LEWISTON — Are black people more likely to be arrested, convicted and spend more time in jail than white people in Maine?

Depends who you ask.

During an afternoon-long briefing before the Maine Advisory Committee to the U.S. Commission on Civil Rights at City Hall on Thursday, prosecutors and lawmakers testified there is great care taken to ensure fairness in prosecuting and sentencing defendants here.

But defendants, a defense attorney and the American Civil Liberties Union of Maine testified that disparity is rampant in Maine’s criminal justice system, and African-American defendants are victimized by a system that is ruled by white police, white prosecutors, white judges and white juries.

Defense attorney Leonard Sharon, who is president of the governor’s pardon board and founder of the Maine Association of Criminal Defense Lawyers, told a panel of 10 advisers, “There is one African American judge in this state and he sits on the lowest court and hasn’t been promoted in 10 years.”

He was referring to Justice Rick Lawrence, who is assigned to 8th District Court in Lewiston.

Zachary Heiden, the legal director for ACLU of Maine, said an analysis of the Federal Bureau of Investigation’s Uniform Crime Report and Census figures for Maine revealed that, in 2010, black adults were 3.64 times more likely to be arrested than white adults, and black juveniles were 3.83 times more likely to be arrested than white juveniles.

In York County, the statistics were most dramatic, where Heiden said black youths were 8.71 more likely than white youths to be arrested for drug crimes.

Across the state, he said, blacks are 6.53 times more likely to be incarcerated than whites.

Although the exact figures range, racial disparity in prosecution and sentencing is seen across the country, according to Cynthia Jones, a professor at the Washington College of Law who offered her testimony by videoconference call.

Jones participated in a racial justice improvement project some years ago that studied arrests, bail and sentences imposed in Duluth, Minn.; Delaware; New Orleans; and Brooklyn, N.Y. She said researchers found the disparity of arrests and prosecution between blacks and whites occurs because there is so much discretion permitted throughout the criminal justice system, from police in making arrests, to bail bondsman setting bail, to prosecutors assigning charges and to judges handing down sentences.

Everyone involved in these steps, she said, is biased. In most cases, they’re not aware of it because the bias is implicit or unconscious but she said humans cannot reach adulthood without picking up biases about all kinds of things, race among them. When implicit bias is recognized, she said, and prosecutors and police officers receive training to guard against it, the disparity between blacks and whites lessens.

Compiling the data

In Maine, racial profiling and sentencing disparity have been studied by groups, including the Legislature, for more than a decade, but the studies have been mostly anecdotal because data collection from every police department, bondsman, court and jail is expensive and complicated and no one has been willing to make the research a priority.

Jones said Maine shouldn’t continue to let money stop further study because there are grants available to help collect and analyze the data. She and others, including prosecutors, said there’s no way to know whether there is disparity or how pervasive it may be without analyzing the numbers.

Cumberland County Sheriff Kevin Joyce presented data from his department indicating that, so far this year, the inmate population at the Cumberland County Jail, Maine’s largest, is 15 percent black men, 80 percent white men and 5 percent Hispanic or other men.

Among women, the jail’s population is 7 percent black, 90 percent white and 3 percent Hispanic or other.

He said these figures include prisoners from all over the state, including some federal prisoners who are housed there for short stays.

Joyce also graphed population numbers since 2000, showing a general trend upward for black men and a trend up and then down for white men. For women, the population of whites and blacks have both climbed, but whites more so.

Bartlett Stoodley, former associate commissioner of the juvenile services for the Department of Corrections and current chairman of the Maine Juvenile Justice Advisory Group, said he has long seen disparity in prosecuting and sentencing juvenile crimes. Now, he said, the strongly predominant population at Long Creek Youth Development Center in South Portland is black, and primarily African immigrants.

“These kids are lost,” he said, “caught between their old culture and here.”

They and their families have been deeply traumatized in their homelands, he said, and the children don’t understand Maine’s laws and culture. When they better understand the rules and the criminal justice system, he said, they’re less likely to commit crime, and that requires a lot of outreach.

While incarceration statistics are not kept for adults, the federal government does require them kept for juveniles, and Stoodley said that since 1994 there’s been a clear disproportion of minority juveniles in jail, and work has been done to reduce disparity.

