2.6 Re-Evaluating Policy
So what do we do when a policy has unintended or unwanted consequences? Throughout American history, groups have come together to draw attention to some of the inequities within criminal justice policy, sometimes leading to a re-evaluation of the policy and thus new processes put in place. Some of these re-evaluations have been a result of public outcry and media attention and others have been in relation to statistical data showing results that were less than desirable in regards to the intent of the original policy. We will look at a few examples in this section, and others will be considered in future chapters.
The Sentencing Project
One organization that has focused its efforts on re-evaluating criminal justice policy is The Sentencing Project. The organization has been at the forefront of collecting and disbursing information related to reform efforts and options. In their article, “Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System,” they outline some “best practices for reducing racial disparities” through criminal justice policy reform and note, “Jurisdictions around the country have implemented reforms to address these sources of inequality. This section showcases best practices from the adult and juvenile justice systems. In many cases, these reforms have produced demonstrable results” (Ghandoosh, 2015).
The Sentencing Project – Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System by Nazgol Ghandoosh (Pages 19-20 Excerpt)
1) REVISE POLICIES AND LAWS WITH DISPARATE RACIAL IMPACT
Through careful data collection and analysis of racial disparities at various points throughout the criminal justice system, police departments, prosecutor’s offices, courts, and lawmakers have been able to identify and address sources of racial bias.
Revise policies with disparate racial impact: Seattle; New York City; Florida’s Miami-Dade and Broward County Public Schools; Los Angeles Unified School District.
- After criticism and lawsuits about racial disparities in its drug law enforcement, some precincts in and around Seattle have implemented a pre-booking diversion strategy: the Law Enforcement Assisted Diversion program (Knafo, 2014). The program gives police officers the option of transferring individuals arrested on drug and prostitution charges to social services rather than sending them deeper into the criminal justice system.
- Successful litigation and the election of a mayor with a reform agenda effectively curbed “stop and frisk” policing in New York City (Bostock & Fessenden, 2014). Mayor Bill de Blasio vowed that his administration would “not break the law to enforce the law” and significantly curbed a policy that was described by a federal judge as one of “indirect racial profiling” (2014). Thus far, the reform has not had an adverse impact on crime rates (Bostock & Fessenden, 2014). In a related effort to address disparities in enforcement, the New York City Police Department stated it would no longer make arrests for possession of small amounts of marijuana but would instead treat these cases as non-criminal offenses subject to a fine rather than jail time (Goldstein, 2014). Yet experts worry that this policy does not go far enough to remedy unfair policing practices and may still impose problematic consequences on those who are ticketed (Sayegh, 2014).
- Several school districts have enacted new school disciplinary policies to reduce racial disparities in out-of-school suspensions and police referrals. Reforms at Florida’s Miami-Dade and Broward County Public Schools have cut school-based arrests by more than half in five years and significantly reduced suspensions (Smiley & Vacquez, 2013). In Los Angeles, the school district has nearly eliminated police-issued truancy tickets in the past four years and has enacted new disciplinary policies to reduce reliance on its school police department (Watanade, 2013). School officials will now deal directly with students who deface property, fight, or get caught with tobacco on school grounds. Several other school districts around the country have begun to implement similar reforms.
Revise laws with disparate racial impact: Federal; Indiana; Illinois; Washington, D.C.
- The Fair Sentencing Act (FSA) of 2010 reduced from 100:1 to 18:1 the weight disparity in the amount of powder cocaine versus crack cocaine that triggers federal mandatory minimum sentences. If passed, the Smarter Sentencing Act would apply these reforms retroactively to people sentenced under the old law. California recently eliminated the crack-cocaine sentencing disparity for certain offenses, and Missouri reduced its disparity. Thirteen states still impose different sentences for crack and cocaine offenses (Porter & Wright, 2011).
