Proceedings of a Workshop
Reducing Racial Inequalities in Criminal Justice: Data, Courts, and Systems of Supervision
Proceedings of a Workshop—in Brief
The Committee on Reducing Racial Inequalities in the Criminal Justice System of the National Academies of Sciences, Engineering, and Medicine convened a workshop in April 2021 as part of its exploration of ways to reduce racial inequalities in criminal justice outcomes in the United States. This workshop, the third in a series of three, enabled the committee to gather information from a diverse set of stakeholders and experts to inform the consensus study process.
IMPROVING UNDERSTANDING OF RACIAL DISPARITIES
Committee member Nancy Rodriguez opened the first session of this workshop by explaining that it was designed to highlight the experiences of diverse groups that are disproportionately impacted by racial inequalities in the criminal justice system. The first panel focused on using an approach that considers the intersections among characteristics including race, gender, class, and disability. The panels that followed provided perspectives on data challenges and opportunities and discussed examples of how data can be used to understand and address inequalities in criminal justice.
TAKING AN INTERSECTIONAL APPROACH TO UNDERSTANDING RACIAL DISPARITIES
Intersectionality is a complex concept, said Hillary Potter (University of Colorado Boulder). One way to define it is as a “social ordering of social attributes that are multiple, multiplicative, and inseparable for each individual.” Intersectional criminology is a framework that incorporates the multiplicative effects of several socially constructed identities into criminological research and theory, into the evaluation of crime-related policies and laws, and into analyses of crime and the governmental administration of justice. This perspective has been gaining attention in recent years and, Potter believes, there may be a paradigm shift away from traditional criminology toward a more inclusive, intersectional approach. Potter believes that despite the way it has recently gotten attention, intersectionality is not a transitory fad but a framework that women of color, activists, academics, and others have been using for many years. An intersectional approach to criminology ensures that scholars are attentive to powerful, multiplicative impacts of social identities. Potter asked, “How might a scholar who insists on, promotes, and practices colorblindness be able to … make sense of the experiences of folks of color?” Furthermore, she
encouraged researchers to treat research participants as narrators and experts of their lived experiences: “You can’t understand most of the important things from a distance.”
Intersectionality is one of the 10 principles of disability justice outlined by writer and educator Mia Mingus, said Dara Baldwin (Center for Disability Rights). Disability justice differs from the mainstream disability rights movement in several ways, she said. The disability justice community centers the voices of Black and Indigenous people of color and pursues the goal of equity rather than equality, she said. Baldwin explained that “equality” means being treated equally, whereas “equity” is being treated fairly and impartially. Disability justice focuses on reform of the criminal justice system and considers how certain communities are criminalized. Baldwin stressed that while there is a great deal of attention on mental health and the criminal justice system, people with other types of disabilities (e.g., deafness, developmental disabilities, physical disabilities) are also at risk of discrimination or bias within the system.
Baldwin discussed six types of interactions that people with disabilities may have with the criminal justice system: as citizens, as crime victims, as suspects, while in custody, while in prison, and when reentering society. She gave several examples of poor treatment in these interactions, such as a lack of sign language interpretation for deaf people charged with crimes who need to navigate court systems, people being killed by police because they cannot hear or follow their directions due to a disability (e.g., autism), and people who are not given accommodations to enable them to communicate with their families during their time in prison or provided disability services in reentry processes. Baldwin offered solutions, including training people within the criminal justice system on identifying and engaging with people with disabilities, and making changes to federal laws to ensure that people with disabilities are treated fairly and compassionately within the system (e.g., compassionate release after a certain number of years served).
There is a need for more research in this area, said Baldwin, particularly research that includes the experiences and perspectives of multimarginalized individuals (e.g., people with disabilities who are also people of color). These voices—and the voices of all who are impacted by the criminal justice system—need to be at the table when systems and policies are created, she concluded.
Addressing Criminal Justice Inequalities for Native Women
“The solutions to violence exist in the experiences of … survivors,” said Angel Charley (Coalition to Stop Violence Against Native Women). The Coalition is an Indigenous survivor-led organization that aims to end gender-based violence in New Mexico’s tribal communities. The staff, board, and members are guided by their experiences of systemic oppression, historical trauma, and violence. The organization works on a variety of issues, including providing technical assistance for service providers within the tribal community, training and supporting victim advocates, and advocating for tribal, state, and federal policy change. The organization also conducts trainings for law enforcement with tribal jurisdiction and the U.S. attorneys’ offices to bridge the gap among tribal, state, county, and federal systems and to educate practitioners on the history of the multijurisdictional complexities that exist today.
Most importantly, said Charley, the Coalition to Stop Violence Against Native Women works to ensure that “tribal communities are represented within conversations [they] have historically and intentionally been underrepresented in.” This movement seeks to shift power to tribal communities, to practice restorative justice, and to address violence against women as part of an ongoing system of inequality. Charley noted that dynamic stressors such as economic and housing insecurity can contribute to intimate partner violence in a household. Furthermore, the survivors that the Coalition serves often times do not want their partners to serve time in jail or prison; rather, they want the abuse to stop. According to Charley, restorative justice approaches predate colonial structures of justice, and are centered in the idea that every individual holds a valued role and integral responsibilities that enable communities to thrive.
