Well-documented racial and ethnic disparities (disparities) exist at nearly every stage of the United States criminal legal system, including arrests, bail decisions, pretrial detention, and incarceration. In 2021, Black people were imprisoned in state prisons at a rate nearly five times that of white people nationally, with the disparity greater than nine to one in seven states (California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin).
One of the Biden administration’s first steps was to sign an executive order that seeks to advance racial equity and includes efforts to reduce racial and ethnic disparities in the criminal legal system. To advance equity, reform efforts must not only aim to reduce the criminal legal system’s footprint but also to address these disparities. Data suggest that simply reducing the size of the justice-involved population can sometimes exacerbate disparities, as was seen with the adult jail and incarcerated youth population reduction efforts during the pandemic.
The Justice Reinvestment Initiative (JRI) – a data-driven process used by more than 35 states to manage criminal justice populations and invest savings in strategies to reduce recidivism and improve public safety – can present an opportunity for states to identify and address disparities in their criminal legal systems, though this has often not been an explicit objective of states undertaking JRI.
Below, I pose key questions that local stakeholders can “ask” of their data during both phases of the JRI process—data analysis and development and codification of policy and practice changes during the first phase, and policy implementation and monitoring during the second phase—to identify and address disparities. I also briefly highlight the experiences of select JRI states to illustrate how policymakers have used the JRI process to advance strategies to address racial and ethnic disparities in their criminal legal system.
1. How can states understand and address disparities during the JRI design and planning phase? (Phase I)
States can include representatives from many racial and ethnic groups as members of JRI workgroups as part of broader efforts to seek input from communities most affected by disparities. In Alaska, state legislation required the Alaska Criminal Justice Commission, which led the development of the state’s JRI reforms, to have representatives from the state’s Native community. The commission also sought input on the JRI process from tribal courts and councils.
State stakeholders can also identify and address disparities by conducting in-depth analyses of data disaggregated by race and ethnicity. The Rhode Island Justice Reinvestment Working Group based its recommendations on analyses of racial and ethnic disparities in the state’s probation population that had found 1 in 6 Black men in the state were on probation in 2014 compared with 1 in 20 adult men statewide. These analyses led to several suggested reforms, including more consistency in how the state collected race and ethnicity data.
2. How can states be intentional about incorporating an analysis of race and ethnicity and advancing strategies to address disparities through JRI legislation? (Phase I)
States can adjust sentencing guidelines for offenses that analyses show are major contributors to disparities in their systems. Through JRI, Maryland eliminated the sentencing disparity between powder and crack cocaine, as well as mandatory minimum sentences for certain drug offenses, based on analyses that highlighted these as major contributors to overall disparities.
States can also legislatively mandate data collection and regular publication of data and analysis disaggregated by race and ethnicity to track JRI reforms’ impact, as was done in Arkansas (PDF), Massachusetts, and Maryland(PDF).
3. How can the JRI process aim to address disparities relating to a specific racial or ethnic group?(Phase II)
Throughout JRI reform implementation, states can establish programs designed to address the identified needs of specific racial and ethnic groups. South Dakota used funding set aside in its JRI legislation to create a separate pilot parole program for its Native American caseload, which was designed in collaboration with Native American community members and which staffed parole officers from the community.
4. How can states track data on the effects of the JRI reforms process on disparities? (Phase II)
States can collect and analyze data to track JRI’s effect on disparities in their criminal legal system (like in Montana) and prepare racial impact statements, as was done in Oregon (PDF), where state lawmakers directed state agencies to examine “whether [grant] funds distributed under JRI are or are not effectively serving historically underserved communities”.
In addition to reducing the size of the criminal legal system’s footprint, federal and state governments should actively be working to reduce the large racial and ethnic disparities in the system. JRI’s data-driven reform process offers a framework to identify the drivers of disparities and opportunities to address them and a strategy for ongoing monitoring. States already using the JRI process to this effect, coupled with the questions posed here, can offer more states a starting point and a path forward.
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