CRIMINAL JUSTICE

The Politics of Racial Disparity Reform: Racial Inequality and Criminal Justice Policymaking in the States

Ellen A. Donnelly1

Received: 3 January 2016 /Accepted: 17 March 2016 / Published online: 4 April 2016 # Southern Criminal Justice Association 2016

Abstract Racial inequalities in criminal justice are pressing problems for policymakers. Prior literature suggests elected officials promulgate punitive, racially disparate criminal justice policies due to partisanship and racial fears, but scholarship has yet to explain how and why elected officials address racial problems in criminal processing. This article introduces the framework of racial disparity reform policymaking. A racial disparity reform is a policy that seeks to reduce distinctions in criminal justice institutions’ treatment of racial groups. Elected officials pursue these policies due to ideological beliefs in civil rights ideals and political interests in appearing to solve social problems. Using an original database of policy enactments, this article first presents the distribution and types of reform measures adopted by elected officials in all 50 states between 1998 and 2011. It then examines social and political explanations for when state legislatures and executives adopt racial disparity reforms. Policy enactment is predicted by worsening problems of racial disproportion in criminal processing, Democratic control of elected branches, and the absence of judicial efforts to improve racial fairness within a state’s criminal justice system. Similar dynamics encourage the development of different measures types within policies. Such ideological and problem-solving explanations for racial disparity reform show a potential for elected officials to forge more racially just criminal justice practices.

Keywords Racial inequality. Politics . Criminal justice policymaking . Criminal justice reform

Am J Crim Just (2017) 42:1–27 DOI 10.1007/s12103-016-9344-8

* Ellen A. Donnelly [email protected]

1 Department of Criminology, University of Pennsylvania, 483 McNeil Building, 3718 Locust Walk, Philadelphia, PA 19104, USA

Racial inequality in criminal justice has been a longstanding challenge for policymakers. Despite constitutional and statutory protections for equality under the law, criminal processing of racial minorities is marred by problems of disparity and discrimination (Mauer, 1999; Tonry, 1995; Western, 2006). Prior literature argues elected officials develop more punitive and racially disparate crime controls due to partisan interests and racial threat (Beckett & Sasson, 2000; Tonry, 2011; Weaver, 2007). Elected officials often seek to remedy racial issues in criminal justice, however (King & Smith, 2011). For example, state politicians created a task force to curb racial disparities in the Wisconsin justice system (Coggs & Wray, 2008), required the use of racial impact statements in the Oregon legislature (Mauer, 2011), and banned the racially discriminatory imposition of the death penalty in the Kentucky judicial system (Mosteller, 2012). How and why elected officials attempt to reduce racial inequalities in criminal processing has yet to be explained.

This article introduces a framework of racial disparity reform policymaking. “Racial disparity reforms” are policies that aim to reduce distinctions in criminal processing across racial groups. Reforms are characterized by their focus on racial issues and their egalitarian aims. Corrective measures range from exploratory studies of racial difference and prohibitions on using race as a decision-making factor to comprehensive interventions throughout a justice system. Across reform types, motivation for reform among elected officials is two-fold. First, elected officials often act on ideals of equality and civil rights embedded in American politics (Fenno, 1978; Smith, 1993). Democrats especially share ideological incli- nations toward making criminal justice practices more racially just (King & Smith, 2005). Second, elected officials have electoral and institutional incentives to appear to remedy social problems (Esterling, 2004; Mayhew, 1974; Sunstein, 1988). Policymaking signals to the electorate that their representatives perform their duties to “solve” problems like racial disparities that have become acute since the late 1990s. Such problem-solving attempts can further enhance the reputation of elected branches because judicial systems have inconsistently sought to improve racial fairness in criminal proceedings (Neeley, 2008; Norris, 2011). These two motivations suggest elected officials might establish racial disparity reforms when Democrats control the elected branches, judicial systems do not take corrective action, and racial disproportionalities in criminal processing worsen.

This article then evaluates racial disparity reform policymaking by addressing two research questions. It provides a first look at criminal justice reform efforts across all 50 states between 1998 and 2011. Using an original database of racial disparity reforms enacted by state legislatures and executives, this article shows the distribution of racial disparity reform policies and types of reform measures within these policies. These findings show reforms are prevalent throughout the nation, but more intensive reform measures are less frequently adopted. Next, event history models are used to identify the socio-political factors associated with racial disparity reform. Results indicate that severe racial disproportionalities in incarceration and arrests significantly elevate the likelihood of racial disparity reform enactments. The absence of ongoing racial fairness efforts within a state judicial system and Democratic control of governing institutions also predict policymaking. Similar dynamics influence the creation of different correc- tive measures. These findings support an argument for a distinct criminal justice politics centered on a type of ideological and problem-severity responsiveness to racial

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inequalities. As race and criminal justice issues become more troubling in America, this article highlights the possibilities and limits of politics in reshaping criminal processing.

Politics, Criminal Justice, and Punitive Reform

In the past 50 years, criminal justice has transformed from “subject of policy” to an “object of politics” (Tonry, 1995, 10). Crime control has been loosely responsive to changes in crime (Beckett & Sasson, 2000). Until recently, the U.S. criminal justice system grew increasingly expansive and racially disparate in its composition despite fluctuating crime rates (Scheingold, 1984). Leading scholarly accounts argue politics is responsible for this unjustified, punitive turn in American criminal processing (Gottschalk, 2006; Mauer, 1999). Partisanship and racial threat made criminal justice a fixture on national and state political agendas. In response, elected officials promul- gated tougher criminal justice reforms.

Literature on criminal justice policymaking contends an intertwining of politics and criminal justice began during the Civil Rights era (Lerman & Weaver, 2014; Murakawa, 2014). Throughout the 1960s, rising crime rates became alarming. These increases in crime were largely products of social and political forces. Civil rights protests, riots, and violence of the period contributed to instability in urban centers. With support from the Law Enforcement Assistance Administration, police depart- ments documented crime rates more consistently. Underreporting of crime dropped for most offense types. The possibility of federal funding may have even prompted agencies to inflate their crime figures (Weaver, 2007, 246).

