The Vermont legislature is moving toward a more humane approach to drug use and possession, centered in harm reduction and public health concerns rather than primarily the criminal justice system. This effort has included overdose prevention strategies, treatment on demand, needle exchange access, and Medication Assisted Treatment programs. But we can do more. To make progress in this area, the legislature has been guided by expert recommendations.

In July of 2019, the Governor established the Justice Reinvestment II Working Group. It gathered representatives from all aspects of the criminal justice system including legislators, members of the administration, prosecutors, defense attorneys, and representatives from law enforcement and the courts. Among other issues, the Working Group sought to understand and make recommendations regarding disparities in Vermont’s criminal justice system.

The Working Group examined national and Vermont data showing that prosecution of drug offenses disproportionately impacts communities of color. In Vermont, although Black defendants are no more likely than white defendants to be convicted of felony drug offenses, when convicted they are significantly more likely to be incarcerated than white defendants. They are less likely to receive a deferred sentence or probation, or be diverted to treatment or a community justice center.

To address this disproportionate impact, the Working Group recommended that lower- to mid-level felony drug possession offenses should be reclassified as misdemeanors. It also recommended a reevaluation of drug amount thresholds and associated penalties for offenses involving the sale of drugs. In short, the recommendation was to reduce penalties for drug offenses, which will, in turn, reduce racial disparities in the criminal justice system.

As the Working Group was conducting its examination, the Vermont Sentencing Commission was undertaking its own assessment of drug offenses. In 2018, the legislature tasked the Commission with making recommendations on restructuring Vermont’s criminal code, including proposing changes to its drug offenses. The Commission endorsed Vermont State’s Attorneys’ proposal that the penalties for certain drug offenses should be reduced. They suggested reductions for consistency across all criminal offenses because equivalent degrees of harm and community impact should carry similar consequences. In addition, they sought to have potential penalties conform to actual court outcomes, reflecting the sentences that judges actually impose. The State’s Attorneys had reviewed data from the Crime Research Group on actual

sentences and looked to their own experiences as prosecutors, while balancing the interests of public safety with the policy desire to reduce punitive exposure.

This past week, the House passed H.505, which implements the recommendations of the Justice Reinvestment Working Group and the Sentencing Commission. The bill changes some felony possession offenses to misdemeanors, and when drug possession offenses are misdemeanors, the cases are presumptively diverted to restorative justice or treatment. Also, individuals charged with a misdemeanor do not face the same level of collateral consequences as those charged with a felony.

The bill also moves toward a public health approach to addressing drug use by establishing a Drug Use Standards Advisory Board of experts and those with lived experiences. Those who possess drugs for personal use should not face the same consequences as those who sell or traffic drugs. The goal of the Advisory Board is to determine what constitutes a standard amount of drugs for personal use. The Board’s recommendations will inform the legislature’s understanding of appropriate possession amounts so that it can further consider which possession offenses should be classified as misdemeanors rather than felonies.

Nationally, drug possession continues to be the leading offense for which people are arrested, with over 1.1 million arrests in 2020. Currently, Black people make up 24% of drug arrests in the U.S., almost double their demographic percentage. They are also nationally three times more likely to be arrested for drug offenses than white people, despite selling and using drugs at the same rates. In Vermont, Black people were over 14 times more likely than white people to be defendants in a felony drug case, and, as noted above, more likely to be imprisoned if convicted.

The current drug laws are concerning beyond the racial disparities we see. Between 2007 and 2019, people in Vermont were charged with drug possession over 10,000 times, and in nearly half of those cases the only charge was drug possession. Yet this approach plainly has not reduced the drug problem, as we can see from the rising rates of drug overdoses in Vermont.

By reducing the punitive nature of the State’s response, H.505 helps move Vermont towards a more effective and humane approach to addressing drug offenses. The bill now moves to the Senate