- - Thursday, August 8, 2013

The next time lawmakers in Oregon want to increase the maximum sentence for arson or adjust requirements for child custody applications, they will have to be ready to explain the move’s potential impact on the state’s Hispanic, black and other minority residents.

State legislators now are required to prepare “racial impact statements” to ensure that blacks, Hispanics, American Indians, Asians and other minorities are not affected unfairly by criminal justice legislation. The bill’s sponsor said the statements — analogous to the environmental impact statements long required on state and federal infrastructure projects and regulations — will help reduce the guesswork in the legislative process on the sensitive subject of race.

“We will no longer have to rely on anecdotal situations when arguing for or against a bill,” state Rep. Joe Gallegos, a Democrat from the city of Hillsboro west of Portland, said in an email. “Now we will have data-driven conversations about the proposed legislation and how it will affect communities of color in our state.”

Oregon recently became the third state in the nation to require racial impact statements, upon request by at least one member of each party, to accompany any proposed changes in criminal laws or sentencing codes, despite criticism from some quarters that the statements wrongly imply that the criminal justice system is to blame for overrepresentation of minorities in prisons and child welfare systems.

Partly in response to the national debate over “stand your ground” laws and the George Zimmerman acquittal in the killing of black teenager Trayvon Martin in Florida, advocates of the race-based statements say lawmakers in more than two dozen states have expressed at least an interest in the idea, according to a review by the Web-based news service Stateline.org.

Mr. Gallegos points to what he calls significant racial disparities in the Oregon legal system’s impact on blacks — they make up less than 2 percent of the state’s population but 9 percent of its prisoners. Asian-Americans are at the other extreme, making up 3.6 percent of the state’s population but only 1 percent of its prison population. The impact statements detail a proposed law’s effect on racial minorities when the legislation deals with issues such as sentencing, probation, parole or child welfare.

“Race bias is a staggering problem in the criminal justice system,” said Vanita Gupta, deputy legal director at the American Civil Liberties Union. She said the statements serve as an “important reminder that there are real people being impacted by our criminal justice laws. It’s important for lawmakers to be [aware] of that impact.”

Although some analysts say there are better solutions that don’t play up racial divisions, a senior legal fellow at the Heritage Foundation said a racial impact statement is a “waste of time” and an example of “political correctness taken to an extreme.”

“The fact that, for example, there are more blacks in jail for committing assault than whites does not mean the law is discriminatory,” said Heritage’s Hans A. von Spakovsky. “It’s just an unfortunate cultural problem that there are higher crime rates in the black community.”

Mr. von Spakovsky warned that racial impact statements will hurt the people they are intended to help.

“If you use these impact statements to somehow lessen sentencing, or to decriminalize criminal acts, the people who are going to get hurt the most are, in fact, poor urban communities,” he said. “If you want to improve the situation for them, then work on improving the education environment and improving the safety of those urban neighborhoods. That’s where the energy and money should go.”

Iowa was the first to adopt a racial impact statement requirement in 2008, after a 2007 report published by advocacy group the Sentencing Project found that Iowa had the nation’s highest racial disparity in its prisons, with blacks making up 24 percent of the state’s prisoners but only 2 percent of its population. Connecticut also requires racial impact statements on new criminal laws. Minnesota’s sentencing commission routinely drafts the statements as well, although they are not required.

Nicole Porter, director of advocacy at the Sentencing Project, said requiring racial impact statements is “a step in the right direction” that, combined with proper leadership in law enforcement, would help address racial disparities in the judicial system.

“We are hopeful that other states will adopt racial impact statements as well so policymakers can be intentional of proposed legislation being considered,” Ms. Porter said.

Advocates of racial impact statements cite statistics and studies that show a significant overrepresentation of minorities in state prisons and child welfare systems compared with the general population. For example, various studies show blacks make up approximately 14 percent of drug users but more than half of prisoners incarcerated for drug offenses. Blacks are also three times more likely to be stopped by police than whites, and often receive longer prison sentences than their white counterparts convicted of the same crimes.

President Obama touched on the topic during his impromptu remarks last month on the Zimmerman verdict.

“The African-American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws, everything from the death penalty to enforcement of our drug laws. And that ends up having an impact in terms of how people interpret the case,” Mr. Obama said.

But other analysts voice doubt about requiring racial impact statements.

George Washington University law professor Christopher Bracey said there is “undoubtedly” a problem of racial bias in the criminal justice system, but he questions the effectiveness of requiring racial impact statements. For example, he said, even though Iowa has required racial impact statements for several years, the state still has significant racial disparities in arrests, incarcerations and the like.

“The deeper problem is the pervasiveness of racial bias, both conscious and unconscious, throughout our society,” Mr. Bracey said. “Let’s be honest about it. For centuries, Americans have been fearful and suspicious of certain racial minorities. Current attitudes that connect race and criminal suspicion are part of the legacy of white supremacy in this country. These attitudes find their way into all aspects of American life, including the criminal justice system.”

Others suggest that racial disparities in prisons are partially the product of policy problems, not a racially biased judicial system. Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, said a better approach to addressing racial disparities in the legal and prison systems would include decriminalizing drug use and prison alternatives for nonviolent offenders.

Oregon’s Mr. Gallegos, though, maintained that the race statements serve a need.

“It is important to present the message that the work to decrease racial disparity is in the interest of all citizens in Oregon,” he said. “It is a step, albeit a small step, in the right direction. But didn’t someone say that every journey begins with the first step?”

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