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Race & Justice News: Biased Criminalization of Gun Possession

February 25, 2022
Momentum is building for racial impact statement analysis of legislation in more states, public defenders oppose biased criminalization of gun possession, and more in the latest Race & Justice News.

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


Building Momentum for Racial Impact Statement Analysis of Legislation

The Sentencing Project’s Nicole Porter submitted testimony in support of Nebraska’s racial impact statement bill, LB 814, proposing the creation of racial impact statements for all prospective laws regarding the state’s criminal legal and youth justice systems. Racial impact statements, predict the effects of policy changes on people of different races and ethnicities. With the goal of detecting unforeseen policy ramifications, the practice allows policymakers to modify legislation that could exacerbate racial disparities prior to implementation. In 2008, Iowa became the first state to pass a racial impact statement measure; since then eight states—Colorado, Connecticut, Florida, Oregon, Maine, Maryland, New Jersey and Virginia—have adopted similar mechanisms for evaluating the racial impacts of policies.

The Sentencing Project has also endorsed California’s AB 256, the Racial Justice for All Act, which would make retroactive the protections provided in 2020’s AB 2542, a first-of-its-kind law in the state prohibiting the use of race, ethnicity, or national origin in sentencing and convictions. Porter attended a virtual lobby day which included a meeting with the Speaker of the Assembly in support of AB 256, foregrounding The Sentencing Project’s Color of Justice report. Five other states—Kentucky, New York, Pennsylvania, Vermont, and Mississippi—have pending racial impact statement legislation or resolutions this session. To maximize the impact of these reforms, The Sentencing Project recommends that states also retroactively examine all existing criminal laws that disproportionately impact Black and Latinx communities.

Gun Regulation

Public Defenders Oppose Biased Criminalization of Gun Possession

“Laws criminalizing gun possession not only devastate Black and brown communities; they also fail to achieve one of their primary objectives: reducing the supply of guns on our streets,” writes the chief public defender of Cook County Illinois, Sharone Mitchell Jr., in The Nation. Mitchell supports the Bronx Defenders, Brooklyn Defender Services, and several other New York public defender offices whose amicus brief urges the Supreme Court to strike down New York’s concealed carry license law in New York State Rifle and Pistol Association v. Kevin J. Bruen. Progressive organizations such as the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund support preserving the law.

Lawmakers have historically denied Second Amendment rights to African Americans. In 2020, Black New Yorkers made up only 18% of the state’s population, but 78% of the state’s felony gun possession cases, according to the defenders’ brief. In contrast, white New Yorkers made up 70% of the total population and 7% of such cases. Mitchell recommends stemming the flow and use of guns by repealing gun industry immunity, educating gun owners on safe usage and storage, implementing targeted buybacks, prohibiting the manufacturing of assault weapons, and investing in gun violence prevention and restorative justice initiatives. Relatedly, Marcus Amelkin, an attorney with Federal Defenders of New York, opposes transferring gun possession cases from the state to the federal system because doing so disproportionately punishes “poor people of color and undermines important New York constitutional and legal protections.”


Professional Assessments Drive Racial Disparities in Lifer Parole Outcomes

Black parole candidates were only half as likely to be granted parole as their white counterparts, write University of Massachusetts Assistant Professor Kathryne Young and Director of Research Methods Programs Jessica Pearlman, in a Law & Social Inquiry study on men serving life sentences in California. Their research analyzed nearly 700 randomly sampled California lifer parole hearings between 2007 and 2010. After controlling for differences in factors such as age, commitment offense, criminal history, and educational attainment, they found that highly subjective professional assessments accounted for nearly half of the disparity. Compared to white and Latinx candidates, Black candidates were more likely to have disciplinary citations and have their parole grants opposed by prosecutors, and less likely to receive low-risk scores in their psychological evaluations.

The Sentencing Project has shown that nearly two thirds of people serving life sentences nationwide are people of color, with 46% Black and 16% Latinx. To reduce racial disparities in lifer parole outcomes, Young and Pearlman recommend reducing reliance on professional evaluations and educating parole commissioners on the relationship between racial and appearance bias and perceptions of culpability, so they can mitigate the impact of bias in prosecutor input, psychological evaluations, and disciplinary records.


