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How Legislatures Can Attack Racial Disparities in Criminal Justice

Black Americans are still being incarcerated at nearly five times the rate of whites. There’s much that state lawmakers can do to reduce inequities and make legal processes fairer.

A prison inmate
A recent U.S. Justice Department report documented that the Louisville Metro Police Department has engaged in a pattern of abusive and racially discriminatory behavior. The investigation, prompted by the fatal police shooting of Breonna Taylor in 2020, points to a range of harmful actions — from unlawful stops to excessive force and the use of racial slurs — that have eroded trust in law enforcement and harmed Black communities in particular.

Such abuses are a symptom of troubling racial disparities in our criminal justice system, not just in my home state of Kentucky but across the country. Although we’ve made progress, Black Americans are still imprisoned at disproportionate rates. State legislatures must address this problem, and some are already doing so.

The good news is that racial disparities in our justice system are trending downward. A 2022 report from the Council on Criminal Justice showed that the disparity between Black and white state imprisonment rates dropped by 40 percent between 2000 and 2020. This decline occurred across all crime categories, with the steepest drop, 75 percent, occurring for drug offenses.

While this positive trajectory is heartening, a serious racial gap remains: Black Americans are still being incarcerated at nearly five times the rate of whites.

States can take several important steps to address the lingering inequities. First, lawmakers must collect data to identify problem areas. In Kentucky, we lacked such data, and for the first half of my career as a state senator — even in my post on the Judiciary Committee — I was unaware of the extent of racial disparities in our state.

My understanding grew as I worked on legislation to reduce the use of incarceration for youth convicted of low-level crimes. In 2014, data showed that Black adults comprised 24 percent of the state prison population, more than two-and-a-half times the proportion of Black people in the state’s adult population, and that Black juveniles were overrepresented in our detention facilities.

We also learned that Kentucky courts were required by statute to prosecute juvenile cases involving firearms in adult court, even if the young person was not in possession of the weapon or if it was not used in the crime. This mandate was funneling Black youth into serious justice involvement and saddling them with the long-term consequences that accompany a criminal record.

Using such data as a foundation, lawmakers can craft policies to address and prevent system imbalances. Sentencing is a key area of focus for states, and in Kentucky we targeted practices involving young people.

In 2014, Kentucky passed a law that sought to reduce our use of incarceration for youth for low-level crimes, the largest juvenile justice reform in 30 years. Rather than sentencing these youth to time in penal facilities, the law diverted them to treatment to address underlying issues driving their behavior and funneled savings from reduced incarceration into community interventions.

A 2020 study by the Justice Department highlighted the law’s positive outcomes: more youth in diversion programs, a decrease in juvenile recidivism and a drop in juvenile imprisonment. Data show the law also helped address racial disparities, and several other states — including Kansas, Pennsylvania, South Dakota, Utah and Washington — have used it as a model for their own legislation.

Elsewhere, lawmakers are passing laws to improve their understanding of racial disparities in the justice system and make legal processes fairer. Colorado passed a bill requiring that legislative staff use data to assess whether potential legislation is likely to increase or decrease racial disparities in incarceration; Florida created a partnership with a university for the same purpose. Connecticut, Iowa, New Hampshire, Oregon and Virginia have passed similar laws.

In other states, legislatures are addressing racially harmful sentencing practices. The use of sentencing enhancements has long been shown to create racial disparities in the length of prison terms, and in California such enhancements were applied disproportionately to people of color, often resulting in longer sentences. To address this, the state reduced the number of crimes eligible for such sentencing consideration.

While these changes are promising, the work is far from done, and it’s up to lawmakers to enact smart policies that will shift the dynamics producing racial gaps in the administration of justice. Through this important work, we can uphold the equality and safety that are the core of our nation’s highest ideals.

Whitney Westerfield, a Republican, has been a Kentucky state senator since 2013. He is also an attorney in private practice and formerly served as an assistant commonwealth’s attorney.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
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