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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition

Chapter Seven: Recommendations

Criminal Justice Report Banner
Table of Contents
grey arrow Executive Summary
grey arrow Introduction
grey arrow Chapter One: Race and the Police
grey arrow Chapter Two: Race and Prosecutorial Discretion
grey arrow Chapter Three: Race, Sentencing and the "Tough Crime" Movement
grey arrow Chapter Four: Willful Judicial Blindness
grey arrow Chapter Five: Race and Juvenile Justice System
grey arrow Chapter Six: Consequences of Too Little Justice
grey arrow Chapter Seven: Recommendations
Chapter VII

Recommendations

If the American criminal justice system were a corporation, it would be found to violate the civil rights laws so extensively that it might well be shut down. But for several reasons, racial inequality in the criminal justice system cannot be eradicated easily.

First, there actually is no single American criminal justice system. The federal government, each state and many localities operate independent court systems, and there are thousands of discrete law enforcement agencies throughout the United States. Unlike some other civil rights battles, criminal justice reform is a state-by-state challenge.

Second, little or no de jure racial discrimination remains in the criminal law (although the different federal sentencing schemes for crack and powder cocaine comes close). Instead, racial disparities emerge from deeply rooted, self-fulfilling stereotypes and assumptions. A complex network of laws, policies, priorities and practices perpetuate the racially skewed outcomes described in this report. It is difficult enough to get to the source of the problem, much less change it.

Third, efforts to reform criminal justice policies are politically perilous – no office holder wants to be labeled “soft on crime,” and measures to make crime policy more rational and equitable are uniquely susceptible to such demagoguery. Crime rates have declined in recent years, a phenomenon that has more to do with demographics and the strength of the economy than the racially tainted policing strategies and sentencing initiatives of recent years. But mayors, police chiefs, legislators – even Presidents – love to take credit for safer streets and are loath to tinker with a winning electoral formula.

Still, efforts to redress racial biases in criminal justice are beginning to take root, and a growing number of courageous politicians are willing to challenge criminal justice orthodoxy. For example:

  • Racial profiling is under growing scrutiny. Legislation requiring police officers to compile racial statistics on traffic stops was debated in 20 state legislatures last year, and passed in Connecticut and North Carolina.

  • Flaws in the administration of the death penalty have led to calls for reform. Republican Governor George Ryan has announced a moratorium on executions in Illinois because of that State’s “shameful record of convicting innocent people and putting them on death row.” Meanwhile, legislation to improve capital punishment procedures, including better collection of data regarding racial disparities, commands bipartisan support in Congress.

  • Mandatory sentencing laws have been ameliorated in Michigan and Utah, and legislation to repeal federal mandatory minimums has been introduced.

The recommendations set forth below build on these encouraging trends. But even this ambitious agenda is too limited. Purging the criminal justice system of racial inequality requires a fundamental shift in crime and drug policy in the United States, and demands that policy makers and front line police officers abandon deeply ingrained racial stereotypes and assumptions.

Recommendation One:

Build Accountability into the Exercise of Discretion by Police and Prosecutors.

Just as racial disparity begins with discretionary decisions by front-line law enforcement personnel, so should remedies begin there.

We do not advocate that discretion be eliminated from the criminal justice system. That goal would be unattainable and unwise. Criminal laws are written in broad terms, and experienced law enforcement officials, both police and prosecutors, must retain the authority to apply the laws in individual cases with wisdom and common sense. A criminal justice system that did not delegate some discretion to those who enforce the laws would yield even harsher, less rational results than the current system. As our unfortunate experience with mandatory sentencing proves, discretion is a key ingredient of justice.

The problem with discretion in today’s criminal justice system is that it is exercised without meaningful accountability. While law enforcement discretion must be preserved, the type of unchecked, unreviewable discretion that police and prosecutors currently wield breeds racial disparity and resentment.

A. Improve Police Accountability.

The credibility gap between minority Americans and front-line law enforcement is yawning, and it widens with every new report on racial profiling and every new account of police brutality. Closing this gap requires the following mechanisms to improve police accountability:

  • The development of national standards for accrediting law enforcement agencies. No such national standard currently exists, leading to a patchwork of law enforcement guidelines throughout the nation. The national standards should include specific guidance on traffic stop procedures; the use of force; and interaction between police officers and multi-cultural communities. The standards should expressly prohibit racial profiling of any kind.

  • Improved training of current and incoming police officers to bring police departments into compliance with the national standards.

  • The passage of federal legislation requiring federal and state law enforcement officials to gather data on traffic stops and other encounters associated with racial profiling, such as INS enforcement activities and airport/drug courier inquiries. Such data should be disseminated publicly.

