randomly review records such as reports of video/audio
recordings, or otherwise monitor the conduct of the officers in their command for the
purpose of ensuring compliance with this policy and to identify training issues.

Upon request, officers will explain how a person should make a complaint regarding an
officer’s conduct.

Page 2

Reference: 1.2.9 Last modified: April 30, 2007
Effective: November !, 2003 Last reviewed: April 30, 2007

48



vehicle searches (5) operation of an Internal Affairs process, per statute and policy, that i is
overseen by an Advisory Commission whose members are appointed by the Governor;”’ and (6)
commencement of an enhanced training program this fall.

Robert Appel, Executive Director, Vermont Human Rights Commission

Mr. Appel focused his remarks on the question of racial disparity in the administration of
criminal justice. Citing data from the U.S. Sentencing Commission project, he stated that
Vermont ranks second only to Iowa in racial disparity in incarceration rates, with African
Americans imprisoned at a rate 1,250 percent more per 100,000 residents than Whites. These
data, Mr. Appel noted, are corroborated by data published by the Vermont Department of
Corrections, which show that 10.1 percent of inmates incarcerated in Vermont on June 1, 2006,
were African American (up 20 percent from the previous year’s 8.4 percent), a rate more than 12
times greater than the state’s percentage of African American residents.

Mr. Appel said that the question whether the discriminatory exercise of discretion by criminal
justice personnel causes these racial disparities “remains largely unanswered.” He observed that
issues relating to stops and investigations of persons of color (including Mexican farm workers)
had been discussed in several contexts in Vermont during the past year, including at an
immigration forum held in Montpelier in October 2006; relative to the I-91 (Hartford/White
River area) Border Patrol Checkpoint’s alleged disproportionate detention of non- White
travelers; in “study circles” on race convened in several Vermont communities; and through the
Uncommon Alliance. In addition to the data collection started by the police departments
participating in the Alliance, Mr. Appel indicated that the Alliance has produced several
informational brochures, including a publication designed to inform community members of
their rights and responsibilities in interacting with law enforcement officers and a brochure
intended to assist officers in understanding Muslim customs.

Mr. Appel said that the success of efforts to have state law enforcement agencies adopt
“meaningful” anti-bias policing policies has been mixed. He cited a U.S. Department of Justice
policy with respect to racial profiling as a “best practice” insofar as it directs officers not to rely
on race as a motivating factor to a stop unless there is information available on the race of an
identified suspect.

Finally, Mr. Appel stated that racial profiling is a concern and priority of the Vermont Human
Rights Commission. In addition to law enforcement and criminal justice issues, he described
complaints involving housing and public accommodations, retail and shopping mall surveillance
practices, and harassment in the schools. He mentioned that Commission staff and
Commissioners are seeking to broaden their own understanding of the “latent characteristics” of
racial bias through education and training programs.

27 Colonel Baker stated that cases in which racial profiling or bias is alleged or suspected are referred to the Internal
Affairs Director for investigation, and those findings are subsequently reviewed by the Advisory Commission, thus
ensuring citizen oversight. He also noted that the Commission is comprised in a manner responsive to state
demographics.

11