MEASURING RACIAL INEQUALITIES: CHALLENGES AND OPPORTUNITIES
The way racial inequalities in the criminal justice system are measured matters, said William Sabol (Georgia State University). Different data sources use different definitions and classifications, and these differences result in conflicting evidence about the size and types of disparities in the system. There are three main types of data used in criminal justice: administrative, open-source, and surveys. Each type has its challenges, including issues of access, security, privacy, and standardization of measures. One major challenge, said Sabol, is the way race and ethnicity are defined and classified in different data sources.
For example, some surveys allow people to self-identify and select multiple categories (e.g., Hispanic and Black), while others only permit selection of one category (e.g., Hispanic).
In addition, said Sabol, these systems of measurement are not consistent over time due to changes in how questions are written to classify race and ethnicity; these changes can obscure real trends in the data. For example, depending on how White people are classified (e.g., which category people who select more than one race and ethnicity are placed into), their share of the prison population is as low as 33 percent or as high as 44 percent.2 Sabol also reported differences in racial classifications between self-reported data (e.g., Survey of Prison Inmates) and data from administrative records, which assign race (e.g., National Prisoner Statistics Program). Given these challenges, Sabol offered two suggestions: allow people to self-identify for race and ethnicity and link administrative records to Census Bureau records for more consistency.
Data Collection on Indigenous People
The number of American Indians, Alaskan Natives, and Native Hawaiians involved in the correctional system in the United States is high, said Miriam Jorgenson (The University of Arizona). The incarceration of Native youth is of particular concern, with national incarceration rates about three times higher than White youth according to the Bureau of Justice Statistics. In certain states, including Alaska and South Dakota, this translates to a large number of incarcerated Native youth. However, the data collected on Indigenous people in the criminal justice system is inconsistent and incomplete. One major challenge is a lack of consistent collection and reporting of data among tribal, state, and federal systems. For example, some data systems do not classify Indigenous people as such, do not distinguish between tribal citizens and nontribal citizens, or simply do not count American Indians because their numbers are small. Over the past 20 years, she said, the Bureau of Justice Statistics has done an “increasingly good job” of including Indigenous people in the data that are collected. Yet Jorgenson said that the lack of reliable data makes it very difficult to determine the best phase in the system at which to intervene to address racial disparities.
One of the challenges to having reliable data, she said, is the complexity of interactions across jurisdictions in Indian country. In the event of a crime, the jurisdiction and systems involved (tribal, state, or federal) depend on the type of crime, where the crime is committed, and who commits it. With this jurisdictional complexity, said Jorgenson, it is “nearly impossible” to get an accurate picture of the inequities that face Indigenous people in the criminal justice system. Jorgenson offered several solutions to these challenges, while stressing the importance of partnering with Native communities in all of these approaches, including:
- incentivize tribal, county, state, and federal reporting to feed into a common data system;
- record race and tribal citizenship at each step of the criminal justice system;
- create protocols to harmonize and ease comparison of data across systems; and
- conduct local evaluations to identify points of disparate outcomes.
As the result of a 2020 Supreme Court decision, McGirt v. Oklahoma, said Jorgenson, there is currently a unique opportunity for some tribal communities to have primary jurisdiction over law enforcement in Indian country. This could allow tribes to implement tribal justice systems that are based on tribal prerogatives and values and to reduce the number of Indigenous people “churning through” the criminal justice system, she asserted. For example, Jorgenson cited Tribal Healing to Wellness Courts as a promising indigenous-based alternative to punitive systems of justice.
USING DATA TO REDUCE RACIAL INEQUALITY IN CRIMINAL JUSTICE
In this session, workshop speakers discussed how data can be used to evaluate the magnitude of disparities, identify causal relationships between policies and outcomes, and guide reforms in the criminal justice system.
Reducing the Jail Population
The Safety and Justice Challenge (SJC), said Laurie Garduque (MacArthur Foundation), is an initiative to
2 These data were presented from the 2016 Survey of Prison Inmates from the Bureau of Justice Statistics (a cross-sectional survey of state and federal prison populations), indicating the differences between using previous and current Office of Management and Budget classifications for race and ethnicity.
“reduce over-incarceration by changing the way America thinks about and uses jails.” The initiative was launched in 2015, at a time when the adverse effects of jail stays were largely overlooked. Garduque said that the 11 million annual jail admissions in the United States have huge economic and social costs, and that even a short stay in jail can have negative effects on an individual. The SJC centers equity in its work, and its goals include shrinking the footprint of the criminal justice system and eliminating racial disparities in the system. A network of sites representing 51 cities and counties across 32 states (about 16 % of the confined jail population in the United States) is implementing reforms and innovations, such as diversion or deflection (e.g., issuing citations and releasing individuals in lieu of jail), and is collecting data on 43 measures at multiple stages of the criminal justice process. When the COVID-19 pandemic began in early 2020, SJC site data indicate a dramatic and unprecedented drop in the jail population—however, racial disparities in the jail population of SJC sites persisted or worsened.
Garduque said there is no “silver bullet” for reducing the jail population; instead, it will require a systematic, holistic approach that engages all stakeholders, including authentic community engagement. Part of the challenge, she said, is a lack of consistent, reliable data. She noted that there have been issues with data sharing, site capacity to collect data, and transparency and accountability. The next steps for the SJC include investing in research to better understand the decisions that create racial/ethnic disparities, particularly at the points of arrest, prosecution, and case processing; engaging with jurisdictions to develop policies and practices that center racial equity through technical assistance; and investing in more research (e.g., qualitative analyses).