  • Expanded authority and resources for police oversight agencies such as the Civil Rights Division of the Justice Department to investigate and punish misconduct, including racial profiling, brutality and corruption.

B. Improve Prosecutorial Accountability.

The improper exercise of prosecutorial discretion, like law enforcement discretion, has a disproportionate impact on minorities and should also be subjected to greater public scrutiny. We recommend passage of federal legislation requiring the collection and publication of data by each U.S. Attorney's office and each State prosecutor's office regarding the charging and sentencing practices and outcomes in those offices, and the racial impact of those outcomes. Thus, for each case, the prosecutor should be required to document the race of the victim and defendant, the basis for the initial charging decision, the basis for the prosecutor’s bail recommendation, each plea offer made, accepted or rejected, and the basis for the prosecutor’s sentencing recommendation.

Requiring the collection of such data would heighten prosecutors’ sensitivity to the racial effects of their decisions. Publication of this data would enable the public to hold prosecutors accountable for the improper exercise of discretion. For example, requiring prosecutors to publish information regarding their charging practices would enable a criminal defendant alleging selective prosecution to surmount the discovery hurdles erected by the Supreme Court in United States v. Armstrong. And because 43 states hold popular elections for State Attorney General, and 95 percent of chief prosecutors are elected at the county and municipal level, publication of racial impact studies would also enhance electoral accountability for these public officials.

Recommendation Two:

Improve the Diversity of Law Enforcement Personnel.

Much of the hostility between minority communities and the police can be traced to the under-representation of minorities in law enforcement. In too many neighborhoods, the police are seen as an occupying force rather than a community resource. Police departments and prosecutors’ offices should redouble their efforts to recruit minorities. Police departments should encourage, and perhaps require, that officers live in the cities they patrol.

Diversification requires adequate funding and well-targeted recruitment efforts. We recommend that the federal government condition grant programs to state and local law enforcement agencies on efforts by those agencies to implement minority recruitment and hiring practices.

Recommendation Three:

Improve the Collection of Criminal Justice Data Relevant to Racial Disparities.

As in other areas of American life, we need to be more conscious of racial issues in criminal justice in order to achieve a color-blind criminal justice system eventually. The collection of racial data is essential to identify flaws in current policies and devise the means to redress them.

Many of the data sets generated by government agencies and private researchers concerning race and criminal justice take account of the experiences of African-Americans and whites, but do not include statistics on Hispanics, Asian-Americans or Native Americans. We recommend that all major minority groups be included in future data collection efforts, at least where such empirical evidence would be statistically significant.

The juvenile justice system is one area in which the federal government already requires states to collect data regarding the disparate racial effects of their policies. The juvenile justice reform legislation now pending in Congress would eliminate this requirement. The data collection requirement in current law should not be repealed, and indeed should be expanded to address gaps in our understanding of the effect of juvenile justice policies on minority communities.

Recommendation Four:

Suspend Operation of the Death Penalty.

As currently implemented, capital punishment is a racist undertaking. The decision of who will live and who will die depends, in significant measure, on the race of the defendant and the race of the victim. This is due both to flawed procedures such as the appointment of incompetent lawyers for indigent defendants, as well as to racial attitudes and stereotypes that cannot be easily overcome.

The Leadership Conference on Civil Rights opposes capital punishment. But even those who do not believe that death penalty statutes should be repealed altogether should agree on the need for a nationwide moratorium on application of the death penalty while flaws in death penalty procedures are studied and remedies are proposed. During this period there should be a comprehensive review of the effects of race on capital sentencing outcomes.

Recommendation Five:

Repeal Mandatory Minimum Sentencing Laws.

Although sometimes conceived as a means to combat unwarranted racial disparity in sentencing, mandatory minimum sentencing laws are, in fact, engines of racial injustice. They have filled America's prisons to the rafters with thousands of non-violent minority offenders. They deprive judges of the ability to consider mitigating circumstances about the offense or the offender, an exercise of judicial discretion that can help redress racial bias at earlier stages of the criminal justice system. Particularly egregious are "three strikes" or "two strikes" mandatory sentencing laws that impose long and irreducible prison terms for even the most minor criminal conduct. These demagogic policies have resulted in a mushrooming prison population and in the disproportionate incarceration of minorities.

The repeal of mandatory minimum sentencing laws would be a significant step toward restoring balance and racial fairness to a criminal justice system that has increasingly come to view incarceration as an end in itself.

Recommendation Six:

Reform Sentencing Guideline Systems.

