In his annual “state of the judiciary” speech to the General Assembly in January, Iowa Supreme Court Chief Justice Mark S. Cady highlighted a new initiative.
“Three counties – Johnson, Linn, and Scott – are collaborating with Georgetown University on juvenile-court pilot projects,” he said. “These projects seek to eliminate racial disparity in the juvenile-justice system and its adverse consequences to our state.”
As part of that, a team from Scott County – representing the state’s Seventh Judicial Circuit, county and city government, Davenport schools, and Scott County Kids – went to Georgetown last August for training in the university’s Reducing Racial & Ethnic Disparities in Juvenile Justice program. The local project – which diverts youth offenders from the court system for simple misdemeanors – launched in January.
But it’s telling that in our 30-minute interview about the pilot project, Juvenile Court Supervisor David Tristan and I barely discussed race.
Instead, we talked about the fact that many children who enter the juvenile-court system are low-level offenders unlikely to commit another crime – yet they end up with a criminal record. “We wanted to eliminate that, just because a lot of first-time offenders don’t ever come back again into the system,” Tristan said. “Unfortunately, they [still] have this criminal record.”
Beyond that, he said, entering the court system increases the likelihood of future offenses: “Once they walk into our doors, into juvenile court, their risk level goes up 10 times. ... They become high-risk kids.”
Under the new diversion program, first-time offenders arrested for simple, non-traffic misdemeanors are eligible to attend a class with a parent or guardian, and they avoid a criminal record for that first offense. Typical crimes would include shoplifting, simple assaults, and vandalism, with the most common charges theft in the fifth degree (less than $200), disorderly conduct, and criminal mischief in the fifth degree.
Tristan said that the pilot project – which at this point only includes the City of Davenport, but which he hopes to see expanded to all five of the judicial circuit’s counties – is similar to a shoplifting diversion program that’s been in place for more than a decade.
“Our shoplifting program has been very successful,” he said. “We have an 86-, 88-percent success rate. We never see these kids again after they attend this program.” The primary difference is that under the shoplifting program, kids still have a criminal record; they just don’t face punishment for the first offense. The new diversion program also has more community partners and social services, and Tristan said he hopes that as a result the recidivism rate will be even lower.
So there’s nothing about the new diversion program specifically dealing with race or the racial disparity in the juvenile-justice system. But like many nascent efforts meant to address those disparities, race doesn’t need to be an explicit factor in the changes and reforms; the disparity in many cases is a feature of aggressive and/or selective enforcement of the laws.
Consider this excerpt from a November 2015 presentation of the Seventh Judicial District of Iowa: “Scott County had 1,165 juvenile arrests in 2014. Of those, 58 percent were African American whereas only about 12.5 percent of our youth population is African American.”
That is not to say that the racial disparity is entirely a result of how, where, and on whom police focus their efforts. The same presentation noted that there was a disparity in how whites and blacks are treated by the system after arrest: “African Americans are 8.78 percent more likely to be referred to juvenile court and [slightly] less likely to have their cases diverted than their white peers. Not only does this show disproportionality, but also disparate treatment as less African American youth are being given options other than entry into the juvenile-court system.”
“If They’re Not Serious, They’re Fooling Me”
The juvenile-court pilot project in Davenport is one of myriad criminal-justice-reform efforts in our states aimed, at least in part, in reducing racial disparities. For example:
• Iowa Supreme Court Chief Justice Cady has focused on racial disparities in his past two addresses to the General Assembly.
• Last year, both Iowa Governor Terry Branstad (with his Governor’s Working Group on Criminal Justice Policy Reform) and Illinois Governor Bruce Rauner (with his Illinois State Commission on Criminal Justice & Sentencing Reform) have made justice-system reform a priority. The reports of both groups have resulted in modest but promising legislation.
• Since 2011, St. Ambrose University’s Christopher Barnum, a professor of sociology and criminal justice, has helped shine a light on racial disparities in traffic stops made by Davenport police, and the increased awareness has helped reduce that disparity.
These illustrate the good news: The problem of racial disparity in the justice system can be addressed at the community, state, and federal level – from policing methods to the courts to the laws that are being enforced to sentencing rules set by legislatures.
Vera Kelly, as the president of the Davenport NAACP and the first vice president of the Iowa-Nebraska State Conference of Branches of the NAACP, has been a part of many of these initiatives – involved in conversations with Cady and Branstad and a participant in regular meetings with the Davenport Police Department.
