Reducing Racial Inequality in Crime and Justice Science, Practice, and Policy (2023) / Chapter Skim
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INSTITUTIONAL STRUCTURE AND POLICY Before examining each of the main stages of criminal processing, it is useful to consider the overall structure of interlocking agencies that comprise the criminal justice system and how they might operate together in a coordinated way to reduce racial inequality. Part I of this report provides evidence of large racial disparities in involvement with the criminal justice system at all stages.
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. Throughout this chapter we will see two main strategies for reducing racial inequality in the criminal justice system.
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Ferguson's "revenue-driven policing" increased contact between police and the public, and police stops often carried the potential of escalation. The proliferation of criminal justice fines and fees has been found to expand contact between the police and courts on the one hand and between police and the public on the other in a large number of jurisdictions (Shannon et al., 2020)
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. Reducing criminal justice contact by altering cost incentives between different levels of government has been demonstrated in California with reforms to the juvenile justice system in the 1990s and to adult sentencing in the 2010s.
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Shifting Policy Approaches to Drugs and Violent Crime The increase in incarceration rates in the four decades since the early 1970s largely resulted from changes in criminal justice policy (NRC, 2014; Raphael and Stoll, 2013)
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Particularly relevant to the current discussion of policy change, the wars on drugs and crime involved the adoption of new rules and routines across many domains, from policing to corrections. These changes in criminal justice policy had large effects on racial inequality in criminal justice involvement.
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finds these trends to be driven by decreasing sentences for Black individuals and increasing sentences for White individuals, changes in observable case characteristics, and shifts in the prosecutorial use of mandatory minimums. Like drug offenses, large racial disparities accompany arrest and incar ceration for violent offenses.
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. Policy approaches to drugs and violence represent two distinct pathways for the criminal justice system.
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have been a key focus for researchers studying the connections between policing and racial inequality. In New York City, the New York Police Department (NYPD)
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In these cases, a large across-the-board reduction in stops, frisks, and arrests, in a context with large preexisting racial disparities, greatly re duced police contact among Black and Hispanic residents. Court oversight resulting from private litigation in New York coupled with independent 8 Daniels v.
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The 1996 U.S. Supreme Court Case of Whren v.
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Although racial profiling was not central to the Washington State Supreme Court decisions, in contrast to the Floyd case in New York, and neither decision was directly intended to affect racial disparity, a large body of legal scholarship has examined racial profiling by police in traffic stops, particularly since the Whren decision. Did the 13-year ban on pre textual stops in Washington State reduce racial disparity in traffic stops?
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Under Section 14141 of the Vio lent Crime Control and Law Enforcement Act,10 the Attorney General is authorized to initiate structural reform litigation against police depart ments suspected of systemic misconduct that "deprives persons of the rights, privileges, or immunities secured and protected by the Constitution or laws of the United States" (Stuntz, 2006, p.
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A review by Alpert and colleagues (2017) reports that although consent decrees are often found to be effective while federal monitors are in place, temporary oversight has not produced enduring change.
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. Community-led efforts to reduce racial disparities in polic ing have focused on increasing social accountability measures through
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Judicial consent decrees are an example of efforts designed to reduce racial disparities with only evidence of temporary success. Body-worn Cameras One area of police operations that aims, in part, to improve police a ccountability involves the use of body-worn cameras.
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. Summary Major efforts to change the context of policing to reduce racial inequality have been mounted through measures to expand judicial, federal, and public oversight.
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Evaluations have found that trainees showed greater awareness of personal bias and a better understanding of how bias contributes to racial disparities. Still, there is no rigorous evidence base indicating that anti-bias training reduces racial disparity.
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Moreover, the authors report that they found insufficient evidence to conclude that racial and ethnic disparities in police enforcement actions were reduced because of the training. Recently, some jurisdictions have passed legislation focusing on eliminating explicit bias from police departments, largely through enhanced screening during the hiring stage and by making evidence of explicit bias a separate articulated element of background investigations.
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than studies of multifaceted efforts at cultural and organizational change aimed specifically at reducing racial in equality, and the committee views this as an important area for future study. Racial Inequality and Police Deterrence Tactics Police tactics to deter crime have important implications for racial inequality in the criminal justice system.
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In contrast to these approaches, however, focused deterrence relies on the threat of serious formal sanctions from the criminal justice system as a tool to moti vate behavior change among individuals and groups. Focused deterrence is a place-based strategy that aims to intervene with specific individuals or gang networks in an effort to head off serious crime before it occurs.
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. as violent crime was also decreasing in other cities, including cities that did not adopt an Operation Ceasefire approach.
