The Politics of Racial Disparity Reform: Racial Inequality and Criminal Justice Policymaking in the States

Abstract

Racial inequalities in criminal justice are pressing problems for policymakers. Prior literature suggests elected officials promulgate punitive, racially disparate criminal justice policies due to partisanship and racial fears, but scholarship has yet to explain how and why elected officials address racial problems in criminal processing. This article introduces the framework of racial disparity reform policymaking. A racial disparity reform is a policy that seeks to reduce distinctions in criminal justice institutions’ treatment of racial groups. Elected officials pursue these policies due to ideological beliefs in civil rights ideals and political interests in appearing to solve social problems. Using an original database of policy enactments, this article first presents the distribution and types of reform measures adopted by elected officials in all 50 states between 1998 and 2011. It then examines social and political explanations for when state legislatures and executives adopt racial disparity reforms. Policy enactment is predicted by worsening problems of racial disproportion in criminal processing, Democratic control of elected branches, and the absence of judicial efforts to improve racial fairness within a state’s criminal justice system. Similar dynamics encourage the development of different measures types within policies. Such ideological and problem-solving explanations for racial disparity reform show a potential for elected officials to forge more racially just criminal justice practices.

Appendix: Coding Process for Racial Disparity Reforms in the States

Enacted legislation and executive orders were identified as racial disparity reforms through a three-step process. First, keyword searches for enacted legislation and executive orders between 1998 and 2011 were completed using the terms “minority,” “race,” “communities of color,” “racial,” “ethnic,” “black,” “African American,” “Hispanic,” “Latino,” “Asian,” “Native American,” “disparate,” “disparity,” “discrimination,” “discriminatory,” “inequality,” “unequal,” “bias,” “overrepresentation,” “disproportion,” and their variants. Searches were completed using one keyword at a time. These keywords broadly fall into two categories: terms describing citizens belonging to minority groups and terms defining problems of racial inequality. Within these terminology sets, keywords were selected to maximize the number of relevant policies targeting racial minority groups (Hochschild et al., 2012; Omi & Winant, 1994) and racial problems commonly identified by policymakers (Blumstein et al., 1983).

Keyword searches were narrowed to 1998 and 2011. Any policy enacted before 1998 or after 2011 was omitted from the sample. Any bill that was not adopted into law was also omitted. Enacted policies that were later reversed are contained in the sample. For example, the North Carolina Racial Justice Act of 2009 remains in the sample even though it was repealed in June 2013 (Associated Press, 2009).

All policies containing these terms were then inspected for their relevance to criminal justice issues. Specifically, the section of the legislation or executive order where the keyword is located must be related to 1) the treatment of racial minorities and 2) any aspect of criminal processing like arrest, judicial procedure, sentencing, incarceration, jailing, youth detention, parole, probation, or policing. To illustrate, the Capital Punishment Reform Study Committee in Illinois was tasked with examining several issues in death sentencing reforms, including whether the revised policies eliminated differences in outcomes related to geography and the race of victim (20 Ill. Comp. Stat. § 3929/2 2003).

At this juncture, policies affecting racial minorities or racial issues in ways that do not relate to criminal justice (e.g. employment regulations, general civil rights commissions, or health disparities task forces) were eliminated from the sample. Policies corresponding to criminal justice issues without explicit regard to race were also excluded. For instance, the statutory requirement for parole agencies in Alaska to generate reports that consider unjustified disparity in the sentencing of prisoners is not included because it does not explicitly consider race (Preparole Reports).

Finally, provisions within policies were then coded using qualitative data analysis software according to the four types of racial disparity reforms (i.e. exploratory, prohibitory, policy-specific, and comprehensive). A policy can possess multiple reform measures, but each reform measure is only classified once as one of the four types according to the definitions set forth above. To illuminate the coding decision process, consider California Penal Code § 13519.4 that concerns racial profiling. The Field Services and Standards for Recruitment and Training (2000) section reads as follows,

• “13519.4. (a) The commission shall develop and disseminate guidelines and training for all law enforcement officers in California as described in subdivision (a) of Section 13510 and who adhere to the standards approved by the commission, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a racially and culturally diverse environment.

