One in Five: Racial Disparity in Imprisonment — Causes and Remedies
The report examines three causes of racial disparity in imprisonment and presents a series of promising reforms from over 50 jurisdictions across the country that can mitigate their impact.
Related to: Incarceration, Racial Justice, Sentencing Reform
Executive Summary
As noted in the first installment of this One in Five series,1 scholars have declared a “generational shift” in the lifetime likelihood of imprisonment for Black men, from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001.2
The United States experienced a 25% decline in its prison population between 2009, its peak year, and 2021.3 While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.4 But with the prison population in 2021 nearly six times as large as 50 years ago and Black Americans still imprisoned at five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable.5 What’s more, the progress made so far is at risk of stalling or being reversed.
This third installment of the One in Five6 series examines three key causes of racial inequality from within the criminal legal system. While the consequences of these policies and issues continue to perpetuate racial and ethnic disparities, at least 50 jurisdictions around the country—including states, the federal government, and localities—have initiated promising reforms to lessen their impact.
- Laws and policies that appear race-neutral have a disparate racial impact.
Causes: Extreme sentences for violent crimes and reliance on criminal histories as a basis for determining prison sentences are drivers of racial disparities in imprisonment. In addition, the punitive nature of the War on Drugs and the associated sentencing laws that it sprouted, including mandatory minimum sentences, crack-cocaine sentencing disparities, drug-free school zone laws, and felonization of drug possession disproportionately impact Black Americans.
Remedies: Various jurisdictions have reformed laws with disparate racial impact. For example, Washington, DC, allows many incarcerated people who have already served 15 years to petition the courts for resentencing, helping to curb extreme prison terms. Pennsylvania’s sentencing commission has proposed scaling back the impact of criminal histories on sentencing guidelines. The federal government narrowed the crack-cocaine sentencing disparity in 2010 and applied it retroactively in 2018. Alaska, California, Connecticut, Oklahoma, and Utah have reduced prison admissions with de-felonization statutes that downgrade drug possession from a felony to a misdemeanor.
2. Racial bias influences criminal legal practitioners’ use of discretion.
Causes: As discussed in installment two of the One in Five series, communities of color are over-policed through biased traffic stops, pedestrian searches, and drug arrests.7 In addition, prosecutors and judges often treat Black and Latinx people more harshly in their charging and sentencing decisions. Bias also affects the work of juries, correctional officers, and parole boards. Police and prosecutors, via their unions and professional associations, often lobby, litigate, and engage in public advocacy against reforms.
Remedies: Installment two of this series discussed reforms to reduce the footprint of policing. Several jurisdictions have also taken steps to mitigate the impact of bias in discretion throughout the criminal legal process. For example, Arizona is the first state to eliminate peremptory challenges in jury selection, so that prospective jurors cannot be rejected without an explanation. Michigan’s parole board uses evidence-based guidelines to minimize the influence of subjective factors on their decisions. In a growing movement of reform-oriented prosecutors, district attorneys in Los Angeles and Philadelphia are using their discretion to avoid extreme sentences.
3. A financially burdensome and under-resourced criminal legal system puts people with low incomes, who are disproportionately people of color, at a disadvantage.
Causes: Pretrial release often requires cash bail which disadvantages low-income people of color and increases the pressure to take a less favorable plea deal. State indigent defense programs are critically underfunded. In addition, incarcerated individuals struggling with substance use disorders often do not receive the treatment they need, jeopardizing successful reentry. Further, parole and probation supervision imposes scrutiny with few services.
Remedies: Reforms are underway to curb punitive policies that disparately affect people with limited financial resources. Illinois became the first state to end cash bail in 2023, following New Jersey’s major bail overhaul in 2017. District attorneys in jurisdictions including Boston and Manhattan have reduced prosecutions of “crimes of poverty.” Holistic defense models, which provide comprehensive support to individuals and their communities, are available from the Tribal Defense Offices and other communities including Bronx, NY, Oakland, CA, and Houston, TX. New York and California have reduced the footprint of community supervision.
But this progress is under threat. For example, Washington, DC’s Mayor has sought to limit resentencing opportunities under the District’s second look law.8 Drug arrests remain high across the country and Oregon’s struggle implementing its drug-decriminalization program has sparked calls for the policy’s reversal.9 Backlash against reform-oriented prosecutors has led to recalls, litigation, and legislative attacks in California, Georgia, Florida, and Pennsylvania.10 Crime concerns have also fueled misdirected pushback against bail reform in California and New York, and supported a reversion to enforcing “crimes of poverty” in Baltimore.11
Tackling the above noted sources of disparity would not fully eliminate racial inequity in incarceration. Also needed, as discussed in the second installment of this series, are durable investments in communities of color that are disproportionately impacted by serious violent crime, as well as a reduction in the footprint of policing.7 In addition, policymakers will need to tackle a fourth driver of disparity which will be examined in the final installment of this series: Criminal legal policies that exacerbate socioeconomic inequalities.
Introduction
Like an avalanche, racial disparity accumulates as people traverse the criminal legal system. The roots of this disparity precede criminal legal contact: as examined in the second installment of this series, conditions of socioeconomic inequality contribute to higher rates of serious crimes among certain populations of color.7 But the criminal legal system exacerbates this underlying disparity. As a comprehensive scholarly review conducted by the National Academies of Sciences explains:14
Blacks are more likely than whites to be confined awaiting trial (which increases the probability that an incarcerative sentence will be imposed), to receive incarcerative rather than community sentences, and to receive longer sentences. Racial differences found at each stage are typically modest, but their cumulative effect is significant.
This report presents an overarching framework for understanding the sources of disparity from within the criminal legal system. The first two drivers of disparity relate to race: disparate racial impact of laws and policies, and bias that shapes everyday decisions among criminal legal practitioners. The next source of disparity relates to socioeconomic status and its overlap with race and ethnicity: criminal laws, policies, and decisions often disadvantage people with low incomes, who are disproportionately people of color. The final source of disparity, which will be examined in the next installment of this series, is the criminal legal system’s magnification of disadvantage, through laws and policies that push people deeper into poverty and into the margins of society. These reports will both scrutinize these drivers of inequality and present promising reforms from across the country to mitigate their impact.
Three Key Sources of Racial Inequality Within the Criminal Legal System and Select Reforms
Causes of Disparity | Remedies |
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Lengthy and life sentences are disproportionately levied on Black Americans and other people of color. | Legislatures in California and the District of Columbia are providing second look opportunities for individuals serving excessive sentences that are no longer in the interest of justice. |
Ostensibly race-neutral sentencing “enhancements” such as for drug-free school zones and gang affiliations disproportionately impact Black and Latinx individuals. | States are acknowledging the limited effectiveness and negative impact of sentencing “enhancements.” Indiana amended its laws aggravating sentences related to drug-free school zones, California limited “enhancements” for gang affiliation, and Virginia discontinued law enforcement’s use of gang databases. |
Felonization of drug possession and mandatory minimum sentences disproportionately impact Black Americans. | Alaska, California, Connecticut, Oklahoma, and Utah have reduced prison admissions with de-felonization statutes. States and the federal government have repealed or shortened certain mandatory minimum sentences, and created safety valve provisions. |
Causes of Disparity | Remedies |
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Prosecutors disproportionately enforce habitual offender and mandatory minimum sentencing laws against Black individuals and disparately refuse to divert Black and Latinx people, leading to more punitive sentences for people of color. Prosecutors often lobby and litigate against reforms. |
Reform-oriented prosecutors in Los Angeles, Alameda County, CA, and Philadelphia are limiting extreme sentences through their charging decisions and supporting resentencing petitions. Organizations such as Fair and Just Prosecution, For the People, Prosecutors Alliance of California, and Vera’s Motion for Justice are uniting reform-oriented prosecutors and joining forces to support scaling back excessively punitive sentences. |
Correctional officers, parole boards, and probation and parole officers are more strict towards people of color when making disciplinary assessments and parole eligibility. | States including Idaho, Massachusetts, Michigan, and Missouri are implementing evidence-based guidelines for parole evaluations to help eliminate bias. Maryland joined most other states in ending gubernatorial reviews of parole decisions, reducing potential political influences. |
Juries display implicit bias towards defendants of color. | Court systems in Iowa and New York are placing an emphasis on increasing the diversity of jury pools and Arizona, California, and Washington have narrowed peremptory challenges in jury selection. California legislators are also empowering judges to reverse the impact of bias. |
Causes of Disparity | Remedies |
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Criminalizing activities often associated with poverty such as driving without a license, drug use, and prostitution disproportionately impact people of color. | Prosecutors in Baltimore and Boston have reduced the footprint of the criminal legal system by refusing to prosecute “crimes of poverty.” |
Pretrial detention imposes onerous cash bail requirements and often employs inequitable risk assessment tools. | Illinois and Philadelphia have increased pretrial release by eliminating cash bail and using updated risk assessment tools. |
Indigent defense programs are chronically under-resourced, leaving clients with inadequate representation or with no representation at all. | New York and Oregon are increasing funding for public defenders and Oregon is enforcing standards of representation for indigent clients. |
Transitional services and supervision provide insufficient reentry and treatment support and impose overly harsh requirements. | Practitioners in Bronx, NY, Oakland, CA, and in Tribal Defense Offices are helping to expand social services and improve outcomes of justice-involved individuals by engaging in holistic defense practices and narrowing the footprint of onerous probation and parole supervision. |
The next, and final, installment of the One in Five series will explore a fourth source of racial inequality: criminal legal policies that exacerbate socioeconomic inequalities and divert public spending from effective investments in public safety.
Disparate Racial Impact of Ostensibly Race-Neutral Laws and Policies
A. Extreme Sentences and Sentencing “Enhancements” Wield Disparate Racial Consequences
Myriad criminal legal policies that appear to be race-neutral combine with broader socioeconomic patterns to create a disparate racial impact. Policing policies that cast a wide net in neighborhoods and on populations associated with high crime rates disproportionately affect people of color, as examined in the second installment of this series.15 Consequently, people of color are more likely to be arrested even for conduct that they do not engage in at higher rates than whites. This section explains how extreme sentencing and laws that aggravate sentences for certain individuals have a disparate racial impact.
Extreme Sentences
While racial disparities can be found at every sentencing level, they are most pronounced in lengthy and extreme sentences. In 2019, Black Americans represented 14% of the total U.S. population, 33% of the total prison population, and 46% of the prison population who had already served at least 10 years.16
Representation of Black Americans in U.S. and Prison Populations, 2019
Sources: U.S. Census Bureau, 2019 American Community Survey 1-Year Estimates; Carson, E.A. (2020). Prisoners in 2019. Bureau of Justice Statistics; United States Department of Justice, Bureau of Justice Statistics. National Corrections Reporting Program, 1991-2019: Selected Variables. Inter-university Consortium for Political and Social Research [distributor], 2021-07-15.
Life sentences are also disproportionately imposed on Black, Latinx, and other people of color. More than two-thirds of people serving life sentences are people of color.17 Among people serving life without parole sentences, 55% are Black.18 Black Americans also made up one-third of those executed between 1976 and 2022, and are more than 40% of the population on death row.19
Racial disparities in serious criminal offending contribute to these disparities, as does the fact that white Americans’ association of crime with Black and Latinx people bolsters their support for punitive policies.20 The disproportionate imposition of extreme sentences on people of color has led the National Academies of Sciences to recommend “establishing second-look provisions for long sentences…and eliminating the death penalty” as a way to reduce racial disparities in incarceration.21
Sentencing “Enhancements” and Narrow Diversion Policies
Laws designed to more harshly punish certain crime patterns or to divert some people from punishment often have a disparate impact. For example, drug-free school zone laws mandate longer sentences for people caught selling drugs in school zones, such as within 1,000 feet of school property. All 50 states and the District of Columbia have some form of drug-free school zone law. The expansive geographic range of these zones, coupled with high urban density, disproportionately affects residents of urban areas—particularly people of color living in high-poverty areas.22
Similarly, sentencing “enhancements” imposing longer prison terms for gang affiliation disproportionately affect Black and Latinx individuals. There is evidence that police and prosecutors are more likely to label people of color as gang members than whites in similar situations. In California, for example, over 90% of people who received a gang “enhancement” were Black or Latinx in 2020.23
Other sentencing policies also exacerbate disparities. Lawmakers and practitioners often use criminal histories as a basis for requiring pretrial detention, for imposing prison instead of probation sentences, as well as for imposing longer prison sentences, which exacerbates disparities for Black Americans because they are more likely to have criminal records.24 “Three strikes and you’re out” and other habitual offender laws, for example, reflect this pattern.25 In addition, researchers examining sentencing guidelines have noted that Pennsylvania recommends “sometimes months or years more prison time” based on criminal histories and that criminal histories account for half of the racially disparate sentencing recommendations for the same offense in Kansas and Minnesota.26
Programs offering alternatives to incarceration such as diversion programs and problem-solving courts also show the disparate impact of relying on criminal histories. These programs, such as drug, mental health, domestic violence, and veterans treatment courts, disproportionately bar people of color from alternatives to incarceration because they frequently disqualify people facing felony charges and with past convictions.27
B. Revising Laws and Policies With Disparate Racial Impact
Growing public outcry combined with analyses of racial disparities at various stages of the criminal legal system have led lawmakers and criminal legal leaders to identify and mitigate several sources of racial inequity. As discussed in installment two of this series, several jurisdictions have limited police contact by removing police from low-level traffic enforcement, reduced drug arrests, and implemented alternative first responder models.28 As noted below, other reforms are reducing the duration of punishment, revising laws and policies known to produce disparate outcomes, as well as anticipating them going forward—though not without significant pushback.
Moderating Extreme Sentences
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Advancing Second-Look Resentencing and Narrowing “Truth-in-Sentencing”
Lawmakers and prosecutors have begun pursuing reforms that reflect a key fact: ending mass incarceration and tackling its attendant racial disparities requires scaling back long sentences.29 In 2018, California’s legislature empowered district attorneys to request resentencing for people whose continued imprisonment is no longer in the interest of justice.30 Illinois, Minnesota, Oregon, and Washington State also allow prosecutor-initiated resentencing.31 In 2020, Washington, DC, passed the Second Look Amendment Act, expanding prior reforms to allow people who have served 15 years for crimes committed under age 25 to directly petition the courts for a second look at their sentence.32 As part of an ambitious criminal code reform overhaul in 2023, the DC Council unanimously created a universal opportunity for resentencing after 20 years of imprisonment.33 The bill, however, was vetoed by the mayor and, following the Council’s override, blocked by a bipartisan congressional resolution of disapproval signed by President Joseph Biden.34 DC Mayor Muriel Bowser then introduced legislation whose provisions included limiting existing resentencing opportunities.35
In 2014, Mississippi legislators reformed the state’s “truth-in-sentencing” requirement for violent crimes, reducing the proportion of a sentence that individuals with certain violent convictions have to serve before becoming eligible for parole from 85% to 50%.36 Unfortunately Tennessee’s legislature has moved in the opposite direction, expanding its “truth in sentencing” law to require some individuals to serve 100% of their sentences.37
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Abolishing the Death Penalty and Tackling its Biased Application
The Death Penalty Information Center notes that “thirty-seven states—nearly three-quarters of the country—have now abolished the death penalty or not carried out an execution in more than a decade.”38 In 2018, Washington State became the 23rd state to abolish the death penalty after the State Supreme Court unanimously overturned the law due to its racial bias.39
In North Carolina, the Racial Justice Act (RJA) of 2009 enabled commutation of death sentences based on statistical evidence that race impacted sentencing. Four death sentences were commuted to life without parole. But in 2013, the legislature repealed the law. However, in 2020, North Carolina’s Supreme Court blocked the retroactive application of the repeal, protecting the rights of over 100 death-sentenced people to continue litigating RJA claims filed before the repeal.40
Identifying and Eliminating Laws with Disparate Impacts
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Eliminating Drug Sentencing Disparity
Jurisdictions have made an effort to reduce sentencing disparities by repealing laws with racially disparate outcomes. In 2018, Congress passed the First Step Act, which included the retroactive application of the Fair Sentencing Act of 2010’s reduction of the crack and powder cocaine sentencing disparity from 100:1 to 18:1. In 2022, the Department of Justice enacted a charging policy designed to prospectively eliminate this disparity during the Biden administration, to the extent possible absent a statutory change.41 But Congress has yet to pass the EQUAL Act, which would enshrine this reform into law and apply it retroactively.42 States like California, Connecticut, and South Carolina have equalized penalties for crack and powder cocaine.43
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Mitigating “Enhancements”
Indiana amended its drug-free school zone sentencing laws in 2013 after the state’s Supreme Court began reducing harsh sentences imposed under the law and a study revealed its negative impact and limited effectiveness. The reform reduced drug-free zones from 1,000 to 500 feet, eliminated them around public housing complexes and youth program centers, and added a requirement that minors must be reasonably expected to be present when the underlying drug offense occurs. Connecticut, Delaware, Kentucky, Massachusetts, New Jersey, South Carolina, and Tennessee have also amended their laws.44
California lawmakers have limited gang “enhancements” by narrowing which crimes can serve as proof of gang activity.45 A recent bill to increase penalties for gang-related crimes and gang recruitment, Senate Bill 2868, failed to win approval in a Mississippi Senate Committee in part due to concerns about its disparate racial impact—though the state’s existing gang law still stands.46 In 2021, Virginia discontinued its use of GangNet, a database of nearly 8,000 alleged gang members across the region, after advocates voiced concerns about its overrepresentation of people of color.47 Four out of five people in the database were Black or Latinx, raising questions of racial profiling and erroneous gang classifications across the database’s construction.
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Correcting Assessment Tools
Two jurisdictions have re-examined their risk assessment instruments (RAI). A review of the RAI used in pretrial release decisions in Minnesota’s Fourth Judicial District helped reduce sources of racial disparity. Three of the nine indicators in the instrument were removed because they did not predict pretrial offending or failure to appear in court but were correlated with race.48 New York City updated its RAI’s release assessment, which expanded pretrial release and reduced racial disparities in detention.49 RAIs and other evaluatory methods could be further reformed with a reduced reliance on criminal history assessments. Pennsylvania’s sentencing commission has proposed scaling back the impact of criminal histories on sentencing guidelines, and Washington’s commission has considered similar reforms.50
Problem-solving courts offer another way of reducing incarceration, when they are designed to divert prison-bound individuals rather than expose others to the possibility of incarceration. Some courts have begun expanding their eligibility criteria to include people who are determined to be higher risk based on risk-need-responsivity assessments, which often allows for the inclusion of people with criminal histories. In New York, the Manhattan Felony Alternative to Incarceration Court follows this model, ensuring those often rejected by other diversion programs are provided a crucial network of support and services, regardless of their offense or history.51 In California, Proposition 36 mandated drug treatment instead of incarceration for people with up to two drug possession convictions, reducing the racial and ethnic disparities in access to diversion.52
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Requiring Racial Impact Statements
Ensuring future laws do not succumb to similar racial biases requires the widespread use of racial impact statements. Analogous to fiscal impact statements, racial impact statements are a tool for lawmakers to evaluate potential disparities of proposed legislation prior to their adoption and implementation. Nine states—Iowa, Colorado, Connecticut, Florida, Oregon, Maine, Maryland, New Jersey and Virginia—have implemented mechanisms for creating racial impact statements; in addition, the Minnesota Sentencing Guidelines Commission creates racial impact statements and Washington, DC, officials established an equity impact statement policy.53 In Iowa, this process was found to have helped to defeat some bills that would have exacerbated disparities.54 Nicole D. Porter of The Sentencing Project testified in support of such a measure: “To undo the racial and ethnic disparity resulting from decades of punitive policies, however, states should also repeal existing racially biased laws and policies. The impact of equity impact laws will be modest at best if they are only prospective.”55
Moderating Drug Law Enforcement and Sentencing
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Decriminalization, De-felonization, and Departures from Mandatory Minimums
States including Utah, Connecticut, Oklahoma, Alaska, and California have reduced prison admissions with “de-felonization” statutes that downgrade drug possession from a felony to a misdemeanor.56 In California, this reform led to steep declines in drug felony arrest rates, and narrowed racial disparities.49 In Oregon, Measure 110 made the state the first in the nation to decriminalize the possession of controlled substances such as cocaine and heroin. The law also seeks to provide public health resources for those struggling with substance use such as drug treatment, housing assistance, and other behavioral health resources.58
The movement to eliminate, shorten, or bypass mandatory minimum sentences has also helped to moderate criminal penalties disproportionately levied against people of color. Many states have repealed certain mandatory sentencing laws, and, along with the federal government, they have shortened mandatory sentences or created safety valve provisions.59 Jurisdictions around the country have also made sentencing guidelines advisory rather than mandatory, empowering judges to customize sentences to the facts of the case.60
But momentum for these reforms has stalled amidst the growing opioid crisis. Studies confirm drug criminalization as a failed harm reduction strategy, yet recently proposed legislation aims at increasing penalties for drug offenses.61 For example, Congress’s Halt All Lethal Trafficking of Fentanyl (HALT) Act would increase the potential for incarceration and impose mandatory minimums for offenses involving fentanyl and its derivatives.62 Many states have also bolstered their drug-induced homicide laws, broadening criminal liability for fatal overdoses among those who share drugs socially.63 Further, Oregon’s delayed rollout of treatment services as part of Measure 110 has led to calls for the law to be repealed and has elicited concerns from some states considering similar reforms.64
Biased Discretion of Criminal Legal Practitioners
A. Racial Bias Among Criminal Legal Professionals
While most white Americans no longer endorse overt forms of prejudice associated with the era of Jim Crow racism—such as beliefs about the biological inferiority of Black people and support for segregation and discrimination—a nontrivial proportion, including those in law enforcement, continue to express negative cultural stereotypes of Black people, including stereotypes of criminality.65 Implicit racial bias—unintentional and unconscious racial biases that affect decisions and behaviors—is pervasive among white Americans, and affects many people of color as well.66 These biases are held even by people who disavow overt prejudice.
Studies of criminal legal outcomes reveal biased decision making in the work of police officers, prosecutors, judges, correctional officers, parole boards, and other members of the courtroom work group. One factor driving these outcomes is the paucity of people of color in these professional roles. Increasing the representation of communities of color among criminal legal professionals is necessary, but insufficient, for ending injustice. As the Center for Policing Equity has noted, “Law enforcement policies, procedures, and culture…are shaped by White supremacy. Any [police] officer working in such a system risks finding themselves engaged in behavior that is racist in nature, even if they do not, personally, hold racist beliefs or are themselves, Black.”67
Prosecutors
Prosecutors are more likely to seek imprisonment and to secure longer prison sentences for people of color than whites for similar crimes. Federal prosecutors, for example, have been twice as likely to charge African Americans with offenses that carry mandatory minimum sentences than whites with similar offenses and criminal histories.68 Although prosecutorial practices are often opaque at the local level, a growing commitment to transparency, particularly among reform-oriented prosecutors willing to share data with researchers, has provided a better understanding of disparities in many jurisdictions. Charging disparities for similar crimes in Massachusetts have increased the likelihood that Black and Latinx people are directed to Superior Court than whites, where the available sentences are longer than in District Court.69 Prosecutors in Ann Arbor, Michigan, brought more charges and secured more convictions per case for people of color than whites, contributing to their acquiring a “habitual offender” status and facing harsher future treatment in the courts.70 More broadly, state prosecutors have been more likely to charge Black than similarly situated white defendants under habitual offender laws.71 Prosecutors in Chicago, Jacksonville, Milwaukee, and Tampa have also been less likely to divert Black and Latinx individuals from felony charges than their white counterparts, in a pattern that offense severity, criminal history, and age do not explain.72 Black people in Denver have been less likely to benefit from deferred prosecution, and controlling for factors including case severity and age did not eliminate the difference.73 Researchers have also documented disparities in plea deals in jurisdictions such as Wisconsin.74 By allowing this scrutiny of their work, many of these prosecutorial offices are making it possible to craft appropriate reforms to tackle sources of disparity.