Were mandatory minimums sentencing laws to be repealed, sentencing in the federal system and many state systems would be carried out pursuant to sentencing guidelines. The problem is that the guideline systems are often based on and therefore infected by the racial disparities in current sentencing statutes.

For example, the disparate treatment of crack and powder cocaine offenders in the federal system has been carried over from the Controlled Substance Act to the sentencing guidelines manual. The 100-1 ratio between the amount of powder cocaine and the amount of crack cocaine needed to trigger the statutory mandatory penalty is found in the drug equivalency table in the guidelines as well. So even after the statute is changed, it will be necessary to revisit and redress unfairness in the guidelines.

Few policies have contributed more to minority cynicism about the war on drugs than the crack/powder cocaine disparity. If anti-drug efforts are to have credibility in minority communities, these penalties must be equalized as the U.S. Sentencing Commission initially proposed.

Recommendation Seven:

Reject or Repeal Efforts to Transfer Juveniles into Adult Justice System.

Perhaps no criminal justice policy is more destructive to our nation than one that extends incarceration and punishment-based crime approaches to children. Laws that shun rehabilitation of youthful offenders in favor of their transfer into the adult criminal justice system are inconsistent with a century of U.S. juvenile justice policy and practice, are applied disproportionately to minority youth, and threaten to create a permanent underclass of undereducated, untrained, hardened criminals. Forty-three states have such laws on the books, and both Houses of Congress have passed crime legislation containing provisions that undermine the traditional goals of juvenile justice. These federal proposals should be abandoned, the recently enacted juvenile justice referendum in California should be reconsidered, and other laws that encourage treating non-violent juvenile offenders as adults should be repealed.

Recommendation Eight:

Improve The Quality of Indigent Defense Counsel in Criminal Cases.

Many of the racially disparate outcomes in the criminal justice system are attributable to inadequate lawyering. To be sure, there are some obstacles that even the finest lawyer cannot overcome, such as the combination of a mandatory sentencing law and an obstinate prosecutor. But other inequities can be exposed and perhaps reversed through aggressive advocacy by defense counsel.

Unfortunately, many minority defendants depend on indigent defense services provided by the state. The lawyers who perform this role are often very dedicated and hard-working, but under-compensated and overwhelmed with a caseload that precludes vigorous advocacy on behalf of individual defendants. The problem here is a system that inadequately funds this vitally important component of the criminal process.

We recommend a systematic review of indigent defense services in the United States in order to inject new resources and effect significant improvements. We support, for example, title II of the Leahy-Smith Innocence Protection Act (S. 2073) which would establish federal standards for the appointment of competent counsel in death penalty cases.

Recommendation Nine:

Repeal Felony Disenfranchisement Laws and Other Mandatory Collateral Consequences of Criminal Convictions.

Disenfranchisement laws are antithetical to democracy and disproportionately affect minorities, eroding the important gains of the civil rights era. They also violate international law – specifically, Article 25 of the International Covenant on Civil and Political Rights. These laws should be abolished, and other collateral consequences of criminal convictions such as eviction from public housing and restrictions on student loans should be reviewed and, in any event, not mandatorily imposed. Criminal sentences, including collateral consequences such as disenfranchisement, should be tailored to the nature of the crime and the circumstances of the offender and should impose no more punishment than is necessary to achieve public safety, deterrence and rehabilitation.

Recommendation Ten:

Restore Balance to the National Drug Control Strategy.

As noted in Chapter 3, the massive increases in incarceration, including minority incarceration rates, are largely attributable to the war on drugs. Even if each of the criminal justice recommendations already proposed were adopted, we would be left with a national drug control strategy that seeks to combat drug abuse by locking up addicts. As we have seen, that policy has inevitable and disastrous consequences for minority communities.

Thirty years ago, during the Nixon Administration, there was recognition that drug abuse was a medical problem as well as a criminal justice challenge. Even at the height of the crack cocaine epidemic during the Bush Administration, there was lip service paid to the concept of a balanced drug strategy, one that dedicated substantial resources to treatment, prevention, education and research as a necessary complement to interdiction and law enforcement. But today, demand reduction efforts are on the back burner as Congress debates spending $1.7 billion to fight drug traffickers in the Andean Region and the Clinton Administration proposes funding for 17 new prisons in fiscal year 2001.

The current strategy not only inspires racial disparities; it is also ineffective in achieving its goals. Even General Barry McCaffrey, Director of the Office of National Drug Control Policy, stated in 1997: “[I]f measured solely in terms of price and purity, cocaine, heroin, and marijuana prove to be more available than they were a decade ago.”

