Racial Impact Statements: Considering the Consequences of Racial Disproportionalities in the Criminal Justice System
| Publication year | 2021 |
INTRODUCTION
African Americans and Latinos account for fifty-eight percent of the United States prison population-nearly twice their accumulated representation in the general population of thirty percent.(fn1) The current rates of racial disproportionality in the criminal justice system are staggering. Racial disproportionality exists at many stages within the criminal justice system, from crime commission, to arrest, to conviction, to sentencing.(fn2) Implicit racial biases affect each of these points in the criminal justice system.(fn3) This Comment focuses on one way to reduce racially discriminatory effects of criminal justice laws: racial impact statements.
Racial impact statements are proactive tools to reduce racial disproportionality in the criminal justice system.(fn4) These statements project the outcomes of new criminal justice legislation and provide this information regarding potential disparate racial effects to legislators before laws are adopted or amended.(fn5) Like environmental impact statements and fiscal impact notes, racial impact statements are short reports on the projected effects of legislation in the criminal justice context.(fn6)
Currently, racial impact statements tend to operate for informational purposes only.(fn7) Environmental impact statements require certain procedures to be followed when an adverse environmental impact is predicted to ensure decision-makers are adequately considering information and alternatives.(fn8) In contrast, racial impact statements generally do not require any additional steps upon the prediction of disproportionate impacts on minorities.(fn9)
Over the past few years, states have begun considering and adopting legislation implementing racial impact statements. Since 2007, Iowa,(fn10) Connecticut,(fn11) and Oregon(fn12) have passed racial impact legislation. Minnesota adopted a similar measure through its Sentencing Guidelines Commission.(fn13) Seven other states have attempted but failed to pass racial impact statement legislation: Texas,(fn14) Maryland,(fn15) Arkansas,(fn16) Mississippi,(fn17) Wisconsin,(fn18) Florida,(fn19) and Kentucky.(fn20)
This Comment explains how racial impact statements may be able to help address racial disproportionality in the criminal justice system, surveys how current racial impact statements function, and suggests improvements for states considering similar legislation. Part I provides an overview of the history and potential causes of racial disproportionality in the United States criminal justice system. Although the character of racial discrimination in the United States has evolved over time, Part II explains how facially neutral criminal laws and sentencing policies continue to perpetuate racial disproportionality and disparities in the criminal justice system. Part III identifies racial impact statements as one potential way to address these racial disproportionalities by surveying currently adopted racial impact statement legislation and similar bills that have not passed. Finally, Part IV analyzes how current racial impact statements function and suggests improvements to future racial impact statement policies.
This Comment advocates for three major components of effective racial impact statement legislation. The standard for judging effectiveness varies; some advocates suggest the statements are simply designed to raise awareness of disproportionate impacts before criminal justice laws take effect,(fn21) while others hope the statements can go further and actually mitigate those disproportionalities.(fn22) Three components could help racial impact statements at least achieve the more modest goal. First, racial impact statements should attach automatically to legislation affecting the criminal justice system without requiring the prompting of legislators' votes. Second, states should strive to develop more thorough data collection requirements to define the scope of racial impact statements. Third, more effective racial impact statement legislation should require legislators to follow certain procedures before passing legislation with a predicted significant disproportionate impact. These additional steps could reflect procedures associated with environmental impact statements, such as requiring community outreach through the use of comment periods or obligating decision-makers to seriously consider alternatives.
I. RACIAL DISPROPORTIONALITY IN THE CRIMINAL JUSTICE SYSTEM
Racial disproportionality and disparity pervade multiple levels of the criminal justice system, including arrest, charging, conviction, incarceration, and sentence severity.(fn23) This Comment focuses on incarceration rates, which racial impact statements most commonly measure.(fn24) In 2011, over two million individuals were incarcerated in federal, state, and local prisons and jails,(fn25) and over sixty percent of these were racial and ethnic minorities.(fn26) Across all genders and age groups, African Americans and Hispanics were imprisoned at higher rates than their white counterparts.(fn27) While African Americans constitute 13.2% and Hispanics constitute 17.1% of the American population,(fn28) they are disproportionately represented in the American prison population at 36.46% and 21.99%, respectively.(fn29) One in three African American men and one in six Latino men face imprisonment at some point in their lives, compared with one in seventeen white men.(fn30) The population of African American males in prison, “[i]f brought together in one incorporated region, . . . would instantly become the twelfth-largest urban area in the country.”(fn31) Although women represent a much smaller portion of the nationwide prison population,(fn32) they also demonstrate similar (though not as stark) patterns of racially disproportionate chances of imprisonment.(fn33)
Although the racial disproportionalities and disparities in the criminal justice system are obvious,(fn34) the possible sources are not as easy to identify. First, this Comment rebuts two commonly-imagined sources of racial disproportionality. Next, it examines our nation's history of overt racial discrimination and explains how these past practices have evolved into modern, covert racial biases that continue to influence the criminal justice system.
Two seemingly likely explanations fail to account for the racial disproportionality in incarceration rates: crime commission rates and explicit biases.
First, differences in crime commission rates do not adequately explain the overrepresentation of minorities in jails and prisons.(fn35) Individuals, politicians, and the media tend to “overestimate the proportion of crime committed by people of color, and associate people of color with criminality.”(fn36) Some studies do suggest that minorities commit certain types of crimes at higher rates than whites. For example, African American males may commit higher rates of violent and property crimes than other racial groups,(fn37) “[i]n large part because African Americans are more likely to experience concentrated urban poverty.”(fn38) However, not all of these studies are reliable, as crime commission rates are difficult to study.(fn39) Some studies conflate crime commission with arrest rates, resulting in an over-exaggeration of African American crime commission rates.(fn40) In addition, even these suggested differential crime commission rates do not account for the higher disproportionality in arrest and conviction rates.(fn41) For example, “arrest and conviction rates for drug-related offenses among different races are highly disproportionate to actual rates of drug use.”(fn42) While data suggests minorities may commit a disproportionately large percentage of street crime, the disproportionalities are not...
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