Prosecutorial discretion also tends to disadvantage Black individuals both in early stages of criminal legal processing—jury selection—and in later stages involving parole consideration. As Wake Forest Law Professor Ronald Wright has observed about North Carolina, prosecutors’ peremptory challenges, in which they reject prospective jurors without explanation, are “a vehicle for veiled racial bias that results in juries less sympathetic to defendants of color.”75 California prosecutors have also been more likely to oppose parole release for Black versus white and Latinx individuals, after controlling for differences in factors such as age, commitment offense, criminal history, and educational attainment.76 More broadly, line prosecutors often espouse a racially-colorblind approach to their work, which is often contradicted by the results of their work and “perpetuates inaction in the face of racial disparities”77 by failing to mitigate upstream disparities. In addition, some view their punitiveness as beneficial to Black defendants and their communities.78
Further, prosecutors help to write the laws that they enforce. Many district attorney associations lobby, litigate, and engage in public advocacy against reforms that might lessen racial disparities, and oppose the work of reform-oriented prosecutors.79 “American prosecutors are active lobbyists who routinely support making the criminal law harsher,” writes Carissa Byrne Hessick, the Ransdell Distinguished Professor of Law at the University of North Carolina.80 Her team’s 50-state study found that between 2015 and 2018, state and local prosecutors were involved in more than one-quarter of all criminal-justice-related bills and were nearly twice as likely to lobby in favor of a law that increased criminal penalties or added new crimes than for bills that might narrow the scope or punitiveness of criminal law. In 2019, 95% of elected prosecutors were white, with 73% being white men.81
Judges
In 2016, 80% of state trial judges were white, in contrast to 30% of the defendants whose cases they oversaw.82 Moreover, 18 states have no supreme court justices of color.83 Studies that account for differences in crime severity and criminal history show that judges have been more likely to sentence people of color than whites to prison and jail and to give them longer sentences.84 In federal court, the sentencing disparities between noncitizens and citizens are even larger than those across race.85 In research from the Northeast and news coverage of Florida, judges expressed some willingness to mitigate their own biases, but little will to use their discretion to address disparities caused by other criminal legal professionals or by laws with a disparate impact.86
Correctional Officers, Parole Boards, Probation and Parole Officers
Biased reactions by correctional officers to the behaviors of incarcerated individuals leads to racial and ethnic disparities in prison discipline, including in disciplinary write-ups that can lead to placement in solitary confinement87 and later disadvantage people of color in parole hearings.88 There is also evidence of racial bias in discretionary parole decisions after controlling for factors such as rehabilitative efforts, crime of conviction, and disciplinary history.89 Parole boards rely on their own subjective assessments of candidates’ remorse and insight, a decision-making process prone to cultural and racial bias.90 In fact, in light of parole boards’ unwillingness to release qualified individuals, legal experts such as the American Law Institute call for abolishing these entities and relying on judicial authority for release decisions.91 Probation and parole supervision officers are also more likely to conclude that people of color, compared to whites, have violated the terms of their community supervision, triggering their imprisonment.92
Juries and Defense Attorneys
People of color are underrepresented in juries across the country,93 which studies show produces bias in outcomes. Racially diverse juries deliberate longer and more thoroughly than all-white juries, and studies of capital trials have found that all-white juries are more likely than racially diverse juries to sentence individuals to death.94 A study in Florida found that all-white jury pools convicted Black individuals 16% more often than whites.95 Studies of mock jurors have even shown that people also exhibited skin-color bias in how they evaluated evidence: they were more likely to view ambiguous evidence as indication of guilt for darker skinned suspects than for those who were lighter skinned.96 Defense attorneys may also exhibit racial bias in how they triage their heavy caseloads and struggle to gain some disadvantaged clients’ trust.97
B. Addressing Racial Bias Among Criminal Legal Professionals
This section presents reforms to mitigate racial bias in prosecutorial decisions and across the criminal legal system, including jury deliberations and parole hearings.
Reducing Racial Disparities in Prosecutorial Decisions
Three states have addressed the role of peremptory challenges in limiting jury diversity. First, Washington State’s Supreme Court adopted a rule in 2018 expanding the prohibition of race-based peremptory challenges to include “implicit, institutional, and unconscious” bias.98 Two years later, California’s legislature shifted the burden of proof for peremptory challenges: the state now requires attorneys who remove a prospective juror to prove that the cause was not race or other prohibited factors.99 And finally, following a state Supreme Court ruling acknowledging their role in discriminatory jury selection, Arizona became the first state to eliminate peremptory challenges in 2022.100
Prosecutors themselves have begun reforming charging decisions in some jurisdictions. To address the disproportionate prosecution of African Americans in San Francisco, prosecutors in 2019 tested out the process of “race-obscured charging” by concealing race and related information.101 In race-obscured charging, prosecutors have access only to the reason a person was stopped, evidence that the person committed a crime, and witness accounts. They access all other information after making their initial decision. The Yolo County District Attorney followed suit in 2021 and led the California legislature to mandate this reform statewide by 2025.102 But because the decision of whether to bring charges may not be a key site of bias within a particular jurisdiction, prosecutors’ offices should prioritize data collection and transparency so that reforms can be tailored to local drivers of disparities.103
For over a decade, the Vera Institute of Justice has worked with prosecutors around the country to tackle racial disparities. In Milwaukee, Vera found that prior to 2006, prosecutors filed drug paraphernalia charges against a greater proportion of Black than white defendants.104 The prosecutor’s office was able to eliminate these disparities by reviewing data on outcomes, encouraging diversion to treatment or dismissal, and requiring attorneys to consult with supervisors prior to filing such charges.
More recently, Vera’s Motion for Justice initiative has recommended that prosecutors presumptively exclude all consideration of criminal histories from charging, diversion, and sentencing decisions.105 Prosecutors in Los Angeles and Alameda counties revised their offices’ charging practices, amidst strong resistance from the Los Angeles prosecutors’ union and Alameda County staff prosecutors, so as to not trigger California’s three-strikes law.106 Researchers have also found that in Florida, prosecutors’ willingness to offer plea deals below sentencing guidelines for those with prior convictions contributed to Black decarceration outpacing white decarceration.107
Reform-oriented prosecutors are also taking on extreme sentencing more broadly. In 2021, over 50 elected prosecutors joined in a statement issued by the organization Fair and Just Prosecution, calling for office policies “whereby no prosecutor is permitted to seek a lengthy sentence above a certain number of years (for example 15 or 20 years) absent permission from a supervisor or the elected prosecutor.”108 To curb excessive penalties resulting from plea deals, Philadelphia District Attorney Larry Krasner has instructed his office to generally make plea offers below the bottom end of the state’s sentencing guidelines.109
Vera also advises that prosecutors “advocate against state statutes that call for more punishment based on prior criminal contact, such as three strikes sentencing and habitual offender “enhancements,” or that indirectly exacerbate prior criminal contact issues by targeting Black and Latinx people, such as drug-free zone laws.”110 In recent years, some reform-oriented prosecutors have left their state district attorney associations due to their anti-reform positions. In addition, many have partnered to advance reform through organizations such as For the People and Prosecutors Alliance of California.111 For example, over 60 reform-minded elected prosecutors and law enforcement leaders working with Fair and Just Prosecution have called for second look legislation, and several have launched sentence review units.112
Backlash Against Prosecutorial Reforms and Independence
While many cities are electing, and reelecting, reform-oriented prosecutors, these officials face substantial backlash.113 A well-funded campaign led to San Francisco voters recalling District Attorney Chesa Boudin in 2022 and a campaign is underway to remove Alameda, CA DA Pamela Price.114 In Los Angeles in 2022, DA George Gascón survived his second recall attempt in as many years with both efforts failing to gather enough signatures to make it on the ballot. In Philadelphia, the Commonwealth Court of Pennsylvania rejected attempts to impeach District Attorney Larry Krasner, finding no legal basis for his removal.115
Some Republican governors and lawmakers are also taking aim at prosecutors elected in their Democratic-majority cities. In 2023, Georgia Governor Brian Kemp signed a bill to create a commission with the power to oversee, discipline, and remove prosecutors elected in the state. Sherry Boston, DeKalb County DA, said this legislation “is not just an assault on prosecutors. It is an assault on our democracy.”116 In Florida, Governor and 2024 presidential hopeful Ron DeSantis has removed two prosecutors: Andrew Warren was removed in Tampa due to his pledge not to prosecute people who seek or provide abortion or gender transition treatments and Monique Worrell was removed in Orlando for her office’s criminal charging decisions. Lawmakers across the country are similarly attacking prosecutorial independence with efforts disproportionately targeting black female prosecutors.117
Addressing Bias Among Jurors
Several jurisdictions have worked to increase the diversity of jury pools and to mitigate bias among jurors. Federal and New York state courts are transparent about how the racial and ethnic composition of their jury pools compares to their broader communities—a critical step for achieving diverse jury pools.118 The Iowa Supreme Court has ruled that courts must use more rigorous tests to determine whether the racial composition of juries meet the constitutional right to an impartial jury.119
Mock jury studies have shown that increasing the salience of race and making jurors more conscious of their biases reduces biased decision making.120 The practices of U.S. District Court Judge Mark W. Bennett when he was on the bench presents one model. He spent 25 minutes discussing implicit bias with the potential jurors in his court.121 He showed video clips that demonstrate bias in hidden camera situations, gave specific instructions on avoiding bias, and asked jurors to sign a pledge to address their biases. The Iowa Supreme Court now also strongly urges judges to instruct jurors to not be swayed by racial bias in reaching a verdict.122
Empowering Judges to Correct Injustices
In some jurisdictions, judges can now use their discretion to correct racial and ethnic injustices in sentencing. Both California and Utah now also allow people to seek resentencing if they can demonstrate that bias affected them. California’s Racial Justice Act allows people to ask the courts to vacate a conviction or sentence by proving with a preponderance of the evidence that an attorney, police officer, juror, judge, or expert witness exhibited bias or used discriminatory language about their race, ethnicity, or national origin. This includes showing evidence of racial disparities in charges, convictions, or sentences.123 Likewise the Utah Sentencing Commission approved revisions to that state’s sentencing guidelines allowing defendants to argue that racial, ethnic, or other biases—whether conscious or unconscious—can be considered as a mitigating factor.124
Developing Objective Criteria for Parole Release Decisions
To reduce subjective parole release determinations—which are often politicized and laden with bias—states are increasing evidentiary standards for parole boards, creating presumptive parole policies, and developing objective criteria. In 2018, Michigan passed the Objective Parole law, which requires the state’s parole board to adhere to a set of objective, evidence-based guidelines.125 Idaho, Massachusetts, Missouri, and the federal parole system also use a “clear and convincing evidence standard,” which raises the necessary burden of proof for denying parole.126
New York’s legislature, courts, and governor have demanded that the state’s parole board give greater weight to how candidates have changed, to reduce their focus on the underlying offense, and to record their decision-making process.127 In 2021, Maryland joined most other states (with California being among the notable exceptions) in ending gubernatorial reviews of parole decisions for people serving eligible life sentences.128
Finally, New York and North Carolina require their parole boards to publish race, age, and other demographic data related to parole outcomes—a critical component of uprooting disparities.129 Alabama and Alaska also make this information available.130
Ensuring That Criminal Legal Practitioners Are Diverse and Include Impacted Populations
“Agencies enjoying good reputations in the law enforcement profession and in their communities also benefit from larger, more diverse applicant pools,”131 reports Governing, suggesting a virtuous cycle between representation and justice. Increasing the representation of people of color among law enforcement and courtroom professionals requires reforms including improving K-12 civics education, creating mentorship programs for attorneys of color, and increasing outreach efforts to attorneys from diverse backgrounds to pursue judicial careers.132 The Supreme Court’s July 2023 ruling striking down affirmative action in college admissions highlights the urgency in safeguarding these equitable hiring practices and ensuring diversity and representation among criminal legal professionals.133
Formerly incarcerated individuals are also beginning to enter elected office and criminal legal agencies. In 2020, Washington State elected its first formerly incarcerated individual, Tarra Simmons, to the state legislature and the New York State Assembly similarly made history in 2022 with the election of Eddie Gibbs.134 Joel Castón became the first person to be elected to office in Washington, DC, while incarcerated: he won a seat on his Advisory Neighborhood Commission in 2021.135 Rhode Island’s state legislature currently has two formerly incarcerated representatives: Leonela Felix and Cherie Cruz.136 In addition, Minnesota recently mandated the inclusion of a directly impacted individual on the Sentencing Guidelines Commission and, in 2019, the Pennsylvania Lieutenant Governor’s office hired two formerly incarcerated individuals as Commutations Specialists for the Board of Pardons.137
Tarra Simmons is a member of the state House of Representatives in Washington’s 23rd Legislative District. Photo credit: Washington State Legislative Support Services.
