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Race & Justice News: Challenging Racially Homogeneous Juries in Tennessee and Kentucky

May 06, 2016
Lack of racial diversity on jury panels challenged in Tennessee and Kentucky, Obama Administration "bans the box," 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.

Obama Administration “Bans the Box” for Many Federal Jobs

As part of National Reentry Week, the Obama Administration is instituting a “ban the box” policy for many federal jobs. The Office of Personnel Management has published a proposed rule to delay a criminal background check until after federal employers have issued a conditional offer of employment to an applicant. The rule would not require federal contractors to adopt the policy, as requested by activists and some lawmakers. Obama senior adviser Valerie Jarrett explained that the president sees federal legislation as the best approach to ban the box for federal contractors, reports BuzzFeed.

The proposed rule expands and cements changes that some agencies have made since a presidential initiative in 2015. It would apply only to the “competitive” service, which represents about half of the 200,000 federal hires made in 2015. “Excepted” service jobs—which relate to intelligence, national security, and law enforcement—are exempted and other agencies can request exemptions for “legitimate, job/position-related reasons.” Because of racial disparities in the criminal justice system, African Americans and Latinos are disproportionately impacted by employment barriers for people with criminal records.

Federal Guidance on Criminal Background Checks in Housing

The Department of Housing and Urban Development (HUD) has published a guidance to help landlords and property managers ensure that their use of applicants’ criminal history information does not violate housing-discrimination laws. The Fair Housing Act prohibits both unintentional and intentional discrimination on the basis of race and other traits. Given the documented racial disparities in arrests and convictions, housing providers can only use criminal history information to turn away tenants if they have a “substantial, legitimate, nondiscriminatory interest,” such as ensuring resident safety and protecting property. “Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient.”

HUD’s guidance explains that arrest histories are not sound bases for excluding tenants and that blanket prohibitions on people with criminal records are also inadequate as they do not consider the “nature, severity, and recency of criminal conduct.” The Wall Street Journal reports that criminal background checks have proliferated in recent months in a tight housing market and as technology has eased access to this information.

Challenging Racially Homogenous Juries in Tennessee and Kentucky

Louisville, Kentucky Circuit Court Judge Olu Stevens was suspended for misconduct charges involving his dismissal of a nearly all-white panel of prospective jurors. Days later, the West Louisville Urban Coalition held a rally to support the judge and to bring attention to the need for more diversity among juries. The Courier-Journal reports that information on race is only collected voluntarily and at only some steps of the jury selection process. Judge Stevens agreed to dismiss the jury panel of 41—which included just three African Americans—after a black defendant’s lawyers argued that the panel wasn’t representative of the community’s demographics. Prosecutors objected and brought the case to the state Court of Appeals. The Court ruled that the state’s lack of racial data from which jury pools are drawn, “while unfortunate, does not amount to a deliberate attempt to exclude any particular group,” and ordered Stevens to stop dismissing juries. A related case is pending in the Kentucky Supreme Court.

In Nashville, Tennessee, a trial was recently delayed after a juror “stood up and told the judge he did not think it was right for two black men to face a jury with no black members on it.” The jury panel included people of color, but no African Americans. Judge Cheryl Blackburn dismissed the jury because their lunchtime discussion about their lack of diversity violated her instructions that they not discuss the case before hearing all the proof and arguments, according to the Assistant District Attorney. Judge Blackburn had previously rejected the defense’s claim that prosecutors were illegally striking jurors based on race.

Mandatory Minimum Sentences Contribute to Iowa’s High Black Incarceration Rate

African Americans make up only three percent of Iowa’s population but represent over one-third of people with violent convictions serving mandatory minimum sentences, reports Kathy Bolton for the Des Moines Register. Many of these individuals were given harsh mandatory sentences for robbery: 25 years for first-degree and 10 years for second-degree robbery, and a requirement that they complete 70% of their sentences before becoming eligible for parole. These laws contribute to Iowa having one of the highest black incarceration rates in the country.

“Iowa is the only state in the Midwest that has established mandatory minimum sentences for robbery-related offenses,” Bolton notes. Iowa’s Public Safety Advisory Board has repeatedly asked the legislature to ease these harsh sentences. This year, the Iowa House approved a bill that would increase judicial sentencing discretion for second-degree robbery.

An Intersectional Study of Federal Sentencing Outcomes

Jeffrey S. Nowacki’s study of several race/ethnicity–sex–age combinations finds that while young black men receive the most punitive federal sentences, among young women, Hispanics receive the harshest sentences. Young Hispanic women (aged 30 years or younger) fare worse than young black women potentially because of language barriers, lack of social networks, and greater reluctance to cooperate with prosecutors. Published in Criminology & Criminal Justice, Nowacki’s analysis controls for legally relevant variables such as criminal history and offense severity.

Blacks Have Lowest Rate of Drug-Use Disorder Among Formerly Detained Youth

Youth of color are significantly less likely than white youth to have substance-use disorders during the 12 years after they are released from juvenile detention, according to a study published in the American Journal of Public Health. For much of this period, African Americans had the lowest rates of these disorders, and in some cases dramatically so. For example, non-Hispanic whites had a 32 times greater chance of cocaine-use disorders than African Americans.

R&J youth substancea abuse

Leah J. Welty and colleagues’ paper, “Health Disparities in Drug- and Alcohol-Use Disorders: A 12-Year Longitudinal Study of Youths After Detention,” analyzed a random sample of 1,829 youths who were in detention in Chicago between 1995 and 1998. The researchers conducted several follow-up interviews with the youths over 12 years and examined sex differences as well. “Our findings add to the growing debate about how the ‘War on Drugs’ has disproportionately affected African American youths and young adults.”

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