- Indiana amended its drug-free school zone sentencing laws after the state’s Supreme Court began reducing harsh sentences imposed under the law and a university study revealed its negative impact and limited effectiveness. The reform’s components included reducing drug-free zones from 1,000 feet to 500 feet, eliminating them around public housing complexes and youth program centers, and adding a requirement that minors must be reasonably expected to be present when the underlying drug offense occurs. Connecticut, Delaware, Kentucky, Massachusetts, New Jersey, and South Carolina have also amended their laws (Porter & Clemons, 2013).
- Through persistent efforts, advocates in Illinois secured the repeal of a 20-year-old law that required the automatic transfer to adult court of 15- and 16-year-olds accused of certain drug offenses within 1,000 feet of a school or public housing. A broad coalition behind the reform emphasized that the law was unnecessary and racially biased, causing youth of color to comprise 99% of those automatically transferred.
- Following a campaign that emphasized disparate racial enforcement of the law, a ballot initiative in Washington, D.C. may legalize possession of small amounts of marijuana in the district (Sebens, 2014).
Address upstream disparities: New York City; Clayton County, GA.
- The District Attorney of Brooklyn, New York informed the New York Police Department that he would stop prosecuting minor marijuana arrests so that “individuals, and especially young people of color, do not become unfairly burdened and stigmatized by involvement in the criminal justice system for engaging in non-violent conduct that poses no threat of harm to persons or property” (Clifford & Goldstein, 2014).
- Following a two-year study conducted in partnership with the Vera Institute of Justice, Manhattan’s District Attorney’s office learned that its plea guidelines emphasizing prior arrests created racial disparities in plea offers. The office will conduct implicit bias training for its assistant prosecutors and is being urged to revise its policy of tying plea offers to arrest histories (Kutateladze, 2014).
- Officials in Clayton County, Georgia reduced school-based juvenile court referrals by creating a system of graduated sanctions to standardize consequences for youth who committed low-level misdemeanor offenses, who comprised the majority of school referrals. The reforms resulted in a 46% reduction in school-based referrals of African American youth.
Anticipate disparate impact of new policies: Iowa; Connecticut; Oregon; Minnesota.
- Iowa, Connecticut, and Oregon have passed legislation requiring a racial impact analysis before codifying a new crime or modifying the criminal penalty for an existing crime. Minnesota’s sentencing commission electively conducts this analysis. This proactive approach of anticipating disparate racial impact could be extended to local laws and incorporated into police policies.
Revise risk assessment instruments: Multnomah County, OR; Minnesota’s Fourth Judicial District.
- Jurisdictions have been able to reduce racial disparities in confinement by documenting racial bias inherent in certain risk assessment instruments (RAI) used for criminal justice decision-making. The development of a new RAI in Multnomah County, Oregon led to a greater than 50% reduction in the number of youth detained and a near-complete elimination of racial disparity in the proportion of delinquency referrals resulting in detention. Officials examined each element of the RAI through the lens of race and eliminated known sources of bias, such as references to “gang affiliation” since youth of color were disproportionately characterized as gang affiliates often simply due to where they lived.
- Similarly, a review of the RAI used in consideration of pretrial release in Minnesota’s Fourth Judicial District helped reduce sources of racial bias. Three of the nine indicators in the instrument were found to be correlated with race but were not significant predictors of pretrial offending or failure to appear in court. As a result, these factors were removed from the instrument.
If you would like to learn more, check out the entire article here at BLACK LIVES MATTER: Eliminating Racial Inequity in the Criminal Justice System [PDF].
Hate Crimes
Profile: Anti-LGBTQIA+ Hate Crimes In The United States: Histories and Debates by Ariella Rotramel.