“It’s a big issue,” she said of racial disparities in the justice system. “They have been working with us. I know it’s a long process, but hopefully in the next two years they can get it narrowed down. ...
“I think they are on the path,” she added, pledging to keep pushing on the issue. “When you start something, you don’t quit ’til you finish it. ... The thing we needed to do was work together. We’ve been doing it so far, and I hope they continue.”
And she said that the people with whom she’s worked appear earnest in wanting to reduce racial disparities: “I really believe they’re serious. If they’re not serious, they’re fooling me.”
Yet the fragmented and relatively minor initiatives so far also highlight the bad news: The problem has so many layers and sources that local and piecemeal approaches will only bear so much fruit. The problem is persistent across the country and cannot be solved on a city-by-city or state-by-state basis.
And current efforts largely emphasize criminal-justice reform in a general sense – that is, trying to reduce incarceration rates overall. One might expect that doing so – by changing police tactics, by easing drug laws and penalties, by diverting low-risk offenders from prison and jail, and by working to make it easier to transition from prison to society – will naturally lead to lower disparities in the system.
But that’s not always the case. In an April report, the national research and advocacy group The Sentencing Project noted: “Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent. Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half. Despite this remarkable achievement, the racial disparities endemic to the juvenile-justice system did not improve over these same 10 years. Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15 percent.”
For example, the disparity between black and white commitment rates in Iowa rose 8 percent in that decade. Black youth in Iowa are 5.7 times as likely as white youth to be committed to juvenile facilities.
And even though Illinois’ disparity dropped 16 percent, black youth in Illinois are still 3.6 times as likely as white youth to be committed.
The Problem in Black and White
Those youth-commitment disparities mirror a problem in the criminal-justice system overall.
In 2007, The Sentencing Project analyzed 2005 adult-correctional-center (prison and jail) populations on a state-by-state basis. Its report, “Uneven Justice,” painted a distressing picture: “The American prison and jail system is defined by an entrenched racial disparity in the population of incarcerated people. The national incarceration rate for whites is 412 per 100,000 residents, compared to 2,290 for African Americans, and 742 for Hispanics. These figures mean that 2.3 percent of all African Americans are incarcerated, compared to 0.4 percent of whites and 0.7 percent of Hispanics.
“While these overall rates of incarceration are all at record highs, they fail to reflect the concentrated impact of incarceration among young African-American males in particular, many of whom reside in disadvantaged neighborhoods. One in nine (11.7 percent) African-American males between the ages of 25 and 29 is currently incarcerated in a prison or jail.”
Iowa was third-worst among the states and the District of Columbia, with 4,200 African Americans incarcerated per 100,000 of that demographic group. (The white rate was 309 per 100,000.) Illinois was substantially better – and better than the national figure – with an African-American incarceration rate of 2,020 per 100,000 (compared to 223 per 100,000 for whites).
According to the Prison Policy Initiative, in 2010 Iowa’s incarceration rate was 3,473 per 100,000 African Americans and 324 per 100,000 whites. Illinois’ was 2,128 per 100,000 African Americans and 258 per 100,000 whites.
When you look at The Sentencing Project’s rates in ratios of black to white, Iowa was the worst state in the country, with 13.6 times as many African Americans incarcerated compared to whites per 100,000 of their respective demographic groups. Illinois’ ratio of 9.1 placed it as 14th worst among the states. (Because it has a relatively low overall incarceration rate, Illinois fared better compared to other states in its African-American incarceration rate than it did in the ratio of black-to-white incarceration rates.)
No state did well in this analysis. The lowest ratio of black to whites (again, per 100,000 of a particular demographic group) was Hawaii at 1.9. The next lowest was 3.3. Put starkly, in every state in the union outside of Hawaii, a black person is at least 3.3 times as likely as a white person to be incarcerated. Overall in the United States, the number is 5.6 times as likely.
Nicole D. Porter, director of advocacy for The Sentencing Project, said her organization is currently preparing an update of that 2007 report. “There has been modest movement on the issue,” she said, highlighting a few states – including Iowa – that passed laws requiring racial-impact statements for laws that create new crimes or increase penalties.
An Associated Press analysis of Iowa’s law early last year suggested it is having its intended effect: “A review of 61 Iowa impact statements issued since 2009 showed that only six out of 26 bills seen as having a disproportionate [negative] effect on minorities passed both chambers and became law. Meanwhile, bills that were rated as having no effect or a positive effect on minority incarceration rates were nearly twice as likely to pass. Fourteen out of 35 such proposals became law.”