With apparent growing crime rates, partisan interests and racial fears recast criminal justice as a priority (Tonry, 2011). Taking root in Barry Goldwater’s 1964 presidential campaign, Republicans became champions of restoring “law and order.” Promises to crack down on social disorder were attractive. These calls especially won favor among Southern Democrats, who believed the Democratic Party’s rights extensions had incited chaos (Edsall & Edsall, 1991). While civil rights had fractured traditional political party lines, its subtle racial connection with crime would accord Republican leaders consid- erable electoral appeal (Mauer, 1999).

Criminal justice policymaking proliferated following the election of tough-on-crime politicians. Republicans in national and state government led reform endeavors by adopting harsher and more certain sanctions. New campaigns to combat drug offending, expand prison capacity, and extinguish “cultures of poverty” solidified political commitments to stronger crime controls (Western & Wildeman, 2009). Democrats could offer few policy alternatives. Electoral disadvantages due to the loss of Southern voters and the stigma of being “soft” on crime were great. By the beginning of the Clinton administration, Democrats endorsed their own anti-crime initiatives (Holian, 2004; Murakawa, 2014).

The impacts of these punitive criminal justice reforms are now unmistakable. Between 1979 and 2009, the U.S. penal population grew by 430 % while crime increased by just 3 % (Cole, 2011). More than 2.2 million adults are behind bars today (Glaze & Herberman, 2013). Contact with the criminal justice system has been concentrated among minority groups. Nearly 10 % of all African American and 4 % of all Hispanic citizens are under correctional supervision on any given day (Pew

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Center on the States, 2009). Without policy change, minority overrepresentation in criminal justice will worsen (Mauer & King, 2007).

Empirical evidence generally supports the literature’s argument that partisanship and racial threat set forth these punitive criminal justice processes. Republican control of the national elected branches is associated with greater justice expenditures (Jacobs & Helms, 1999). In the states, incarceration rates increase under Republican governors and with more Republicans in the legislature (Greenberg & West, 2001; Yates & Fording, 2005). Racial threat, as measured by the relative size of a jurisdiction’s black population (Blalock, 1967; Key, 1949), has more mixed effects on criminal processing. An independent positive relationship between the percentage of blacks within a general population and incarceration rates is pronounced in numerous studies (Jacobs & Carmichael, 2001; Yates & Fording, 2005), but unremarkable in others (Smith, 2004; Spelman, 2009).

Although scholars have a firm grasp on how politics has produced harsher criminal justice policies, extant literature provides limited explanation for why elected officials adopt more progressive reforms that attempt to reduce racial inequalities in criminal justice. Policymaking efforts to diminish criminal processing differences between whites and minorities have been ongoing since the 1970s (King & Smith, 2011). Yet scholars have yet to identify what corrective actions policymakers have taken and for what reasons. A framework of racial disparity reform policymaking describes how elected officials address vast racial inequalities in the criminal justice system.

Racial Disparity Reform Policymaking

A racial disparity reform is any policy that attempts to reduce racial distinctions in criminal justice institutions’ treatment of processed citizens. A reform is distinguished by its focus on racial issues and its egalitarian aims (see also racial jurispurdence, Amar & Caminker, 1996). Racial disparity reforms first intend to address a problem concerning race in criminal justice decision-making. This purpose is reflected in political debate concerning a measure and typically this goal is stated in a policy’s language. For example, the former North Carolina Racial Justice Act of 2009 intro- duced procedures to establish race as an impermissible influence on death penalty proceedings. Although this policy could promote more consistent and legitimate death sentencing procedures for any death penalty defendant, Governor Beverly Perdue emphasized the act’s racial purpose, explaining, “when North Carolina hands down our state’s harshest punishment to our most heinous criminals—the decision is based on the facts and the law, not racial prejudice” (Associated Press, 2009).

Reforms also aim to promote consistent and unbiased criminal processing across racial groups. This goal of furthering more racially just practices helps to unite a range of racially targeted corrective actions that vary in nature and strength. Four types of measures are common: exploratory, prohibitory, policy-specific, and comprehensive measures. Elected officials prefer certain measure types given different constructions of racial inequality, an issue-definition and problem-solving process described in depth in other work (Donnelly, 2015). Each measure type is defined here in the following.

Exploratory measures are policy efforts that determine whether or why racial inequality exists in a justice system. They are informative in nature so inequalities

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can be understood by policymakers or perhaps prevented with subsequent reforms. Thus, these measures alone do not make changes to criminal processing practices. Exemplary here are new data collection efforts or mandatory studies of racial difference (Mauer, 2009). A landmark exploratory measure is Connecticut’s racial impact state- ment law. State lawmakers can require an expert determination of whether proposed criminal justice legislation would have disparate impacts on racial or ethnic minorities before a bill is considered by the entire legislature (Senate Joint Resolution No. 1 2009).

Prohibitory measures restrict the use of race as a category. These provisions proscribe discrimination and forbid racial considerations in criminal justice decision- making. Bans on racial profiling are common examples (U.S. Congressional Research Service, 2004). For instance, Governor Janet Napolitano declared “racially biased policing, including racial profiling is unethical and unacceptable" and established policies against these practices in Arizona (Ariz. General Order No. 4.2.30 2005). Prohibitory measures are usually enforced through the courts or sometimes through funding requirements for bureaucracies.

Other measures directly introduce interventions that change practices or protocols in criminal processing. Such measures might be considered stronger reforms because they do more than examine or proscribe racial differences. Policy-specific measures change criminal justice procedures at a particular decision-points. These reforms usually pertain to one bureaucracy. To illustrate, the Rhode Island legislature established the Race and Police-Community Relations Commission to redesign law enforcement practices in hopes of bettering interactions between police and minority group com- munities. The commission monitors policing procedures and retains responsibility for crafting legislative reforms (Select Commission on Race and Police-Community Relations Act 2003).