Eddie Gibbs represents the 68th district in the New York State Assembly. Photo courtesy of the office of Assemblymember Gibbs.
Cherie Cruz (left) and Leonela Felix (right) are state representatives in the Rhode Island House of Representatives for the 58th and 61st districts, respectively. Photo courtesy of Leonela Felix.
Joel Castón served as an Advisory Neighborhood Commissioner in Washington DC while incarcerated at the DC Jail. Photo courtesy of Joel Castón.
Financial Burdens and Resource Shortages Across the Criminal Legal System
A. Resource Allocation Decisions That Disadvantage People With Limited Income
Key segments of the criminal legal system are underfunded or are biased against people who are poor. With Black Americans earning half as much as white Americans annually and having one-seventh their average net worth,138 criminal legal laws, policies, and practices that disadvantage people with limited income and assets disproportionately harm this population and other communities of color. Posting bail, hiring an experienced defense attorney, securing transportation for parole supervision requirements, obtaining support for substance use treatment, ensuring a successful reentry process, and countless other hurdles all place an outsize burden on lower-income individuals. In this way, the criminal legal system exacerbates society’s inequalities and lends to the over incarceration of people of color.
Pretrial Detention
Pretrial detention largely affects people with limited financial resources. Of the 636,000 individuals confined in jails at year-end 2021, nearly three-quarters were unconvicted, having been detained prior to the resolution of their case.139 With over a third of jailed individuals earning less than $10,000 in the year before arrest, cash bail requirements are often onerous.140 People who remain in jail while grappling with a criminal charge are more likely to accept less favorable plea deals, to be sentenced to prison, and to receive longer sentences.141
In addition, the risk assessment tools used in pretrial release and bail determinations often reproduce our systems’ preexisting racial inequities. They are typically based on criminal histories, employment, and socioeconomic status, and are validated using arrest data that are infused with racial bias. This ensures that people of color are more likely than whites to be held pretrial.142
Indigent Defense
Case outcomes are closely tied to one’s access to high-quality legal representation. Four out of five defendants rely on publicly financed attorneys but most states inadequately fund their indigent defense programs, leading to unmanageable workloads that disadvantage those who rely on a public defender.143 With public defenders’ excessively high caseloads and insufficient resources, indigent clients face longer detentions as they await representation and often are not provided a strong and meaningful defense against the superior resources of the prosecution.144 Access to high-quality legal representation also affects prison release outcomes. In California, in 2021, candidates who were represented by state-appointed attorneys were granted parole at about half the rate of those represented by private attorneys.145
Drug Treatment, Reentry, and Courtroom Accessibility
Substance use disorder is a critical issue affecting many justice-impacted individuals. Nearly half of people in U.S. prisons had a substance use disorder in the year prior to their admissions, and many people—especially people of color—struggle to access drug treatment programs in communities and in prisons.146 In 2021, over one-third of Americans with a substance use disorder did not seek out professional treatment because they lacked health care coverage or could not afford the cost.147 In prisons, only about one quarter of those with substance use disorders receive any professional treatment.148 In addition, the cost of diversion programs that help people access drug treatment and avoid incarceration is often prohibitive.149
Likewise, for the 3.7 million people on probation or parole, community supervision serves as a “trip wire for further criminal legal system contact,” rather than a source of transitional support for rejoining the community.150 Few people on community supervision receive guidance in accessing supportive services such as transitional housing or vocational training, while most face “prolific and suffocating” conditions of supervision, including the prohibition of alcohol use and contact with others who have a criminal record.151 Similarly, reentry programs are underfunded and struggle to provide community and social services that can help address the health, employment, housing, and skill development needs of returning citizens.152
The criminal legal system as a whole also disadvantages populations with limited English proficiency (LEP). Translation services are underfunded and courtroom staff lack training on how to provide adequate access to information and program assistance for LEP persons. Language barriers can lead to victims failing to report crimes, cases taking longer to process, police officers misleading the accused of their rights, and people staying in jail longer.153
B. Reallocating Resources to Address the Legal Disadvantages of Poverty
The criminal legal system can reduce disadvantages for low-income people of color by decriminalizing poverty, reforming onerous supervision practices, and limiting financial hurdles. Resources can instead be diverted to adequately fund public defense and social services. A number of jurisdictions have undertaken this task to date.
Decriminalizing Poverty
The former District Attorney of Suffolk County, MA (which includes Boston) limited her office’s use of criminal sanctions and either dismissed, declined to prosecute, or diverted people charged with nonviolent misdemeanors like disorderly conduct and shoplifting. Subsequent rearrests declined for those impacted by the reform and crime rates for nonviolent misdemeanor offenses did not increase.154 The reform also prompted assistant district attorneys to consider alternatives to criminal adjudications that focus on substance use and mental health treatment. Recent research has found that charging individuals for non-violent misdemeanors increases their likelihood for future offending.155 Refraining to pursue misdemeanor charges prevents the stigmatizing and often lifelong effects of a criminal record.156
Lawmakers in Manhattan and Baltimore initiated similar reforms.157 A study of Baltimore’s reforms to eliminate criminal penalties for certain offenses revealed no uptick in crime, a less than 1% rearrest rate for serious crimes among those impacted, and a disproportionate reduction in Black Baltimorians arrested.158 Despite this success, the new State’s Attorney, Ivan Bates, has reversed this policy and ordered law enforcement to begin levying citations for “quality of life” offenses such as dirt bike riding, loitering, panhandling, public intoxication, and simple drug possession.159
Increasing Pretrial Release
Measures to increase pretrial release have been relatively widespread at state and local levels. For example, lawmakers and practitioners in Illinois, New Jersey, New York, Philadelphia, Harris County, TX, and Los Angeles County have launched efforts to reform their bail systems to eliminate the role of income and wealth in jail incarceration for unconvicted individuals.160 However, efforts to falsely tie these reforms to upticks in crime, opposition from the bail bond industry, and the failure of news media to offer clarity in these debates have contributed to a loss of momentum and rollbacks of some reforms.161
- In 2023, Illinois became the first state to end cash bail.162 Battling legal challenges brought by local sheriffs, prosecutors, and others in law enforcement along the way, the state implemented its suite of reforms in September of 2023.163 In addition to abolishing cash bail, the law limits pretrial detention to only those assessed as a high flight risk or threat to their community. The risk assessment tools used in pretrial evaluations are now regulated and available for review and revision, and minor violations such as a missed court date will no longer compromise eligibility for pretrial release.164
- New Jersey’s Criminal Justice Reform program, launched in 2017, reduced monetary bail requirements and pretrial incarceration using updated risk assessment tools.165 These reforms cut the state’s pretrial jail population by nearly half from 2015 to 2018.166 Yet, unfortunately, first quarter 2023 data shows a loss of momentum, with pretrial incarceration rates now at just 27% below 2015 levels.167
- New York’s 2020 law eliminating cash bail for most non-violent offenses reduced pretrial populations by 40% and helped reduce re-arrest rates from 50% to 44%. Despite these positive impacts, lawmakers crafted false narratives blaming bail reform for an uptick in certain crimes.168 As a result, the legislature nearly completely reversed these reforms in 2023, removing language requiring that judges set the “least restrictive” pretrial conditions necessary.169
- At the local level, Philadelphia DA Larry Krasner ended bail for several low-level misdemeanors and felonies in 2018.170 A 2022 study found these reforms did not increase recidivism or failure-to-appear rates.171 In Harris County, TX, lawmakers increased access to pretrial release beginning in 2017, following a federal injunction. The change reduced both future contact with the criminal legal system, guilty pleas, and the likelihood of a jail sentence, and shortened these sentences.172 Harris County projects these reforms are saving arrested individuals pretrial costs and increasing their lifetime earnings while saving tens of millions of criminal system costs annually.173 In Los Angeles, the Editorial Board of the Los Angeles Times has effectively documented the falsehoods behind the pushback from prosecutors, police, the bail bond industry, and high-profile celebrities against the county’s bail reforms.174
Bolstering Indigent Defense
The federal public defense system demonstrates the high quality of representation that is possible when indigent defense is adequately funded.175 The Urban Institute has found that federal public defenders achieved a lower likelihood of incarceration and shorter sentences for their clients than private attorneys or Criminal Justice Act panel attorneys who are contracted by the government.176
Judges have responded to evidence supporting properly funded indigent defense in some cases. A Cole County, MO, judge found the state’s waitlist for attorneys unconstitutional in 2023, ruling that counsel must be appointed within two weeks of defendants’ request.177 The NY-ACLU sued New York State, demanding it aid counties in funding public defenses. This eventually led to budget negotiations that secured $250 million in annual funding for public defense services beginning in 2023.178 Following a class action lawsuit targeting Oregon’s failure to provide representation, lawmakers released $100 million in emergency funding to address their defender shortage.179 More recently, the state passed SB 337 which will restructure the Oregon Public Defense Commission to help enforce standards of representation and provide increased funding for public defense services.180
Some federal lawmakers have also acknowledged the need to fund indigent defense on the 60th anniversary of Gideon v. Wainwright, which established the right to public defense but not funding for it. In March 2023, Senators Cory Booker and Richard Durbin introduced the Providing a Quality Defense Act to secure access to counsel regardless of wealth. The bill provides grants for public defenders to hire case support, promotes pay parity between public defenders and prosecutors, and more. In addition, the senators’ Sentencing Commission Improvements Act would elevate public defender perspectives by adding a new member to the U.S. Sentencing Commission with a public defense background.181
Creating Holistic Defense
As another approach to improving defense services, The Bronx Defenders is pioneering holistic defense, wherein they partner with social workers and community advocates to provide comprehensive defense and reentry support that addresses the underlying needs that led to an offense.182 A study comparing the Bronx Defenders to another public defense organization found the holistic model’s focus on advocacy and communicating underlying circumstances and needs to judges helped reduce the likelihood of a jail sentence and sentence length.183
Tribal Defense Offices (TDOs) have brought holistic defense to indigenous communities. TDOs partner with substance use treatment specialists, housing authorities, and community mentors to assist clients and those affected by an offense.184 The Flathead Reservation Reentry Program in Montana185 connects TDOs clients with tailored resources vetted by cultural committees to support reentry.186 Similar practices have been launched by the non-profit Partners for Justice, which has implemented its “collaborative defense” model in 24 locations across the country.187
Reducing the Footprint of Probation and Parole Supervision
Community supervision—including parole which follows incarceration and probation which is often in lieu of it—compounds the struggles low-income individuals face when rejoining their communities, by misdirecting resources into supervision that sets them up for failure and reincarceration, rather than providing them with support needed to thrive.