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have been shown to reduce serious violence but also carry the risk of discriminatory treatment and com munity mistrust. This finding points to the possibility of a tradeoff between reducing crime and reducing racial disparity.
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Complementary social policy has taken the form of behavioral health interventions, jobs and training programs, and community-based physical and mental health treatment. Combining police-based deterrence strategies with community partnership and social policy offers an evidence-informed approach to addressing gun violence in a way that protects against the risks of growing racial inequality in criminal justice involvement.
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New Jersey's criminal justice reform had five main components: (1) a reduction in the use of money bail; (2)
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However, at least two jurisdictions, in Minnesota and New York State, have used and modified risk tools with a view to reducing racial disparity and have provided detailed assessments of the effort. The Fourth Judicial District of Minnesota, Hennepin County, has developed a reiterative process of assessing scale validity and mitigating racialized differences in bail decisions.
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. To reduce racial disparity and create better predictive capacity, the Criminal Justice Agency updated its release assessment.
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The Oklahoma study found no racial differences in the effects of clearing court debt, but large racial disparities in the caseloads meant that the fewer warrants, debts in collection, and tax-refund garnishing enjoyed by the treatment group disproportionately benefited people of color (Pager et al., 2022)
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, which includes the Greater Boston Area, has also experimented with changing prosecutorial policy to reduce racial disparity. District Attorney Rachael Rollins, who was inaugurated in 2019, created an officewide presumption of non-prosecution for 15 nonviolent misdemeanor offenses, all of which were considered "crimes of poverty" and disproportionately charged against people of color.
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criminal justice system. Over roughly two decades, the United States went from having per-capita correctional populations comparable to those of western European nations to having the world's highest incarceration rate.
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Moreover, many juris dictions required that those sent to prison serve minimum percentages of their sentences regardless of conduct while incarcerated or efforts toward rehabilitation. The cumulative impact of these changes lengthened time served, especially for violent offenses; increased prison admission rates, particularly for lower-level drug offenses; increased racial disparities from
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The figure presents felony arrest rates per 100,000 by single year of age for violent offenses, property crime offenses, drug offenses, and other offenses for African A merican, H ispanic, White, and Asian California residents. It shows that sizable changes occurred for all age categories and that racial disparities narrowed for most age groups for property felony and drug felony arrests.
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Moreover, these changes applied to virtually all controlled substances. Similar sentencing reforms have been adopted that also reduce prison admission for drug possession, small sales of drugs, and other high-disparity offenses.
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The increase in the length of stay resulted from the proliferation of truth-in-sentencing, three-strikes, life-without-parole, and related reforms that concentrated their effects on violent offenses. Since African Americans are incarcerated at higher rates for violent offenses, murder and robbery in particular, the increase in the length of stay has tended to increase the racial disparity in imprisonment (Kazemian, 2022)
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Chapter 2 reports evidence of both racial disparity and racial bias in death penalty
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. Racial inequality thus figures as one of several arguments used against the death penalty, although experimental research also shows that pre senting evidence of racial disparity can increase support for the death penalty among White people (Peffley and Hurwitz, 2007)
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Parole super vision also operates with a high level of discretion, such that a parole board first decides on early release from prison and later on return custody in the event of a violation. Research shows large racial disparities in the rates of both community supervision and revocation of community supervision, with Black and Hispanic people at greater risk of re-incarceration (Bradner et al., 2020; Steen et al., 2013; Grattet et al., 2009)
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During the period of declining community supervision in the 2010s, crime declined by 7.4 percent (Bartos and Kubrin, 2018) , and "no measurable effect on violent crime" from the California reforms was found.
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Changes in drug sentencing, notably the elimination of mandatory prison sentences, have reduced incarceration for drug crimes, reducing absolute racial inequality between Black and White people. Reducing long sentences also promises to reduce racial disparity, with Second Look provisions offering one important mechanism for reviewing long sentences.
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In so doing, these measures also offer substantial promise for reducing racial inequality. Although racial inequality in criminal justice contact remains high, a wide range of criminal justice reforms have been adopted across the country that have reduced the disproportionate involvement in disadvantaged communities.
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CONCLUSION 8-3: The research and policy experience reviewed here has often involved piecemeal and uncoordinated reforms that have affected racial disparity at specific stages of criminal processing but have had less effect on racial inequality that emerges across stages and in community contexts of racial inequality. Reducing racial inequality will involve coordinated reforms across stages of the criminal justice system that will reduce the racial disadvantage that accumulates from police contact, to court processing and sentencing, to correctional supervision.
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CRIMINAL JUSTICE SYSTEM REFORMS 309 RECOMMENDATION 8-2: Given evidence of how racial inequality in the criminal justice system partly results from structural inequali ties in society and the cumulative effect of criminal processing, states, localities, and the federal government should explore ways to reduce racial inequality through coordinated reforms that work across the stages of the criminal justice system and also address structural in equalities in society.