Comprehensive measures require interventions throughout an entire criminal justice system. Under these provisions, multiple bureaucracies must revisit and restructure their decision processes to reduce racial inequalities throughout a criminal or juvenile justice system (Griffith, Jirard, & Ricketts, 2012). Arguably, these reforms have the greatest potential because they attempt to make interventions on behalf of racial justice across the criminal processing continuum. Since 2007, the Commission on Reducing Racial Disparities in the Wisconsin Justice System has served as a leader in compre- hensive reform. The executive-based agency has sought to “determine whether dis- crimination is built into the criminal justice system at each stage of the criminal justice continuum of arrest through parole” and devise strategies to reduce racial imbalances (Coggs & Wray, 2008, 1).

Although racial disparity reforms have the aim of diminishing racial discrimination or disparities, they may fall short of actualizing these ends. An exploratory measure may do little more than raise awareness of racial disproportionalities. Policy-specific or comprehensive provisions may fail to generate meaningful interventions or alter minority processing (Leiber, 2002). Racial disparity reforms in any shape may only be symbolic because policymakers never intended to seriously implement the reform (Neal, 2004). At other times, reforms substantively change criminal justice practices, but evaluating the success of such interventions can be empir- ically difficult. Policies are not usually implemented using an experimental design and pre/post-intervention processing changes may not be result of policy

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implementation at all. Identifying changes in racial influences on decision- making can be especially demanding, as seen in assessments of bans on racially-motivated stops and searches by law enforcement (Liederbach, Trulson, Fritsch, Caeti, & Taylor, 2007). While consequences should be examined with respect to classifying racial disparity reforms as more or less effective, intentions must be examined to identify racial disparity reforms in the first place. In this respect, racial disparity reforms can be likened to anti-poverty strategies: poverty reforms are distinguished by their goals rather than demonstrated impact on poverty alleviation (Feeley & Sarat, 1980).

Together, racial-consciousness and egalitarian aims separate racial disparity reforms from other criminal justice reforms. Policies like sentencing guidelines or detention risk assessments may standardize criminal processing in ways that could minimize the influence of racial bias (Stith & Koh, 1993; Tonry, 2011). These provisions do not always qualify as racial disparity reforms because they are not primarily directed at solving a racial issue. Similarly, initiatives to cut down correctional populations altogether could decrease the enormous number of incarcerated African Americans and Latinos (Raphael & Stoll, 2013). This deescalation process itself does not neces- sarily aim to promote fairer treatment of minorities by criminal justice officials. While race-neutral changes in criminal justice should not be discounted as strategies to discretely address or effectively reduce racial disparities, reforms that openly seek to address racial inequalities represent a discrete type of criminal justice policy.

Theory and Hypotheses

The distinctiveness of racial disparity reform motivates theories for why elected officials develop such policies. A racial disparity reform policymaking framework suggests policymakers adopt racial disparity reforms for two reasons. First, policymakers respond to racially egalitarian ideals entrenched in American politics. Second, elected officials receive electoral and institutional benefits for showing effort to solve problems.

Motivation for racial disparity reform first derives from prevailing ideals of civil rights and equality. Race is an integral part of American politics because governing institutions shape understandings of race, relations across racial groups, and the consequences of race on citizenship (Hochschild, Weaver, & Burch, 2012). Such “racial order” in American society comes from a tension between “white supremacist” and “transformative racially egalitarian” traditions (King & Smith, 2005; Omi & Winant, 1994). The former defends the subjugation of minorities under restrictive regimes like slavery, Jim Crow segregation, or possibly the “carceral state” (Alexander, 2010; Wacquant, 2009). The latter endorses equal rights, equal opportunities, and freedom for all based on natural rights doctrines (King & Smith, 2005, 80). While these two racial traditions underpin policymaking today, they can explain divergent criminal justice reforms by elected officials (King & Smith, 2011). Anti-egalitarian ideas inspire punitive policy change, but liberal principles moti- vate racial disparity reform.

The influence of the racially egalitarian tradition may be conditioned by partisan- ship. Although the two major political parties have sometimes embraced similar criminal justice reforms (Murakawa, 2014), Democrats are still more likely to endorse progressive ideals with respect to racial equality and punitiveness. Democrats are

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historically civil rights proponents for minorities (Kinder & Sanders, 1996). Democratic Party members also tend to see crime as a symptom of structural inequality. Offenders cannot be held responsible for the failing schools, residential segregation, discrimination, and joblessness that put them under correctional supervision (Beckett & Sasson, 2000). By contrast, Republicans continue to emphasize choice and equal opportunity for all individuals. Offenders freely choose to break the law and should incur the consequences for their behaviors (Scheingold, 1984). These differences in ideological outlooks between the two parties suggest a partisan divide over racial disparity reform as both a civil rights and criminal justice issue. Specifically, racial disparity reform is more plausible when Democrats control the legislative or executive branches. Partisan explanations lend to three different hypotheses:

H1 : Unified control of the executive and legislative branches by Democrats elevates the probability of racial disparity reform. H2 : A more Democratic state legislature increases the likelihood of racial disparity reform. H3 : When a state governor is a Democrat, racial disparity reforms are more likely to be adopted.

A second motivation for racial disparity reform comes from politicians’ needs to show effort in addressing social concerns. To ensure their reelection, elected officials must take positions on pressing issues and claim credit for developing policy solutions (Krehbiel, 1992; Mayhew, 1974). These activities—symbolic or substantive—allow elected officials to distinguish themselves from other candidates. Making “good” public policy further affirms politicians’ fitness for office among voters and interest groups (Esterling, 2004; Fenno, 1978; Sunstein, 1988).

