Editor’s note: This commentary is by Timothy C. Doherty Jr., of Burlington, who served for 10 years as an Assistant U.S. Attorney in the District of Vermont. He is currently a director at the law firm of Downs Rachlin Martin, where he focuses on criminal defense and complex civil litigation.
On May 25, 2020, police in Minneapolis killed George Floyd while arresting him for allegedly using counterfeit money. People across the country reacted to Floyd’s death with anguish. In some of the largest demonstrations this country has seen since the 1960s, citizens took to the streets and demanded that the long-festering problem of racial bias in the criminal justice system be addressed.
Prosecutors play a special role in our justice system. A prosecutor represents the community, not a specific person or organization. It is therefore the responsibility of every prosecutor to ensure that the criminal justice system treats the entire community fairly. If the current reform movement is to create lasting change, prosecutors and former prosecutors must step forward. Here in Vermont, Attorney General TJ Donovan made clear his “dismay and outrage” over Floyd’s killing and has called for an array of criminal justice reforms. Sen. Patrick Leahy, a former prosecutor and previous chairman of the Senate Judiciary Committee, also condemned Floyd’s death and has long been a staunch advocate for criminal justice reform.
And yet there is another prosecutorial authority in Vermont with powerful tools at its disposal to help ensure the criminal justice system treats all members of our community fairly: the United States Attorney’s Office. The U.S. Attorney is the chief federal law enforcement officer in Vermont. With over 20 lawyers, the U.S. Attorney’s Office is one of the biggest prosecutorial offices in the state. Among its many responsibilities, the office enforces federal civil rights laws and prosecutes those who violate federal drug, firearm, and immigration laws. It works hand-in-glove with federal law enforcement agencies, but also partners with state and local police departments. Accordingly, the office wields tremendous authority — both formal and informal — in Vermont’s law enforcement circles.
At this critical time, what should U.S. Attorney’s Offices in Vermont and elsewhere do to help create a more equitable criminal justice system? Three steps should be taken immediately.
First, U.S. Attorney’s Offices should consider two proposed pieces of reform legislation: the Justice in Policing Act of 2020 and the Justice Integrity Act of 2008. The Justice in Policing Act was introduced by Sen. Cory Booker and Sen. (now Vice President-elect) Kamala Harris and co-sponsored by Sens. Leahy and Bernie Sanders. Congressman Peter Welch co-sponsored the House version of the bill. One of its purposes was to “improve transparency through data collection.” To this end, a central component of the act would have established programs to collect and assess data concerning the race, ethnicity, national origin, gender, disability and religion of people subject to police use-of-force incidents, searches, and other investigatory activities.
The Justice Integrity Act of 2008 was sponsored by then-senator and now President-elect Joseph Biden. Had it been enacted, the legislation would have established a program in U.S. Attorney’s Offices to “collect and analyze quantitative data on the race and ethnicity” of defendants and victims.
Both the Justice in Policing Act and the Justice Integrity Act recognized that better and more transparent data are key elements of criminal justice reform. A similar approach has been adopted by the Vermont State Police, which has a standing Fair and Impartial Policing Committee and reports annual data on the agency’s traffic enforcement that is used to assess unwarranted racial disparities. Although the details would need to be worked through carefully, U.S. Attorney’s Offices should make greater efforts at better data collection and transparency, even in the absence of new legislation.
Second, state and local law enforcement agencies often seek to partner with federal agencies and have their cases prosecuted in federal court. U.S. Attorney’s Offices decide which cases are prosecuted in federal court and which are declined. They should leverage this role as gatekeeper by insisting that law enforcement agencies commit to, and implement, fair and unbiased police practices if those agencies wish for their cases to be considered for federal prosecution.
Finally, the U.S. Attorney’s Office in Vermont has a unique opportunity. This year, Sen. Leahy announced a $3 million grant from the Department of Justice to establish a National Center of Restorative Justice. The Center is a collaborative effort involving Vermont Law School and the University of Vermont, among others. It focuses on “engaging criminal justice professionals, community members, educators and social service providers with incarcerated individuals” in order to “broaden their understanding of the justice system and restorative justice.” The U.S. Attorney’s Office should work with the center to explore ways in which restorative justice practices might include a more diverse cross section of the public in the criminal justice system and thereby increase the public’s trust in that system. This is a chance that should not be wasted.
The proposals described here are only first steps but inaction is not an option. U.S. Attorney’s Offices are not only responsible for securing criminal convictions, they must take a proactive role in creating a more equitable criminal justice system. A system of justice that discriminates based on race is no system of justice at all. No prosecutor should be content with the status quo.