Criminal Justice Reform Initiative
The criminal justice system, in which lawbreakers are apprehended and punished according to the law, is one of the pillars of a democracy. For that system to remain viable, the public must be confident that at every stage of the process, from the initial investigation of a crime to prosecution and punishment, individuals in like circumstances are treated alike, consistent with the Constitution's guarantees of equal treatment under law.
Our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased. The injustices of the criminal justice system threaten to render irrelevant fifty years of hard-fought civil rights progress. Of particular concern are the following areas:
- Racial profiling and other law enforcement practices that single out minorities as objects of suspicion solely on the basis of the color of their skin or apparent ethnic heritage.
- A federal cocaine sentencing scheme that provides one of the most glaring manifestations of racial disparity in the criminal justice system.
- The disproportionately harsh treatment of minorities in the juvenile justice system, an area in which especially pronounced disparities pose ominous consequences for minority communities.
- Lack of opportunities for prisoners reentering society in voting, housing, education, and employment, which, if present, would greatly reduce the rate of recidivism among ex-prisoners.
Racial profiling occurs when law enforcement agents impermissibly use race, religion, ethnicity, or national origin to identify potential lawbreakers. Racial profiling can occur in any context of life, including driving, walking, traveling through airports, traveling to and from places of worship, and at home. Compelling anecdotal and statistical evidence demonstrates that minorities are disproportionately targeted by law enforcement. A 2004 report from Amnesty International found that approximately 32 million people have been victimized by racial profiling, and this number has likely risen due to increased profiling of people of Middle Eastern and South Asian descent since September 11, 2001. Women and men, the old and young, the poor and rich, and those from rural, suburban, and urban areas are all affected by racial profiling.
Racial profiling is a major source of controversy in the panoply of race relations problems, and it must be addressed in order to improve police-community relations and to find more effective solutions for reductions of crime. When law enforcement officials focus on race instead of hard leads or individualized suspicion, they overlook relevant factors in an investigation, leaving a greater possibility that a criminal or terrorist who does not "fit the profile" will go unnoticed. Because racial profiling creates an adverse "first encounter" with policing, it has a tremendous domino effect on subsequent law enforcement actions, such as arrest, prosecution, and incarceration.
Legislative and Executive Solutions and Current Activities
During the past five years, LCCR and LCCREF worked in coalition with other organizations to build congressional support for the enactment of the End Racial Profiling Act (ERPA). In 2007 Senator Russ Feingold (D-WI) and others introduced the End Racial Profiling Act of 2007 (S. 2481) in the Senate while Representative John Conyers, Jr. (D-MI) introduced companion legislation in the House of Representatives (H.R. 4611). LCCR has been working with both House and Senate staff and the racial profiling working group of LCCR members to finalize language to introduce the 2009 End Racial Profiling Act (ERPA). We are working with advocates to shore up support for the effort.
If enacted, ERPA would prohibit any local, state, or federal law enforcement agency or officer from engaging in racial profiling. It would make efforts to eliminate the practice a condition of law enforcement agencies receiving federal money. ERPA would institute a meaningful enforcement mechanism to ensure that anti-profiling policies are followed. Law enforcement agencies would be required to collect demographic data on routine investigatory activities, develop procedures to respond to racial profiling complaints, and craft policies to discipline officers who engage in the practice. ERPA would also provide victims of racial profiling with the legal tools to hold law enforcement agencies accountable (a private right of action).
Besides legislative enactments, we are also working to strengthen the guidance that the Department of Justice issued in 2003 banning federal law enforcement officials from engaging in racial profiling. While an important first step, the guidelines provide no rights or remedies and include a broad and largely undefined exception concerning national security. Our efforts to modify this guidance include expanding its scope to cover the use of federal resources to attach prohibitions on federal funds, enforcing federal data collection, and narrowing the national security exception.
Federal Cocaine Sentencing Disparity
In 1986 in the Anti-Drug Abuse Act, Congress enacted a 100 to 1 disparity between two drugs that are pharmacologically identical based on reasons that have all been proven false. Possessing or dealing as little as five grams of crack cocaine, a quantity that yields 10 to 50 doses, can result in the same five-year mandatory minimum sentence as dealing 500 grams of powder cocaine, a quantity that yields 2,500 to 5,000 doses. Crack cocaine is also the only drug that carries a minimum five-year mandatory sentence for the charge of first-time possession.
This harsh sentencing policy has led to even harsher consequences. Although part of the reason the law was drawn was to target drug operations, the disparity has instead targeted low-level dealers, leading the United States to have the largest prison population in the world. In addition, the cocaine sentencing disparity had led to a huge racial disparity between African Americans and other racial and ethnic groups. While two-thirds of crack cocaine users are white or Latino, 80 percent of crack cocaine defendants are African American. Meanwhile, African Americans make up just 27 percent of those convicted of powder cocaine offenses.