Given such electoral interest in appearing to solve problems, the severity of racial disproportion within a state criminal justice system should stimulate reform. Problem severity is a key motivator for policy innovation within states (Nice, 1994; Sapat, 2004; Walker, 1969). Racial inequality in criminal justice is an obvious challenge for state policymakers. From arrests to sentencing, racial minorities are overrepresented in every aspect of criminal processing (Mauer, 2011; Western, 2006; Tonry, 1995). Such disproportionate minority contact cannot be entirely explained by differential involve- ment in crime (Tonry & Melewski, 2008).

Problems of racial disproportion can vary within and across states. Disproportionality is usually measured by taking the ratio of minority criminal pro- cessing rates to white criminal processing rates at a particular decision-point (Leiber, 2002). For example, the black to white incarceration rate ratio was 12.1 to 1 in Pennsylvania and 6.3 to 1 in California for 2011 (U.S. Bureau of Justice Statistics, 2012). Racial disproportion tends to worsen at later criminal processing stages such that disparities in arrests do not perfectly predict disparities in incarceration (Blumstein, 1982; Tonry & Melewski, 2008). Historically, states like Kentucky and Illinois have possessed the highest disparities in black to white arrest rates. Meanwhile, Iowa, Connecticut, and Wisconsin have boasted the highest levels of racial disproportion in incarceration (Mauer & King, 2007). Reform may then respond to racial disproportionalities at different processing points along the criminal justice continuum, which suggests a fourth hypothesis:

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H4 : As a state experiences worsening problems of racial disproportion in its criminal justice system, elected officials are more likely to develop racial disparity reforms.

Policymaking in response to social problems also accords benefits to elected branches as governing institutions. A system of separated powers prompts each branch to preserve and assert its authority (Patashnik & Peck, 2015). Struggles over institu- tional power encourage one branch to monitor the decisions of the others. When a governing institution fails to take action on an important issue, other branches respond in hopes of enhancing their reputation (Blackstone, 2013). “Governance as dialogue” is strong between the judicial and elected branches because notions of judicial supremacy have grown over time (Miller, 2009; Whittington, 2006).

The interplay among the judicial and elected branches should be another source of racial disparity reform. While courts have retreated from racial issues in criminal justice on constitutional grounds following McCleskey v. Kemp (1987), several judicial sys- tems have launched campaigns to redress racial inequalities in criminal proceedings. Starting in New Jersey in 1983, state court systems have created racial fairness commissions tasked with improving minority access to justice (National Consortium of Racial and Ethnic Fairness in the Courts, 2014). These commissions are typically led by a state’s highest court or in conjunction with a mandatory state bar association (National Center for State Courts, 2014). Twenty-nine states have established least one racial and ethnic bias commission in their judicial systems (Neeley, 2008).

While developing racial fairness commissions within a state court system requires considerable “momentum” (Neeley, 2008), reform efforts of these bodies vary. In Washington, the State Minority and Justice Commission has initiated numerous re- forms, including a drug-charging study in three countries, a regular newsletter on racial issues, and annual reports on its progress to reduce racial inequalities. Others like Michigan’s Racial and Ethnic Fairness Commission have yet to publicly publish a set of reform goals and recommendations. Most commissions create a research agenda, determine sources of racial inequalities, and offer preliminary remedies. Regular release of these reports is the primary means by which the courts educate the public and other policymakers about their racial justice activities (Norris, 2011). Nevertheless, not all commissions or judicial systems take steps to share their reform plans, pointing to a fifth hypothesis:

H5 : Elected officials are less willing to adopt racial disparity reforms when a state supreme court system is active in introducing its own corrective efforts.

Alternative Explanations

Citizen Ideology

In addition to the political orientations of elected officials, citizen ideology may affect criminal justice policymaking. States possess different policies across issue areas due to variation in public attitudes (Erikson, Wright, & McIver, 1993). Empirical evidence is mixed on the influence of citizen ideology on criminal justice reforms. Some studies

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indicate states with more conservative citizens possess higher incarceration rates (Greenberg & West, 2001; Yates & Fording, 2005), more death penalty laws (Jacobs & Carmichael, 2001), and stronger restrictions on offenders’ rights (Ewald, 2012). Other studies do not find significant impacts of citizen ideology on state criminal justice practices (Christie, 2014; Smith, 2004). Because racially egalitarian ideals are stronger among liberals, states with more liberal citizens should be more likely to promulgate racial disparity reforms.

Social Pressures

Scholarship has recognized that social pressures from disadvantaged groups may affect the scope of crime controls. The poor and racial minorities are two populations that influence elected officials’ criminal justice reforms (Jacobs & Carmichael, 2001; Smith, 2004; Yates & Fording, 2005). The impoverished can create pressure for criminal justice reform because poverty can destabilize social order and proliferate criminal activity. To deter further disorder, policymakers may adopt more punitive criminal justice policies (Garland, 2001). An association between poverty and incarceration has been demonstrated empirically (Greenberg & West, 2001). Poverty may likewise signal to elected officials that crime is an issue of economic disadvantage rather than a problem of race. Racial disparity reform should then be less likely to occur in states with higher poverty rates.

The presence of racial minorities within a state is cast as another social pressure. Traditionally, minority group strength is seen as a threat. Increases in black populations can stir fears that whites may lose political power or access to economic resources (Blalock, 1967; Key, 1949). Given the inconsistent role of racial threat in punitive criminal justice reforms (Jacobs & Jackson, 2010), the effect of a strong African American presence in a state on racial disparity reform is ambiguous. Racial threat theories suggest states with smaller black populations will be more likely to enact racial disparity reforms. Theories of policy responsiveness would predict the opposite (Keech, 1968; Keiser, Mueser, & Choi, 2004). Greater black electoral strength due to population size may inspire more racially egalitarian criminal justice reforms by politicians.

