Racial Impact Statements: Addressing Racial Disparities in Criminal Justice Systems

incarcerated black men

The most recent edition of the American Bar Association's magazine, Criminal Justice, highlights a new tool -- racial impact statements -- that states are using to address the racial disparity in their criminal justice systems. 

The problem of disparate treatment was highlighted in two 2007 reports detailing the critical failure of states to administer justice without regard to race or ethnicity.  The National Council on Crime and Delinquency found that youth of color are overrepresented in every part of the juvenile justice system, from arrest to adult incarceration.  The disparity is particularly acute for African-American youth, who constitute only 16% of the population, but experience 28% of juvenile arrests, and constitute 37% of the detained population and 58% of youth committed to state adult prison.  While these numbers are troubling enough, state-level data shows that some states make the averages look idyllic.  The upper Midwest and the Northeast currently have the largest racial disparity in their criminal justice systems, with youth of color many times more likely than their white peers to be arrested, adjudicated, detained, or incarcerated.

Additionally, a study by The Sentencing Project exposed equally bad news in the adult criminal justice system.  Again the overall situation is critical, with the best state, Hawaii, having almost a two to one ratio between rates of incarceration for African-Americans and for whites.  Nationwide the rate is nearly six times the rate for whites, and double that of Hispanics.  The worst state, Iowa had a ratio between African-Americans and whites of over 13 to one.  And once again, the states with the worst problems were grouped in the Northeast and Midwest.

Racial Impact Statements Force Policymakers to Confront Problem:  Racial impact statements are a new tool developed to estimate the disparate racial impacts of criminal justice policies in the same way that fiscal or environmental impact statements describe the budgetary and ecological effects of other policies.  This allows legislators to make an informed consideration of the racial impacts when crafting solutions to crime and delinquency, and helps ensure that racial justice costs are included in the public dialogue regarding criminal justice choices.  This in turn should bolster support for alternative policies with lower social costs.

Iowa, finding itself in the most urgent need of reform, moved first and enacted HF 2393, sponsored by Des Moines Representative Wayne Ford requiring racial impact statements for proposed legislation that affects sentencing, probation, or parole policies.  The Iowa Legislature gave the bill virtually unanimous support with only two "no" votes total.  Connecticut  passed a similar law in June of last year under the leadership of House Judiciary Committee Chairman, Representative Mike Lawlor.  Additionally, Governor Jim Doyle of Wisconsin moved to address his state's number one ranking for racial disparity among youths in state custody by swiftly establishing the Governor's Commission on Reducing Racial Disparities in the Wisconsin Justice System.  The commission studied the issue and took citizen testimony for a year before issuing recommendations to address racial disparities at various stages of the criminal justice system.  He then issued an executive order directing relevant agencies to track outcomes by race, and instituting a permanent oversight commission to advocate for policies to reduce disparities.

Incorporating Racial Impact Statements Into Criminal Justice Policy Making:  Racial disparities exist throughout the entire criminal justice system of every state.  Therefore, racial impact should be examined whenever criminal justice policies are considered.  However, to date, those states that have formally incorporated racial impact statements into their criminal justice policy development process have focused their use on sentencing and corrections policy.  Similarly, states have a choice of whether to make these statements mandatory for certain classes of legislation, or as Connecticut has done, to allow a majority of members on relevant committees to request a statement.

The agency or legislative employees charged with generating racial impact statements will vary according to the organizational realities in each state, but generally those best positioned to make the assessment are those who currently are tasked with predicting future prison populations, often sentencing commissions, departments of correction, or budget and fiscal agencies. North Carolina requires its Sentencing and Policy Advisory Commission to produce prison population impact statements which can provide a model for the production of racial impact statements in the corrections context.

Conclusion: One of the central legacies of the past era we are now departing -- an era dominated by right wing policy -- is the catastrophic failure of our criminal justice policies.  A pillar of this failure is the gross racial disparities that exist at every step in the criminal justice process, a problem that affects juveniles as well as adults.  This calamitous situation is perhaps the primary factor thwarting progress on the key progressive goal of a racially just society.  Therefore, reforming our criminal justice systems to reflect our core values as a country is a key challenge for the new era of progressive leadership.  Racial impact statements are a straightforward way to move the debate on these critical issues to the forefront of the criminal justice policy development process.


Criminal Justice Magazine - Racial Impact Statements: Changing Policies to Address Disparities
The Sentencing Project - Uneven Justice: State Rates of Incarceration By Race and Ethnicity
National Council on Crime and Delinquency - And Justice for Some: Differential Treatment of Youth of Color in the Justice System
Marc Mauer, Ohio State Journal of Criminal Law - Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities