Criminal Justice Nothing Cuts Deeper

[Rosham Rosebure]

TheCOVID-19 pandemic and resulting recession are putting an enormous strain on state and local governments. Beyond the well-known difficulties states and localities face in recessions and the challenges of managing a public health emergency, leaders managing this crisis must also grapple with how to address an upwelling of protest and discontent over police violence, inequity in the administration of criminal justice, and what communities spend on these programs.

Many of these needed reforms are not related to fiscal policy and will play out over a long time period. But budget choices are happening now, and by understanding the nature and potential effects of the current fiscal crisis, avoiding repeating the mistakes of the past, and focusing on equitable and effective changes, policymakers and advocates can turn these challenges into opportunities to enact lasting public safety reforms.

Nearly all spending on policing, courts, and corrections is current spending (salaries, training, and lab work) rather than capital spending (such as prison and court construction). And a majority of each criminal justice expenditure goes to salary and wages. Thus, cost of living differences are a large reason why New York has higher per capita criminal justice expenditures than Kentucky.

Because state and local governments must balance their budgets, governments will have to increase taxes or cut spending. Already, several governors are calling for across-the-board cuts exceeding 10 percent in the current fiscal year, and three-fourths of municipalities have made spending cuts (PDF), with many resorting to across-the-board reductions. More and deeper cuts are likely still on the way, especially without additional federal aid.

If forced to cut, governments should try to avoid blunt measures. Simply reducing criminal justice employees by seniority could reverse prior reforms aimed at diversifying the workforce. And cutting one department or agency without understanding the effects on another could exacerbate future fiscal problems. For example, cuts to the court system could slow case processing, leading to jail crowding while detainees await dispositions, thus increasing corrections costs.

One promising solution: community-based programs representing holistic, comprehensive approaches to public safety. These evidence-based programs are relatively cheap compared with traditional crime-control responses. In fact, fiscal austerity could prompt efforts to enhance investment in communities by providing more resources for community-led safety programs, better addressing underlying needs and equity gaps, and spurring local employment opportunities.

The Urban Institute podcast, Evidence in Action, inspires changemakers to lead with evidence and act with equity. Cohosted by Urban President Sarah Rosen Wartell and Executive Vice President Kimberlyn Leary, every episode features in-depth discussions with experts and leaders on topics ranging from how to advance equity, to designing innovative solutions that achieve community impact, to what it means to practice evidence-based leadership.

Ending mass incarceration requires taking a second look at extreme sentences. Learn more about our coalition of legal professionals providing direct representation to incarcerated individuals seeking relief from lengthy or unfair sentences.

The United States criminal justice system is the largest in the world. At yearend 2015, over 6.7 million individuals1 were under some form of correctional control in the United States, including 2.2 million incarcerated in federal, state, or local prisons and jails.2 The U.S. is a world leader in its rate of incarceration, dwarfing the rate of nearly every other nation.3

The source of such disparities is deeper and more systemic than explicit racial discrimination. The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color. The wealthy can access a vigorous adversary system replete with constitutional protections for defendants. Yet the experiences of poor and minority defendants within the criminal justice system often differ substantially from that model due to a number of factors, each of which contributes to the overrepresentation of such individuals in the system. As former Georgetown Law Professor David Cole states in his book No Equal Justice,

This report chronicles the racial disparity that permeates every stage of the United States criminal justice system, from arrest to trial to sentencing to post prison experiences. In particular, the report highlights research findings that address rates of racial disparity and their underlying causes throughout the criminal justice system. The report concludes by offering recommendations on ways that federal, state, and local officials in the United States can work to eliminate racial disparity in the criminal justice system and uphold its obligations under the Covenant.

African Americans were incarcerated in local jails at a rate 3.5 times that of non-Hispanic whites in 2016.27 These disparities stem in part from the policies and practices of policing described earlier, but are compounded by those introduced at this stage of processing. Given that nearly two-thirds (65%) of people in jail in 2016 were being detained prior to trial, policies and decisions influencing pretrial detention play a key role in driving the disparity in the jail population and beyond.27

Pretrial detention has been shown to increase the odds of conviction, and people who are detained awaiting trial are also more likely to accept less favorable plea deals, to be sentenced to prison, and to receive longer sentences. Seventy percent of pretrial releases require money bond, an especially high hurdle for low-income defendants, who are disproportionately people of color.29 Blacks and Latinos are more likely than whites to be denied bail, to have a higher money bond set, and to be detained because they cannot pay their bond.29 They are often assessed to be higher safety and flight risks because they are more likely to experience socioeconomic disadvantage and to have criminal records. Implicit bias also contributes to people of color faring worse than comparable whites in bail determinations.

Among youth, African Americans are 4.1 times as likely to be committed to secure placements as whites, American Indians are 3.1 times as likely, and Hispanics are 1.5 times as likely.35 Although levels of youth confinement have significantly declined in recent years, the racial gap between black and American Indian versus white youth has increased.36

The racial disparities in the adult and juvenile justice systems stem in part from the policing and pretrial factors described earlier, and are compounded by discretionary decisions and sentencing policies that disadvantage people of color because of their race or higher rates of socioeconomic disadvantage.20 These include:

The Welfare Reform Act of 1996 imposed a lifetime denial of cash assistance and food stamps to people convicted in state or federal courts of felony drug offenses, unless states opt out of the ban.51 Given the dynamics of social class and the accompanying disparate racial effects of the criminal justice system, women and children of color are disproportionately impacted by this exclusionary law.51 By 2018, 24 states had fully opted out of the food stamp ban, 21 others had only done so in part, and five states continued to fully enforce the ban.53 An even larger number of states continue to impose a partial or full ban on cash assistance for people with felony drug convictions.53

The United States can adopt concrete measures to reduce both the existence and the effects of racial bias in its criminal justice system. As such, The Sentencing Project respectfully urges the UN Special Rapporteur to recommend that the United States adopt the following recommendations.

The United States should substantially end its War on Drugs. Specifically, the Department of Justice should reconsider and reduce the volume of low-level drug offenders prosecuted in federal court. State officials can also adopt law changes to divert prison-bound defendants into effective alternatives to incarceration programs. Local police departments should significantly scale back drug arrests. The resources saved by decreasing the number of prosecutions should be invested in evidence-based drug prevention and treatment measures.

Defendants should be detained pretrial only if they pose a safety or flight risk, not because they cannot afford to post bail. A well calibrated and transparent risk-assessment instrument can be used to determine who should be released on their own recognizance, who should be released with some requirements, and who should be detained.

The United States should fully fund and staff indigent defense agencies through an appropriate mix of local, state, and federal resources. The federal government should increase support for training and technical assistance for indigent defense, and document shortcomings of jurisdictions that fail to meet established bar association standards for caseloads and professional training.

The United States should develop and implement training designed to mitigate the influence of implicit racial bias at every level of the criminal justice system: police officers, public defenders, prosecutors, judges, jury members, and parole boards. While it is difficult to eliminate completely racial bias at the individual level, studies have repeatedly shown that it is possible to control for the effects of implicit racial bias on individual decision-making.59 In other words, while it may be impossible in the current culture of the United States to ensure that individuals are cognitively colorblind, it is possible to train individuals to be behaviorally colorblind.60 The United States should work with leading scholars on implicit bias to develop the most effective training programs, and couple this with systems of monitoring and accountability to reduce the influence of implicit racial bias.

3a8082e126