Equal Access to Alternative Programs
Vermont’s alternatives to the criminal justice system are available pre-charge, post-charge, and post-sentence. However, there has been some question about the extent to which access to alternative programs might be influencing racial disparities in the criminal justice system. To explore this notion, Crime Research Group (CRG) secured funding to examine whether there are disparities in who is served by alternative programs. 
By triangulating several data sources, researchers were able to describe who was served by Adult Court Diversion from 2015 through 2019, and who was served by the Treatment Courts from 2013-2018. However, several data quality issues impacted researchers’ ability to perform advance statistical analyses capable of identifying factors that significantly contribute to whether an individual is served by an alternative program.
 The Community Justice Programs funded by DOC were not included in this analysis because of the lack of data.
On Measuring Disparities with Administrative Data
Using administrative data to model human decision-making presents several challenges. First, because Vermont is a small state, researchers usually run into the issue of low numbers. This is especially true when trying to examine the experiences of marginalized populations within the state. Oftentimes, data on Asian, Indigenous, and Hispanic Vermonters must be excluded from analyses because there are so few people represented in the data that disclosing numbers has the potential to identify specific individuals. As a result, administrative data is not able to describe the experiences of these individuals. Qualitative research, which captures the themes of people’s experiences while masking their identities, is needed to bridge this gap.
Second, issues arise when attempting to match data from one dataset to information stored within another dataset. Researchers were unable to match Treatment Court data with Vermont criminal histories because the data was inconsistent or non-existent. Successful diversion participants have their records expunged two years after the case is dismissed by the prosecutor so if no other record is found, an assumption is made that these are first time offenders. Researchers cannot be sure if an individual is a first-time offender, a consideration that is certainly used by prosecutors when determining whether to refer to Court Diversion.
Adult Court Diversion is governed by statute, administered by the Attorney General, and delivered by a network of non-profit organizations. CRG used Adjudication Data and Vermont Criminal Histories to test for disparities in who was referred to diversion; both data sets originate from Court records. Analysis of the data revealed that:
- From 2015-2019, there were 6,127 defendants referred to Diversion. Most defendants referred were White (84.9% / 5,204). There were 259 Black defendants, 59 Asian defendants, and 45 Latinx defendants. The race of 530 (8.7%) defendants was either missing, unknown, or not reported. Race is as recorded by law enforcement.
- The most common offense committed by those served in Court Diversion was Motor Vehicle offenses that were not DUI or Gross Negligent related (e.g., Driving on a Suspended License). Public order offenses were the second most common. The offenses include Disorderly Conduct, Trespassing, and Violations of Conditions of Release. For these offenses, 7% of all charges for Black and White offenders were referred to Court Diversion.
- Statistical tests indicate that the race of the Public Order and Motor Vehicle offenders was associated with whether they entered Court Diversion. However, because of the administrative data issues discussed above, it was not possible to build a statistical model capable of determining exactly how race is related to the Court Diversion participation.
In Vermont, Treatment Courts operate as special dockets within the criminal court system. The Judiciary operates a Mental Health Docket and a Drug Treatment Docket in Chittenden County, a Drug Treatment Docket in Rutland and Washington Counties and a Regional DUI Docket serving residents in Windsor, Windham and Orange Counites. The dockets function in a team atmosphere to help the participant access treatment and hold them accountable for the underlying criminal offense. Treatment Courts are evidence-based, and several studies have found them to be effective for reducing recidivism (Gennette & Joy, 2019; Joy & Bellas, 2017; NPC Research Team, 2009; Wicklund & Halvorsen, 2014). Analysis of the Docket databases and the Court Adjudication databased showed that:
- Between 2013 and 2018, 1,076 people entered Phase 1 of the Treatment Dockets. Chittenden’s combined dockets served 52% of the people, while the newest docket, the DUI Regional Docket, served the fewest with 57 people served.
- During the five-year study period, all Treatment Dockets served only 30 black people, and even fewer Asian or Native American persons.
- The Rutland docket served 12 (3.8%) people of color and 296 (95%) White people. The most common charge served by the docket was Violations of Conditions of Release (201). The next two most common charges were Retail Theft (196) and Petit Larceny (129), Burglary was the fourth most common charge (104).
- On the Washington County Treatment Docket, burglary offenses were the most common charge (59 charges, not people a person can have more than one burglary charge on the docket). During the study period there were 25 Black people charged with burglary offenses in Washington county, but none appeared in the Treatment Docket database. This indicates that there may be gatekeeping or structural reasons that result in Black burglary defendants not being referred.
- The Southeast Regional DUI Docket served fewer than five people of color between 2013 and 2018. There were 476 White defendants with potentially eligible charges during the study period, there were 8 Black people. One of the program benefits is a shorter incarcerative sentence. Because DUI is not a common crime Black people commit or get sentenced to a correctional facility for, the program will not have the same impact on Black incarceration rates as it does for White incarceration rates.
Vermont policymakers should incorporate racial impact statements when creating criminal justice policies. Racial impact statements are an analysis of the impact the proposed policy would have on marginalized groups. These statements serve as a tool for policy makers to evaluate potential disparities or other collateral consequences that would result from enactment of a particular policy. Typically, racial impact statements are considered prior to the policy’s adoption and implementation. Several states have implemented the use of racial impact statements.
Also, additional information should be recorded so that future efforts to analyze disparities using administrative data might be successful. CRG recommends including the following fields in Court Diversion and Treatment Court data collection by the entity best able to capture the information : whether the defendant was offered Diversion, whether the defendant refused Diversion, and any socio-economic or behavioral risk factors that may affect participation in Diversion or Treatment Court These additional fields will provide a clearer picture of why certain offenders are served by Court Diversion and Treatment Court and why others are not.