Explanations for Increases in Homicide Rates
There have been two noteworthy increases in national homicide rates since the last increase 20 years ago, said Richard Rosenfeld (University of Missouri at St. Louis).3 One followed the killing of Michael Brown and the associated unrest in 2014 (20 % increase in homicide rate from 2014–2017), and the other occurred in 2020 during the COVID-19 pandemic and after the murder of George Floyd. Rosenfeld presented three hypothesized explanations for these increases: de-policing, the opioid epidemic, and diminished police legitimacy. Rosenfeld discussed each of these explanations—acknowledging the existence of other explanations—along with data to support or refute them.
The explanation of “de-policing” focuses on the idea that the police have withdrawn from full engagement in their duties because they are frustrated by the protests or concerned about their own legal liability. This explanation, he said, makes a “very strong assumption” about the relationship between policing and crime rates, which is not borne out in other types of crime data for 2016 and 2020; for example, robbery, burglary, and larceny rates dropped while homicide rates were increasing. Furthermore, Rosenfeld noted that the observed decrease in police presence in 2020 was in large part attributable to the pandemic. Alternatively, the opioid epidemic has been suggested as linked to homicide in both Black and White populations, based on the hypothesis that as opioid users move into street drug markets, homicides associated with these markets increase. Rosenfeld contended that the opioid epidemic has had a more significant impact on the homicide rate among Whites than Blacks, in terms of both victimization and homicide offending. Finally, the police legitimacy explanation is based on a hypothesis that confidence in and cooperation with the police have been diminishing. The racial gap in confidence in the police has widened in recent years, and Rosenfeld views police legitimacy as a “very likely culprit” in the increase in homicide rates. He cautioned, however, that further research is needed, particularly on crime rates in 2020 and the impact of the pandemic.
Given these potential explanations, Rosenfeld offered ideas for stemming the increase in homicides: increasing accountability for police misconduct, redirecting certain responsibilities from the police to other agencies (e.g., responding to drug overdoses, or addressing homelessness issues), and increasing support for both those at high risk of victimization and those at high risk of offending.
Applying Data to Understand the Unintended Consequences of Police Reform
Canice Prendergast (The University of Chicago) presented on one specific solution that Rosenfeld raised: reform efforts to increase accountability for police misconduct. He shared data from the Los Angeles Police Department (LAPD), which he said presented a unique opportunity to compare officer behavior
3 Data from the U.S. Vital Statistics were presented to show trends in homicide rates from 1999–2019.
before and after reforms. This is notable, because data are not always available, and it can be challenging to distinguish between the impacts of multiple interacting trends. In 1997, a scandal led to a change in police oversight in the LAPD; any complaint now automatically went to the office of internal affairs. Complaints rose, said Prendergast, because the “public now felt that officers were more accountable.” The number of investigations rose dramatically, as did punishments imposed on officers for malfeasance. In 2002, the system was changed again so that officers could designate a complaint as “nondisciplinary.” The stated intent of this change was to reduce frivolous complaints; however, said Prendergast, “complaints across the board” were dismissed. The rates of sustained complaints, punishments, and resignations all fell dramatically, as if a “spigot that was turned on in 1998 … was turned off in late 2002.”
The public was unaware of that 2002 change, he said, so changes in officer behavior are likely to have been the result of the internal policy change rather than public perception of police. The change in the ratio of arrests to crime rates between 1998 and 2002 had been “astronomical,” falling by 40 percent. After the second change occurred in 2002, the rates rose back to where they were before 1998. One interesting phenomenon, said Prendergast, was that police behavior changed very little in predominantly White neighborhoods, whereas major changes were seen in Hispanic neighborhoods. To counter the argument that these changes could be due to other trends, Prendergast showed data from the Los Angeles Sheriff’s Department (LASD), which also makes arrests in Los Angeles; he indicated that arrest rates were steady in Los Angeles over this time period for the LASD, the California Highway Patrol, and the Federal Bureau of Investigation. LAPD officers reported that one of their responses to the change in oversight in 1998 was that “they would basically sit in the car and wait for a radio call.” Based on the number of “police neglect of duty” complaints accounted for during this period, Prendergast hypothesized that the change in behavior observed was the result of officer detachment from victims of crime.
Mapping Police Violence
At the time of the Ferguson, Missouri, protests in 2014, said Sam Sinyangwe (Campaign Zero), there was very little data available on police use of force, including deadly force. “We knew we couldn’t wait on the government to collect the data,” he said, so Mapping Police Violence was developed as a comprehensive database of people killed by police. The database uses a variety of sources, including agency data, local media reports, and crowd-sourced and journalistic databases. The resulting data show that about 1,100 people have been killed each year by police since 2013. While police violence is a nationwide issue, there are variations between regions and disparities by race, he said. Some cities, including St. Louis and Phoenix, have very high rates of police violence; and the vast majority of unarmed people killed by the police in major cities are Black or other people of color. In 98 percent of all cases, the officers are not charged with any crime, and on the rare occasions when they are charged, they are often not convicted or else, if they are, they receive lesser sentences than civilians would.
