- Daniel Fishel
When Shamel Alexander was arrested in Bennington in 2013, he had almost a half ounce of heroin but no criminal record, gang ties or history of violent behavior. His Brooklyn family was supportive, and prison officials had deemed the 25-year-old African American man to be at low risk of reoffending. Had he been charged in the federal court system, based on federal sentencing guidelines, Alexander would have gone to jail for no more than a year.
Instead, a Bennington Superior Court judge sent Alexander to prison for 10 years, with no prospect for early release.
Alexander's case was barely noted at the time, and it was quickly forgotten, one of hundreds that grind through the courts every year. But in the two years since Alexander was sentenced, concerns about the fairness of the criminal justice system — notably lengthy prison sentences for nonviolent criminals — have gained traction both nationally and in Vermont. This week, U.S. correctional facilities released more than 6,000 federal prisoners earlier than scheduled — the result of a growing consensus that penalties for nonviolent drug crimes have been too harsh.
Last week, the Vermont Supreme Court heard an appeal of Alexander's case, during which lawyers cited some of the public-policy concerns making national news in hopes of freeing an inmate. That almost never happens in Vermont courtrooms.
Alexander's lawyers say that he was subjected to racial bias. They are challenging both the legality of the traffic stop that led to his arrest — which they describe as classic racial profiling — and the sentence handed down by Judge Nancy Corsones. During a sentencing hearing, the judge repeatedly warned of the dangers of drug dealers from "Brooklyn and Bed-Stuy," rhetoric that Vermont Supreme Court Justice Marilyn Skoglund described as potential racial "dog-whistle code words."
A white Vermonter convicted of a similar offense to Alexander's, lawyers argued in court papers, would never have received such a sentence.
"It's a call to the Supreme Court, and by extension the trial bench, to be mindful that we all have implicit biases and to try to keep them in check," said Robert Appel, a Burlington attorney who participated in Alexander's appeal. "It's wrong in so many ways. It's not equal justice under the law."
President Barack Obama has spoken forcefully about the uneven treatment of minorities in criminal cases, and U.S. Attorney General Eric Holder has called on prosecutors and legislators to eliminate long sentences for "low-level offenders."
Locally, several recent studies have uncovered evidence of racial bias in the Vermont criminal justice system.
Black people constitute 1.2 percent of Vermont's population but nearly 11 percent of Vermont's inmate population, according to the Department of Corrections. Black people in Vermont were 4.36 times more likely to be arrested for marijuana possession or dealing than white people, the American Civil Liberties Union reported in 2013. A 2012 Vermont State Police report found that nonwhite drivers were more likely to get a ticket than white drivers when pulled over. They're more likely to be searched, too, even though searches of white drivers more often turned up evidence of a crime.
"In Vermont, we think, because there are so few minorities here, that one guy getting stopped and getting a high sentence, we think it's only one person," Vermont ACLU executive director Allen Gilbert said. Challenging Vermont's "sense of exceptionalism," he said, "There are lots of examples like this, where black people are treated in ways that seem disproportionate to the kinds of sentences white people would get for the same behavior."
On the night of July 11, 2013, Alexander took a cab from Albany, N.Y., to Bennington, and told the driver to drop him at a Chinese restaurant on Main Street. In Bennington, the cabbie got lost before he reached his destination and, at a red light, asked a driver in the opposite lane for directions.
Unbeknownst to the cabbie, the other driver was an undercover Bennington police officer, Peter Urbanowicz, who worked for the Southern Vermont Drug Task Force.
Urbanowicz gave the cabbie directions to the restaurant, then alerted an on-duty Bennington police officer, Andy Hunt, who happened to be nearby.
The cab, Urbanowicz told Hunt, "would probably be a good traffic stop, if [you] could find him doing something wrong," according to court records. Urbanowicz added that the cab was from New York, and there was an "African American male in that vehicle."
Police would later testify that informants told them that a large black man called "Sizzle" was rumored to be coming to Bennington from out of state to deal drugs. He was traveling with a female companion.
Hunt tailed the cab and pulled it over, telling the driver he had been stopped because he had a GPS device stuck to his windshield, a minor traffic violation. The officer ran the identities of both the driver and Alexander. He learned that Alexander, who was heavyset and had no outstanding warrants for his arrest, went by "Snacks," which did not match the nickname of the man they were looking for. Also, he was alone.
Nonetheless, Hunt called for backup, ordered the driver out of the car and began asking him about his fare. The cabbie said there had been nothing remarkable or suspicious about him. Hunt then questioned Alexander, pressing him about why he was in Bennington. Alexander said he had family in town. Hunt asked to search his bags. Alexander declined, but when Hunt threatened to bring a drug dog to the scene, Alexander relented. Inside were 11 grams (0.4 ounces) of heroin, worth about $1,500 on the street.
Alexander's attorneys argue that the stop and search were illegal — the Bennington police did not have a right to target Alexander simply because he matched the vague description of a large black man in an area with possible drug ties.
During oral arguments last Thursday, some Vermont Supreme Court justices sharply questioned whether a general description of a large African American man was enough to justify police pulling over and interrogating anyone fitting that rough sketch.
"Under the state's theory, any large black man coming to Bennington in a cab from out of state could be subject to a drug investigation," Justice Skoglund said. "Does that mean any black man who is large and wants Chinese food is subject to a stop?"
Justice John Dooley asked, if "Sizzle" had been described as a white man, would police have felt legally justified in pulling over white drivers matching the description in the area?
"If he was white, would that be enough?" Dooley said. "It strikes me, [in terms of] reasonable suspicion, that you don't have a lot here. That would strike me as very hard to argue."
Bennington County Deputy State's Attorney Robert Plunkett said police did not target Alexander because he was black. They targeted him because he shared several characteristics with a suspect they badly wanted off the street.
"[Alexander] fit the description of that drug dealer in gender, weight, race, age, place of origin, and having a first name and alias similar to the alias of ['Sizzle']," Plunkett wrote in court documents. "His actions fit the modus operandi of that drug dealer traveling to Bennington from New York ... Far from being common, this group of facts is remarkably unique."
But Alexander's lawyers aren't only challenging the traffic stop. They say the punishment he later received didn't fit the crime — or the criminal.
A first-time offender, Alexander had two working parents who were ready to help him get a job. He accepted responsibility for the crime and was, even by the Department of Correction's evaluation, unlikely to reoffend.
"Shamel was a low-level drug offender, not a kingpin or a leader of a drug operation," Deputy Defender General Anna Saxman wrote in her appeal.
But Judge Corsones described the amount of heroin Alexander had as "extraordinary." During the sentencing hearing, Corsones repeatedly made references to Brooklyn and Bed-Stuy — the potential "code words" to which Justice Skoglund referred — and the need to deter "out-of-state drug traffickers."
Corsones agreed to the prosecutor's request by handing down a sentence of 10 years minimum to 10 years and one day maximum. That left Alexander no chance of being released on probation or parole and ineligible for services offered to early-release candidates.
"The home of the defendant should not play a role as an aggravating factor, but here it did, thus raising the suspicion that a white Vermonter who sold heroin would not be treated as harshly," Saxman wrote.
A ruling from the Vermont Supreme Court is not expected for several months.
Meanwhile, Alexander, now 27, is being held in a privately run prison in Baldwin, Mich., where the Vermont Department of Corrections houses 350 long-term inmates.
His mental state, Saxman said, is "not good." He fears that, by the time he is released, much of his life will have passed him by.
*Correction 11/4/15: An earlier version of this article misstated Judge Nancy Corsones' first name.