Racial disparity reform: racial inequality and policy responses in US national politics

Abstract

Persistent racial inequality in the US criminal justice system is a significant challenge for policy-makers. Although scholarship has focused on policies that created a punitive criminal justice system and reforms that scale back criminal processing, little is known about policies that elected officials use to address racial issues in criminal justice. This article introduces the framework of ‘racial disparity reform.’ Four types of criminal justice policies that seek to redress politically defined problems of racial inequality are presented. This framework is then used to explain race-targeted criminal justice reforms in US national politics. A qualitative analysis tests how distinct visions of racial inequality prompted US presidents and Congress to initiate a study of race in capital punishment, a ban on racial profiling, and a system-wide corrective to minority overrepresentation in youth confinement. Lessons are drawn concerning the potential of policy-making in forging a more racially egalitarian criminal justice system.

Keywords:

• Criminal justice reform
• racial inequality
• politics

Notes

1. This article hereafter uses the terms ‘criminal justice system’ and ‘criminal processing’ to describe government processing of adults and juveniles for criminal or delinquent acts. It also refers to racial and ethnic minorities under the term ‘racial minorities.’ This choice reflects policy-makers’ frequent treatment of racial and ethnic inequalities as a singular problem. It likewise responds to criminal justice record-keeping practices, as many agencies do not differentiate between racial and ethnic categories (Mauer and King 2007).

2. I follow Mayhew (2007) in defining a controversial event as an incident or occurrence that changes a political context by creating a new sense among policy-makers about the importance of certain ideas, the urgency of societal problems, and the desirability of proposed solutions (101).

3. Racial disparity reform is possible, but limited within the judiciary. Many state supreme court systems have developed racial fairness committees tasked with examining issues of racial inequality and designing appropriate interventions (Norris 2011). Courts may also issue rulings that seek to eliminate racial disparities. For instance, a federal court ruled that the New York City Police Department’s stop-and-frisk policies were unconstitutional due to their racial discriminatory nature (Goldstein 2013). Yet, these rulings are circumscribed by constitutional questions and precedents allowing for racially disparate impacts in criminal processing, as further described in the case studies in this article (Johnson 2007). Criminal justice bureaucracies, such as state police forces and juvenile probation offices, may likewise choose to revise their practices on behalf of promoting more racial equity. Because a bureaucracy is often protective of its existing practices without regard to their racial consequences (Wilson 1968), legislative and executive oversight typically drives bureaucratic racial disparity reform.

4. Racially conscious reform with anti-egalitarian ends is rare, but plausible. For example, Governor Susana Martinez of New Mexico rescinded Executive-Order 2005-019 that prohibited state law enforcement officials from inquiring about a criminal suspect’s immigration status. Critics of Martinez’s order have equated it with sanctioning racial profiling (McCoy 2011).

5. This problem–solution framework of racial disparity reform policy-making allows for considerations of other pivotal elected officials’ understandings of racial inequality in the criminal justice system. These pivotal elected officials may be committee members, policy entrepreneurs, targets of interest group lobbying, or advocates for disadvantaged populations (Kingdon 1984; Krehbiel 2010).

6. Disproportionate impacts are assumed to occur in Quadrants II–IV, but these effects are a result of discrimination and/or disparity.

7. Also see the rollback of New York’s Rockefeller Drug Laws, under which 90% of the state’s drug offenders were black or Hispanic (Cole 2011).

8. These states include Arkansas, Colorado, Connecticut, Illinois, Minnesota, Virginia, and Wisconsin (Donnelly, 2016).