Sinyangwe said that to find solutions to police use of deadly force and disparities in police behavior, it is necessary to examine how and why these things happen. The majority of incidents stem from a set of common encounter types: traffic stops, mental health and welfare checks, domestic disturbances, or a set of other low-level nonviolent offenses. Implementing alternative responses and reducing arrests could reduce police violence. Sinyangwe asked, “Do we really need somebody with a gun responding to somebody speeding five miles over the speed limit?” In addition to alternatives, there is a need for police accountability, he argued. For example, Oakland implemented community oversight and accountability processes, and they have seen a 90 percent reduction in police-involved shootings over the past decade. More recently, Philadelphia stopped arrests for low-level offenses during the pandemic, and “If we can replicate these results across the country, we can save hundreds, if not thousands, of lives,” said Sinyangwe.
Data-Driven Approaches to Achieving Policing Equity
The mission of the Center for Policing Equity, said Phillip Goff (Yale University), is to “make policing less deadly, racist, and present,” leveraging social science for better outcomes. Goff described three of the major areas of the Center’s work: harm reduction, designing a roadmap for reform, and implementation. The harm reduction work uses a performance management tool to optimize the outcome of equity in policing. Goff explained that police have long used such programs (e.g., CompStat) for the goal of reducing crime, but they can also be used to meet other goals, such as equity or justice. The tool uses a regression model to “segment out the portion of disparities for which law enforcement could not reasonably be held
accountable and says ‘here is the rest’.” Goff said that by controlling for known factors, this approach prevents conversations about disparities from being derailed by arguments about intraracial crime and poverty. Additionally, he said, it can narrow the focus for interventions, for example, by identifying large disparities in one particular area of town.
Second, Goff said, the reform roadmap is designed to empower communities to reduce punitive structures in manageable steps. It includes a survey of 911 calls, an evaluation of officer-initiated contact, and a geospatial analysis of crime and enforcement, and the roadmap identifies areas for investing in nonpolice resources. Finally, the Center provides resources and information to communities interested in implementing reforms that range from redesigning the 911 system to removing officers from schools to dismantling the police department.
Goff noted that while the Center does not have the capacity to conduct research on all these reforms, it urges communities to set up evaluations to build the evidence about what works. Police reform is an area that has historically been underfunded for research and implementation, particularly in contrast to decarceration, he said, and he stressed that while there is currently a great deal of attention on police reform, there is a “vast need” for scientific infrastructure, research funding, and guidance on data collection and analysis to ensure that these reforms are based on sound science.
COMMUNITY-DRIVEN RESPONSES TO RACIAL INEQUALITY IN THE CRIMINAL JUSTICE SYSTEM
In this session, workshop speakers discussed how communities can lead the way on reducing crime, supporting victims and offenders, and stopping the cycle of violence.
THE ROLE OF FAITH LEADERS
The role of a faith leader is to speak truth to power, said Rev. Gregory Holston (Philadelphia District Attorney’s Office). Part of that role, he said, is to challenge leaders to address issues, such as mass incarceration, gun violence, and racial disparities. Faith leaders can provide insight on the issues, advocate for realignment of resources, and help identify “deep solutions” rather than surface-level ones. Gun violence, said Holston, is a racial justice issue: Years of systemic racism, slavery, redlining, disinvestment in Black communities, the war on drugs, and mass incarceration have led to a “system that produces this kind of violence in our community.” Gun violence is also a public health emergency, and we cannot “arrest our way out” of that problem. Holston said there is a need for a strong public health approach that includes early intervention to address trauma among young people, rather than answering violence with more incarceration. In addition, Holston discussed the need to reallocate public safety resources toward investments in individuals who are involved in gun violence, for example.
Holston concluded by urging the police to develop relationships of trust with the community to address gun violence and other issues. Community members who have dealt with the abuse of police power “carry these stories with them,” he said, and changing the trajectory of public safety requires reconciliation between impacted communities and law enforcement.
INDIGENOUS SYSTEMS OF JUSTICE
Indigenous systems of justice, said Ada Pecos Melton (American Indian Development Associates), are derived from tribes’ inherent authority, and are based on beliefs and philosophies of caring for the offenders, victims, relatives, and community. The focal point of these systems is to foster atonement so that the victim can heal, and to restore peace and harmony for everyone who has been affected, including the families and community. Part of this process is identifying the underlying causes of the wrongdoing that has occurred. Important principles of Indigenous systems of justice include restorative justice, addressing emotional and spiritual damage, demonstrating sincerity, and taking corrective actions to make restitution, as well as a notion of distributive justice. Distributive justice requires involving family members and others in the process; she explained that because they “allowed the misconduct or offending to occur,” they need to be part of the resolution process.
While these principles are common among systems, there are multiple coexisting systems of justice within and among tribes, including tribal courts, family forums, peacekeepers, and healing-to-wellness courts. Unfortunately, tribes do not have full jurisdiction over their citizens, which limits the ability for these sys-
tems of justice to work. “We need people to respect and give full faith and credit to Indigenous systems and tribal courts,” said Melton, along with multiyear funding so that tribes can build and improve their systems. In addition, for tribal members involved in the mainstream criminal justice system, there is a need for culturally responsive rehabilitation, supervision, and reentry plans. Melton encouraged an inclusive definition of “peacekeepers,” when investing in tribal communities, as there are community-based first responders who often do not qualify for funding. Engagement and intergovernmental communication among tribes and with mainstream systems are essential, she concluded, in order for offenders to make amends and regain their status as good citizens in the community.