Fundamental critiques of the drug war are available elsewhere. For purpose of this report, it suffices to say that the United States needs a more balanced drug strategy, one that adequately supports treatment, prevention, education, research and other efforts to reduce the demand for drugs. The current strategy places far too much reliance on the criminal justice system to solve a problem that is at least in part a public health problem. The result has been an experiment in mass incarceration that has devastated minority communities without discernable benefit.

Conclusion

Racial disparities in the criminal justice system are one manifestation of broader racial divisions in America. Many of the perceptions and prejudices that give rise to inequities in criminal justice are the same prejudices that have been with us since the founding of the Republic. Not until those underlying prejudices are shattered will true equality for all Americans, in all facets of life, have been achieved.

The criminal justice arena is an especially critical battleground in the continued struggle for civil rights. Current disparities in criminal justice threaten fifty years of progress toward equality. The Leadership Conference on Civil Rights cannot tolerate an America in which over one million blacks and Hispanics are in prison, in which the juvenile justice system has become a conveyer belt carrying minority youths into careers of crime, and in which minorities are explicitly targeted by law enforcement because of the color of their skin or their ethnic heritage.

Criminal justice reform is a civil rights challenge that can no longer be ignored.


See generally Race to Incarcerate at 81-100 (discussing “the prison-crime connection”).

Matthew Mosk, “Weeding Out Officers Who Single Out Drivers: Md. Senate Debates Anti-Profiling Bill,” Washington Post, April 6, 2000, at B01. Similar federal legislation has been introduced by Rep. Conyers (D-MI) with bipartisan support. See H.R. 1443, 106th Cong., 1st Sess. (April 15, 1999). See also Rep. Asa Hutchinson (R-AR), “What Actions Should Congress Take to Prevent Racial Profiling? Racial Profiling Endangers Justice,” Roll Call, February 7, 2000.

The Innocence Protection Act is co-sponsored in the Senate by Sens. Patrick Leahy (D-VT) and Gordon Smith (R-OR) and in the House of Representatives by Reps. William Delahunt (D-MA) and Ray LaHood (R-IL). Its objective is to require additional procedural safeguards, such as the preservation of DNA evidence and post-conviction review of that evidence, in order to avoid executing the innocent. See S.2073, 106th Cong., 2nd Sess. (February 10, 2000); H.R. 4167, 106th Cong., 2nd Sess. (April 4, 2000). Section 404 of these bills mandates the collection of statistics about racial outcomes in the imposition of the death penalty, including jury selection. Unfairness in the death penalty has also been highlighted recently by religious broadcaster Pat Robertson and columnist George Will. Associated Press, “Robertson Backs Death Penalty Moratorium,” New York Times, April 9, 2000, at A25; George Will, “Innocent on Death Row,” Washington Post, April 6, 2000, at A23.

See John Cloud, “A Get-Tough Policy That Failed,” Time February 1, 1999, p. 48. Legislation to repeal all federal mandatory minimums was introduced by Rep. Edwards (D-CA) in the 102nd Congress and by Rep. Washington (D-TX) on behalf of many members of the Congressional Black and Hispanic Caucuses in the 103rd Congress. In the current Congress, Rep. Waters (D-CA) has introduced legislation to repeal federal mandatory sentencing laws in drug cases. See H.R. 1681, 106th Cong, 1st Sess. (March 23, 1999).

Many of the measures outlined above are included in H.R. 3981, the Law Enforcement Trust and Integrity Act of 2000, introduced by Rep. John Conyers (D-MI) on April 15, 2000. See also n. 202, above (discussing legislative efforts to uncover racial profiling).

See “Prosecution and Race” at 54-56 (advocating racial impact studies of prosecutorial practices). It is important to note, however, that until the Supreme Court departs from its holding in McCleskey that discriminatory intent is necessary to invalidate discriminatory law enforcement practices, even in the face of statistical evidence of racially discriminatory effect, data collection will continue to have limited utility in the fight against discriminatory law enforcement practices. Congress could effectively overrule McClesky by passing a broad version of the Racial Justice Act that Senator Kennedy and others proposed in the early 1990’s to address racial disparities in capital punishment. See generally 137 Cong. Rec. S 8263; 102nd Cong. 1st Sess. (June 20, 1991).

Id. at 57.

See n. 203, above.

See n. 203, above.

Disenfranchisement Laws at 20-22.

See Michael Massing, The Fix (Simon & Schuster, 1998).

212 Barry McCaffrey, The National Drug Control Strategy (Office of National Drug Control Policy, 1997), p. 21.

213 See, e.g., Elliot Currie, Reckoning (Hill and Wang, 1993); Massing, The Fix, supra.

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