The Bigger Picture
Talking only about racial disparities in incarceration, however, obscures the larger issue – a problem that is almost certainly a bigger factor in the criminal-justice-reform movement that governments are slowly embracing.
According to the Bureau of Justice Statistics, in 2014 more than 2.2 million people were incarcerated in American jails and prisons. (Another 4.7 million were on probation or parole.) Prison populations nearly quintupled over the past four-plus decades.
As recently as the early 1970s, roughly 100 people per 100,000 were incarcerated in state and federal prisons. Ten years ago, it peaked at more than 500 per 100,000. The rate in 2013 was 478 per 100,000 people, according to the Bureau of Justice Statistics. (These rates are lower than those from The Sentencing Project because they do not include people held in local jails.)
That’s hugely expensive for governments – costing taxpayers tens of billions of dollars a year, according to a 2012 study by the Vera Institute of Justice. “The total per-inmate [annual] cost averaged $31,286 and ranged from $14,603 in Kentucky to $60,076 in New York,” the report said. Iowa and Illinois were both above the national average in annual cost.
And at least 24 state prison systems in 2013 were at 98 percent or more of operational capacity – adding stress to state budgets and prison facilities and staff.
In short, the United States has two intertwined problems: incarceration overall and a disproportionately high rate of African-American incarceration.
The United States incarcerates a higher percentage of its population than any other country – 716 per 100,000 at the end of 2011, according to the International Centre for Prison Studies (whose numbers also include local jails). The United States has 5 percent of the world population but nearly a quarter of its prisoners.
A big driver of that, Brookings’ Jonathan Rothwell argues, is the War on Drugs: “Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades. In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes. In the 2000s, the flow of incarceration for drug crimes exceeded admissions for property crimes each year. Nearly one-third of total prison admissions over this period were for drug crimes.”
Drug laws and the enforcement of them, Rothwell notes, have disproportionately affected African Americans: “Arrests of blacks have fallen for violent and property crimes, but soared for drug-related crimes. ... The black share of people arrested for drug offenses has ranged from 23 percent (in 1980) to 41 percent (in 1991). Blacks remain far more likely than whites to be arrested for selling drugs (3.6 times more likely) or possessing drugs (2.5 times more likely). ...
“Here’s the real shock: Whites are actually more likely than blacks to sell drugs and about as likely to consume them.”
The sources of the disparity include the targeting of low-income neighborhoods for enforcement and mandatory minimum sentencing. Sometimes the disparity is embedded in the law itself.
Under the federal Anti-Drug Abuse Act of 1986, for example, the federal government viewed possession of crack cocaine as equivalent to 100 times as much powder cocaine in terms of sentencing. In 1995, The U.S. Sentencing Commission concluded that the law “led to more-severe sentences for low-level crack dealers than for wholesale suppliers of powder cocaine. ... As a result, thousands of people – mostly African Americans – have received disproportionately harsh prison sentences.”
The Fair Sentencing Act of 2010 reduced the disparity from 100 to 18 and also eliminated a five-year minimum sentence for crack-cocaine possession.
That change mirrors a gradual shift in American legislatures and public opinion.
The Pew Research Center noted that “between 2009 and 2013, 40 states took some action to ease their drug laws ... . Twenty-seven states moved only in the direction of easing, while 13 other states eased some laws and toughened others – often as part of a broader rethink of their drug policies.”
A 2014 survey by Pew Research Center found that “67 percent of Americans say that the government should focus more on providing treatment for those who use illegal drugs such as heroin and cocaine. Just 26 percent think the government’s focus should be on prosecuting users of such hard drugs.”
The Complexity of the Problem
In a December 2015 op-ed in the Des Moines Register, attorney Jim Benzoni articulated a compelling explanation for the racial disparities in the criminal-justice system, focusing on the drug war:
“The percentage of persons committing crime is roughly the same regardless of race,” he wrote. “Thus, understanding enforcement demographics becomes critical.
“Iowa’s minority populations tend to group together in the poorest urban centers. Law enforcement in population-dense urban areas is easier, cheaper, and more efficient. Fewer officers are needed to police more people. Many if not most of our minority citizens live in the very areas where ease and concentration of law enforcement is greatest.