• (b) The course of basic training for law enforcement officers shall include adequate instruction on racial and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of cultural awareness and diversity.

• (c) For the purposes of this section the following shall apply:

  • (1) “Disability,” “gender,” “nationality,” “religion,” and “sexual orientation” have the same meaning as in Section 422.55.

  • (2) “Culturally diverse” and “cultural diversity” include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.

  • (3) “Racial” has the same meaning as “race or ethnicity” in Section 422.55.

• (d) The Legislature finds and declares as follows:

  • (1) Racial profiling is a practice that presents a great danger to the fundamental principles of a democratic society. It is abhorrent and cannot be tolerated.

  • (2) Motorists who have been stopped by the police for no reason other than the color of their skin or their apparent nationality or ethnicity are the victims of discriminatory practices.

  • (3) It is the intent of the Legislature in enacting the changes to Section 13519.4 of the Penal Code made by the act that added this subdivision that more than additional training is required to address the pernicious practice of racial profiling and that enactment of this bill is in no way dispositive of the issue of how the state should deal with racial profiling.

  • (4) The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of law enforcement officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.

• (e) “Racial profiling,” for purposes of this section, is the practice of detaining a suspect based on a broad set of criteria which casts suspicion on an entire class of people without any individualized suspicion of the particular person being stopped.

• (f) A law enforcement officer shall not engage in racial profiling.

• (g) Every law enforcement officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training.

• (h) The curriculum shall utilize the Tools for Tolerance for Law Enforcement Professionals framework and shall include and examine the patterns, practices, and protocols that make up racial profiling. This training shall prescribe patterns, practices, and protocols that prevent racial profiling. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial profiling. The course of instruction shall include, but not be limited to, adequate consideration of each of the following subjects:

  • (1) Identification of key indices and perspectives that make up cultural differences among residents in a local community.

  • (2) Negative impact of biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations.

  • (3) The history and the role of the civil rights movement and struggles and their impact on law enforcement.

  • (4) Specific obligations of officers in preventing, reporting, and responding to discriminatory or biased practices by fellow officers.

  • (5) Perspectives of diverse, local constituency groups and experts on particular cultural and police-community relations issues in a local area.

• (i) Once the initial basic training is completed, each law enforcement officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every 5 years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial and cultural trends.

• (j) The Legislative Analyst shall conduct a study of the data being voluntarily collected by those jurisdictions that have instituted a program of data collection with regard to racial profiling, including, but not limited to, the California Highway Patrol, the City of San Jose, and the City of San Diego, both to ascertain the incidence of racial profiling and whether data collection serves to address and prevent such practices, as well as to assess the value and efficacy of the training herein prescribed with respect to preventing local profiling. The Legislative Analyst may prescribe the manner in which the data is to be submitted and may request that police agencies collecting such data submit it in the requested manner. The Legislative Analyst shall provide to the Legislature a report and recommendations with regard to racial profiling by July 1, 2002.”

Three reforms can be identified within this section. First, an exploratory measure is located in part j, whereas “[t]he Legislative Analyst shall conduct a study of the data…” and report to the legislature within 2 years. A prohibitory measure is found in part f, whereas “[a] law enforcement officer shall not engage in racial profiling.” Finally, a policy-specific measure regarding the Commission on Peace Officer Standards and Training’s development of culturally sensitive training course is located in part a and continues to be described in the remaining subsections. Specifically, “[t]he commission shall develop and disseminate guidelines and training for all law enforcement officers in California…[stressing] understanding and respect for racial and cultural differences, and development of effective, noncombative methods of carrying out law enforcement duties in a racially and culturally diverse environment.”