In California, lawmakers limited parole supervision for low-level offenses and funded evidence-based interventions that support treatment and reentry needs for supervised individuals.188 These efforts led to a 36% decrease in the state’s prison and community supervision population between 2007 and 2020.189 In his 2020 budget, Governor Gavin Newsom helped further these reform efforts by capping parole supervision terms of qualifying individuals at two years, with the potential for earlier release.190
New York has implemented a suite of reforms. The New York City Probation Department enrolls its low-risk clients in less intrusive supervision that involves reporting to electronic kiosks monthly.191 The city requires officers to submit requests for their early release from supervision for all individuals who meet reporting standards.192 The program has been a clear success, in that those released early from probation had a lower reconviction rate than those who completed their full probation terms.193 In 2022, New York State implemented the Less Is More Act, which allows people to be discharged from parole supervision early for good behavior and ends automatic incarceration after a reported violation.194 The population of those in New York jails for technical parole violations in 2023 is an eighth of what it was prior to these reforms.195
Allegheny County, PA, has also reduced its jail incarceration rate by ensuring that incarceration for probation violations is a last resort. When individuals are put in custody, new policies establish shorter holding periods and mandate parole officers to immediately implement a release plan.196
Improving Accessibility Services
To ensure fairness for U.S. residents with limited English proficiency, whose population has dramatically grown over the last 25 years, The Department of Justices’ actions to enforce Title VI of the Civil Rights Act have compelled states including Rhode Island to provide free court interpretation services.197
Conclusion
Reforms across the last two decades have helped reduce overall levels of criminal legal system contact and have addressed key drivers of racial disparity. Even still, the crisis of mass incarceration and racial injustice persists and we are at risk of losing momentum and reversing hard-won reforms.
As this report has highlighted, jurisdictions around the country have begun tackling three key drivers of racial disparity: disparate racial impact of laws and policies, racial bias in the discretion of criminal legal professionals, and resource allocation decisions that disadvantage low-income people. But this progress is incomplete and under attack.
The next and final installment of the One in Five series will examine the criminal legal policies that exacerbate socioeconomic inequalities and the reforms correcting this final source of injustice.
1. | Ghandnoosh, N. (2023).One in five: Ending racial inequity in incarceration.The Sentencing Project. The second, and prior, installment in this series is: Ghandnoosh, N., & Barry, C. (2023).One in five: Disparities in crime and policing. The Sentencing Project. |
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2. | Robey, J., Massoglia, M., & Light, M. (2023). A generational shift: Race and the declining lifetime risk of imprisonment. Demography, p. 1. https://doi.org/10.1215/00703370-10863378; see also Roehrkasse, A., & Wildeman, C. (2022). Lifetime risk of imprisonment in the United States remains high and starkly unequal. Scientific Advances, 8(48). https://www.science.org/doi/10.1126/sciadv.abo3395. |
3. | Preliminary data from the Department of Justice shows that the prison population increased for the first time in almost a decade between 2021 and 2022. Carson, A. E. (2023). Preliminary Data Release – Prisons (2022). Bureau of Justice Statistics; Carson, E. A. (2022). Prisoners in 2021 – Statistical tables. Bureau of Justice Statistics; Carson, E. A. (2012). Prisoners in 2011. Bureau of Justice Statistics. |
4. | This report uses the terms Black and African American interchangeably. The number of imprisoned Black Americans decreased 39% between peak year 2002 and 2021. Carson (2022), see note 3; Sabol, W., West, H., & Cooper, M. (2009). Prisoners in 2008. Bureau of Justice Statistics. |
5. | Ghandnoosh, N. (2023). Ending 50 years of mass incarceration: Urgent reform needed to protect future generations. The Sentencing Project; Carson (2022), see note 3; Ghandnoosh & Barry (2023), see note 1. |
6. | See note 1 for prior installments in this series. |
7. | Ghandnoosh & Barry (2023), see note 1. |
8. | Council of the District of Columbia. (2023). Safer Stronger Amendment Act of 2023 – B25-0291; Komar, L. (2023). Testimony from Liz Komar on DC’s Safer Stronger Amendment Act of 2023. The Sentencing Project. |
9. | Drug arrests comprised 15% of all non-traffic arrests in 2019. Federal Bureau of Investigation. (2019). Crime in the United States 2019 – Arrest table; Oregon Health Authority (2023). Too early to tell: The challenging implementation of Measure 110 has increased risks, but the effectiveness of the program has yet to be determined. Oregon Secretary of State; Bolstad, E. (2023, September 12). Drug decriminalization stumbled in Oregon. Other states are taking note. StateLine. |
10. | Lartey, J. (2023, Aug. 19). Battles over ‘progressive’ prosecutors’ decisions heating up. The Marshall Project. |
11. | Prudente, T. & Segelbaum, D. (2023, June 1). Baltimore to resume enforcement of nonviolent offenses. The Baltimore Banner. |
12. | Ghandnoosh & Barry (2023), see note 1. |
13. | Ghandnoosh & Barry (2023), see note 1. |
14. | Travis, J., Western, B., & Redburn, S. (Eds.) (2014). The growth of incarceration in the United States: Exploring causes and consequences. National Academies of Sciences, Engineering, and Medicine, pp. 93–4. |
15. | See Ghandnoosh & Barry (2023), see note 1. |
16. | Ghandnoosh, N. & Nellis, A. (2022) How many people are spending over a decade in prison? The Sentencing Project. |
17. | Nellis, A. (2021a). No end in sight: America’s enduring reliance on life imprisonment. The Sentencing Project. |
18. | Nellis (2021a), see note 17. |
19. | Muhammad, K. G., Western, B., Negussie, Y., & Backes, E. (Eds.) (2022). Reducing racial inequality in crime and justice: science, practice, and policy. National Academies of Sciences, Engineering, and Medicine. |
20. | Ghandnoosh & Barry (2023), see note 1; Ghandnoosh, N. (2014). Race and punishment: Racial perceptions of crime and support for punitive policies. The Sentencing Project. |
21. | Muhammad et al. (2022), p. 308, see note 19. |
22. | Porter, N., & Clemons, T. (2013). Drug-free zone laws: an overview of state policies. The Sentencing Project; see The New Jersey Commission to Review Criminal Sentencing. (2005). Report on New Jersey’s drug free zone crimes & proposal for reform. |
23. | Romano, M., Burton, J., Espinoza, P., Kamlager, S., Moreno, C., Richardson, L., & Skinner, N. (2021). Annual report and recommendations. Committee on Revision of the Penal Code; Clayton, A. (2019, November 26). 92% Black or Latino: the California laws that keep minorities in prison. The Guardian. |
24. | Frase, R. S., Roberts, J. R., Hester, R., & Mitchell, K. L. (2015). Criminal history enhancements sourcebook. Robina Institute of Criminal Law and Criminal Justice; Frase, R. S., & Roberts, J. V. (2019). Paying for the past: The case against prior record sentence enhancements. Oxford University Press; Lynch, M. (2016). Hard bargains: The coercive power of drug laws in federal court. Russell Sage Foundation; Skeem, J., Montoya, L., & Lowenkamp, C. (2023). Understanding racial disparities in pretrial detention recommendations to shape policy reform. Criminology & Public Policy, 22(2), 233-262. https://doi.org/10.1111/1745-9133.12620. |
25. | Crawford, C., Chiricos, T., & Kleck, G. (2006). Race, racial threat, and sentencing of habitual offenders. Criminology, 36(2), 481-512. https://doi.org/10.1111/j.1745-9125.1998.tb01256.x; Bird, M., Gill, O., Lacoe, J., Pickard, M., Raphael, S., & Skog, A. (2023). Sentence enhancements in California. California Policy Lab. |
26. | Hester, R. (2018). Prior record and recidivism risk. American Journal of Criminal Justice, 44, 353-375. https://doi.org/10.1007/s12103-018-9460-8; Frase et. al. (2015), see note 24; Uggen, C., & Schwendeman, H. (2022). Minnesota Sentencing Guidelines Commission Neutrality Review. University of Minnesota; Nelson, M., Feineh, S., & Mapolski, M. (2023). A new paradigm for sentencing in the United States. Vera Institute of Justice. |
27. | Sevigny, E.L., Pollack, H.A. & Reuter, P. (2013). Can Drug Courts Help to Reduce Prison and Jail Populations? Annals of the American Academy of Political and Social Science, 647(1), 190-212. https://doi.org/10.1177/0002716213476258; Kutateladze, B., Dunlea, R., Pearson, M., Liu, L., Meldrum, R., & Stemen, D. (2021). Race and prosecutorial diversion: what we know and what can be done. Florida International University; Nicosia, N., MacDonald, J., & Arkes, J. (2013). Disparities in criminal court referrals to drug treatment and prison for minority men. American Journal of Public Health, 103(6), 77-84. https://doi.org/10.2105/AJPH.2013.301222; Adler, J. & Barrett, J. (2023). Plenty of science, just not enough passion: Accelerating the pace of felony decarceration. Center for Justice Innovation. |
28. | Regarding policing, political leaders are increasingly asking “questions that align less with ‘how can we fix this’ and more with ‘why are we doing this at all,’” as suggested by Phillip Atiba Goff, the Co-founder and CEO of the Center for Policing Equity. Goff, P. A. (2021). Asking the right questions about race and policing. Science, 371(6530), 677-678. https://doi.org/10.1126/science.abf4518. For a more complete discussion on this topic, see installment two of this series: Ghandnoosh & Barry (2023), see note 1. |
29. | Ghandnoosh & Nellis (2022), see note 16. |
30. | AB-2942 – California State Assembly (2017-2018). An act to amend Section 1170 of the Penal Code, relating to recall of sentencing. |
31. | For the People. (2022). Advancing prosecutor-initiated resentencing: a guide for prosecutors, policymakers, and advocates; For the People (2023, May 19). Minnesota passes prosecutor-initiated resentencing law, enabling prosecutors to revisit past cases in the interest of justice. |
32. | Ghandnoosh, N. (2021). A second look at injustice. The Sentencing Project. |
33. | Ghandnoosh, N. (2023, January 17). DC’s criminal code retains significant penalties for violent crime. The Washington Post. |
34. | Austermuhle, M. (2023, July 11). Amidst spike in violent crime, DC Council approves emergency public safety bill. DCist; Gill, M. (2023, June 26). FAMM’s opposition to B25-291. FAMM. |
35. | Council of the District of Columbia (2023), see note 8; Komar (2023), see note 8. |
36. | Ghandnoosh, N., Rovner, J., & Bishop, B. (2019). The next step: Ending excessive punishment for violent crimes. The Sentencing Project. |
37. | Brown, M. (2022, April 21). Tennessee General Assembly passes controversial ‘truth in sentencing’ legislation. The Tennessean. |
38. | Death Penalty Information Center. (2022). The death penalty in 2022: Year end report. |
39. | Westneat, D. (2018, October 12). Meet the UW professor who just killed the death penalty. The Seattle Times. |
40. | American Bar Association. (2020, July 23). In landmark decision, North Carolina strikes down retroactive application of racial justice act repeal; Equal Justice Initiative. (2021). Race and the jury: Illegal racial discrimination in jury selection. |
41. | U.S. Department of Justice, Office of the Attorney General. (2022). Memorandum for all federal prosecutors: Additional department policies regarding charging, pleas, and sentencing in drug cases. |
42. | H.R. 1693 – 117th Congress (2021-2022): Equal Act of 2021. (2021, September 29). |
