Only 3 U.S. States Bother to Study How Sentencing Rules Affect Minorities
Earlier this month, Oregon became only the third state in the United States to adopt a bill mandating "racial impact statements" for proposed changes to prison sentencing laws. The concept borrows from better-known fiscal and environmental impact statements, analyses designed to anticipate how policies or development projects might affect a local budget or ecosystem. If a new highway will likely degrade a watershed, for instance, we probably want to know about that ahead of time, not years after it's built.
Similarly, criminal justice policy often disproportionately affects minorities, and in ways that we fail to thoughtfully consider ahead of time. One in every nine black men between the ages of 20 and 34 is incarcerated in the U.S., with rippling consequences for their future employment and voting rights, not to mention the stability of whole urban neighborhoods. In Oregon, blacks are six times as likely as whites to end up in prison. And racial disparities show themselves in other ways: As Richard Florida wrote earlier this week, using just the latest example, Stand Your Ground laws statistically appear to introduce bias against black victims in favor of white shooters in states with such self-defense laws.
"The example I always point to is the federal crack-cocaine mandatory sentencing penalties that were passed by Congress in 1986," says Marc Mauer, the executive director of the Sentencing Project. Those penalties created a dramatic disparity in sentences between people caught with crack cocaine (nearly 80 percent of whom turned out to be black) and those in possession of its powder form. After a lengthy uproar, Congress finally reduced the sentencing disparity between the two from a staggering 100:1 to 18:1, in 2010 (previously, you had to have 100 times as much powder cocaine as crack cocaine to trigger the same minimum sentences).
"At the time the penalties were adopted, they were raced through Congress in virtual record time, at the height of the fear of crime, with a lot of mythology around it," Mauer says. Indeed, it was that climate that allowed Congress to reason that crack was significantly more dangerous than powder cocaine. "We should have had the conversation about race and the drug war before the law was adopted," Mauer says, "not 20 years later."
A racial impact assessment of the law back in 1986 might have changed that. The crack-cocaine saga illustrates that even if other disparities exist in who commits (or is convicted of) a certain crime, it makes little sense to further compound the disparity with dramatically skewed prison sentences.
"I always tell people that racial impact statements are not going to change the world," Mauer says. He wrote some of the early law review articles [PDF] on the idea, and helped advocate for the first state laws implementing it, in Iowa and Connecticut, in 2008. "They’re designed to encourage discussion."
In the three states that now have a bill like this on the books, the impact statements won't necessarily derail a proposed change in policy. And there's already some concern in Iowa that the law isn't doing enough there. But at least the politicians debating these changes are forced to confront the role of race in criminal justice. And as we talk this week about some of the inherent injustice baked into the system, this surely seems like one concrete way to start trying to rectify that.
In most other contexts, impact statements are considered a standard practice of responsible government.
"Typically, in most legislative bodies, they would already usually be looking at the overall impact" of new policies, Mauer says. "If we increase the penalty for burglary from two to three years, what will that do to the prison population? What would that cost? That is just adding another variable to that analysis."