“The engine driving this disparity is the ‘war on drugs.’ Drugs and drug-related crimes are more concentrated in population-dense urban areas, exacerbated by poverty. Thus, drug enforcement increases in concentrated poor urban areas. ...
“It is not necessarily blatant racism; it is the way we enforce the law. If we are to correct this disparity, we must end – or at least tone down considerably – America’s longest-running war.”
But neither the problem nor the solution is so simple. Yes, eliminating or scaling back the War on Drugs – for example, by not incarcerating low-risk people for nonviolent possession offenses – would certainly help.
Yet not all of the racial disparity in the criminal-justice system comes from arrest rates – or even effects we might expect to come from poverty rather than race. According to St. Ambrose University’s Barnum, studies have demonstrated racial bias even after controlling for poverty. “Even when you take into account income and socioeconomics, there is still some unexplained disproportionality between offending rates and who’s going to ... prison,” he said.
Biases at Every Point
Looking at Barnum’s studies of Davenport Police Department traffic stops underscores how carefully one needs to look at the information. The 2014 report summarized: “Officers disproportionately arrested and (consent) searched minority drivers across all years of the study. ... In general terms, the results show that African-American drivers tended to be arrested on a traffic stop more than other drivers.”
Those disproportionate numbers come after matching driver demographics to neighborhood populations – in other words, ensuring that the racial breakdown of drivers matches that of the neighborhood being tracked.
In an interview, Barnum cautioned against equating those disproportionate arrests to racial bias. For example, in some neighborhoods African Americans might be more likely to be driving with bench warrants or while barred. “If those are not evenly distributed across racial categories, then that’ll show up in the traffic stops,” he said. “And so that isn’t the best indicator of bias.”
Bias was evident, however, in officer requests to search vehicles – that is, in situations with no probable cause. The 2014 report said: “Officers were more likely to ask for consent to search from African Americans than from other drivers. The findings for consent searches are interesting because hit rates (or seizure of evidence) were actually higher for non-minority drivers. This means that although officers were more likely to ask an African-American driver for consent to search, the officers were more likely to make a seizure from a non-minority driver on a consent search.”
While that disparity is problematic, Barnum said that since he’s been collecting data, the disproportionality between races has dropped significantly. “Initially in Davenport, we found some level of disproportionality – the difference between the percentage of minorities stopped by the police and a valid baseline ... .” he said. “The level of disproportionality decreased for the most part. The general trend is down.”
The racial disparity is most pronounced among NETS officers – the Neighborhoods Energized to Succeed units targeting problem neighborhoods. Yet even in that category, the disparity from 2011 to a second survey in 2013 had dropped by roughly half.
The difference in disparity between NETS and patrol officers illustrates the knotty problem of high-crime neighborhoods with concentrations of racial-minority populations. “How do we want police to address that problem?” Barnum asked. “Do we want the police to go in and conduct a lot of investigatory stops? If the police do that, that will show up as disproportionality in the stops and arrests and everything else, and of course then that will show up down at the back end” in jails and prisons.
“How should we deal with these complex social issues like crime ... ?” he continued. “It’s not just a law-enforcement issue. It has to be dealt with prior to getting to that point” – such as through education and jobs. “I really don’t see this problem being fixed by law enforcement.”
But law enforcement can play in role in reducing disparities in the criminal-justice system, and progress in Davenport, he said, is likely the result of conscientious attention – reflecting both the police department’s willingness to look at the issue and the public scrutiny that comes with the studies: “I don’t know whether for sure it’s the sunlight shined on it or not, but that’s as good an explanation as any for why it’s occurring. ...
“They know they’re being watched,” he said. But he added that the Davenport police department has made a commitment to address racial disparities: “In my interactions with the police administration, I think they honestly care about it. I definitely think they’re making an honest and good-faith effort to do whatever they can do.”
Racial disparities in traffic stops are not, of course, a problem exclusive to Davenport. And they’re symptomatic of the larger issue of disparities in the justice system overall.
“People of color are far more likely in many communities to be stopped than white motorists,” said Ed Yohnka, director of communications and public policy for the Illinois ACLU. “Once they’re stopped, they’re far more likely to be asked for consent to search their car ... .” He noted that police are more likely to find contraband in the car of a white motorist, yet people of color are, for example, eight times as likely be arrested for marijuana possession, “even though all the data shows that people use drugs – actually, people also sell drugs – at about the same rate across different races.”