Recently, we have seen progress in the 20-year advocacy efforts to end the federal 100 to1 cocaine sentencing disparity. On December 10, 2007, the Supreme Court ruled in Kimbrough v. United States that federal judges can take into account the disparity between powder and crack cocaine sentencing and can sentence crack cocaine offenders below the federal sentencing guidelines if they wish. Furthermore, the United States Sentencing Commission (USSC) voted unanimously to apply reductions to the sentencing guidelines for crack cocaine offenses, which allowed 20,000 prisoners to apply for sentence reductions.
Legislative and Executive Solutions and Current Activities
While the Supreme Court and USSC have taken steps to reduce the disparity, only Congress can eliminate the 100 to 1 ratio altogether. LCCR is working with the Crack the Disparity Coalition to pass legislation to eliminate the sentencing disparity between crack and powder cocaine. Rep. Bobby Scott (D-VA) introduced a bill (H.R. 3245) to eliminate the disparity between the two forms of cocaine by setting the sentencing trigger for both at 500 grams. The measure would also eliminate the mandatory minimum sentence for possession of crack cocaine. The bill was voted out of the Crime Subcommittee and the House Judiciary Committee. The coalition is working to secure additional cosponsors, and to ensure passage on the House floor. On the Senate side, the coalition is working with Senator Durbin's office in their efforts to introduce a bipartisan bill to eliminate the disparity. Moreover, President Obama has expressed his strong support for a 1 to 1 ratio. We continue to work with our coalition partners to introduce an equalization bill in the Senate and build support to pass this legislation.
Every year authorities arrest over two million juveniles. Over 100,000 youth are under juvenile justice supervision, and many thousands more are under the custody of the criminal justice system. We rely on the younger generation for the sustainability of our nation. Young people are the future of the labor force and the engine behind our collective success. We cannot afford to lose entire generations of young Americans to the juvenile and criminal justice systems. Instead of focusing on harsher penalties and removing juveniles from society, we must provide quality education, job skills, and other supports designed to help them achieve success, putting them back on track to becoming productive members of society.
Legislative and Executive Solutions and Current Activities
We need systemic reforms that consider an individual's cognitive development and cultural and linguistic needs and that provide community-based alternatives to incarceration, which are wholly more effective and less costly than incarceration. The Juvenile Justice and Delinquency Protection Act, first enacted in 1974, calls for federal standards for safeguarding the care and custody of children and youth in the juvenile and criminal justice systems. We strongly support the reauthorization of this act, which advances alternative punishments to incarceration, prohibiting juvenile offenders from serving time in adult prisons, assessing and addressing the disproportionate representation of youth of color in the juvenile justice system, and taking into account culture, language, and age for each individual.
Every year nearly 700,000 people will leave prison, and nine million more will leave local jails. Many return to destitute communities, lacking appropriate support for substance abuse issues and mental illnesses, with children to care for. With a drug or criminal conviction, many find it difficult to find housing, a job, or pursue an education because of recently enacted policies. Because prospects of integration are severely compromised due to lack of opportunities, two-thirds of ex-prisoners are rearrested within three years of being released. Without a comprehensive strategy that incorporates employment, education, housing, civic engagement, treatment, health services, and welfare assistance, the chances of success diminish and the likelihood of recidivism increases.
An especially harsh consequence for ex-felons is the denial of voting rights after release from prison. Each state has its own law for if and when citizens with felony convictions can regain their voting rights. There is overwhelming evidence that election officials are confused and misinformed about these laws and registration procedures, and because of this, many eligible voters are unfairly denied their rights. Moreover, these laws stem from the Jim Crow era when governments tried to block black Americans from participating in the voting process. Now, 13 percent of African-American men are ineligible to vote, a rate seven times the national average.
Another piece of legislation, the Personal Responsibility and Work Opportunity Reconciliation Act prohibits those with drug-related felonies from receiving funds from the Temporary Assistance for Needy Families (TANF) or food stamps, unless states opt out or modify the ban. Currently, 22 states have imposed the ban in part and 14 completely enforce it. This only furthers imposes upon successful reintegration into society and increases the difficulty of receiving employment, treatment, and food.
Legislative and Executive Solutions and Current Activities
We will be working on a national legislative fix for the disenfranchisement of those with felony convictions called the Democracy Restoration Act. Senator Russ Feingold (D-WI) and Representative John Conyers, Jr. (D-MI) introduced this in the 110th Congress. We are expecting greater momentum in this Congress, especially since more states have eased their restrictions, many of them with Republican leadership.
Other legislation to help prisoners re-enter society include repealing Section 115(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 to eliminate the lifetime ban on TANF and food stamp eligibility for people with drug felony convictions and amending public housing restrictions for people with criminal records.