Crime and Punitiveness

Criminal justice reforms might reflect a state’s crime problems and punitiveness. When crime rates rise, policymakers toughen criminal laws (Yates & Fording, 2005). It is expected elevated crime rates will deter elected officials from advocating for more racially fair processing practices. The historic disconnect between punitive reform and crime rates may suggest this relationship between racial disparity reform and crime may not be strong or predictable. A state’s approach to criminal justice may likewise shape the reform activities of elected officials. The most visible form of state punitiveness is its incarceration rate (Uggen & Manza, 2002). A state with high levels of incarceration may be culturally and structurally more resistant to altering criminal justice policies in order to reduce their harms on racial minorities. Conversely, because the costs of incarceration are exorbitant and even unsustainable for some states, high incarceration rates may inspire elected officials to challenge status quo criminal justice operations and adopt more progressive policies (Dagan & Teles, 2014).

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Data

Dependent Variables

Data on racial disparity reforms adopted between 1998 and 2011 by state legislatures and executives were collected for all 50 states. This time period is selected for several reasons. During the late 1990s, race and criminal justice issues became salient concerns. Racial profiling was barely mentioned before 1997 (Skolnick & Caplovitz, 2001), yet nearly 60 % of Americans believed the practice was widespread by 1999 (Gallup & Gallup, 1999). Police violence likewise decidedly captured public attention, inspiring significant questioning of racial injustice (U.S. Congressional Research Service, 2004). Second, elected officials began to reverse their commitments to tougher crime controls (Jacobson, 2006). Even conservatives started to advocate for reduced criminal justice operations and enhanced prisoner reentry programs due to the enormous societal costs of criminal processing (Dagan & Teles, 2014). Lastly, states began to systematically collect data on race in arrests and imprisonments, illuminating the scope and disparate character of criminal processing (Mauer & King, 2007). All political and social conditions data were updated as recently as 2011 for every state and help to distinguish the effect of numerous, potentially influential policymaking factors over time.

Enacted racial disparity reform policies were identified by electronic searches of enacted laws from state legislatures and executive orders passed by state governors. To qualify as a racial disparity reform, an enacted policy must mention race and criminal justice its in contents. While this coding strategy captures a range of racial issues related to criminal processing, it omits racial disparity reforms that have known racially egalitarian aims from policy debates, but do not explicitly use race in the enacted policy’s language. For example, revisions to New York’s Rockefeller drug laws do not mention race in legislative statutes, but state elected officials made these changes after publicly denouncing that 90 % of the drug laws’ violators were Hispanic or African American (Cole, 2011). Appendix details the process for coding racial disparity reforms. Legislation was found using a combination of searches of state “regulations, administrative codes, and statutes” on LexisNexis and state legislatures’ databases. A total of 94 pieces of legislation were enacted into law between 1998 and 2011. Executive orders issued by governors were also examined using electronic executive and state government archives. A total of 24 executive orders responded to racial problems in criminal justice. Together, 118 distinct racial disparity reforms were ratified in law during this 14-year period.

Figure 1 depicts the total number of racial disparity reform policies that were adopted by state elected officials between 1998 and 2011. Policy enactments range in frequency from 0 to 8 policies. As of 2011, states have enacted an average of 2.36 policies. Two trends become immediately apparent from this figure. Policies are not concentrated in any one region of the country. They also do not appear with greater frequency in ideologically more liberal or “blue” states (i.e. states that usually vote Democratic in national elections). States like Washington, Maryland, and Wisconsin contain the largest number of racial disparity reform policies. These same states are also among the early adopters, typically introducing their first reforms by 1999 or 2000.

A lack of obvious ideological or geographic patterns in enactments suggests policy diffusion may occur as a result of other factors. That is, states might learn about racial

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disparity reform and develop policies due to other shared socio-political conditions (Mooney, 2001). Descriptively, states with the highest number of racial disparity reform policies have more Democrats in state elected positions and more liberal electorates. The most important difference among racial disparity reform adopters and non-adopters is problems with racial disproportionalities in their criminal justice systems. Relative to states with no policies, states with 6 or more policies possess higher average disparities in black to white incarceration rates (5.4 to 1 vs. 6.9 to 1) and black to white arrest rates (1.8 to 1 vs. 2.0 to 1).

Provisions in legislation and executive orders were then coded according to the type(s) of reform measures the policy introduced to address racial inequalities. The contents of enacted policies were classified as exploratory, prohibitory, policy-specific, or comprehensive measures. A total of 150 reform provisions were identified from 118 distinct policies. As of 2011, states enacted an average of 3.06 reform measures. Of these, 58 were exploratory, 38 were prohibitory, 37 were policy-specific, and 17 were comprehensive. Most policies with multiple reform provisions target racial profiling. For instance, in a single 2000 law, the California legislature banned racially-biased policing (prohibitory reform), introduced new racial and cultural sensitivity standards for law enforcement officers (policy-specific reform), and required a legislative report on racial profiling (exploratory reform) (see Appendix).

Figure 2 displays the distribution of these four types of racial disparity reform measures within the states. This figure shows many states have established two or more exploratory reform measures. Policy-specific and prohibitory reform measures are also prevalent throughout the country, but are less frequently adopted than exploratory measures. Most states adopt prohibitory or exploratory measures as their first reforms. Half of the states enacted at least one ban on using racial categories by 2004 and instituted at least one study or data collection effort concerned with race by 2005. Few comprehensive reform measures were enacted, but these provisions are more common in southwestern states. System-wide measures in that geographic area primarily address issues of disproportionate minority contact with the juvenile justice system. The first

Fig. 1 Number of racial disparity reform policies enacted by state elected officials (1998–2011). This figure displays the number of racial disparity reform policies established by state legislatures or executives between 1998 and 2011. Not pictured: Alaska and Hawaii with zero policies

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system-wide reform was Connecticut’s Commission on Racial and Ethnic Disparities in the Criminal Justice System that has targeted inequalities in adult processing since 2001. Across all measure types, states adopting one or more measures experience higher levels of racial disproportion in arrests and incarceration than states without such enactments. For instance, a state possessing one or more policy-specific measures has an average black to white incarceration rate ratio of 7.2 to 1 while a state lacking such a measure has a lower ratio of 5.5 to 1.