On June 12, 2016, 49 people were killed and 53 wounded in the Pulse nightclub shooting in Orlando, Florida. It was the deadliest single-person mass shooting and the largest documented anti-LGBTQIA+ attack in U.S. history. Attacking a gay nightclub on Latin night resulted in over 90 percent of the victims being Latinx and the majority being LGBTQIA+ identified. This act focused on an iconic public space (figure 2.5) that provided LGBTQIA+ adults an opportunity to explore and claim their sexual and gender identities. The violence at Pulse echoed the 1973 UpStairs Lounge arson attack in New Orleans that killed 32 people. These mass killings are part of a broader picture of violence that LGBTQIA+ people experience, from the disproportionate killings of transgender women of color to domestic violence and bullying in schools. There are different perspectives within the LGBTQIA+ community about responses to hate-motivated violence. These debates concern whether the use of punitive measures through the criminal legal system supports or harms the LGBTQIA+ community and whether more radical approaches are needed to address the root causes of anti-LGBTQIA+ violence. This profile explores hate crimes as both a legal category and a broader social phenomenon.
What Are Hate Crimes?
Anti-LGBTQIA+ hate crimes have had a simultaneously spectacular and invisible role in U.S. society. Today, hate crimes are defined as criminal acts motivated by bias toward victims’ real or perceived identity groups (Blazak, 2011). Hate crimes are ways society tries to control and limit certain groups in unequal societies, as described by Barbara Perry’s idea of a “contemporary arsenal of oppression” (Perry, 2009). These crimes happen when some groups face ongoing violence due to systemic issues, pushing them to the edges of society. The theory is that hate crimes come from conflicts over cultural, political, and economic resources, prejudice and hostility toward less powerful groups, and authorities not effectively addressing hate in society (Turpin-Petrosin, 2009).
Unfair cultural norms can make some groups feel like outsiders, encouraging prejudice and making hate seem normal while punishing those who accept differences (Levin & Rabrenovic, 2003; Perry, 2003). Cultures of hate identify certain groups as enemies by treating them as less than human and promoting group violence (Levin & Rabrenovic, 2003; Perry, 2003). Those who commit hate crimes understand and navigate social structures that separate marginalized people from those accepted by society.
In cases of hate crimes against LGBTQIA+ individuals, there are oppressive beliefs like heterosexism, which rejects and degrades any non-heterosexual behavior, identity, relationship, or community. Cissexism is another oppressive belief that puts down transgender, gender nonbinary, genderqueer, and gender-nonconforming people (Herek, 1992). Hate crimes against LGBTQIA+ people happen because some see them as suitable targets for violence (Perry, 2005) (Green, et al, 2001). These crimes are often labeled as hate-based because the perpetrator may make homophobic comments, the incident might occur near a gay-identified place, the victim may feel the incident was homophobic, or other contextual clues (Chakraborti & Garland, 2009). It’s important to note that hate crimes against LGBTQIA+ individuals overlap with hate crimes against gender, racial, and ethnic groups, and other marginalized people (Dunbar, 2006).
Historical Hate Crime Policy
The Enforcement Act of 1871, also known as the Ku Klux Klan Act, addressed rampant anti-Black violence and marked the first effort at the federal level to criminalize hate crimes (Lurie & Chase, 2004). However, the Supreme Court’s United States v. Harris decision in 1883 greatly weakened the act and the ability of the federal government to intervene when states refused to prosecute hate crimes (1883). In the wake of the mid-twentieth-century civil rights movement and violence against activists, the 1968 Civil Rights Law covering federally protected activities was signed into law. It gave federal authorities the power to investigate and prosecute crimes motivated by actual or perceived race, color, religion, or national origin while a victim was engaged in a federally protected activity—for example, voting, accessing a public accommodation such as a hotel or restaurant, or attending school. The categories of identity named by the law were the key social categories of concern during this period and followed the language of the Civil Rights Act of 1964. However, the law excluded sex, reflecting an unwillingness to address gender-based discrimination fully rather than piecemeal through laws such as Title IX of the Education Amendments Act of 1972.