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9 The Federal Role This chapter lays out a framework by which federal actors and policy makers can support communities in their work to promote safety and address the inequalities in their respective public safety systems. The goal of this framework is to strengthen the capacity of communities and local jurisdictions to promote safety while optimizing the footprint of the criminal justice system by reducing the scope of its harm.
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The LEAA functioned as the federal government's law enforcement consultant, promoting a national strategy on crime to the states and, through them, to local governments. The agency provided and arranged for technical assistance both directly and through contractors, consultants, and publications produced by its research arm, the National Institute of Criminal Justice.
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The LEAA also sought to make law enforcement into an attractive middle-class profession: the agency funded the tuition for some 50,000 officers enrolled in police science programs at more than 1,000 colleges and universities in mostly small suburban areas across the United States. Finally, LEAA funding incentivized the private sector to manufacture cutting-edge equipment such as walkie-talkies and develop technologies such as computerized criminal justice databanks, tasks that the LEAA viewed as crucial to modernizing American law enforcement (Hinton, 2017)
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The legislation gave state and local governments a three-year window during which they could receive federal crime control grants through the LEAA; thereafter; they were expected to operate their respective law enforcement programs independently. The act reduced the planning requirements that the Safe Streets Act had tied to federal funding so that states would no longer need to submit a criminal justice plan every year, and cities like Los Angeles (CA)
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Despite a national push toward criminal justice reform that highlights community partnerships and strategies for addressing crime (Office of Community Oriented Policing Services, 2015) and victimization (Holder et al., 2013)
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The Edward Byrne Memorial Grant was established by the 1988 Anti-Drug Abuse Act to support local and state criminal justice systems in addressing violent and drug-related crimes, and encouraged multi-jurisdictional and multi-state collaborations to support drug control policies (Dunworth et al., 1997)
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Other Bureau of Justice Assistance Grant Programs The Bureau of Justice Assistance administers the largest catalogue of grant programs dedicated to strengthening the criminal justice system (BJA, 2021d)
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, both the full scope of where funds are being invested and their impact on crime reduction are unknown. Based on reports from the National Criminal Justice Association, it is estimated 7 See https://smart.ojp.gov/about 8 Victims Compensation and Assistance Act of 1984, Public Law 98-473, Section 20111.
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These characteristics limit the opportunity of local communities to pursue their own goals and objectives, as many of the communities most in need of support lack the grant-writing skills, project management skills, and even the Internet access necessary to submit a viable proposal in a competitive arena. ENHANCING THE FEDERAL SYSTEM TO ADDRESS RACIAL INEQUALITY IN THE SYSTEM Aligning the Department of Justice's federal grant-making infrastructure with crime reduction and prevention programs that show promise in reducing inequality, as outlined in Chapters 3 and 4, would go a long way toward addressing the needs of communities and advancing criminal justice reforms.
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The siloed nature of the funding mechanisms for public safety leaves much room for inefficiency, duplication, and competing efforts. Given the expansive areas of federal support, programmatic offices may find themselves addressing the same problem (e.g., gun violence)
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THE FEDERAL ROLE 321 BOX 9-1 Allocation of Federal Responsibilities: Human Trafficking A fact too often neglected is that where a responsibility is lodged matters a great deal in shaping how that responsibility is discharged. This applies as well to parts of the federal government, where different organizations and their subunits have different visions, missions, and cultures; so careful placing of a program and its attendant responsibilities is important.
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Consequently, by primarily funding government entities (i.e., criminal justice organizations) , the Department of Justice is prioritizing those investments and de-emphasizing non-system interventions to reduce crime and inequality, in particular those created, led, and implemented by community organizations.
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Dole, sometimes the "financial inducement offered by Congress in the spending context might be so coercive as to pass the point at which pressure turns into compulsion."10 When states lack legitimate choice to accept or forego federal funding, financial inducements and grant programs turn into unconstitutional compulsion.11 For example, Byrne JAG grant conditions imposed by the attorney general in fiscal years 2017 and 2018 were challenged for infringing on the anti-commandeering principles of the 10th Amendment. One set of challenges revolved around use of the certification condition of the Byrne JAG application to ensure compliance with 8 U.S.C.
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Some courts determined that the attorney general had exceeded his authority and violated the Constitution in imposing the certification condition.16 Others found the move to violate neither the Department of Justice's statutory authority nor the constitutional separation of powers.17 In sum, federalism concerns cabin the ability to condition funding for states and localities, and any policy-oriented changes to Byrne JAG allocations may implicate constitutional challenges from recalcitrant states or local law enforcement agencies. Opportunities Today the nation finds itself at a moment in which it has a considerable opportunity to reduce racial inequality in the criminal justice system.