STOPPING THE CYCLE OF VIOLENCE
The voices of crime survivors are often left out of the conversation about criminal justice reform, said Aswad Thomas (Alliance for Safety and Justice). The justice system does little to support victims of violent crime, particularly those from communities of color, he said. Without support such as trauma recovery services or a victim compensation program, some victims of violent crime can become offenders, perpetuating the cycle of violence. The Alliance for Safety and Justice has built a national network of survivors who have come together to share stories, heal, and advocate for a system that “prioritizes healing, prevention, and recovery over incarceration.” As part of this project, the Alliance has launched a 10-point plan, called the National Victim’s Agenda, which aims to bring the voices of diverse survivors to the policy-making table. The agenda includes proposals for expanding victims’ rights (e.g., by preventing job and housing loss and improving access to civil legal services), ending discriminatory practices (e.g., by eliminating eligibility exclusions that require victims to file a police report within a certain amount of time to access victim services), ensuring trauma recovery services are widely available, and investing in community-based victim services providers. Community organizations are on the front lines of supporting families and preventing violence, said Thomas, and they need “investments now … with less red tape.” To end the cycle of violence, he said, it is critical that the system provide support and opportunities to heal for both offenders and victims as they reenter their communities.
CRIMINAL JUSTICE SYSTEM DRIVERS OF RACIAL INEQUALITY
The criminal justice system is not a singular entity. Rather, it comprises multiple subsystems and individual actors. The structures of these subsystems and the decisions made within them shape the experiences of individuals who have contact with the criminal justice system as victims, suspects, or offenders, and have the potential to create and exacerbate disparities. In this session, speakers discussed the role of these systems and actors and made suggestions for reform.
“Spending any more than one day in pretrial detention can have devastating consequences,” said Sandra Susan Smith (Harvard Kennedy School). She added that about 20 percent of the 2.3 million people currently incarcerated in the United States are awaiting trial and have not been convicted of any crime; they are often the poorest of the poor and are disproportionately Black and Latino. While most individuals are released within 1 week, the average stay time is 3 weeks. The pretrial detention system exacerbates existing disparities, due in part to assumptions of the system, Smith said. For example, the system assumes that even detainees who lack capital themselves can leverage their social networks to raise bail. Smith described a sample of low-level, low-risk misdemeanants with whom she conducted a survey. The results found that Black detainees were less likely to be able to do this for a number of reasons, including weaker family ties, higher unemployment, a history of multiple arrests, and incarceration being seen in some communities as a “rite of passage.” As a result of these factors, Black respondents spent a greater number of days in pretrial detention and were at greater risk of associated risks and harms, she said.
Specifically, a growing body of research indicates that pretrial detention can harm individuals’ physical and psychological well-being, Smith noted. It significantly reduces employment, wages and annual earnings; is associated with increased likelihood of conviction on current charges; is linked to more severe sentences with conviction; increases the burden of legal financial obligations; and increases the likelihood of future criminal justice system involvement. Smith’s own research has found that detainees are at risk of frayed social bonds, loss of romantic relationships, loss of employment, violence, anxiety, stress, and a sense of helplessness. Smith offered ideas to reform the system and reduce disparities, including decrimi-
nalizing low-level offenses, eliminating cash bail, providing support for pretrial defense, and providing social services for those who cycle in and out of the criminal justice system.
One alternative to the cash bail system that can be used is a system of pretrial risk assessment tools and conditional release, said Meghan Guevara (Pretrial Justice Institute). Unfortunately, said Guevara, both of these systems (i.e., cash bail and pretrial risk assessment tools) disproportionately harm people of color. Pretrial risk assessment relies on statistical tools, but the tools are built using information from a criminal justice system that has racial inequity “baked into” every decision point. Because both of these approaches are harmful, she said, the Pretrial Justice Institute is building a third approach. This system-wide approach utilizes many of the policies other speakers discussed, including:
- Addressing the local community culture to encourage reductions in detention
- Providing nonlaw enforcement options for crises response to reduce contact with the criminal justice system
- Decriminalizing some behaviors, such as those related to homelessness
- Making extensive use of citations and summons, rather than arrests and detentions
- Narrowing detention eligibility to reflect the goals of the pretrial detention system (i.e., promote public safety, ensure appearance in court)
- Setting conditions of release linked to the individual’s needs and proven effective in the evaluative literature
- Enacting community supports to get people to court (e.g., addressing barriers such as childcare and transportation).
Guevara noted that none of these strategies will be a “silver bullet,” but that taken together they have the potential to change the system toward reducing racial disparities. Ultimately, said Guevara, what is needed is a “culture that presumes innocence and defaults to pretrial liberty” except for where good reason is needed to detain someone. Working closely with impacted communities and with an equity lens, she said, society can focus on both public safety and the safety and liberty of those in the criminal justice system, and can create multisystem, community-based partnerships to keep people healthy and safe.
The misdemeanor system is fertile ground for making an impact on racial disparities in the criminal justice system, said Alexandra Natapoff (Harvard Law School). Misdemeanors comprise 80 percent of criminal dockets in the United States and serve as an entry point into the system. The misdemeanor system, as Natapoff conceptualizes it based on her research, is the “first step in the racialization of crime in this country” and the place where “we concretely permit criminalization based on race.” Natapoff offered suggestions for addressing disparities at each step of the misdemeanor process.