In 1978, California enacted the first state law enhancing penalties for murders based on prejudice against the protected statuses of race, religion, color, and national origin. State lawmakers took the lead in developing explicit hate-crime laws, and federal legislators followed suit in the mid-1980s (Jennes & Grattet, 2001). The LGBTQIA+ movement started gaining strength in the 1980s when activists were motivated by the HIV/AIDS epidemic and the hardships faced by the community, along with the lack of tolerance towards those affected. In 1980, New York’s Anti-Violence Project (AVP) was created to respond to violent attacks against gay men in the Chelsea neighborhood. These groups were worried because there wasn’t enough documentation of these crimes. Without proof that these incidents were part of a bigger problem of violence, it was hard to make efforts to address hate crimes. AVP, being a key part of the National Coalition of Anti-Violence Programs, has been coordinating reports on hate violence since the late 1990s (AVP, 201). These groups also pushed for the government to collect data and make hate crimes illegal.
In 1985, U.S. Representative John Conyers proposed the Hate Crime Statistics Act to ensure the federal collection and publishing annually of statistics on crimes motivated by racial, ethnic, or religious prejudice (Perry, 1985). It took five years for the Hate Crimes Statistics Act to become law, in 1990, and it did so only after sexual orientation was explicitly excluded from the legislation. Congress took great pains to emphasize that the legislation did not prevent discrimination against LGBTQIA+ people nor did it support that community. The law reinforces that Congress was not treating sexual orientation as it did other social identities that were already protected under civil rights laws.
The law resulted in the Federal Bureau of Investigation collecting data from local and state authorities about hate crimes, but there are major challenges to collecting accurate data. Police are not consistently trained at the local and state levels to address anti-LGBTQIA+ hate crimes, and there continues to be stigma and risk associated with identifying as LGBTQIA+ to such authorities. Reporting practices thus vary dramatically across contexts, but the law has assisted anti-violence groups in gaining official data to document violence.
The 1998 beating and torture death of college student Matthew Shepard in Laramie, Wyoming, became a rallying point to address hate crimes more fully in the late 1990s. His murder received substantial media coverage and inspired political action as well as artistic works. As an affluent, white, gay young man, Shepard became a symbol of antigay violence. His attackers were accused of attacking him because of antigay bias but were not charged with committing a hate crime because Wyoming had no laws that covered anti-LGBTQIA+ crimes. The attention to his death contrasted with the lesser attention given to Brandon Teena’s sexual assault and murder, which was immortalized in the film Boys Don’t Cry (1999), and to the untold number of murders of trans women, particularly women of color (Wikipedia contributors, 2022).
Although the particularities of the case have been debated, Shepard’s murder became iconic and served as a means of challenging U.S. lawmakers and society at large to address hate-motivated violence. The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act was passed by the U.S. House of Representatives on October 8, 2009, and the U.S. Senate on October 22, 2009 (Bessel, 2010). James Byrd Jr., a Black man, was attacked, chained to a truck, and dragged to his death for over two miles in Jasper, Texas. Both crimes received national attention, and there was public outrage that neither Texas nor Wyoming could enhance the punishment for these bias-motivated murders (McPhail, 2000).
The act expanded protections to victims of bias crimes that were “motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person,” becoming the first federal criminal prosecution statute addressing sexual orientation and gender-identity-based hate crimes (DOJ, 2018). It also increased the punishment for hate-crime perpetrators and allowed the Department of Justice to assist in investigations and prosecutions of these crimes.
On October 28, 2009, in advance of signing the act into law, President Barack Obama stated, “We must stand against crimes that are meant not only to break bones, but to break spirits, not only to inflict harm, but to inflict fear.” His words emphasized the broader social context of hate crimes, experienced as attacks on marginalized communities (Office of the Press Secretary, White House, 2009).
Federal laws address constitutional rights violations, but states have—or don’t have—their own specific hate-crime laws (Levin & McDevitt, 2002). Today, there are a wide range of laws regarding hate-crime protections across states, and they vary regarding protected groups, criminal or civil approaches, crimes covered, complete or limited data collection, and law enforcement training (Shively, 2005). As of 2019, nineteen states did not have any LGBT hate-crime laws, and twelve states had laws that covered sexual orientation but did not address gender identity and expression. Twenty states included both sexual orientation and gender identity in their hate-crime laws (Movement Advancement Project, n.d.). The majority of these laws were created in the first years of the 2000s, and gender identity and expression were included in the following years.