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Even so, the Department of Justice could consider promulgating rules or using existing incentive structures, like the Byrne JAG program, to condition funds on compliance with existing antidiscrimination laws or reporting requirements. Although broad-sweeping financial modifications could face scrutiny in the courts, milder versions of rules that impact an overall small percentage of total funding would likely withstand legal challenges and constitutional scrutiny.18 While such financial incentives could result in justice (of a sort)
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The legislation created a National Institute of Corrections, which brought together an advisory board from the spectrum of federal law enforcement and criminal justice agencies and private-sector groups to set priorities within carceral institutions and award contracts to firms to implement those priorities. D esigned to operate as a small consultant group appointed by the attorney general and removed from public accountability in the Bureau of Prisons, the institute served as an information clearinghouse and trained law enforcement and social service personnel.
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"By eliminating HEW," the Wisconsin conservative said on the House floor, "we have done serious damage to our efforts to prevent people from becoming delinquents instead of simply seeing them wound up in the juvenile justice system as it is now."23 However reluctant some members of Congress may have been about the decision to treat delinquency as a crime control problem rather than a social welfare concern, the final version of the bill reflected the ideas of an ever-growing consensus of policy makers, law enforcement officials, and scholars that the remnants of the War on Poverty had worsened the crime problem, that Black youth were responsible for the majority of the nation's crime, and that the focus on rehabilitation and prevention in previous delinquency programs had been misguided.24 The shift in control of anti-delinquency programs from Health, Education, and Welfare to the Department of Justice vastly enhanced the power and influence of the latter. OJJDP was charged with disbursing $600 million in block grants to the states -- a striking increase over the 23 Hearings before the Subcommittee on Equal Opportunities of the Committee on Educa tion and Labor, House of Representatives, 93rd Cong., 2nd sess., on HR 6265 and HR 9298, held in Los Angeles, March 29, and Washington, DC, April 21, May 1, 2, 8, and 21, 1974, 434; see Hinton (2017)
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Social service and law enforcement authorities had few options outside of processing young residents through the criminal justice system. Indeed, the formal law enforcement system for young offenders that Congress designed in 1974 resulted in more Black and Latino youth 25 This amounts to roughly $850 million in today's dollars (Juvenile Justice and Delinquency Prevention Act of 1974)
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that was established in Title III of the 1974 legislation illustrates the way the policy exacerbated racial inequities in the criminal justice system. The RYP created local centers that provided runaway youths shelter and counseling while allowing them freedom of movement and, often, the opportunity to remain in school.
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The Department of Justice and similarly situated federal agencies with charges to support justice-involved populations should use their bully pulpit to disseminate findings about evidence-based programs that work to reduce racial and ethnic disparities, promote model jurisdictions implementing effective reforms, and support innovative solutions that could be tested, evaluated, and scaled. In doing so, they could emphasize that the pursuit of public safety requires addressing racial and ethnic disparities throughout the criminal justice system.
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With that need in mind, in this chapter we outline opportunities for building a data infrastructure that promotes integration across the criminal justice system and linkages with non-criminal justice data sources to better assess and support efforts to reduce racial inequalities. The chapter also highlights key areas where future research is needed to better understand racial and ethnic disparities in the criminal justice system and to evaluate promising policies and programs for reducing inequalities.
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For example, addressing the criminal behavior of an individual experiencing homelessness cannot be solved without integrating data about that individual's situation and needs across employment and education, health and mental health, or substance use sectors. Linking data outside of the criminal justice area has the potential to deepen insight on racial and ethnic inequalities, yet most government authorities are unable to connect such data across public health, substance use treatment, homelessness, public safety, education, and the workforce, among others.
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What has changed, and where? To be sure, such efforts carry serious technical challenges of accurate record linkage and data security, but overcoming these challenges to develop a highly integrated criminal justice data system would provide an important tool for reducing racial inequality.
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While data integration is necessary for understanding the scope of and potential solutions for reducing racial inequalities in the criminal justice system, great care and consideration should be taken to avoid unnecessary surveillance that could be used in harmful ways. Consistent Reporting of Racial and Ethnic Data Further contributing to the difficulty in understanding racial and ethnic disparities in the criminal justice system is the inconsistent way racial and ethnic data are captured.
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The exposure to crime and the criminal justice status of American Indians is generally poorly documented and therefore constitutes an important priority for data collection. Incentives for Improving Data Quality and Transparency Data challenges are present at the federal, state, and local levels.
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