Data on racial disparity reform policy and measure enactments can be used in multivariate analyses to more rigorously identify the factors that encourage elected officials to adopt such initiatives. Table 1 shows the descriptive statistics for state-year observations of racial disparity reform policy and measure enactments between 1998 and 2011. Summary statistics for all independent variables are also presented for this period.

Major Independent Variables

Partisanship

This study tests partisan theories of racial disparity reform using three variables. Partisan control of both elected branches is captured by a dummy variable for whether or not there is unified Democratic control of the state’s executive and legislature (unified Democratic control). Partisanship in the legislature is measured by the per- centage of the state legislature that is Democrat (percent Democrat). Partisanship in the executive is represented by a Democrat in control of the state’s executive branch (Democratic governor, where 0 = Republican or non-major party and 1 = Democrat, following Klarner, 2011).

Fig. 2 Number and types of racial disparity reform measures enacted by state elected officials (1998–2011). This figure presents the number of exploratory, prohibitory, policy-specific, and comprehensive measures in racial disparity reform policies created by state legislatures and executives between 1998 and 2011. Not pictured: Alaska or Hawaii with zero measures

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Racial Disproportion in Criminal Processing

This study relies on two measures to test whether racial disproportion in criminal processing influences racial disparity reform enactments. Due to missing or limited collection of ethnicity (e.g. Hispanic/Non-Hispanic origin) information by criminal justice agencies (Mauer & King, 2007), this study focuses on disproportionalities in criminal processing that affect African Americans. Black-white disparity in arrest rates is measured annually by dividing the arrest rate of African Americans by the arrest rate of whites. An arrest rate is estimated by dividing a racial group’s number of arrests by its total population in a state. Black-white disparity in incarceration rates similarly compares the annual incarceration rate of African Americans to the incarceration rate of whites. Again, an incarceration rate is determined by dividing a racial group’s number of incarcerated persons by its total population in a state.

Judicial Racial Disparity Reform Efforts

The judicial non-intervention hypothesis is tested using the National Consortium on Racial and Ethnic Fairness in the Courts’ and the National Center on State Courts’ data

Table 1 Summary statistics for all variables predicting racial disparity reform policy and measure enactments in states (1998–2011)

Variable State-year observations

Mean (se) N

Dependent variables

Policies enacted 1.80(0.08) 700

Exploratory measures enacted 0.69(0.04) 700

Prohibitory measures enacted 0.50(0.02) 700

Policy-specific measures enacted 0.44(0.03) 700

Comprehensive measures enacted 0.11(0.01) 700

Explanatory variables

Unified Democratic control (0 ‘no unified control of executive and legislature by Democrats’; 1 ‘unified control by Democrats’)

0.21(0.02) 686

Percent Democrat in legislature 0.04(0.33) 686

Democratic governor (0 ‘Non-major party or Republican’; 1 ‘Democrat’;) 0.45(0.02) 700

Black-White incarceration disparity 6.25(0.11) 700

Black-White arrest disparity 2.37(0.06) 695

Judicial racial disparity reform efforts (0 ‘none’; 0 ‘ongoing’) 0.19(0.01) 700

Citizen ideology (1 year lag) 51.53(0.59) 700

Percent poverty 12.53(0.12) 700

Unemployment rate 5.73(0.08) 700

Percent black 10.33(0.36) 700

Crime rate 45.13(0.49) 700

Incarceration rate 3.60(0.05) 700

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on state court system efforts to improve racial fairness. A dummy variable is construct- ed for whether a state had a racial fairness commission that published a report or plans to improve racial inequalities in the courts between 1998 and 2011. Publishing a report indicates judicial racial disparity reform efforts are publicly ongoing (1) rather than unknown, inactive, or non-existent (0).

Other Independent Variables

Citizen Ideology

A 1-year lagged measure of citizens’ ideological orientation is included to determine the influence of public opinion on reform enactments. Berry, Ringquist, Fording and Hanson (2012)’s electorate liberalism scores are used to provide a longitudinal measure of public attitudes in all 50 states.

Social Pressure

To test social pressure theories, this study relies on three variables capturing states’ economic and racial characteristics. Percent poverty is measured according to the annual percentage of a state population living below the poverty line (U.S. Bureau of the Census, 2012b). Unemployment rate measures a state’s annual unemployment rate (U.S. Bureau of Labor Statistics, 2012). Minority group presence is approximated by the annual percentage of a state’s population that is African American (percent black) (U.S. Bureau of the Census, 2012a).

Crime and Punitiveness

This study uses two variables to determine whether crime and punitiveness shape racial disparity reform development. Crime rate is measured by the annual total number of offenses per 1000 residents in a state (Federal Bureau of Investigation 2011). Incarceration rate approximates states’ approaches to criminal justice. It is measured by the annual total number of prisoners per 1000 state population (U.S. Bureau of Justice Statistics, 2012).

Method

This study relies on event history analysis to discern the socio-political factors associated with racial disparity reform policy and measure enactments. Event history analysis is a “survival time” process by which one can observe whether a state’s elected officials enacted a racial disparity reform within a specific period of time. Once the event of a reform enactment has been experienced, a state is no longer observed or becomes at-risk for another event (Cleves, 2010; Golder, 2014). Observations of whether a state’s elected officials developed a racial disparity reform policy are made for every year between 1998 and 2011. Observations are also made for each type of racial disparity reform measure within enacted policies.