43. | ACLU of Northern California. (2014, September 28). Governor signs historic California fair sentencing act; Porter, N. D., & Wright, V. (2011) Cracked justice. The Sentencing Project. |
44. | Porter & Clemons (2013), see note 22; Ciaramella, C.J. (2020, June 18). Tennessee passes drug-free school zone reforms following Reason investigation. Reason Magazine. |
45. | National Conference of State Legislatures. (2022, May 24). Racial and ethnic disparities in the criminal justice system. |
46. | From 2010 through 2017, everyone arrested under Mississippi’s gang law was Black, even though the Mississippi Association of Gang Investigators has found that half of verified gang members in the state are white. Ladd, D. (2018, March 29). Only black people prosecuted under Mississippi gang law since 2010. Jackson Free Press. |
47. | Jouvenal, J. (2021, January 28). Virginia police taskforce drops use of controversial gang database. Washington Post. |
48. | Schrantz, D., McElroy, J., Gainsborough, J., & Mauer, M. (2008). Reducing racial disparity in the criminal justice system: a manual for practitioners and policymakers. The Sentencing Project. |
49. | Muhammad et al. (2022), see note 19. |
50. | Pennsylvania Commission on Sentencing. (2023). Proposed 8th edition sentencing guidelines; Washington State Criminal Sentencing Task Force. (2022) Detailed guide to potential recommendations. |
51. | Adler, J. & Barrett, J. (2023), see note 27. |
52. | Nicosia, N., McDonald, J.M., & Arkes, J. (2013). Disparities in criminal court referrals to drug treatment and prison for minority men. American Journal of Public Health, 103(6), 77-84. https://doi.org/10.2105/AJPH.2013.301222. |
53. | Nellis, A. (2021b). The color of justice: Racial and ethnic disparities in state prisons. The Sentencing Project; Porter, N. (2023). Testimony in support of Rhode Island’s Equity Impact Statement Act. The Sentencing Project. |
54. | Foley, R. (2015, January 1). 1st racial-impact law seen as having modest effect in Iowa. AP News. |
55. | Porter (2023), see note 53; Foley, R.J. (2015, January 21). Racial-impact law has modest effect in Iowa. Des Moines Register. |
56. | Elderbroom, B. & Durnan, J. (2018). Reclassified: State drug law reforms to reduce felony convictions and increase second chances. Urban Institute. |
57. | Muhammad et al. (2022), see note 19. |
58. | |
59. | Subramanian, R. & Moreno, R. (2014). Drug war détente? A review of state-level drug law reform, 2009-2013. Vera Institute of Justice; Congressional Research Service. (2015). Federal mandatory minimum sentences: The safety valve and substantial assistance exceptions; Nelson, M., Feineh, S., & Mapolski, M. (2023). A new paradigm for sentencing in the United States. The Vera Institute of Justice. |
60. | Adelman, L.S. & Dietrich, J. (2015). How federal judges contribute to mass incarceration and what they can do about it. Judicature, 99(3), 73–80. |
61. | Gelb, A., Stevenson, P., Fifield, A., Fuhrmann, M., Bennett, L., Horowitz, J., & Broadus, E. (2018, March 8). More imprisonment does not reduce state drug problems. The Pew Charitable Trusts; Ray, B., Korzeniewski, S. J., Mohler, G., Carroll, J. J., del Pozo, B., Victor, G., Huynh, P., & Hedden, B. J. (2023). Spatiotemporal analysis exploring the effect of law enforcement drug market disruptions on overdose, Indianapolis, Indiana, 2020-2021. American Journal of Public Health, 113(7), 750-758. https://doi.org/10.2105/AJPH.2023.307291. |
62. | H.R. 467 – HALT Fentanyl Act, 118th Congress (2023); Human Rights Watch. (2023). More than 150 groups urge congress to vote no on HALT Fentanyl Act. |
63. | Legislative Analysis and Public Policy Association. (2023 August). Good samaritan fatal overdose preention and drug-induced homicide: Summary of state laws. |
64. | Oregon Health Authority (2023), see note 9; Bolstad, E. (2023), see note 9. |
65. | Many whites also endorse individualistic rather than structural accounts of racial inequality and reject ameliorative public policies, see: Smelser, N. J., Wilson, W. J., & Mitchell, F. (Eds.) America becoming: Racial trends and their consequences. National Academies of Sciences, Engineering, and Medicine; Bobo, L., Charles, C., Krysan, M., & Simmons, A. (2012). The real record on racial attitudes. In Marsden, P. V. (ed.) Social trends in American life: Findings from the general social survey since 1972, 38–83. Princeton University Press; The Plain View Project. (n.d.). https://www.plainviewproject.org/. |
66. | Greenwald, A. G., Mcghee, D. E., & Schwartz, J. L. K. (1998). Measuring individual differences in implicit cognition: The implicit association test. Journal of Personality and Social Psychology, 74(6), 1464–80. https://doi.org/10.1037/0022-3514.74.6.1464; Blair, I., Havranek, E., Price, D., Hanratty, R., Fairclough, D., Farley, T., Hirsh, H., Steiner, J. (2013). An assessment of biases against Latinos and African Americans among primary care providers and community members. American Journal of Public Health, 103(1), 92–98. https://doi.org/10.2105/AJPH.2012.300812. |
67. | CPE statement on the police killing of Tyre Nichols in Memphis, Tennessee. (2023, January 24). Center for Policing Equity. |
68. | Starr, S. B. & Rehavi, M. M. (2013). Mandatory sentencing and racial disparity: Assessing the role of prosecutors and the effects of Booker. The Yale Law Journal, 123(2), 2-80; Rehavi, M.M., & Starr, S.B. (2014). Racial disparity in federal criminal sentences. Journal of Political Economy, 122(6), 1320–1354. https://doi.org/10.1086/677255. |
69. | In Massachusetts, District Courts are the lower court and are limited in the cases they can hear and the sentences they can impose. The Superior Court most often handles major felony cases and can impose sentences for any period of time. Bishop, E., Hopkins, B., Obiofuma, C., & Owusu, F. (2020). Racial Disparities in the Massachusetts Criminal System. Criminal Justice Policy Program, Harvard Law School. |
70. | Citizens for Racial Equity. (2020). Report on racial disparities in the Washtenaw County criminal legal system. |
71. | Crawford, C., Chiricos, T., & Kleck, G. (1998). Race, racial threat, and sentencing of habitual offenders. Criminology, 36(3), 481–512. https://doi.org/10.1111/j.1745-9125.1998.tb01256.x. |
72. | Kutateladze et al. (2021), see note 27. |
73. | Bosick, S.J. (2021). Racial disparities in prosecutorial outcomes: An analysis of felony cases accepted for prosecution by the Denver District Attorney’s Office in the City and County of Denver. Colorado Evaluation and Action Lab at the University of Denver. |
74. | Berdejó, C. (2017). Criminalizing race: Racial disparities in plea bargaining. Boston College Law Review, 59, 1189-1249; Hessick, C.B. (2021). Punishment without trial: Why plea bargaining is a bad deal. Abrams Press; Matei, A., Robin, L., Freeman, K.R., & Courtney, L. (2022). An exploration of prosecutorial discretion in plea bargaining in Philadelphia. Urban Institute. |
75. | Wright, R. (2018, December 4). Yes, jury selection is as racist as you think. Now we have proof. The New York Times; see also Semel, E., Downard, D., Tolman, E., Weis. A., Craig, D., & Hanlock. C. (2020). Whitewashing the jury box: How California perpetuates the discriminatory exclusion of black and latinx jurors. University of California, Berkeley School of Law Death Penalty Clinic. |
76. | Young, K.M, & Pearlman, J. (2021). Racial disparities in life parole outcomes: the hidden role of professional evaluations. Law & Social Inquiry, 47(3), 783-820. Cambridge University Press. https://doi.org/10.1017/lsi.2021.37 |
77. | Dunlea, R.R. (2021). “No idea whether he’s black, white, or purple”: Colorblindness and cultural scripting in prosecution. Criminology, 60(2), 237-262. https://doi.org/10.1111/1745-9125.12296 |
78. | Lynch (2016), see note 24. |
79. | Davis, A. (2021, February 26). The carceral force of prosecutor associations, explained. The Appeal. As discussed in installment two of this series, police unions also lobby, litigate, and collectively bargain to maintain punitive laws and resist reforms that would advance racial equity and increase police accountability. Ghandnoosh & Barry (2023), see note 1. |
80. | Hessick, C.B. (2021). Prosecutor lobbying in the states, 2015-2018. University of North Carolina, Prosecutors and Politics Project. |
81. | Carrega, C. (2020). For the few black women prosecutors, hate and ‘misogynoir’ are part of life. ABC News; Bies, K., Deporto, I., Long, D., McKoy, M., Mukamal, D., Sklansky, D. (2015). Stuck in the ‘70s: the demographics of California prosecutors. Stanford Criminal Justice Center. |
82. | George, T.E., & Yoon, A.H. (2016). The gavel gap: Who sits in judgment on state courts? American Constitution Society. |
83. | Powers, A., & Bannon, A. (2023). State supreme court diversity—May 2023 update. Brennan Center for Justice. |
84. | See for example, Spohn, S. C. (2000). Thirty years of sentencing reform: the quest for a racially neutral sentencing process. Criminal Justice, 3, 427–501; Doerner, J.K., & Demuth, S. (2010). “The independent and joint effects of race/ethnicity, gender, and age on sentencing outcomes in U.S. federal courts.” Justice Quarterly 27(1), 1–27. https://doi.org/10.1080/07418820902926197; Rhodes, W., Kling, R., Luallen, J., & Dyous, C. (2015). Federal sentencing disparity: 2005-2012. Bureau of Justice Statistics. |
85. | Light, M. T., Massoglia, M., & King, R. D. (2014). Citizenship and punishment: The salience of national membership in U.S. criminal courts. American Sociological Review, 79(5), 825–847. https://doi.org/10.1177/0003122414543659. |
86. | Clair, M., & Winter, A.S. (2016). How judges think about racial disparities: Situational decision-making in the criminal justice system. Criminology, 54 (2), 332-359. https://doi.org/10.1111/1745-9125.12106; Duret, D., Salman, J., & Braga, M. (2018). ‘At the end of the day it’s the judge’s responsibility.’ The Palm Beach Post. |
87. | Pullen-Blasnik, H., Simes, J.T., & Western, B. (2021). The population prevalence of solitary confinement. Science Advances, 7(48). https://doi.org/10.1126/sciadv.abj1928; Franco, K., Patler, C., & Reiter, K. (2020). Punishment status and the punishment status quo: Solitary confinement in U.S. immigration prisons, 2013-2017. Punishment & Society, 24(2), 170-195. https://doi.org/10.1177/1462474520967804; Mannix, A., & Hargarten, J. (2020, January 17). Minnesota sending black, native american prisoners to solitary confinement at higher rates than whites. Star Tribune; Blakinger, K. (2018, April 21). Black prisoners more likely to be put in solitary, even as overall use declines. Houston Chronicle; The Association of State Correctional Administrators & The Liman Center for Public Interest at Yale Law School. (2018). Reforming restrictive housing: the 2018 ASCA-Liman nationwide survey of time-in-cell; U.S. Commission on Civil Rights. (2019). Women in prison: Seeking justice behind bars. |
88. | Young et al. (2021), see note 76; Lang, L. (2022). Racial disparities in the administration of discipline in New York state prisons. State of New York Offices of the Inspector General. |
89. | Bell, K. (2019). A stone of hope: Legal and empirical analysis of California juvenile lifer parole decisions. Harvard Civil Rights-Civil Liberties Law Review, 54: 455-548. See also: Legislative Analyst’s Office, The California Legislature’s Nonpartisan Fiscal and Policy Advisor. (2023). Promoting equity in the parole hearing process. |
90. | Legislative Analyst’s Office (2023), see note 89. |
91. | American Law Institute. (2021). Model Penal Code: Sentencing. Prepublication Draft. |
92. | Bastomski, S., Herman, M., Martin, A., & Friedman, S. (2022). Racial equity in Montana’s criminal justice system: an analysis of court, corrections, and community supervision systems. The Council of State Governments Justice Center; Jannetta, J., Breaux, J., Ho, H., & Porter, J. (2014). Examining the racial and ethnic disparities in probation revocation: Summary findings and implications from a multisite study. The Urban Institute. |
