Did We End the Death Penalty ?

The last person Vermont executed was Donald Demag on December 8, 1954. Demag committed two robberies and killed two people while doing so. He was electrocuted in the state’s electric chair. Vermont retired the death penalty in 1972; its instrument of death is stored at the Vermont Historical Society. Although U.S. Attorney William Barr has directed the federal government to restart executions for federal convictions, his initiative has been stayed in the courts. It’s unlikely, given public opinion, that Vermont or the other 19 states that have abolished the death penalty will reinstitute it. The U.S. is, in fact, one of the few “civilized” countries in the world that retains a federal death penalty and Vermont has no legal means to prevent it within its borders if it is a federal prosecution.

Although execution as punishment in Vermont ended with only two people executed in the last century, deaths at the hands of police are rising, as a recent report in VTDigger shows. In the last decade, 17 people have been killed by Vermont police (one by Taser), and, on review by Attorneys General Bill Sorrell and T.J. Donovan, all have been deemed “justified.” As a friend in law enforcement says, “each time a cop kills, there are two victims, the killer and the killed, especially if the ‘kill” is questioned.” To elucidate, he noted recent studies showing that drone pilots get PTSD.

Death by jury trial is over, death by cop is on the rise… why?

There are many reasons given, including deteriorating social adhesion, the increase in mental illness and lack of treatment, a rise in gun ownership, and inadequate police training and screening.

Vermont’s 330 State troopers have an excellent reputation for training and performance. But Vermont has another fifty-odd categories of policing whose standards for training or qualification are considerably less rigorous: local police, deputies, sheriffs, campus police, transportation, border patrol, security etc. Most carry deadly weapons, including Tasers, and are authorized to use “deadly force” under certain circumstances. But how well defined are the events that justify the use of “deadly force” and how well are potential users of it trained?

There are no Vermont statutes on “use of force,” only individual department policies largely based on a model put forth by the VT League of Cities and Towns liability insurance coverage.

There is a long-standing culture of not questioning men and women in uniform whether police, soldiers, priests, firefighters etc. The lack of statistical transparency and procedural review reflects this. “Improper use of force” investigations are sheltered as “personnel matters” and never see the light of day except as a final verdict in court.

“The use of deadly force was deemed justified.” Matter closed.

It’s been suggested that police agree as a condition of employment that in any “use of deadly force” review, their prior records relating to use of force be made available to examiners. Sometimes deadly force becomes a pattern with certain law enforcement personnel and that must be considered in any investigation.

Phil Grenon was a 76-year-old Burlington man with schizophrenia. He was shot by a 23-year-old Burlington police officer, David Bowers. Then-Police Chief Brandon Del Pozo who was incident commander on the scene, deemed the incident justifiable, as did State’s Attorney T.J. Donovan. Elements of the body camera footage were only released much later and can be seen at 4:40 minutes into the video embedded in the VT Digger reporting.

I spoke with someone who has seen the footage and there are discrepancies between Del Pozo’s statements and what appears on the footage. Del Pozo arrived on the scene and took over from the “incident commander” whom the video observer felt was managing the incident appropriately, making efforts to de-escalate. Del Pozo then allowed non-tactical team members into the house. The youngest officer headed the “stack.” There was one knife, as opposed to “knives.” Grenon was inside a bathtub with a sliding screen. There was no exit. He was contained. The police were behind polycarbonate plastic shields and Del Pozo ordered the release of a pepper ball spray even though police were not wearing protective masks. Everyone’s eyes appeared to be watering and, terrified, Grenon began screaming and emerged and was shot four times.

“The concept that the tac-team members could not defend themselves against this elderly man who could barely walk, who had been tased and pepper-balled, who was completely contained in a bathroom without exit is insulting,” the viewer noted.

There appears to be a cognitive difference between Del Pozo’s  November 13, 2019 New York Times op-ed on use of force and his management of this incident which raise other questions.

Why are investigations where a uniformed officer of the state or municipality takes a life not subject to public oversight if they are in the service of “public safety?”

What explicit statutes are needed to define and evaluate the justification for lethal force?

Rep. Anne Donahue, R-Northfield introduced H-808 which takes a stab at clarifying use of force criteria and accountability based on a California bill that requires “necessary” use. The Scott Administration and Public Safety Commissioner, Mike Schirling,  oppose the bill as it stands and are urging a more measured approach, even as the urgency of statutory definition accelerates with more deaths at the hands of police.

And how and when will we begin to address the crisis in mental health care that is turning emergency rooms into temporary shelters and giving rise to more lethal events in law enforcement? Public safety officials are making a concerted effort to learn from and engage mental health professionals in dealing with crises, but the dearth of mental health professionals and treatment facilities makes their job even more difficult.

We have eliminated the part of the death penalty that occurs at the punitive end of the criminal justice system. Can we at least rationalize and oversee more than the five seconds before the shooting in the taking of life at the “public safety” end?

Former House Speaker, Mike Obuchowski, speaking recently at the Democratic Party’s Speaker’s Soiree, expressed concern over the loss of civil discourse and comity and then went on to raise the issue of the recent escalation in deaths from “use-of-force” by police. He said that “deadly force” was not the best way to handle public safety and asked legislators and law enforcement to work together to find and implement policies that reduce the threat to life for all. When asked why the issue was important to him, he added simply, “the humanity of it.”