14 Am J Crim Just (2017) 42:1–27

Event history analysis provides two important advantages in evaluating influences on racial disparity reform enactments. First, the technique’s reliance on state-year observations permits the measurement of changes in relevant political or social vari- ables over time. Other multivariable methods using policy or measure counts as an outcome variable can mask such variation in the explanatory variables. Event history models can then provide a more dynamic account of racial disparity reform policymaking.

Event history analysis has the additional benefit of being able to take into account the repeatability of reforms. Once a policy or measure has been established, the likelihood of a subsequent reform enactment will change. Specifically, elected officials will not adopt the same policy/measure twice and they will have different views on the necessity of multiple reforms. Event history models can adjust for dependency among repeatable events by changing the baseline hazard rate of developing a racial disparity reform given the occurrence of any previous reform enactment. Related empirical models like logistic regression predicting elected officials’ adoption of a racial disparity reform do not adjust for these policymaking considerations.

More technically, a repeatable events model stratifies state-year observations of a policy/measure enactment by the number of previously adopted policies/measures in a state. A baseline hazard rate is created for each strata of previous enactments and all coefficients are restricted to be the same. A general model for the hazard of enacting a racial disparity reform is given by

h t xj � �

� �

¼ h0n tð Þexp xjβx � �

; if jisinstratan

where h(t|xj) is the overall hazard of reform, h0n(t) is the baseline hazard rate for a strata, n is the number of previous reforms, and x is the set of independent variables (Cleves, 2010).

Results

Table 2 presents Cox regression results predicting the enactment of racial disparity reform policies given various socio-political factors. Column I is a first event model showing estimates of the conditions leading up to a state’s first racial disparity reform policy. Once a state has promulgated its first policy addressing racial inequality in criminal processing, the rest of its data are censored. Column II is a repeatable event model displaying estimates of the conditions influencing the development of any racial disparity reform policy given the presence of any previous policy enactment. Across the states, the baseline hazard of enacting a policy generally grows as policymakers adopt their first two policies and diminishes after their third policy.

Across the models predicting racial disparity reform policymaking, racial dispro- portion is a strong and consistent predictor. Black-white disparities in arrests and incarceration consistently increase the likelihood of reform. As the black to white incarceration rate ratio increases by 1 (e.g. an increase from a 1 to 1 to a 2 to 1 ratio), state elected officials are 24 % more likely to promulgate an initial policy and 18 % more likely to do so for any policy. Similarly, a one unit increase in the black to white arrest rate ratio increases the probability of policymakers making their state’s first

Am J Crim Just (2017) 42:1–27 15

policy by 29 % and any policy by 15 %. As racial disproportion in a criminal justice system grows, one or more policy solutions are likely to emerge from a state’s elected branches. Support for the fourth hypothesis is thus found.

Elected officials’ policy enactments are strongly shaped by judicial reforms. When judiciaries take steps to improve racial equality within the courts, elected officials are 87 % less likely to establish a first policy response. These policymakers are 62 % less likely to promulgate other policies. Decreases in the hazard of developing racial disparity reforms policies given the presence of judicial correctives are statistically significant. These results affirm the fifth hypothesis.

Other political and social factors have more limited impacts on policy developments. A more heavily Democratic legislature increases the odds of elected officials promulgating any policy. A Democratic governor and unified Democratic control of the elected branches do not significantly change the likelihood of policymaking. The effects of citizen ideology, social pressures, and crime and punitiveness on racial disparity reform policies are more unexpected. Liberalism among the electorate has no influence on policy outcomes. Social pressures have uneven effects. Low poverty levels and large African American populations do increase the hazard of producing an initial racial disparity reform policy. These social circumstances are unimportant, though, when all policy developments are considered. An increased unemployment rate does not change the likelihood of producing reforms. Lastly, high crime rates make a state more prone to developing one or more policies, but high incarceration rates have no such effect.

Table 3 shows the socio-political factors tied to the creation of the four kinds of racial disparity reform measures within enacted policies. Results for each measure

Table 2 Event history analysis of factors affecting racial disparity reform policy enactments in states (1998– 2011)

Variable I. First policy II. All policies

Hazard ratio (se) 95 % C.I. Hazard ratio (se) 95 % C.I.

Unified Democratic control 1.71(0.94) 0.58–5.05 1.74(0.64) 0.85–3.59

Percent Democrat in legislature 1.02(0.02) 0.98–1.05 1.02(0.01)* 1.00–1.04

Democratic governor 1.53(0.62) 0.69–3.39 1.14(0.32) 0.66–1.97

Black-White disparity in incarceration rates 1.24(0.10)*** 1.07–1.45 1.18(0.06)*** 1.08–1.30

Black-White disparity in arrests rates 1.29(0.18)* 0.97–1.71 1.15(0.07)** 1.02–1.29

Judicial racial disparity reform efforts 0.13(0.09)*** 0.03–0.48 0.38(0.17)** 0.16–0.89

Citizen ideology (1 year lag) 1.00(0.01) 0.98–1.03 1.00(0.01) 0.98–1.01

Percent poverty 0.85(0.05)*** 0.76–0.95 0.93(0.05) 0.83–1.03

Unemployment rate 0.95(0.07) 0.82–1.10 1.06(0.04) 0.99–1.14

Percent black 1.07(0.02)*** 1.03–1.11 1.01(0.03) 0.97–1.07

Crime rate 1.07(0.02)*** 1.03–1.12 1.03(0.01)*** 1.01–1.06

Incarceration rate 1.10(0.22) 0.74–1.63 1.02(0.12) 0.81–1.28

Log Pseudo-likelihood −170.72 −376.08 N 301 681

Hazard ratios are presented for first event and repeatable event Cox regression models. * p < 0.10, ** p < 0.05, *** p < 0.01

16 Am J Crim Just (2017) 42:1–27

Am J Crim Just (2017) 42:1–27 17

T ab

le 3

E ve nt

h is to ry

an al ys is of

fa ct or s af fe ct in g ra ci al di sp ar it y re fo rm

m ea su re

en ac tm

en ts b y ty pe

in st at es

(1 99 8 – 20 11 )

V ar ia bl e

I. E xp lo ra to ry

II . P ro h ib it or y

II I. P o li cy -s pe ci fi c

IV . C om

pr eh en si ve

H az ar d ra ti o (s e)

95 %

C .I .

