Wednesday, May 9, 2018 from Kat Brady

Today we share a report of the Sentencing Project to the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance regarding racial disparities in the US criminal justice system. The link is included and their recommendations follow. Very interesting in light of Jeff Sessions talking to law enforcement about the “roaring success” of the war on drugs. Amazing lack of cognitive thinking…

REPORT OF THE SENTENCING PROJECT TO THE UNITED NATIONS SPECIAL RAPPORTEUR ON CONTEMPORARY FORMS OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA, AND RELATED INTOLERANCE REGARDING RACIAL DISPARITIES IN THE UNITED STATES CRIMINAL JUSTICE SYSTEM

March 2018

RECOMMENDATIONS TO THE UN SPECIAL RAPPORTEUR

As the research presented in this report indicates, the causes of the racial disparities in the U.S. criminal justice system are complex and deeply rooted. As studies repeatedly demonstrate, the cumulative impact of racial disparity is experienced throughout the country’s criminal justice system. Beliefs that the current system is unaffected by centuries of an explicitly racist past is wishful thinking and potentially blinds decision makers to the implicit racial bias that orients the American consciousness and is embedded in its formal policies.

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.

End the war on drugs.

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.

Eliminate mandatory minimum sentences.

The United States should eliminate mandatory minimum sentences. Judges should be allowed to consider individual case characteristics when sentencing a defendant in every case. Mandatory sentences do not eliminate discretion in the courtroom—they simply shift it from judges to prosecutors, thereby reducing transparency in decision making.

Reduce the use of cash bail.

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.

Fully fund indigent defense agencies.

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.

Adopt a policy requiring the use of racial impact statements.

Policies should be adopted at the federal and state levels requiring the use of racial impact statements for proposed sentencing policies. Such a policy would require legislators to prepare an analysis assessing the possible disparate racial consequences of any proposed legislation before enacting it in order to avoid any unintended disparate racial effects.58 Four states—Iowa, Connecticut, Oregon, and New Jersey—have adopted racial impact statement requirements since 2008. Develop and implement training to reduce racial bias. 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.

58 Marc Mauer, Racial Impact Statements: Changing Policies to Address Disparities, 23 vol. 4 Criminal Justice 16 (Winter 2009).

 59 See, e.g., Ashby Plant & Michelle Peruche, The Consequences of Race for Police Officers’ Response to Criminal Suspects, 16 Psy. Sci. 180, 183 (2005) (finding that repeated training of police officers on computer simulations eliminated racial shooter bias and that the effects were still present 24 hours later); Jeffrey J. Rachlinski et al., Does Unconscious Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1210 (2009).

60 Jerry Kang & Kristen Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465, 466 (2010). 13 Address collateral consequences. Denying the right to vote to an entire class of citizens is deeply problematic to a democratic society and counterproductive to effective reentry. The federal government should allow Americans to vote regardless of their conviction status, and certainly after they have concluded their sentences. States should also allow the full democratic participation of their citizens. Government officials should also revise policies that serve no public safety function but impose collateral consequences on people with criminal convictions—such as in the realms of employment, education, housing, and in the social safety net—and encourage similar reforms in the private sector.

CONCLUSION

For decades, the United States of America has employed mass incarceration as a convenient answer to inconvenient questions. These policies have produced dramatic rates of incarceration, with a particularly disproportionate impact on communities of color. In addition to the range of harmful consequences to people of color, mass incarceration has been a failed policy in regard to public safety outcomes. Research has documented that the effect of imprisonment on crime rates has been modest, and that at current levels the scale of incarceration is well past the point of diminishing returns for public safety. Mass incarceration has diverted resources from prevention and treatment initiatives that could have produced far more effective approaches to crime reduction.

In recent years, the U.S. government has addressed some of the glaring racial inequalities that permeate every aspect of its criminal justice system, but these efforts have been relatively modest in scope. The government continues to both foster and perpetuate inequalities in clear violation of its obligations under the International Covenant on Civil and Political Rights as well as other international agreements.

The proliferation of racial disparities in the U.S. criminal justice system has a profound impact on the lives of people of color. Behind each statistic lies the face of a young black man or woman whose potential has been cut short by a harsh prison sentence mandated by draconian drug laws. Behind each percentage point lies the face of a Latina child who will only know her parents through hurried, awkward visits in a prison visitation room. Behind each dataset lies a community of color bereft of hope because its young people have been locked away.

It is the human face—a face of color—of the racial injustice of the United States criminal justice system that is the most compelling reason for reform. It is time for the United States to take affirmative steps to eliminate the racial disparities in its criminal justice system.

The legislature has made it painfully clear this session, that criminal justice reform is up to the community. By ignoring all the deaths occurring in Hawai`i facilities, the legislature has shown that they are not willing to buck the broken correctional system.

Love, Kat

“Washing oneʻs hands of the conflict between the powerful and the powerless

means to side with the powerful, not to be neutral.”

Paulo Freire