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Racial Impact Statements: An Effort to Eliminate Legal Racism

Racial Impact Statements: An Effort to Eliminate Legal Racism

by Gary Hunter

Barack Obama’s election to the White House has many citizens convinced our country is closing its racial divide. Perhaps we are. But the disproportionate number of black Americans that fill our nation’s prisons testifies to the fact that we still have a long way to go.

Marc Maur, Executive Director to The Sentencing Project and author of Race to Incarcerate explains in his latest thesis why the incorporation of racial impact statements prior to the passage of prison legislation would be an effective tool in reducing racist sentencing practices while simultaneously improving the entire legal process.

From arrest to parole law, enforcement legislation has both a direct and collateral effect on all citizens. Yet, in certain instances the “war on drugs” has effectively become a war on African-Americans. Michael Tonry, author of Malign Neglect - Race, Crime and Punishment in America, writes that “[a]lthough disadvantaged young people of all races and ethnicities have been affected by the drug wars, the greatest attention has been on Hispanics and blacks,” which has “forseeably and unnecessarily blighted the lives of hundreds of thousands of young disadvantaged black Americans and undermined decades of effort to improve the life chances of members of the urban black underclass.”

The use of impact statements to steer legislation is not a new idea. Environmentalists have for years used impact statements to compare cost versus effectiveness of proposed legislation. Racial Impact Statements would have the positive social and financial effect of helping legislators more accurately determine whether money would be better spent on social services as opposed to ineffective incarceration.

One obvious instance where racial impact statements would have been advantageous occurred after the tragic death of University of Maryland basketball star Len Bias in 1986. Bias’s death awakened Americans to the existence of crack cocaine.

On the very evening when Bias had been the number two pick of the Boston Celtics he died of an overdose while celebrating his selection. Initial reports said that he died of a new and insidious drug called crack cocaine. The knee-jerk reaction of federal legislators, led by Democrats Tip O’Neil and John Kerry, was to enact harsh prison laws for the possession and distribution of crack cocaine. Congress established a mandatory minimum of five years in prison for the possession or sale of five grams of crack as opposed to the same five year minimum for the sale possession of 500 grams of powder cocaine.

This legislation was guided by myths surrounding the ability of crack to immediately addict its users and the uncorroborated allegations of high rates of violence attributed to dealing the drug. Not only did scientific evidence debunk both myths; an autopsy eventually established that Bias actually died from freebasing powder cocaine and not from smoking crack.

The use of a racial impact statement in this instance would have derailed two tragic outcomes. First, it would have prevented opportunistic elegislators from too quickly passing laws that unfairly target the black community. Of the 4,000 defendants incarcerated annually on crack charges 80% are black. Second, data from a 1997 survey shows that blacks as a whole would have avoided over 21,000 years in prison from a fair assessment prior to passing crack cocaine laws.

Crack laws present just one example. Mauer presents abundant statistical data to confirm that the use of racial impact statements would also benefit a number of other socially problematic areas.

The advantages of racial impact statements are already being touted by the American Bar Association’s Justice Kennedy Commission which is calling for legislators to “propose legislative alternatives intended to eliminate predicted racial and ethnic disparity at each stage of the criminal justice process.”

Oregon’s legislature has proposed a study of “racial and ethnic impact statements that assess impact [sic] of prison-related legislation...on racial and ethnic profile of prison populations.”

As Mauer points out, almost all states have both the database and mechanisms already in place to develop racial impact statements. Sentencing commissions and DOCs are two such resources.

While the racist effect of thoughtless drug legislation is most likely unintentional, its socially crippling consequences are alarmingly real. Hopefully, as society presently relishes the noble strides it has made in the political arena it will continue to demand equally egalitarian efficiency from its elected officials. Because the truth is that from prison cells to pocketbooks, bad laws adversely affect everyone.

Source: Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities

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