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Race & Justice News: Bail Reform in New Jersey, Maryland, and Illinois

March 13, 2017
State reports reveal cash bail disproportionately impacts poor and minority defendants, Homeland Security expands federal immigration enforcement, and more in our latest Race and Justice News.

Race & Justice News is a monthly electronic newsletter produced by The Sentencing Project. To receive the newsletter in your inbox, sign up here.

Nine Black Women Elected To Circuit and District Court in Alabama

Nine black women were elected as circuit and district judges in Jefferson County, Alabama this November. In an interview with New York Magazine, eight of these judges discussed the importance of their roles as judges, black women, and how the election will shape their communities. Jefferson County has 39 sitting judges and contains the center of the civil rights movement, Birmingham.


District Judge Shanta Owens of the Criminal Division explained, “There are just different experiences as a young African-American woman that I will bring to [my position].” Judge Javan Patton, of the Civil Circuit Court, said “people need to see African-American women doing this and they need to see us doing it in the South.” Their election preceded Governor Robert Bentley’s 2017 State of the State Address in which he stated “if Alabamians can put man on the moon… we can build new prisons.”

Black Federal District Judges’ Verdicts More Frequently Overturned

Black federal district judges are overturned on appeal more often than white district judges, according to Maya Sen’s “Is Justice Really Blind? Race and Reversal in US Courts,” published in the Journal of Legal Studies in 2015. Sen examined verdicts by over 1,000 judges and their corresponding appeal and reversal rates on cases decided between 2000 and 2012. The reversal rate gap persists even after taking into consideration previous judicial and professional experience, educational background, qualification ratings by the American Bar Association, and variations in appellate panel compositions. Sen writes, “If blacks were reversed at whites’ comparably lower reversal rates, some 2,800 cases authored by black judges would have been upheld on appeal over the last 12 years.”

Bail Reform in New Jersey, Maryland, and Illinois

New Jersey’s new bail system, which drastically reduces the use of cash bail, went into effect this January, reports The New York Times. Approved by voters in 2014, the new system involves a judicial assessment of defendants’ flight risk and threat to public safety in deciding whether to detain them before trial. In January, judges set bail only three times in the 3,382 cases that were processed statewide. In addition, 283 defendants were held without bail because of their risk level. In contrast, a 2013 study found that 39% of the jail population was in custody solely due to their inability to post bail. According to judicial officials, “The overhaul was driven by a desire to address one of the ways in which the nation’s criminal justice system tends to fall hardest on poor and minority defendants.” The state’s bail bond agents continue to resist this reform by highlighting the release of individuals that they characterize as dangerous.

Court of Appeals recently issued a new rule to move away from cash bail by instructing judges and court commissioners to look for alternative ways to insure that individuals will show up for trial. Last November, the Maryland Office of the Public Defender released a report revealing that money bail disproportionately impacts low-income black defendants, and in October Attorney General Brian Frosh warned courts that excessively high bail was likely unconstitutional. Cherise Fanno Burdeen of the Pretrial Justice Institute adds: “It’s now up to the state legislature to pursue comprehensive reforms of the state’s pretrial system and move away from money bail towards [what] we know works: evidence-backed pretrial risk assessment and supervision.”

Illinois lawmakers have recently introduced legislation that would abolish cash bail by allowing individuals charged with nonviolent crimes to be released until their court date, and giving judges discretion to choose detention or electronic monitoring for those accused of violent crimes.

Will Oregon Lawmakers Finally Tackle Racial Bias?

A recent Investigate West article suggests Oregon’s legislature may finally have the momentum to address the racial disparities in its criminal justice system. In 1994, a task force led by the Oregon Supreme Court produced a report and developed 72 recommendations for reducing racial disparities. The report found that people of color were more likely to be arrested, charged, convicted, and imprisoned, but less likely to be released on bail or placed on probation. Of the package of bills introduced to the 1995 Legislature, only two were approved—one prohibiting juror selection based on race, and the other prohibiting racially prejudiced citizens from serving on a jury. All the other bills failed, including mandatory training of judges and lawyers on implicit bias.

The state’s approach to addressing racial disparity has evolved over the past two decades; many judges and lawyers have voluntarily attended implicit bias training. In 2013, Oregon passed racial impact statement legislation, which provided a process for formally requesting a racial impact statement when considering criminal justice and child welfare legislations. The years of research, reports, task forces, and hearings have helped to build momentum, explained Oregon Attorney General Ellen Rosenblum, who added: “I feel like we’re at a real point where we can actually get something on the books.”

Expanding Federal Immigration Enforcement

In early February, U.S. Immigration and Customs Enforcement (ICE) arrested 680 undocumented immigrants throughout the country. While the Department of Homeland Security (DHS), which overseas ICE, said that about 75% of those arrested were “criminal aliens,” they also noted that this term includes anyone who has entered the United States illegally or overstayed or violated the terms of a visa. An estimated 11 million people in the United States fit that description. The potential deportation of undocumented immigrants with no convictions sent a wave of shock and fear through immigrant communities nationwide.

President Donald Trump has increased the scope of immigration law enforcement, allowing those with minor offenses or no convictions at all to be detained and deported. During President Barack Obama’s first term, deportation targets included those convicted of minor offenses such as shoplifting but this policy was later changed to focus on individuals convicted of serious crimes, terrorism suspects, and those who had recently arrived. The New York Times explains, “By the end of President Barack Obama’s second term, around 90% of the country’s 11 million undocumented immigrants were not a priority for deportation.”

More recently, DHS released two memos which detailed plans to publicize crimes by undocumented immigrants, remove privacy protections for such immigrants, enlist police officers as enforcers, create new detention facilities, discourage asylum seekers, and speed up deportations.

Persistent Racial Disparities in New Jersey’s Youth Commitments

A report by the New Jersey Institute of Social Justice reveals that although the number of youth commitments has declined, significant racial disparities persist, reports the NJ Spotlight. Though the number of young people committed to a state juvenile facility has dropped to under 300, 73% of this population is black, according to “Bring Our Children Home: Ain’t I a Child?” Though there is little difference between rates of criminal activity, black youth are 24 times more likely to be committed to a secure juvenile facility than their white counterparts. The report’s recommendations include redirecting youth to community-based diversion and incarceration alternatives programs that are cost-effective and contribute to reducing recidivism.

Using Restorative Justice to Reform School Discipline in Syracuse

The Syracuse School District is using restorative justice practices to reduce suspensions, expulsions, and racial disparities in school discipline, according to The Crime Report. Students in this district are almost six times as likely to live in poverty as students in neighboring districts, and Syracuse’s communities of color are roughly three times more likely to live in poverty than the city’s white residents. After the Attorney General’s office investigated racial disparities in student discipline, the school district agreed to a plan requiring implicit bias and cultural competency training, and restructuring of the code of conduct to include restorative practices.

Restorative justice practices focus on community-building and conflict resolution instead of punishment. Under the new plan, the proportion of referrals that are punitive fell from 58% to 35% between 2014 and 2016. However, black students are still disproportionately suspended. School administrators are hopeful that more training will reduce this disparity.

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