Debating Hate-Crime Laws
Supporters of hate-crime laws argue that these offenses not only harm individuals but also entire communities, causing long-lasting psychological effects and restricting victims’ freedom of expression (Cramer, et al, 2013) (Bessel, 2005) (Sullaway, 2004). The creation of such laws aims to establish an agreement about protecting marginalized groups from hateful actions (Spade & Willse, 2000). However, critics suggest that the term “hate crime” doesn’t consider the broader structures supporting hate violence, placing blame solely on individuals assumed to be acting out of emotion (Ray and Smith, 2001)(Perry, 1999).
Furthermore, hate-crime laws are seen as symbolic, with low reporting rates and authorities not consistently applying statutes to such crimes (McPhail, 2000). These laws focus more on punishment than preventing crimes. Given the already high incarceration rates of LGBTQIA+ individuals and people of color, some argue that hate-crime laws support, rather than challenge, mass incarceration (Meyer, et al, 2017).
While some believe these laws emphasize the value of lives and foster a sense of belonging, others, especially LGBTQIA+ activists in broader social justice movements, argue that they mainly support a flawed criminal justice system that doesn’t truly benefit the LGBTQIA+ community. Additionally, sometimes prosecuting a hate crime is challenging because we need to prove the offender’s motivation.
Licenses and Attributions for Re-Evaluating Policy
Open Content, Shared Previously
“Re-Evaluating Policy” by Alison S. Burke and Megan Gonzalez is adapted from “4.5 Re-Evaluating Policy” by Alison S. Burke in SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez, licensed under CC BY-NC-SA 4.0. Modifications by Alison S. Burke and Megan Gonzalez include revisions to style, consistency, recency, and brevity and added DEI content. Revisions by Roxie Supplee, licensed under CC BY-NC-SA 4.0, include significant rewriting for clarity, reading level, and length.
“Hate Crimes” by Megan Gonzalez is adapted from “Profile: Anti LGBTQ Hate Crimes in the United States:Histories and Debates” by Ariella Rotramel in LGBTQ+ Studies: An Open Textbook by James Aimers, Christ Craven, Marquis Bey, Kimberly Fuller, Rev. Miller Jen Hoffman, Thomas Lawrence Long, Jennifer Miller, Gesina Phillips. Clark A. Pomerleau, Christine Rodriguez, DNP, APRN, FNP-BC, MDiv, MA, Ariella Rotramel, Shyla Saltzamn, Dara J. Silberstein, Marianne Snyder, PhD, MSN, RN, Lynne Stahl, Rachel Wexelbaum, Dr. Ryan J. Watson, Sarah R. Young is licensed under CC BY-NC-SA 4.0. Edited for style, consistency, recency, and brevity; added DEI content.
Figure 2.5. “Stonewall Inn with Orlando nightclub shooting memorial during Pride 2016” by Rhododendrites is licensed under CC BY-SA 4.0.
All Rights Reserved Content
“Research from The Sentencing Project On Racial Inequity in the Criminal Justice System” is excerpted from Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System by The Sentencing Project, 2015. Used with permission.
Figure 2.6. Equality Maps: Hate Crime Laws by the Movement Advancement Project is included under fair use.
The criminal justice system is a major social institution that is tasked with controlling crime in various ways. It includes police, courts, and the correction system.
A government attorney who represents the state in criminal cases and is responsible for bringing charges against defendants and arguing for their conviction.
A system of rules enforced through social institutions to govern behavior.
The process of directing someone away from the formal criminal justice system, often into social services or treatment programs.
A facility that holds people accused of crimes awaiting trial or those convicted of minor offenses.
These are the least dangerous types of crimes which can include, depending on the location, public intoxication, prostitution, and graffiti, among others.
An explanation that attempts to make sense of our observations about the world.
One who has suffered direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.
A penalty imposed on someone who has committed a crime.
The phenomenon of the United States having the highest incarceration rate in the world.
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