First, she said, there are policy approaches for reducing arrests, particularly for low-level drug possession and offenses such as loitering. An arrest initiates the criminal justice system experience and imposes risks and costs, even without a formal conviction. Natapoff warned, however, that reducing arrests does not always reduce disparities. Second, prosecutorial discretion to pursue or decline prosecution is an “obvious space for reform,” as prosecutors tend to ratify the decisions of the police, which have been shown to be racially disparate. Finally, courts can play a major role in stopping the “infamous misdemeanor assembly, line plea bargaining,” said Natapoff.
For example, courts can refuse to incarcerate people before their trial; pretrial incarceration can incentivize and extract guilty pleas, which can ultimately be a source of wrongful conviction. Courts can also appoint counsel for misdemeanor trials, not only to represent individuals but also to monitor and expose racialized policing and prosecutorial practices. Natapoff warned that leniency measures—such as diversion, probation, and drug courts—are highly discretionary and can increase, rather than lessen, racial disparities. The misdemeanor system also enables racial discrimination because it is highly discretionary, and the offenses themselves are “barely crimes,” as she put it. According to Natapoff, the high level of discretion invites the use of racial profiling, which often results in leniency for White people, and the use of the “misdemeanor net” to be deployed for social control rather than public safety.
THE ROLE OF PROSECUTORS
Communities have begun demanding reform from prosecutors, said Jamila Hodge (Vera Institute of Justice), and in recent years prosecutors have run and won on platforms of ending mass incarceration, addressing racial disparities, and being more transparent and accountable. The Reshaping Prosecution Program at the Institute was launched to support this movement, but the pilot phase demonstrated that despite success in decarceration, racial disparities persisted. For example, Hodge said, there has been a lot of progress over the past several years in decreasing the number of youths who are incarcerated, but racial disparities in the juvenile justice system have actually increased. To address this issue of persistent racial disparities, Hodge and her colleagues spent 6 months in conversation with scholars, prosecutors, activists, and advocates to create Motion for Justice, an actionable program with racial equity at its core. Hodge stressed that the focus on equity is essential; without this, “you can have good things happen” that do not benefit the communities that have been most harmed by the system.
After the murder of George Floyd, the Institute recognized the opportunity to make an immediate impact, and began implementing the Motion for Justice campaign in multiple sites around the country. Prosecutors interested in the program must engage with a community-based organization to form a three-way partnership with the Vera Institute, Hodge said. She emphasized the importance of the community partner, saying that “the answers to reimagine justice do not lie inside of a prosecutor’s office …. They truly lie with the people who are closest to the problem.” In these partnerships, she said, the focus on equity is essential: “We are in a culture that is rooted in White supremacy, [so] race neutral [approaches are] only going to continue to lead to disproportionate impact and harmful impact” on communities of color.
Robin Olsen (Urban Institute) discussed the role that data can play in prosecutorial decision making and reducing inequality, and the challenges involved in implementing a data-driven approach. The first issue, she said, is whether prosecutors are able to collect data, and whether they are collecting it at key decision points, such as diversion and prosecutorial declination. A survey that Olsen conducted found that almost all prosecutors do collect data at a few decision points, and around 40 percent collect data on all of the relevant case variables, such as cases dismissed and cases resolved by plea. The second issue, she said, is whether they are collecting information on race to track how defendants move through the system. For example, while about three-quarters of prosecutors collect data on the number of cases disposing to diversion, only about one-third of them collect information about race at that decision point.
The final issue, said Olsen, is whether prosecutors are interacting with their constituents and public about the information they collect. Her survey found that about one-half of prosecutors used input from community members to plan their data collection and use, and about a one-quarter shared information with the public after collection. Although many prosecutors are collecting data, said Olsen, there are barriers to increasing the collection and use of data, including staff constraints and the lack of a streamlined data system. Another big challenge is confidence in the accuracy and relevance of the data; Olsen stressed that it is critical that the questions being asked are the right ones to capture what is happening in the system. While data collection itself is somewhat straightforward, she said, it is essential that partnership with the community guide the questions that are being asked and how the data are being used.
THE ROLE OF PUBLIC DEFENDERS
“Culture eats strategy for breakfast,” said Jonathan Rapping (Gideon’s Promise). The culture of the criminal justice system shapes the people who work within it, he said, including public defenders, who may start out “passionate” but are quickly either driven out or “shaped to accept the status quo.” Gideon’s Promise is an organization aimed at transforming the culture of the system rather than “tweaking around the edges” with smaller reforms. “Criminal justice reform is racial justice reform,” said Rapping, because the criminal legal system is where the problems of marginalized communities are addressed. Mass incarceration, in Rapping’s view, is simply the latest incarnation of the 400-year old racial narrative of the United States, and public defenders have the opportunity to interrupt that narrative.
A more humane and more just system requires defendants and marginalized communities to be treated with dignity and to have their voices heard; public defenders can amplify their stories. The value-based model used by Gideon’s Promise, said Rapping, is designed to change the culture of the criminal justice system to one in which public defenders, prosecutors, and judges practice with empathy and “treat people as human beings.” The program utilizes an instrument to gauge the extent to which client-centered,
value-centered lawyering ensures that people are treated with dignity, provides more just outcomes, and creates a more humane system. While the broader goal of culture change is being pursued, however, Rapping said it is important to work to “minimize the harm that the existing actors are doing”—these are two pieces of the same solution.
