Racial Fairness Gaining Ground in the Justice System

Nearly a million African-Americans are incarcerated in prisons and jails, and a black male born today has a one-in-three chance of going to prison in his lifetime, if current trends continue. People of good will disagree about the causes of these dramatic figures. Competing explanations include high rates of involvement in crime, differential rates of prosecution through the "war on drugs," racial profiling and inadequate family support. In fact, there is a good deal of documentation to support each of these contentions as at least a part of the explanation for the disparity.

While the numbers are distressing, the good news is that there are growing efforts among policymakers at the federal and state level to provide constructive approaches to sort out the causes and address them.

Sens. Joseph R. Biden Jr., a Delaware Democrat, and Arlen Specter, a Pennsylvania Republican, have just introduced the bipartisan Justice Integrity Act, which aims to address the important issue of unwarranted disparity within the federal criminal justice system.

Suppose that federal data indicate that African-Americans represent 40 percent of the people incarcerated for robbery, considerably higher than their 12 percent share of the overall population. But if African-Americans are also 40 percent of those arrested for robbery, the sentencing process is not necessarily introducing any bias into the process, and we may need to look at socioeconomic variables to understand where these rates of imprisonment come from.

Conversely, if African-Americans represent 40 percent of the people arrested for a drug offense, a figure considerably higher than the proportion of drug users or sellers who are black, there may be some conscious or unconscious bias involved in policing or prosecution that creates these unwarranted disparities.

The new legislation would establish pilot programs in 10 federal districts to create local advisory groups charged with collecting and analyzing racial and ethnic data on charging, plea negotiations, sentencing recommendations and other factors. By bringing together criminal justice and community leadership, the process would provide the opportunity to enhance the fairness and the perception of fairness within the justice system.

That proposal comes at a moment of opportunity and progress in advancing greater fairness in the justice system. For over 20 years, the excessive mandatory penalties for federal crack cocaine offenses have been the key flashpoint in discussions of racial disparity. African-Americans constitute 80 percent of the population serving time in federal prison for crack cocaine offenses, despite the fact that two-thirds of users of crack cocaine are white or Hispanic. In 2007, the U.S. Sentencing Commission lowered its sentencing guidelines for crack cocaine offenses in part because of concern that the significant racial disparity created by the sentences was unjustified.

At the state level, there is increasing momentum to address issues of fairness as well. Republican Gov. M. Jodi Rell of Connecticut and Democratic Gov. Chet Culver of Iowa signed bills this year requiring the preparation of racial impact statements for proposed new sentencing legislation. Similar to fiscal or environmental impact statements, these measures would allow policymakers to assess any unwarranted disparities in proposed sentencing law prior to adoption of the new policy. In contrast to the experience with the crack cocaine penalties adopted in the mid-1980s, this would encourage an early discussion of the dynamics of race and justice, rather than waiting until after the legislation has been put into effect.

Racial disparities in the use of imprisonment should be of concern to all Americans. While incarceration is clearly an appropriate punishment option for people convicted of a crime, its ripple effects are substantial.