January 2014 Bar Bulletin
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January 2014 Bar Bulletin

MLK Day: A Time To Reflect


As we approach Martin Luther King Jr. Day, there will be wonderful celebrations of his life and accomplishments. It is an opportune time to reflect on what has been accomplished in equality, and what has not.

I can't help but think Dr. King would be disappointed in many respects at where we are as we begin 2014. While we have made progress in achieving equality, it has been slow and inconsistent. In some situations, we have actually moved backward instead of forward. Such is the case in our criminal justice system with the racial and ethnic disparity that our system has generated and allowed.

There is no one part of system that is responsible for the current disparity that exists and all parts of our system have publicly stated a strong desire to reduce this disparity. Over the past decade and more, there has been much discussion and studying of disparity. Many laudable projects have been launched to reduce disparity and they are having an impact.

I am not interested in assessing blame as I believe all who work in the justice system, myself included, have played some part in allowing disparity to occur and continue. I am interested in taking bigger steps and trying some new things to reduce disparity.

While most of us know the statistics on disparity, they bear repeating. On any given day, more than 60 percent of people in prison are racial or ethnic minorities, according to the Department of Justice Bureau of Statistics. For men, one in nine will spend time in prison. For white men, this number is one in 17; black men, one in three; Latino men, one in six. Among women, one in 56 will spend time in prison. For white women, this number is one in 111; black women, one in 18; Latina women, one in 45.

These numbers should horrify us. How can we honestly say our criminal justice system is fair?

If one out of every three black men will spend time in prison, the collateral impact and costs to families, communities and opportunities lost is staggering to think about. Dr. King's final years focused on economic injustice, on shining a light on the poor and marginalized in our country. The current disparity in our criminal justice system ensures economic injustice will continue; that poor people, the majority of whom are people of color, will continue to be marginalized. This is not the "dream" Dr. King shared with our country. It is not the legacy Dr. King envisioned or died for.

Disparity is a complex problem. There are no easy answers and there is more we can do. One idea that has intrigued me over the past few years, and that I believe should now be implemented, is the requirement of including racial and ethnic impact statements with any proposed safety- and justice-related legislation at the local and state levels.

Similar to fiscal or environmental impact statements, a racial and ethnic impact statement would require lawmakers and the public to anticipate and address any unwarranted racial disparities that would result from a proposed piece of legislation. This would allow lawmakers and the public to consider alternative policies that could accomplish the goals of the legislation without causing unintended racial and ethnic disparities.

Three states currently require racial and ethnic impact statements - Oregon, Iowa and Connecticut. While it is not required to do so by law, Minnesota's sentencing commission regularly drafts racial and ethnic impact statements for new legislation. King County and Washington should be the next.

Racial and ethnic impact statements have not resolved nor eliminated disparity issues in the states employing them. However, they are causing lawmakers and the public to pause before enacting new laws, to be intentional in their actions and to be honest about the actual impact of proposed legislation on our communities.

I've focused on disparity in incarceration. Racial and ethnic impact statements could and should be applied to proposed legislation that affects the foster care and child welfare system; on changes to sentencing guidelines; on laws to create new offenses; on proposals that create collateral consequences to a conviction; and on alternative programs such as drug or mental health court. While racial and ethnic impact statements would show us the effect of particular legislation on various populations, they may also have other benefits such as identifying additional areas of focus in addressing disparity.

Ideally, racial and ethnic impact statements would be created for existing laws so that we could see where disparity was magnified in our decision-making. We could then potentially correct this legislation. It may not be possible to look back; however, we absolutely must look forward.

The topic of disparity is a challenging conversation to have with ourselves and in the context of our roles in contributing to the current level of disparity. At various times, we have all heard, "She's playing the race card." Isn't it time to interject "the race card" into our decision-making if we want to reduce disparity? We must honestly recognize and discuss the impact that the laws we make have on racial and ethnic minorities. Being "color blind" in how we operate our criminal justice system is not working.

If we want to honor Dr. King in a meaningful way, we must celebrate not only his accomplishments and his dreams. We must pick up where he left off and continue his work to eliminate inequality and economic injustice. Racial and ethnic impact statements are not the end point, not a solution. They are a starting point, a first step in having a criminal justice system that is fair and just. Let me know what you think because, together, we can make this happen.


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