In the early days of the Innocence Project, said Vanessa Potkin (Innocence Project), the power of DNA analysis was not only in exposing individual wrongful convictions, but also in bringing to light the larger failures of the criminal justice system. The Innocence Project has worked on reforms to improve accuracy, such as in eyewitness identification, forensics, and use of videotaped interrogations. However, she said, the problem of wrongful convictions goes beyond the issue of accuracy; it is “demonstrative of larger issues of mass incarceration and policing, what is considered criminal, and even whose lives matter.”
Racial disparities in the criminal justice system are also present in wrongful convictions and exonerations; Black people are about seven times more likely to be wrongfully convicted of murder than White people, and Black exonerees on average spend several years more in prison before exoneration, noted Potkin. The explanations for wrongful convictions—and the associated racial disparities—have been identified as over-policing, flawed suspect development, arrest quotas, and the use of certain technologies (e.g., facial recognition software, predictive policing, and gang databases). Potkin said that overall police misconduct plays a role in around one-third of total wrongful convictions, and this jumps to 50 percent when the innocent person is Black. To address this, the Innocence Project is working to eliminate police secrecy laws and to improve transparency and accountability.
There are multiple fines and fees imposed by the criminal justice system at all phases, said Alexes Harris (University of Washington), including citations; fines for the purpose of restitution; fines for the purpose of punishment; fees associated with court hearings, including costs of paperwork, prosecution, defense, and use of a jury; per-day fees for incarceration; and surcharges, nonpayment fees, and interest. The criminal justice system surveils, controls, convicts, and incarcerates poor people, particularly people of color; the associated monetary sanctions further burden these communities and exacerbate existing disparities, said Harris. For example, Harris said that her research found that people of color in Washington State were more likely to be charged with driving with a suspended license in the third degree (this typically occurs when a person drives after license suspension due to failure to pay a fine).
Black drivers are more likely to be pulled over by the police for “economic stops,” for example, for driving with expired car tags. Local jurisdictions have come to rely on these fines and fees to support local government and public services; police in these areas are essentially acting as “tax collectors,” she said. The consequences of penal debt can include poor credit scores, loss of the right to vote, loss of a driver’s license, and court surveillance, as well as stress and anxiety. Harris outlined a few reforms to address this issue, including requiring judges to assess ability to pay, providing postsentencing relief, and decoupling court debt from the loss of a driver’s license. However, said Harris, there are bolder reforms that would make a bigger impact, including eliminating fines, fees, and costs; ending pretextual, economic-related traffic stops; and reconsidering how we define “restitution” for victims. California is one example of a jurisdiction that has eliminated juvenile fees. Implementing these reforms requires jurisdictions to be able to access and evaluate relevant data, to consider alternate funding structures for city expenditures, and to muster the political will to make substantive changes.
INTERSECTION OF CRIMINAL JUSTICE AND IMMIGRATION SYSTEMS
Migration-related confinement is on the boundary between law enforcement and civil immigration law, said César Cuauhtémoc García Hernández (University of Denver). There are multiple agencies involved, and each detains people in different places and for different reasons. Individuals may be detained for violating civil immigration law (e.g., staying in the United States after visa expiration), or for violating federal criminal laws governing migration activity (e.g., illegal entry). If an individual is convicted of a crime, he or she may be sent to a federal prison; convicted immigration offenders make up about 6.7 percent of the Bureau of Prisons’ total population, said Hernández. While there are individuals from all countries who violate immigration law, people are treated differently based on the type of law they vio-
lated and their country of origin. For example, coming to the United States without permission can form the basis of a criminal conviction, while failing to leave cannot form the basis of a criminal conviction.
On the civil side, the Bureau of Immigration and Customs Enforcement (ICE) has the authority to detain anyone who has violated civil immigration law. However, Hernández said, on the ground, immigration law enforcement treats people of different racial backgrounds disparately. “Almost everyone” detained by ICE hails from Latin America, he said, and Black migrants are less likely to be able to avoid pretrial detention while litigating their cases. These distinctions, he said, are not about public safety or the rule of law, but rather policy choices that privilege some types of legal violations and offenders over others.
PAROLE AND PROBATION
The system of parole and probation—and the associated surveillance, supervision, and revocation of probation—is focused disproportionately on communities of color and exacerbates existing inequalities, said Vincent Schiraldi (Columbia Justice Lab). People who are in heavily supervised communities experience the effects of the “concentrated surveillance disparity” or “hypercriminalization.” For example, police in a heavily surveilled neighborhood may patrol parking lots, run license plates, and make pretext stops—all things that would be “unthinkable” in wealthy neighborhoods. As a result of this surveillance, people in these neighborhoods have far less “wiggle room to mess up,” he said. Further, there is no evidence that parole and probation meet the objectives of reducing incarceration or improving public safety.
Schiraldi suggested that rather than continuing down this road, the system should be shrunk or eliminated, and the nearly $3 billion spent annually incarcerating people for technical issues should be put back into impacted communities to support their residents. He shared examples from around the country of reforms that shrank supervision without negatively affecting public safety outcomes. For example, California shortened supervision periods, limited the time one can be incarcerated for a technical violation, and downgraded six felony offenses to misdemeanors. These reforms and others shrank supervision in the state by nearly 150,000; at the same time, the incarcerated population in the state shrank by 130,000 and crime dropped by 7 percent. By shrinking the parole and probation system, he said, funds are freed up for community-based services, supports, and opportunities.