“All kids have a taste for risk and a preference for peers,” Stoodley said, adding, “if juveniles feel they have a voice in the system and are treated fairly, they do better.”

Real or perceived?

Brandon Brown, convicted of the attempted murder of James Sanders in Cumberland County in 2008, was sentenced to 27 years in prison, with 10 years suspended. His earliest release date is March 25, 2023. He testified from prison by videoconference in his capacity as president of the NAACP Maine State Prison Branch.

Brown said he and most others at the prison believe unfair and racially biased sentences are too often handed down in Maine’s courts, and that sentencing is inconsistent between courts.

He urged the civil rights panel to look at sentencing guidelines to make them more defined, with mitigating and aggravated factors given a defined score, rather than relying on the discretion of judges.

He offered his case to study. Brown said it was evident to him that racial bias played a role after the judge learned Brown associated with black drug dealers, and sentenced him to a much longer term than others convicted of similar crimes.

While in prison, Brown has earned his associate degree, and has become certified as a dog trainer and hospice worker. Because Maine does not have a parole system, “none of the things I’ve done to rehabilitate myself will reduce my sentence,” he said.

Brown said the data he has collected at the state prison indicates he’s not alone in believing bias influenced sentencing, nor is he alone in hoping the state will bring back parole, a program stopped in the late 1970s.

Michael Parker, the founding president of the NAACP Maine State Prison Branch, said he sees great disparity in Maine.

“There is a lack of people of color at every level” of the system, he said. He called on Gov. Paul LePage, Chief Justice Leigh Saufley and legislative leaders to “publicly acknowledge disparity in the system and take action to address that.”

Thomas E. Delahanty II, who served on the bench for 26 years and is the U.S. Attorney for the District of Maine, questioned whether disparity is actual or perceived.

All cases are different, he said, and sentences may seem disparate but are, instead, tailored to suit the circumstances of each case. A sentence includes consideration about whether a victim was physically harmed, a weapon was used, whether the defendant has a prior criminal record, whether there was a confession and a willingness to cooperate, a show of remorse and other factors.

Assistant U.S. Attorney Halsey Frank agreed, saying Maine doesn’t have a lot of minority defendants and he’s not aware of any disparity in prosecuting Maine cases at the federal level.

Our society, he said, “tries to control antisocial behavior through punishment,” and prosecutors tend to move forward with what he called the most serious, readily provable offenses.

Andrew Robinson, the deputy district attorney for Androscoggin County and current candidate for district attorney, reminded the panel that the justice system is based on plea bargains in which defendants have a say. Many defendants facing the same charges end up with different deals because of circumstances of the crime, of their background and, often, the skill of their attorney. And, he said, prosecutors are aware of immigration consequences of criminal convictions and take those into consideration, too.

Rachel Talbot Ross, state director of the Maine NAACP and chairwoman of the advisory committee holding the briefing, brought up the testimony of Jones, the law professor, who said studies show the greatest disparities occur most acutely at the prosecutorial level.

Ross asked Delahanty, Halsay and Robinson if they were aware of training to avoid implicit bias, and they said they did not. However, each said they and their departments would be willing and interested in that training if it were available.

Defense attorney Sharon, whose testimony was more animated than any other during the day, took issue that training would fix disparity.

“I disagree there is implicit bias in the system. It’s more explicit,” he said, and “race is explicit and implicit in every decision made in the criminal justice system.”

“Who is more likely to be stopped? A black man in a nice car or a white man in a nice car?” Sharon asked. “Who gets searched? Who is more likely to be beaten once they’re arrested? Who is more likely to be released on bail?”

When police, prosecutors, judges and juries are white, Sharon said black defendants are at a disadvantage through every step of the process.

“White people make the decisions,” he said. Borrowing a phrase from one of his clients, Sharon leaned forward and asked the panel “where the f*** are the peers for these people?”

The panel was convened to take testimony on prosecutorial discretion in sentencing, and to hear recommendations addressing racial disparities. A suggestion everyone seemed to support was to collect the data needed to prove whether the problem exists and, if it does, how widespread it is.

The Lewiston briefing was one of several that will be held seeking recommendations.

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