Can racial and ethnic impact statements address inequity in criminal justice policy?
In February, Urban Institute researchers writing on Urban Wire will explore racial disparities in housing and criminal justice and the structural barriers that continue to disadvantage the black population in the United States.
Should new criminal justice policy proposals be vetted to evaluate their likelihood of creating or increasing racial and ethnic inequities?
New Jersey has joined a growing number of states answering yes. In one of his final acts as governor, Chris Christie signed a law requiring justice reform proposals to be accompanied by racial and ethnic impact statements. Passed with overwhelming bipartisan support, the bill mandates such statements for legislative and administrative rule changes for adult and juvenile criminal justice practices.
Similar to environmental or fiscal impact statements, racial impact statements are tools used in criminal justice policymaking to determine whether pending bills, if enacted, are likely to create or exacerbate disparate outcomes among people of different races or ethnicities.
These efforts are important because people of color, particularly black, Latinx, and Native American people, are overrepresented at each stage of the criminal justice system. These disparities cannot be accounted for by different levels of involvement in illegal activity.
Racial and ethnic disparities grow as justice system involvement deepens, beginning with risk of police contact and increasing with risk of incarceration, sentencing severity, and postrelease opportunity. And the criminal justice system has a profoundly destabilizing effect on the people and families it touches, a burden that falls unequally on communities of color.
The solutions aren’t simple. Just reducing the number of people in prisons and jails, even by a lot, doesn't eliminate racial disparity.
For example, New Jersey passed reforms that shrunk the prison population 28 percent between 2006 and 2016, yet the state continues to have one of the country’s highest disparities between black and white imprisonment rates. In 2014, black people in New Jersey were more than 12 times as likely to be imprisoned as white people. Building racial impact statements into the policy process requires the state to confront this troubling disparity head on, recognizing that the justice system will remain unequal absent intentional racial justice strategies.
Iowa was the first state to pass what was then termed “minority impact statement” legislation in 2008, followed by Connecticut later that year and Oregon in 2013. Whether impact statements are required, when they are produced, what they contain, and how they are used varies by state.
While these policies are still relatively new, initial evidence from Iowa is encouraging. In January 2015, the Associated Press found that bills with impact evaluations that predicted neutral or projected reductions in disparity were generally more likely to pass than bills with impact statements suggesting disparate outcomes. Another analysis found an overall neutral effect on disparate incarceration rates in the first few years of Iowa impact statements but concluded that the statements were useful for informing policymaking. This is an area ripe for further research to fully understand the effects of impact statement policies and determine best practices moving forward.
But racial impact statements are more than pragmatic policy tools. By passing racial impact legislation, governments can work to address the uncomfortable truth that criminal justice policy decisions that appear to be neutral can yield disparate, unfair, and harmful outcomes.
Policymakers are active participants in shaping a carceral system that imprisons black people at six times the rate of white people and Latinx people at three times the rate of white people. Racial and ethnic impact statements give elected officials tools to make informed decisions and allow voters to hold officials accountable for those decisions.
Crafting good policy demands that we consider how decisions will play out on the ground and affect people’s lives. Racial and ethnic impact statements build a critical check for systemic racism into the justice policymaking process and can help chart a better, fairer course.
An incarcerated person walks back to his cell block in MCI-Shirley Medium Correctional Center in Shirley, Mass. Photo by Jesse Dearing/The Boston Globe via Getty Images.