Implicit Racial Bias in Forensic Testimony

Racial bias in forensic analysis and testimony can lead to wrongful convictions that disproportionately impact people of color, write Forensic Justice Project Executive Director Janis Puracel and Lewis and Clark Law School Professor Aliza Kaplan in Criminal Law Bulletin. Forensic analysis is often viewed as a neutral and objective science, but it is biased towards confirming guilt and is highly susceptible to racial bias. Practices such as pattern matching—analyzing weapons, hair, bloodstains, and footprints—have been criticized for their lack of scientific validation and objective standards. When examiners are given irrelevant contextual information, such as the name, race, and background of a suspect, their findings can become “result-driven.” Kaplan and Puracel note that “faulty or misleading forensic evidence has contributed to nearly half of the known DNA exonerations and at least one-quarter of all exonerations to date.”

The National Registry of Exonerations includes a number of cases in which forensic testimony was the main source of evidence upon which people of color were wrongfully convicted, confirming the urgent need to mitigate implicit racial bias in forensics. Puracel and Kaplan recommend creating objective standards and procedures within forensic methods, shifting from law enforcement-led to independent labs, cross-examining forensic examiners on implicit bias, and mandating root-cause analysis in forensic labs to address systemic precursors to crime, understand how racial bias impacts results, and develop more objective, holistic systems of analysis.

Arizona Supreme Court Eliminates Peremptory Challenges in Jury Selection

Arizona has become the first state to eliminate peremptory challenges in jury selection—as decided by the state’s Supreme Court. Attorneys use peremptory challenges to reject prospective jurors without explanation, and prosecutors disproportionately use them against prospective jurors of color. A 2012 study of North Carolina death penalty cases found that Black potential jurors were rejected at over twice the rate of others.

The racial composition of juries affects conviction rates. All-white jury pools in Florida, for example, convicted Black defendants 16% more often than white defendants, according to a study in the Quarterly Journal of Economics. Proponents of the Arizona court’s decision believe that the change will alleviate racial disparities in incarceration. The Sentencing Project has shown that Black Arizonans are imprisoned at five times the rate of whites, and Latinx people at 1.7 times the rate of whites.

Other states have also reassessed the practice. In 2018, the Washington Supreme Court adopted a rule expanding the prohibition of race-based peremptory challenges to include “implicit, institutional, and unconscious” bias, in addition to purposeful discrimination. California and Connecticut have also taken steps towards addressing implicit racial bias in jury selection. Peremptory challenges are just one obstacle to achieving racially diverse juries: other restrictions include the use of DMV records to create jury pools, which advantages people with residential stability; excluding people with felony convictions; and juror pay systems which exclude those who cannot afford to miss work.

Racial Disparities in Prosecutorial Diversion

Prosecutors in Chicago, Jacksonville, Milwaukee, and Tampa have been less likely to divert Black and Latinx defendants than their white counterparts, according to a study by Florida International University (FIU) and Loyola University Chicago as part of the Prosecutorial Performance Indicators project. In all four cities, prosecutors were least likely to divert Black individuals facing felony charges (dismissing charges upon their meeting certain requirements), compared to Latinx and white individuals between 2017 and 2019. In contrast, in some cities, prosecutors were more likely to divert Black individuals than others for misdemeanor charges. These disparities persisted even after taking into account factors such as offense severity, criminal history, and age.

Racial and ethnic disparities in diversion result from prosecutorial bias, eligibility criteria, and resource constraints that disadvantage people of color. In a related study published in Criminology and covered by the Florida-Times Union, Rebecca Richardson Dunlea, one of the FIU study authors, explains that line prosecutors broadly embrace a colorblind approach to their work, which “perpetuates inaction in the face of racial disparities.” To promote equity in diversion, the FIU study authors recommend removing prior arrests as a barrier to diversion, increasing the use of case dismissal over both prosecution and diversion, and collecting data and conducting research on diversion eligibility. Dunlea recommends that prosecutors use their discretion and contribute to policies that tackle racial disparities.

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