Fairness in the Criminal Justice System
Finally, two additional pieces of legislation introduced this year in Congress address the overall unfairness of the criminal justice system. The National Criminal Justice Commission Act of 2009, introduced by Senator Jim Webb, is a bipartisan bill creating a blue-ribbon commission that will undertake a comprehensive review of the criminal justice system. The Commission would consist of 11 members appointed by the President, the Majority and Minority Leaders of the Senate, the Speaker and Minority Leader of the House, and the Chairs of the Democratic and Republican Governors Associations. The Commission would be tasked with reviewing, finding, and making recommendations about incarceration, prison administration, the impact of gang activity, drug policy, mental illness among prisoners, and the role of the military in crime prevention.
The second piece of legislation, the Justice Integrity Act, has been introduced in both the House and the Senate. Finding a general mistrust of the criminal justice system, the Act creates a pilot program in ten US Attorneys' districts aided by advisory committees. These committees will collect racial and ethnic data at every stage in the criminal justice system in these districts and make findings and recommendations for reducing and eliminating unjustified disparities where found.
Problems with the criminal justice system cut across all aspects of arrest, prosecution, sentencing, and incarceration, and these bills provide a way of studying these issues as intertwined rather than as isolated circumstances. The two pieces of legislation call for bipartisan groups of broad expertise in all aspects of the criminal justice system, which help to validate the findings and ensure serious consideration of their recommendations. Both laws would increase the urgency of fixing the criminal justice system by calling for much needed reforms.
Project Components and Structure
The lobbying arm of the Leadership Conference is conducting an aggressive campaign to promote the need for criminal justice reform and address the specifics of legislation; while LCCR's sister organization LCCREF is providing research to inform the process and coordinating efforts to mobilize coalition membership and inform opinion shapers and the general public of the need for reform, as well as an education component for ensuring awareness and enforcement once pieces of legislation are passed.
LCCR Lobbying Activities
To advance the legislative solutions detailed above, the LCCR lobbying initiative will include:
- Coordinating the criminal justice community, the greater civil rights community and reaching out to non-traditional allies that have a stake in criminal justice reform
- Providing legislative drafting assistance and input/feedback on drafts
- Working with House and Senate committee staffs to craft legislation
- Coordinating press and lobbying efforts with congressional staffs
- Coordinating congressional hearings with congressional staffs
LCCR serves as the campaign's central coordinator, organizing internal meetings, keeping track of internal deadlines, tasks and assignments, and coordinating the overall project. Key members of the collaborative will be LCCR member organizations that are most involved in criminal justice reform activities and those that represent populations disproportionately affected by the biased system.
The Criminal Justice Task Force of the Leadership Conference coordinates the criminal justice reform community on key legislative and policy issues, and is in ongoing contact with House and Senate staff, advocates, the Department of Justice, and White House staff around this issue.
LCCREF Education Activities
The Ed Fund leads a public awareness, research and materials development, and grassroots and communications campaign to inform the civil rights community, community leaders, policy makers, and the media about the importance of criminal justice reform and its civil rights implications.
LCCREF's campaign seeks to:
- More fully engage national civil rights organizations around the issue
- Foster an increased understanding among community leaders at the grassroots level about the importance of criminal justice reform to their constituencies
- Raise awareness and understanding among lower income and minority stakeholders of the importance of reform
LCCREF coordinates the campaign, working with a collaborative of national civil rights groups with expertise in criminal justice reform and who represent populations that are most likely to be affected. Campaign components include:
Coordination of activities among civil rights member organizations
- Convenings of civil rights member organizations for internal discussions and coordinating educational, grassroots, and communications strategies
- Creation and dissemination of print and electronic materials (dissemination avenues include newsletters, websites, community magazines, listservs, and national and local conferences and workshops)
- Coordination of outreach efforts to community-based organizations and affiliated membership organizations around the country
Communications outreach to shape public opinion about criminal justice reform
- Working with communities to identify and frame the issue as a social justice priority in an effort to beat back the political and public fear around criminal justice reform
- Working with partner organizations to identify messengers
- Development of an advocacy toolkit that includes messages, templates, and materials
- Media training in target regions
- Organizing press briefings, and drafting edit memos and sample columns to increase the coverage of the importance of criminal justice reform
- Promotion of campaign goals through online outlets, including LCCREF's award-winning website www.civilrights.org
Grassroots mobilization of community leaders around the importance of criminal justice reform
- Outreach to and mobilization of regional, state and local opinion leaders
- Materials distribution to national, state and local organizations for dissemination to their local membership
- Grassroots task force meetings of representatives from LCCR’s more than 200 member organizations, and national grassroots conference calls, to share information and educational materials, facilitate increased communication between national, state and local groups to advance messaging
 Amnesty International, Threats and Humiliation: Racial Profiling, Domestic Security, and Human Rights in the United States, September 2004, http://www.amnestyusa.org/racial_profiling/report/rp_report.pdf.