The Sentencing Project’s Porter said that racial disparities in incarceration are the result of “the cumulative disadvantages that defendants experience, starting from arrest through sentencing to post-conviction discretion decisions” by judges.
Yohnka concurred: “We see that it’s present at virtually every step along the way in the criminal-justice system. ... At every level, our justice system is broken. ... The system has these built-in biases ... that we just haven’t been able to wrestle with and repair. There’s an urgency to do that now ... .”
“It’s a Down Payment”
That urgency can be seen in the Illinois State Commission on Criminal Justice & Sentencing Reform, which produced part one of its final report in December. That report resulted in three pieces of bipartisan legislation supported by the governor, all of which had passed the Senate and were in a House committee as of May 9:
• Senate Bill 3164, which would require a pre-sentencing report showing why “probation or conditional discharge is not an appropriate sentence” for low-risk offenders.
• Senate Bill 3294, which would expand the use of electronic monitoring following release from incarceration.
• Senate Bill 3368, which would give offenders a state ID card upon release from incarceration.
“It’s a reflection of a very good-faith effort ... ,” Yohnka said of those bills. “It’s a down payment.”
The December report explicitly notes that the commission has not yet addressed, among other things, “truth-in-sentencing laws,” “the racial impact of sentencing,” “sentences for drug-law violations,” and “sentencing ranges” – all major factors in high levels of incarceration and racial disparities in incarceration.
“There’s real hope that there can be some true reforms that come out of that process,” Yohnka said. “It is a real opportunity at a unique moment to move beyond the promise of being tough on crime and instead find ways to be smart on crime.”
And although the commission’s proposals thus far have been modest and haven’t yet addressed racial disparities head-on, Yohnka said that “not yet doesn’t mean not ever. ... They understand that those are the ones that they’re going to have to tackle in order to really meet the goal of significantly reducing the number of people who are in prison in Illinois. ... They didn’t sort of do the low-hanging fruit and then just say, ‘Our work here is done.’ That’s a very positive development. ...
“It merits remembering that ... in some ways what we’re really doing here is encouraging and asking people to ... unlearn behaviors that have been driven into their heads over the last decade-plus – that the only way to take care of crime or to make our streets safer is to pass longer sentences, to criminalize more things ... .
“That process may take a little while. ... We’ll get there. It may take longer than some of us who are impatient want.”
In Iowa, the work of the equivalent Governor’s Working Group on Criminal Justice Policy Reform isn’t nearly so encouraging.
It suggested that “juvenile-delinquency records should remain confidential unless a judge specifically finds that it is in the best interests of the child and the public to make the records publicly available.” As with the Scott County diversion pilot program, the goal is to reduce the number of youth who carry a criminal record into adulthood. Legislation enacting that recommendation – Senate File 2288 – passed both chambers and was signed by Branstad on March 9.
The group’s recommendations also included “dedicated statewide funding to drug courts and mental-health courts,” with “consistent participant criteria ... developed for statewide use in drug courts and mental-health courts. The effectiveness of drug courts and mental-health courts should be measured against non-participants sharing that profile.”
But the remaining recommendations were minor – increasing the diversity of jury pools and lowering the cost of phone calls from jail and prison.
But if the working group’s recommendations were disappointing, there are still signs of progress in the Iowa General Assembly. A Senate amendment to House File 2064 would allow “nonviolent drug offenders who are not high-risk to re-offend to be eligible for parole after serving at least 50 percent of their mandatory minimum sentence,” according to a fiscal note on the bill.
In terms of practical impact, the fiscal note states: “As of January 11, 2016, there were 673 drug offenders in prison serving drug mandatory minimum sentences. ... Of these, 564 (83.9 percent) were assessed as low or medium risk for violence and other victim offenses, and could be affected by this proposal. During Fiscal Year 2015, there were 348 new prison admissions of drug offenders sentenced to serve mandatory minimum terms ... . Of these, 316 (90.8 percent) were assessed as low-risk or medium-risk for violence and other victim offenses, and could be impacted by this proposal.”
In other words, the bill – which passed both chambers with the amendment but as of May 9 still awaited action from the governor – could potentially release hundreds of nonviolent drug offenders from Iowa prisons. (Branstad signed the bill into law on Thursday, May 12, after this article had been published.)
If Branstad signs it into law, that legislation will be a major step forward – a sign that Iowa is truly serious about solving its prison problem, and the racial disparities that go along with it.