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Racial Impact Statements

June 16, 2021
Racial impact statements are a tool for lawmakers to evaluate potential disparities of proposed legislation prior to adoption and implementation. Analogous to fiscal impact statements, they assist legislators in detecting unforeseen policy ramifications.

Racial impact statements are a tool for lawmakers to evaluate potential disparities of proposed legislation prior to adoption and implementation. Analogous to fiscal impact statements, they assist legislators in detecting unforeseen policy ramifications. Policymakers may then be able to modify legislation that would worsen existing racial disparities. Practically speaking, it is important to address a policy’s unwarranted effects before it is adopted, as it is more difficult to reverse sentencing policies once they have been implemented.

In guiding the creation of fair criminal justice policies, racial impact statements may be prepared by a number of agencies, including sentencing commissions, budget and fiscal agencies, and departments of corrections.

State Reforms

Nine states – Iowa, Colorado, Connecticut, Florida, Oregon, Maine, Maryland, New Jersey and Virginia – have implemented mechanisms for the preparation and consideration of racial impact statements; in addition, the Minnesota Sentencing Guidelines Commission develops racial impact statements without statutory guidance. In recent years, legislators in several states have introduced legislation to adopt racial impact statements policies.

Iowa – During 2008, Iowa passed the nation’s first racial impact statement measure, HF 2393. The law allows policymakers to assess the racial impact of proposed changes to sentencing and parole policies. Signed into law by Governor Chet Culver, the Minority Impact Statement Bill followed a 2007 report by The Sentencing Project.  The report had revealed that Iowa had the greatest racial disparity in prison populations among all U.S. states. While African-Americans accounted for only 2% of the state’s population, they made up 24% of the state’s prison population. Leading up to the policy consideration in 2008, the measure garnered substantial media attention, contributing to its public support.

Colorado – Lawmakers adopted demographic notes for certain legislation in 2019. HB19-1184 authorizes the speaker of the house of representatives, the minority leader of the house of representatives, the president of the senate, and the minority leader of the senate to request five demographic notes each, or more at the discretion of the director of research of the legislative council. The staff of the legislative council are required to prepare demographic notes on legislative bills in each regular session of the general assembly.

Connecticut – In 2008, Connecticut became the second state to authorize racial impact statements for proposed criminal justice policies. Bills and amendments concerning pretrial or sentenced populations are now subject to racial impact analysis. A write-up of the measure’s adoption can be found here.

Florida – During 2019, legislators adopted a Senate rule authorizing Florida State University to assess the “racial and ethnic” ramifications of key criminal justice bills. During the 2014 legislative session, measures were introduced – HB 237 and SB 336 – to require the Office of Program Policy Analysis and Government Accountability (OPPAGA) to create a racial and ethnic impact statement for proposed legislation or a proposed amendment to the State Constitution.

Oregon – Legislators passed SB 463B in 2013, providing a process for formally requesting racial impact statements when considering criminal justice and child welfare legislation. One policymaker from each major political party must submit a written request; after receiving these requests, the Oregon Criminal Justice Commission (OCJC) prepares an analysis of how the legislation may affect different racial and ethnic groups. The measure’s passage earned media attention, and the OCJC recently hosted a presentation for legislative staffers on ways to request racial impact statements.

New Jersey – In 2018, officials enacted the racial impact statement measure S-677/A-3677.  The law requires the state’s Office of Legislative Services to prepare racial-impact statements for policy changes that affect pretrial detention, sentencing and parole. The reform continued lawmakers’ efforts to address racial disparities in the prison system. Drug laws with disparate racial effects have been in place for many years in New Jersey, but in 2010 the legislature passed reforms through A-2762 to modify sentencing laws associated with drug-free school zone laws, reinstating judicial discretion.

Maine – During 2021, lawmakers authorized a racial impact statement policy via LD 2 requiring the state’s Legislative Council to conduct a study to determine the best method to establish and implement a racial impact statement policy for legislation. Based on its findings, the Legislative Council is directed to establish a limited pilot project for the use of racial impact statements with an intent to enact an racial impact statement policy.

Maryland – During early 2021, the General Assembly established a pilot program that includes racial impact statements as part of the legislative analysis developed by the nonpartisan Department of Legislative Services. The agency partners with  Bowie State and the University of Baltimore Schaefer Center to compile data regarding racial impact of major criminal justice reform legislation. 

Minnesota – The Minnesota Sentencing Guidelines Commission routinely drafts racial impact statements but is not required by law to do so. The Commission prepares analyses of the racial implications of sentencing policies on felony level offenses.

Virginia – Lawmakers adopted HB 1990 to establish the state’s racial impact statement policy. The law authorizes the Chair of the House Committee for Courts of Justice or the Chair of the Senate Committee on the Judiciary may request the Joint Legislative Audit and Review Commission (JLARC) to review and prepare a racial and ethnic impact statement for a proposed criminal justice bill to outline its potential impact on racial and ethnic disparities. The bill requires JLARC to provide copies of the impact statement to the requesting chair and the bill sponsor.

Legislative Proposals

In recent years, other states have introduced racial impact statement legislation, but have not yet adopted such policies. Those states are:

Arkansas – The Arkansas Senate approved a racial impact statement bill, though the measure was not adopted by the House. Senate Bill 237 included provisions requiring the legislative sponsor to modify any bill proposal that is found to result in a racial disparity or submit a statement for the record to explain why the legislative proposal should be adopted. The measure’s introduction earned media attention during the 2017 legislative cycle.

Illinois – Several measures were introduced in 2019 to authorize racial impact statements. The measures would require the Illinois Criminal Justice Authority to prepare racial impact statements for every bill that affects pre-trial detention, sentencing, or community supervision. The proposed measures require an explanatory note that includes a reliable estimate of the anticipated impact of criminal law changes on racial and ethnic minorities.

Kentucky – Legislation – SB 45 – addressing racial impact statements was introduced in 2019. If enacted, a key provision would require the bill sponsor of a proposed sentencing law with a projected racially disparate outcome to amend the measure, addressing its anticipated effect, or state for the record why the legislative measure should advance.

Minnesota – Legislation was introduced – Senate File 96 – in 2019 to codify the practice employed by the Minnesota Sentencing Guidelines Commission.

Mississippi – Introduced in 2019, legislators considered House Concurrent Resolution 51, which outlined a procedure for issuing and considering racial impact statements for proposed sentencing law changes.

Nebraska – Introduced in 2021, LB 657 would require the office of Legislative Research to prepare racial impact statements for legislative bills.

New York – State policymakers considered a 2019 racial impact statement –  A 3422 – measure that included time requirements to address anticipated disparities in proposed sentencing laws. The impact statement is required to be available thirty days prior to the first committee vote or five days prior to floor debate in the assembly or senate.

Oklahoma – During 2019, the state’s proposed racial impact statement law – SB 253 – outlined a process for preparing racial impact statements. The measure also directs legislative leadership to delay calendaring new sentencing laws for debate unless an impact statement is made available.

WisconsinWisconsin policymakers in 2014 considered requiring racial impact statements for all legislation that creates a new crime, modifies an existing crime, or changes the penalty for an existing crime. SB 538 and AB 752 called for the Joint Review Committee on Criminal Penalties to prepare a racial impact statement for each bill that fits the above description. The bill’s introduction garnered media attention.

Resource Materials and Articles

 
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