93. | Chernoff, N. (2019). Black to the future: State action doctrine and the white jury. Washburn Law Journal, 58, 103-185. https://dx.doi.org/10.2139/ssrn.3385624. |
94. | Sommers, S. R. (2006). On racial diversity and group decision making: Identifying multiple effects of racial composition on jury deliberations. Journal of Personality and Social Psychology, 90(4), 597–612. https://doi.org/10.1037/0022-3514.90.4.597; Bowers, W. J., Sandys, M., & Brewer, T. W. (2004). Crossing racial boundaries: a closer look at the roots of racial bias in capital sentencing when the defendant is black and the victim is white. DePaul Law Review, 53(4), 1497–1538. |
95. | Anwar, S., Bayer, P., & Hjalmarsson, R. (2012). The impact of jury race in criminal trials. The Quarterly Journal of Economics, 127(2), 1017-1055. https://doi.org/10.1093/qje/qjs014. |
96. | Levinson, J. D., & Young, D. (2010). Different shades of bias: Skin tone, implicit racial bias, and judgments of ambiguous evidence. West Virginia Law Review, 112(2), 307–350. |
97. | Clair, M. (2020). Privilege and punishment: How race and class matter in criminal court. Princeton University Press; Rapping, J. A. (2013). Implicitly unjust: How defenders can affect systemic racist assumptions. New York University Journal of Legislation and Public Policy, 16(4), 999–1048. http://dx.doi.org/10.2139/ssrn.2380002. |
98. | ACLU of Washington. (2018). Washington Supreme Court is first in nation to adopt rule to reduce implicit racial bias in jury selection. |
99. | Muslin, P. (2022). AB 3070: A sea change for Batson-Wheeler? California Lawyers Association. |
100. | Davenport, P. (2021, August 29). Arizona to end peremptory challenges to potential jurors. AP News. |
101. | Williams, T. (2019, June 12). Black people are charged at a higher rate than whites. What if prosecutors didn’t know their race? The New York Times. |
102. | Yolo County District Attorney. (2022). Yolo DA’s sponsored “Race-Blind” charging bill passes through Assembly. |
103. | See New York University, Marron Institute of Urban Management. (2020, October 14). Advancing fairness and transparency in prosecution; Chohlas-Wood, A., Nudell, J., Yao, K., Lin, Z., Nyarko, J., & Goel, S. (2021). Blind justice: Algorithmically masking race in charging decisions. AIES ‘21: Proceedings of the 2021 AAAI/ACM Conference on AI, Ethics, and Society, 35-45. https://doi.org/10.1145/3461702.3462524. |
104. | Davis, A. J. (2013). In search of racial justice: the role of the prosecutor. New York University Journal of Legislation and Public Policy, 16(4), 821–52; Vielmetti, B. (2010, March 10). Chisholm touts racial disparity improvements at Capitol Hill briefing. Milwaukee Journal Sentinel. |
105. | Motion for Justice. Correct: Don’t consider criminal history. Vera Institute for Justice. |
106. | French, P. (2022, November 21). With Oakland DA win, reformers rebuild strength in the Bay Area. Bolts; Romano, M., Chemerinsky, E., & Krinsky, M. (2021). Brief of Amicus Curiae 67 current and former elected prosecutors and attorneys general in support of appellants. |
107. | Mitchell, O., Yan, S., & Oramas Mora, D. (2022). Trends in prison sentences and racial disparities: 20-years of sentencing under Florida’s criminal punishment code. Journal of Research in Crime and Delinquency, 60(2). https://doi.org/10.1177/00224278221120677. |
108. | Fair and Just Prosecution. (2021). Joint statement on sentencing second chances and addressing past extreme sentences. |
109. | Philadelphia District Attorney’s Office. (2018). New policies announced February 15, 2018. |
110. | Motion for Justice, see note 105. |
111. | Fair and Just Prosecution’s members represent 20% of the U.S. population. Davis (2021), see note 79; Iannelli, J. (2021, February 16). Los Angeles D.A. George Gascón leaves California’s powerful D.A. association. Bolts; Prosecutors Alliance of California. (2023). The prosecutors alliance website. https://prosecutorsalliance.org/; For The People. (2022). https://www.fortheppl.org/; Dewan, S. (2022, June 13). The lessons liberal prosecutors are drawing from San Francisco’s backlash. The New York Times. |
112. | Fair and Justice Prosecution (2021), see note 108; For the People. (2021). Prosecutor-initiated resentencing: California’s opportunity to expand justice and repair harm. |
113. | Pfaff, J. F. (2023). The poor reform prosecutor: So far from the state capital, so close to the suburbs. Fordham Urban Law Journal. https://ssrn.com/abstract=4378322; Lartey (2023), see note 10. |
114. | Fuller, T. (2022, June 8). Voters in San Francisco topple the city’s progressive district attorney, Chesa Boudin. The New York Times; Swan, R. (2023, Aug. 15). Group seeking to recall Alameda DA Pamela Price just took a key step. San Francisco Chronicle. |
115. | Levin, S. (2022, Aug. 15). Bid to recall Los Angeles district attorney fails, a win for criminal justice reform. The Guardian; Philadelphia District Attorney’s Office. (2023, Jan. 13). Commonwealth court rejects unconstitutional & illegal impeachment trial for ‘political offense.’ |
116. | Lacy, A. (2023, Aug. 2). Reformist DAs sue Georgia over law to remove elected prosecutors – including one probing Donald Trump. The Intercept; Lacy, A. (2023, March 3). 17 states have now tried to pass bills that strip powers from reform-minded prosecutors. The Intercept; DiRienzo, R. (2023, Sept. 22). Georgia district attorney calls new prosecutor oversight commission an ‘assault on democracy.’ Fox5Atlanta. |
117. | Lacy, A. (2023, March 3), see note 116; Fineout, G. (2023, Aug. 9). DeSantis suspends another elected prosecutor in move derided as ‘politically motivated.’ Politico; Jackson, B. (2023, Aug. 15). Black female prosecutors like Fani Willis face the unequal burden of both racist and sexist attacks. The Conversation. |
118. | Chernoff, N. (2016). No records, no right: Discovery & the fair cross-section guarantee. Iowa Law Review, 101(1719), 1719-1785; Chernoff (2019), see note 93. |
119. | Pitt, D. (2017, July 6). Iowa minorities given new tool to challenge all-white juries. U.S. News. |
120. | Sommers, S. R., & Ellsworth, P. C. (2001). White juror bias: an investigation of prejudice against black defendants in the American courtroom. Psychology, Public Policy, and Law, 7(1), 201–229. https://doi.org/10.1037/1076-8971.7.1.201. |
121. | Kang, J., et al. (2012). Implicit Bias in the Courtroom. UCLA Law Review, 59(1124), 1126–1186. |
122. | Pitt (2017), see note 119. |
123. | Luna, T. (2020, August 31). California lawmakers approve bills to address racism in criminal charges and jury selection. Los Angeles Times. |
124. | Miller, J. (2020, July 25). Utah offenders can now raise issues of race and bias at their sentencing. The Salt Lake Tribune. |
125. | Buddin, K. (2019, January 8). Providing safe, secure, objective parole for low risk prisoners. ACLU Michigan. |
126. | Ruhland, E., Rhine, E., Robey, J., & Mitchell, K.L. (2017). The continuing leverage of releasing authorities: Findings from a national survey. Robina Institute of Criminal Law and Criminal Justice; Legislative Analyst’s Office (2023), see note 89. |
127. | Ghandnoosh (2017). Delaying a second chance: The declining prospects for parole on life sentences. The Sentencing Project. |
128. | Wood, P. (2021, December 8). Maryland lawmakers strip governor’s power to block parole. The Baltimore Sun. |
129. | Sepulveda, L. (2018, October 4). Governor Cuomo signs Senator Luis Sepulveda’s state parole board reform legislation. The New York State Senate; North Carolina Department of Adult Correction, Office of Research and Planning. A.S.Q. custom offender reports. |
130. | Lyman, B. (2022, March 4). ‘No one has an answer’: Racial disparities accelerated in Alabama parole grants for 2020, 2021. Montgomery Advertiser; Alaska Board of Parole. (2022). Disciplinary hearings 2022. |
131. | Maciag, M. (2015, August 19). Where police don’t mirror communities and why it matters. Governing. |
132. | Delaware Supreme Court Steering Committee. (2022). Improving diversity in the Delaware bench and bar: Strategic plan report and recommendations. |
133. | Sherman, M. (2023, June 29). Divided Supreme Court outlaws affirmative action in college admissions, says race can’t be used. AP NEWS; Hinger, S. (2023, June 12). Moving beyond the Supreme Court’s affirmative action rulings. ACLU. |
134. | House Democrats WA. Tara Simmons – Biography; Fink, Z. (2022, Jan. 19). Special election winner will be first formerly incarcerated person to serve in NY Assembly. Spectrum News NY1. |
135. | Joel Castón was granted parole and released from jail in November 2021. Prisons and Justice Initiative. Prison scholar Joel Caston elected to local government. Georgetown University; Glasgow, A. & Castón, J. (2023, Aug. 10). I ran for office while incarcerated. I hope others will do the same. TIME. |
136. | Burness, A. (2022, Dec. 1). Rhode Island pair, once dogged by criminal legal system, elected to Statehouse. Bolts. |
137. | 2023 Minn. Laws ch. 52, art. 6, § 1; Pennsylvania Pressroom. (2019, November 4). Lt. Gov. John Fetterman Hires Two Commuted Former Life-Sentence Inmates To Improve Commutations Process In PA. |
138. | Average income for Latinxs is comparable to that of Black Americans. Latinx net worth, on average, is one-sixth that of whites. Bhutta, N., Bricker, J., Chang, A. C., Dettling, L. J., Goodman, S., Hsu, J. W., Moore, K. B., Reber, S., Volz, A. H., & Windle, R. A. (2020). Changes in U.S. family finances from 2016 to 2019: Evidence from the survey of consumer finances. Board of Governors of the Federal Reserve System. |
139. | Zeng, Z. (2022). Jail Inmates in 2021 – Statistical Tables. Bureau of Justice Statistics. |
140. | Sawyer, W., & Jones, A. (2019). Arrest, release, repeat: How police and jails are misused to respond to social problems. Prison Policy Initiative; Jackson, D. (2022, November 10). Crisis in Georgia’s public defender system fuels case backlog, jail overcrowding. The Atlanta Journal-Constitution. |
141. | Jones, C. E. (2013). “Give us free”: Addressing racial disparities in bail determinations. New York University Journal of Legislation and Public Policy, 16(4), 919–62; Donnelly, E. A., & MacDonald, J. M. (2018). The downstream effects of bail and pretrial detention on racial disparities in incarceration. The Journal of Law and Criminology, 108(4), 775-813. |
142. | Freeman, K. R., Hu, C., & Janetta, J. (2021). Racial equity and criminal justice risk assessment. Urban Institute; Pretrial Justice Institute (2020). The case against pretrial risk assessment instruments. For an alternative perspective, see: Austin, J., Desmarais, S., & Monahan, J. (2020). Open letter to the Pretrial Justice Institute. |
143. | Harlow, C. W. (2000). Defense counsel in criminal cases. Bureau of Justice Statistics; Pace, N. M., Brink, M. N., Lee, C. G., & Hanlon, S. F. (2023). National public defense workload study. RAND Corporation. https://doi.org/10.7249/RRA2559-1. Based on a 2007 Census of Public Defenders Offices, only 21% of reporting states had enough attorneys to meet caseload guidelines. Langton, L. & Farole, D. Jr. (2010). State public defender programs, 2007. Bureau of Justice Statistics; Wiltz, T. (2017). Public defenders fight back against budget cuts, growing caseloads. The Pew Charitable Trusts. |
144. | Wiltz (2017), see note 143; American Bar Association (2004). Gideon’s broken promise: America’s continuing quest for equal justice; Furst, B. (2019). A fair fight. Brennan Center for Justice. |
145. | Bell (2019), see note 89; Legislative Analyst’s Office (2023), see note 89. |
