Jesse J. Norris
Excerpted from: Jesse J. Norris, State Efforts to Reduce Racial Disparities in Criminal Justice: Empirical Analysis and Recommendations for Action, 47 Gonzaga Law Review 493-530 (2011-2012) (165 Footnotes)
Will this just be another Committee who listens to us and does nothing?
-- South Dakota Equal Justice Commission
[T]he racial bias in the justice system lies primarily in institutional policies and practices, rather than individual racism. The result, however, is still the same. And once we know the result, as we now do, a failure to act becomes an elevated and egregious form of bias.
-- Minnesota Council on Crime and Justice
This article presents the findings of the first phase of an empirical research project investigating various state-level efforts to reduce racial disparities. A majority of states have created high-level committees to determine the prevalence of, and ultimately reduce, racial disparities in their criminal justice systems. Nearly always initiated by the state supreme court, these processes have all published at least one report analyzing criminal justice disparities and issuing recommendations for actions to measure and reduce them. The impact of these processes has not been the subject of any previous research, aside from one article drawing lessons from Nebraska's experience. Since quantitative data on the effects of the reforms initiated by these commissions is not yet available, this phase of the project is based primarily on an analysis of the reports that have been published. In analyzing this material, this article focuses on two key issues determining whether the anti-disparities processes are likely to have a significant impact on disparities: first, the governance of the processes, and second, their substantive content.
Governance refers to the organization of the processes. For example, do these processes make recommendations and regularly publish implementation reports detailing their accomplishments? If a process is disorganized, lacks transparency, or fails to follow through on its recommendations or promises, it is unlikely to succeed in its aims. This article demonstrates that while the governance of the anti-disparities processes varies widely, in most cases it is sorely deficient.
In terms of substantive content, these reports discuss a wide range of sources of disparity, from the need for interpreter services to the small number of minority judges. While such issues are of doubtless importance, this article focuses on the big-picture question: to what extent have state-level efforts to reduce criminal justice disparities addressed the main sources of racial and ethnic disparities? This is a critical question, because if these processes fail to address the main sources, they are unlikely to reduce disparities substantially. This article's findings indicate that this is unfortunately the case: most of the anti-disparities processes do not indicate a willingness to address the main sources of disparities.
What are the main sources of racial disparities in the criminal justice system? For the sake of simplicity, these sources can be classified into two categories: disparities resulting from different rates of offending among racial groups, and disparities that occur even though rates of commission are the same among racial groups. When disparities exist that are not explained by differential rates of offending or any other rational policy justification, most would agree such disparities are unjustified and should be eradicated. The most dramatic disparities of this type--in which rates of offending are the same among racial groups, yet minorities are arrested and convicted at many times the rate of whites--are found with drug offenses, which are also the single largest contributor to overall racial disparities in the criminal justice system. While disparities occur at every stage of the criminal justice process, arrest rates are the most significant driver of drug-related disparities. Thus, racial disparities in drug arrests are the single most important contributor to unjustified racial disparities in the criminal justice system. If efforts to identify and reduce disparities fail to address disparities in drug arrests, they have overlooked the elephant in the room. As this article demonstrates, this is exactly what most anti-disparities processes have done.
There is another elephant in the room as well: the lack of needed services in impoverished minority communities. When disparities in arrest, conviction, or incarceration reflect actual rates of commission by different groups, people may think of such disparities as less problematic. For instance, if members of groups, such as African Americans and Hispanics--which on average, have far lower socioeconomic status than whites--commit more of certain types of crimes and are imprisoned at higher rates, then many might consider this an unfortunate consequence of deprivation, but not something that policymakers can correct. There are problems with such a view. For one thing, even if rates of offending and convictions are relatively close for a particular crime, whatever gap remains may well be a result of bias. Moreover, evidence demonstrates that blacks receive harsher punishments than whites convicted of the same crime. Thus, even if rates of offending fully explain higher conviction rates, bias at the sentencing stage can still produce unjustified racial disparities. Most importantly, citizens should not simply accept disparities resulting from differential rates of offending since these rates are themselves caused by the lack of needed investment in poor communities.
Minority communities are in many cases extremely impoverished, but they have been virtually abandoned by policymakers. If high-quality public schools, mental-health services, substance-abuse programs, and job-training and placement services were widely available to minorities--as they are to a much greater extent for whites --minority crime rates would certainly decrease, and thus help reduce racial disparities. Likewise, if the government were to finally commit itself to eliminating racial discrimination in the labor market and take decisive steps towards increasing high school graduation rates--such as giving families payments for children who remain in school, a practice used with much success in numerous countries --these actions would also decrease crime in poor neighborhoods. Given the well-documented connection between unemployment and crime, and the finding that nearly sixty percent of black men who had not completed high school had spent time in prison by their early thirties, it is urgent that policymakers adopt such policies. Since the federal government has excluded blacks from major welfare and wealth-redistribution programs in the past, likely contributing to current poverty levels, it seems appropriate to target spending in minority communities to reduce poverty and prevent crime, rather than focusing solely on punishing offenders. The one positive trend in this regard is that spending on diversion programs offering alternatives to incarceration or arrest and programs helping offenders reintegrate within society has increased across the country as part of a wave of criminal justice reform over the last decade. Yet such programs still need to be greatly expanded to reduce rates of incarceration and recidivism, which remain unacceptably high.
This article characterizes the lack of needed services as the second, smaller, elephant in the room, and focuses less on this issue, not because the case for more services is weak, but because it is a more indirect cause of disparities and less amenable to immediate societal consensus. That is, nearly everyone would agree that if minorities' higher arrest rates for drug offenses are not explained by higher rates of use or any other legitimate policy consideration, these disparities should be eliminated without delay. The need for greater investment in poor communities, on the other hand, is a complex policy question that, despite its urgency, could be addressed in a number of different ways. Even so, if state-level anti-disparities processes are earnestly committed to reducing disparities, they must address this issue. Unfortunately, this article shows that most of these processes are, in fact, neglecting the need for more services.
In Part I, this article places current efforts to reduce racial disparities in historical context by noting a disturbing pattern that has repeated itself in American history in which criminal justice officials ignore, or even participate in, discriminatory criminal justice practices for decades before the practices cease. In particular, Part I shows that this pattern has persisted with the War on Drugs, which has continued for decades despite clear indications that its disparities are unjustified and harmful. Part II presents an analysis of the anti-disparities processes and concludes that most processes are governed deficiently and ignore the two most important sources of disparity: drug arrests and the lack of needed services and programs in minority communities. Part III describes the lessons that both anti-disparities processes and individuals should learn from this analysis, so that efforts to reduce disparities can finally succeed.
. Ph.D. in Sociology, University of Wisconsin-Madison; J.D., University of Wisconsin Law School, 2010.