Schiraldi concluded by saying, “Maybe it’s time we considered abolishing government-run supervision with its racially disparate trip wires back to incarceration and investing the resources to help community members create more cohesive and welcoming places for their sons and daughters to return.”
COLLATERAL CONSEQUENCES FOR CHILDREN AND FAMILIES
Individuals who have contact with the criminal justice system are parents, partners, sons, daughters, siblings, and members of communities, said Kristen Turney (University of California, Irvine). According to the Family History of Incarceration Survey, nearly one-half of people in the United States have experienced the incarceration of an immediate family member, while two-thirds have experienced incarceration of an immediate or extended family member. Incarceration is consequential not just for the individual, but has “rippling effects” across families, said Turney. Incarcerated individuals are unable to earn income, and may be accumulating fines, fees, and legal debts. Upon release, the stigma of a criminal record makes it more difficult to find work. Incarceration affects family relationships, and is associated with relationship dissolution and poor outcomes in children.
Turney stressed that while the majority of research has been conducted on incarcerated individuals, this is only the “tip of the iceberg,” since many more individuals have other types of contact with the criminal justice system, such as police surveillance, stops, tickets, arrests, and probation. Contact with the system—even vicarious contact—is associated with subsequent impaired mental health among youth, depressive symptoms, and increased delinquency. The mothers of these youths are also impacted; police contact with a child is associated with increased parenting stress, increased parental anxiety and depression, and decreased engagement between mothers and youth. Turney noted that because people of color are more likely to have contact with the criminal justice system, this exacerbates existing structural inequities.
Speakers have presented on deeply rooted inequalities within the criminal justice system, said Bruce Western (co-chair of the committee). They noted that these inequalities exist not only in readily measured
areas such as incarceration, but also in a much larger footprint that includes contact with police, monetary sanctions, and surveillance and supervision. Khalil Muhammad (co-chair of the committee) added that speakers at the workshop made clear that the system has been causing harm at all levels, and that this harm is a result of the structure of the system.
Summarizing the conversation, Western said that workshop speakers proposed two main solutions: one is to shrink the system, while the other is to shift power toward communities to allow them to “become the authors of their own models of safety.” Muhammad added that the speakers’ overall sentiment reflected the idea that because the system is doing what it was designed to do, there is a need for creative solutions and alternative approaches to safety and justice.
COMMITTEE ON REDUCING RACIAL INEQUALITIES IN THE CRIMINAL JUSTICE SYSTEM
Khalil G. Muhammad (Co-Chair), Kennedy School, Harvard University, and Radcliffe Institute for Advanced Studies; Bruce Western (Co-Chair), Justice Lab, Columbia University; Daryl Atkinson, Forward Justice, Durham, NC; Robert D. Crutchfield, Department of Sociology, University of Washington; Ronald L. Davis, 21CP Solutions, LLC; Bernice Donald, U.S. Court of Appeals for the Sixth Circuit; Francis Guzman, National Center for Youth Law, Oakland, CA; Elizabeth Hinton, Yale University School of Law; Nikki Jones, Department of African American Studies, University of California, Berkeley; Tracey L. Meares, Yale University School of Law; Derek Neal, Department of Economics, University of Chicago; Valerie Purdie-Greenaway, Department of Psychology, Columbia University; Steven Raphael, School of Public Policy, University of California, Berkeley; Nancy Rodriguez, Criminlogy, Law, and Society, University of California, Irvine; Addie Rolnick, School of Law, University of Nevada, Las Vegas; Robert J. Sampson, Department of Sociology, Harvard University; Jeffrey L. Sedgwick, Justice Research and Statistical Association; Maria B. Velez, Department of Criminology and Criminal Justice, University of Maryland; Yamrot Negussie, study director.
DISCLAIMER: This Proceeding of a Workshop—in Brief was prepared by Erin Hammers Forstag, rapporteur, as a factual summary of what occurred at the workshop. The statements made are those of the rapporteur or individual meeting participants and do not necessarily represent the views of all meeting participants; the committee; the Committee on Law and Justice; or the National Academies of Sciences, Engineering, and Medicine. The study committee was responsible only for organizing the public session, identifying the topics, and choosing speakers.
REVIEWERS: To ensure that it meets institutional standards for quality and objectivity, this Proceedings of a Workshop—in Brief was reviewed by Khalil G. Muhammad, Kennedy School, Harvard University. We also thank staff member Cherie Chauvin for reading and providing helpful comments on this manuscript. Kirsten Sampson Snyder, National Academies of Sciences, Engineering, and Medicine, served as review coordinator.
SPONSORS: The workshop was supported by Arnold Ventures, Bill & Melinda Gates Foundation, the Joyce Foundation, National Academy of Sciences Cecil and Ida Green Fund, National Academy of Sciences W.K. Kellogg Fund, the Russell Sage Foundation, and the William T. Grant Foundation.
Suggested citation: National Academies of Sciences, Engineering, and Medicine. (2021). Reducing Racial Inequalities in Criminal Justice: Data, Courts, and Systems of Supervision: Proceedings of a Workshop—in-Brief. Washington, DC: The National Academies Press. https://doi.org/10.17226/26192.
Division of Behavioral and Social Sciences and Education
Copyright 2021 by the National Academy of Sciences. All rights reserved.