146. | Roughly one in three were under the influence of drugs or alcohol at the time of their crime. Approximately half of people in state and federal prisons and two-thirds of those in jails either met the threshold for serious psychological distress or had been diagnosed as having a mental disorder. Bronson, J. & Berzofsky, M. (2017). Indicators of mental health problems reported by prisoners and jail inmates, 2011-12. Bureau of Justice Statistics. See also: Maruschak, L. M., Bronson, J., & Alper, M. (2021). Survey of prison inmates, 2016: Alcohol and drug use and treatment reported by prisoners. Bureau of Justice Statistics; Bronson, J., Stroop, J., Zimmer, S., & Berzofsky, M. (2017). Drug use, dependence, and abuse among state prisoners and jail inmates, 2007-2009. Bureau of Justice Statistics; Bebinger, M. (2019, May 8). Opioid addiction drug going mostly to whites, even as black death rate rises. NPR. |
147. | Cost is a likely barrier; 25% said they had no health care coverage and could not afford the cost and another 12% said they had had health care coverage but it did not cover treatment or did not cover the full cost. Substance Abuse and Mental Health Services Administration. (2022). Key substance use and mental health indicators in the United States: Results from the 2021 National Survey on Drug Use and Health (HHS Publication No. PEP22-07-01-005, NSDUH Series H-57). Center for Behavioral Health Statistics and Quality, Substance Abuse and Mental Health Services Administration. |
148. | In 2016, among those who met the criteria for substance use disorder in the year prior to their admission, 20% of people in state prisons and 28% in federal prisons had received professional treatment at some point since their admissions. Maruschak, Bronson, & Alper (2021), see note 146. |
149. | Alabama Appleseed (2020). In trouble: How the promise of diversion clashes with the reality of poverty, addiction, and structural racism in Alabama’s justice system; Kimpel, A.F. (2022). Paying for a clean record. Journal of Criminal Law and Criminology, 112 (3), 439-547. |
150. | Kaeble, D. (2023). Probation and parole in the United States, 2021. Bureau of Justice Statistics; Lopoo, E., Schiraldi, V., & Ittner, T. (2023). How little supervision can we have? Annual Review of Criminology, 6, p.23. https://doi.org/10.1146/annurev-criminol-030521-102739. |
151. | Lopoo, Schiraldi, & Ittner (2023), see note 150; Phelps, M. S. (2018). Ending mass probation: Sentencing, supervision, and revocation. The Future of Children, 28 (1); The Pew Charitable Trusts. (2023). For people under probation, conditions meant to support behavior change can burden more than benefit. |
152. | Price-Tucker, A., Zhou, A., Charroux, A., Tenzin, C., Robertson, E., Abdalla, H., Gu, J., Barton, J., Keselj, M., Bernstein, O., Alexis, P., Odayappan, S., & Escalante, T. (2019). Successful reentry: A community-level analysis. The Harvard University Institute of Politics Criminal Justice Policy Group. |
153. | Khashu, A., Almo, C., & Rahman, I. (2006). Translating Justice: a guide for New York City’s justice and public safety agencies to improve access for residents with limited English proficiency. Vera Institute of Justice; Murphy, B. (2023, April 17). New York prosecutors ignored tainted evidence used against Spanish-speaking drivers for years. ProPublica. |
154. | Agan, A. Y., Doleac, J. L., & Harvey, A. (2021). Misdemeanor prosecution. National Bureau of Economic Research. https://doi.org/10.3386/w28600; Vera Institute of Justice. (2021, April 2). What happened when Boston stopped prosecuting nonviolent crimes. |
155. | Merrefield, C. (2023, February 14). Choosing not to prosecute low-level crimes may reduce future crime, research finds. The Journalist’s Resource; see also Huzinga, D. & Henry, K. (2008). The effect of arrest and justice system sanctions on subsequent behavior: Findings from longitudinal and other studies. In: Liberman, A.M. (eds) The long view of crime: A synthesis of longitudinal research. Springer, New York, NY. https://doi.org/10.1007/978-0-387-71165-2_7 |
156. | Vera Institute of Justice (2021), see note 154. |
157. | Bragg, A. L. (2022, January 3). [Letter to all staff re: Day one letter and policies—achieving fairness and safety]; Bromwich, J. E. (2022, February 4). Manhattan D.A. sharpens crime policies that led to weeks of backlash. The New York Times; Prudente, T. (2021, October 19). Hopkins researchers find no uptick in crime, complaints after Marilyn Mosby stops prosecuting drug possession. The Baltimore Sun; Merrefield (2023), see note 155. |
158. | Rouhani, S., Tomko, C., Weicker, N. P., & Sherman, S. G. (2021). Evaluation of prosecutorial policy reforms eliminating criminal penalties for drug possession and sex work in Baltimore, Maryland. Department of Health, Behavior, and Society, Johns Hopkins University. |
159. | The citation program defers individuals from formal processing, but will lead to prosecution after a third infraction. Prudente & Segelbaum (2023), see note 11; Trivedi, S. & Warnken, H. (2023, Aug 14). Baltimore’s new citation policy won’t make us safer — just poorer | GUEST COMMENTARY. The Baltimore Sun; O’Neill, M. (2023, June 1). Bates introduces citation docket for ‘quality-of-life offenses’ in Baltimore. The Daily Record. |
160. | Wiltz, T. (2017, March 1). Locked up: Is cash bail on the way out? Stateline. |
161. | Staudt, S. (2023, July 6). Releasing people pretrial doesn’t harm public safety. Prison Policy Initiative. For guidance on more effective media coverage, see: Ghandnoosh, N. (2023). Media guide: 10 crime coverage dos and don’ts. The Sentencing Project. |
162. | Coalition to End Money Bond (2021). Pretrial Fairness Act – Coalition to End Money Bond; Venhuizen, H. (2023, March 19). Republican bills push cash bail, subvert Democratic changes. Los Angeles Times. |
163. | AP NEWS. (2023, January 1). Illinois high court halts elimination of cash bail; Rowe, Kankakee County State’s Attorney v. Raoul, Illinois Attorney General, Case No. 22-CH-16 (IL. 2022); ACLU Illinois (2023, July 18). Illinois Network for Pretrial Justice Response to Court Upholding Ending Money Bond in Illinois. |
164. | Coalition to End Money Bond (2021), see note 162; ACLU Pennsylvania. (2021, January 15). Smart justice – ending cash bail; Wiltz (2017), see note 160. |
165. | Anderson, C., Redcross, C., Valentine, E., & Miratrix, L. (2019). Evaluation of pretrial justice system reforms that use the public safety assessment: Effects of New Jersey’s criminal justice reform. Pretrial Justice Reform Study, MDRC Center for Criminal Justice Research. |
166. | Grant, G. (2019). 2018 Report to the Governor and the Legislature. New Jersey Courts. |
167. | Criminal justice reform statistics: Jan 1, 2023 – Jun 30, 2023. New Jersey Courts. |
168. | NYPD. (2020, March 5). NYPD announces citywide crime statistics for February 2020; Bennett, L. & Hamilton, J. (2021, April 02). Freedom, then the press: New York media and bail reform. FWD.US; Human Rights Watch. (2020, March 20). Human Rights Watch memorandum of support for preservation of the New York pretrial reform law. |
169. | Rodriguez, K. & Rempel, M. (2023). Explaining New York’s 2023 bail reform amendments. Data Collaborative For Justice; Staudt, S. (2023), see note 161. |
170. | Philadelphia District Attorney’s Office. (2018). Philadelphia DAO policy on bail; Melamed, S. (2019, February 19). Philly DA Larry Krasner stopped seeking bail for low-level crimes. Here’s what happened next. The Philadelphia Inquirer. |
171. | Ouss, A. & Stevenson, M. (2022). Does cash bail deter misconduct? Social Science Research Network. https://doi.org/10.2139/ssrn.3335138. See also: Stemen, D. & Olson, D. (2023). Is bail reform causing an increase in crime? Harry Frank Guggenheim Foundation. |
172. | The county’s sentencing reforms were initiated in 2017 after a class action lawsuit and have evolved into the 2019 O’Donnell Consent Decree. O’Donnell v. Harris County, TX, Case No. 16-cv-01414 (TX. 2019); Heaton, P. (2022). The effects of misdemeanor bail reform. Quattrone Center for the Fair Administration of Justice, University of Pennsylvania Law. |
173. | Garrett, B., Thompson, S. G., Carmichael, D., & Kang, S. (2022). Monitoring pretrial reform in Harris County: Fourth report of the court-appointed monitor. Duke University Law. |
174. | The Times Editorial Board. Editorial: 50 Cent and prosecutors are wrong about cash bail. L.A. courts get it right. Los Angeles Times; The Times Editorial Board. Editorial: L.A.’s bail reform is an improvement, but falls short of what Illinois has done. Los Angeles Times. |
175. | Freeman, K. R., Peterson, B., & Hartley, R. (2022). Counsel type in federal criminal court cases, 2015-2018. Bureau of Justice Statistics. |
176. | Freeman, Peterson & Hartley (2022), see note 175. |
177. | David v. State of Missouri, Case No. 20AC-CC00093 (MO. 2023). |
178. | McCormack, S. (2017, May 9). Long-awaited public defense reform comes to New York State. American Civil Liberties Union; Heastie, C. E. SFY 2017-18 budget includes six year plan to improve public defense services statewide. New York State Assembly; Wiltz (2017), see note 160. |
179. | Burch, L. (2022, June 7). Oregon lawmakers approve $100M to aid public defender shortage. KOIN 6 News. |
180. | Mosher, J. (2023, July 14). Oregon passes sweeping indigent defense reforms. Sixth Amendment Center. |
181. | Gideon’s Promise. (2023, March 18). Booker, Durbin introduce bills to improve access to counsel guaranteed by constitution and increase representation of public defenders in U.S. criminal justice system; Goel, A. (2023, March 8). Timely access to counsel declared a national priority. Sixth Amendment Center. |
182. | The Bronx Defenders. The Bronx Defenders. |
183. | Anderson, J. M., Buenaventura, M., & Heaton, P. (2019). The effects of holistic defense on criminal justice outcomes. Harvard Law Review, 132(3), 819–893. |
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185. | The CSKT territories cover western Montana and parts of Idaho, British Columbia, and Wyoming. Confederated Salish & Kootenai Tribes of the Flathead Reservation. History & Culture. |
186. | Tribal Access to Justice Innovation. Confederated Salish and Kootenai Tribes Flathead Reservation Reentry Program (FRRP). |
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188. | The Community Corrections Performance Incentives Act of 2009 (SB 678) and Assembly Bill 109, the California Public Safety Realignment Bill of 2011 helped drive these changes. Bird, M. & Grattet, R. (2020). SB 678: Incentive-based funding and evidence-based practices enacted by California probation are associated with lower recidivism rates and improved public safety. California Probation Resource Institute; Lower, R. (2020). Report on the California Community Corrections Performance Incentives Act of 2009. Operations and Programs Division, Criminal Justice Services, Judicial Council of California; Mauer, M., & Ghandnoosh, N. (2014) Fewer prisoners less crime: A tale of three states. The Sentencing Project. |
189. | Lopoo, Schiraldi, & Ittner (2023), see note 150. |
190. | State of California, Governor’s Office. (2020). California state budget, 2020-21. |
191. | Schiraldi, V., & Jacobson, M. (2017, August 28). When less is more. The Marshall Project. |
192. | Across a six-year period, release requests grew sixfold. Lopoo, Schiraldi, & Ittner (2023), see note 150. |
193. | The rate of future felony convictions among those who served their full parole sentence was 4.3%, versus 3% for those released early. Lopoo, Schiraldi, & Ittner (2023), see note 150. |
194. | S.B. 1144A, 2021 Biennium, 2021 Reg. Sess. (N.Y. 2021); The Legal Aid Society. What You Need to Know About the Less Is More Act. |
195. | Division of Criminal Justice Services. (2022). Annual Jail Population Trends; Division of Criminal Justice Services. (2023). Monthly Jail Population Trends. |
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197. | U.S. Department of Justice, Civil Rights Division. (2016). Language access in state courts. |