H az ar d ra ti o (s e)

9 5 %

C .I .

H az ar d ra ti o (s e)

95 %

C .I .

H az ar d ra ti o (s e)

95 %

C .I .

U ni fi ed

D em

oc ra ti c co nt ro l

3. 59 (1 .7 6) ** *

1. 38 – 9. 3 8

0 .6 6 (0 .3 6)

0 .2 3 – 1. 91

0. 8 7( 0 .4 5 )

0. 3 1– 2 .3 9

1. 05 (0 .7 5)

0. 26 – 4. 2 7

P er ce nt

D em

o cr at in

le gi sl at ur e

1. 02 (0 .0 1)

1. 00 – 1. 0 5

1 .0 4 (0 .0 1) ** *

1 .0 1 – 1. 06

1. 0 3( 0 .0 2 )*

1. 0 0– 1 .0 6

1. 02 (0 .0 2)

0. 98 – 1. 0 7

D em

oc ra ti c go v er no r

1. 04 (0 .6 5)

0. 30 – 3. 5 7

1 .2 0 (0 .5 0)

0 .5 3 – 2. 73

1. 2 1( 0 .6 4 )

0. 4 4– 3 .3 9

2. 57 (1 .5 4)

0. 80 – 8. 3 1

B la ck -W

h it e di sp ar it y in

in ca rc er at io n ra te s

1. 13 (0 .1 0)

0. 94 – 1. 3 5

1 .2 8 (0 .0 9) ** *

1 .1 2 – 1. 46

1. 1 9( 0 .0 8 )* *

1. 0 4– 1 .3 6

1. 19 (0 .1 1 )*

0. 99 – 1. 4 3

B la ck -W

h it e di sp ar it y in

ar re st s ra te s

1. 11 (0 .0 7 )

0. 97 – 1. 2 6

1 .3 0 (0 .1 4) **

1 .0 6 – 1. 60

1. 1 0( 0 .1 2 )

0. 8 9– 1 .3 6

0. 87 (0 .2 7)

0. 47 – 1. 5 9

Ju d ic ia l ra ci al d is p ar it y re fo rm

ef fo rt s

0. 52 (0 .4 4)

0. 10 – 2. 7 5

0 .4 6 (0 .3 4)

0 .1 1– 1. 9 6

0. 2 7( 0 .1 8 )*

0. 0 7– 1 .0 1

0. 30 (0 .2 1) *

0. 07 – 1. 2 0

C it iz en

id eo lo gy

(1 ye ar

la g)

0. 99 (0 .0 1)

0. 96 – 1. 0 2

1 .0 0 (0 .0 1)

0 .9 8 – 1. 02

1. 0 0( 0 .0 1 )

0. 9 8– 1 .0 2

1. 03 (0 .0 1) *

1. 00 – 1. 0 5

P er ce nt

p ov er ty

0. 89 (0 .0 6) *

0. 78 – 1. 0 2

0 .9 7 (0 .0 7)

0 .8 4 – 1. 11

0. 9 0( 0 .0 8 )

0. 7 6– 1 .0 6

0. 86 (0 .1 2)

0. 66 – 1. 1 2

U ne m pl oy m en t ra te

0. 99 (0 .0 8)

0. 84 – 1. 1 6

1 .0 1 (0 .0 8)

0 .8 6 – 1. 19

1. 1 0( 0 .0 9 )

0. 9 3– 1 .3 0

0. 96 (0 .1 0)

0. 78 – 1. 1 7

P er ce nt

b la ck

1. 00 (0 .0 3)

0. 94 – 1. 0 6

1 .0 0 (0 .0 3)

0 .9 4 – 1. 05

1. 0 3( 0 .0 3 )

0. 9 7– 1 .1 0

1. 04 (0 .0 7)

0. 91 – 1. 1 8

C ri m e ra te

1. 03 (0 .0 2)

0. 99 – 1. 0 7

1 .0 6 (0 .0 2) ** *

1 .0 2 – 1. 10

1. 0 3( 0 .0 2 )

0. 9 8– 1 .0 7

1. 02 (0 .0 4)

0. 94 – 1. 0 9

In ca rc er at io n ra te

1. 10 (0 .2 2)

0. 74 – 1. 6 4

0 .9 9 (0 .1 4)

0 .7 5 – 1. 30

0. 7 9( 0 .1 3 )

0. 5 7– 1 .0 9

1. 07 (0 .2 9)

0. 63 – 1. 8 4

L og

P se ud o- li ke li ho od

−1 6 4. 0 9

−1 48 .1 1

−1 30 .8 1

−4 7 .3 9

N 68 1

6 81

68 1

68 1

H az ar d ra ti os

ar e p re se nt ed

fo r re pe at ab le ev en t C o x re g re ss io n m od el s. * p < 0. 10 , * * p < 0 .0 5 , ** * p < 0 .0 1

type are presented in separate columns. Like Column II of Table 2, estimates in each of these columns allow for repeatable instances of reform. Namely, a new baseline hazard rate for the enactment of each type of measure is created given the adoption of any previous measure. For instance, the baseline hazard of a compre- hensive reform measure may change based upon the previous adoption of an exploratory reform. Simply stated, the likelihood that elected officials mandate system-wide changes in criminal justice may vary depending upon whether they previously commissioned a study on racial differences in criminal processing. On average, the probability of adopting each measure type increases given the passage of one or two previous measures and then declines with the promulgation of subsequent measures. This decline in the baseline hazard rate is slightly less for policy-specific and comprehensive reforms.

Columns I-IVof Table 3 show each type of racial disparity reform measure is likely to be generated under slightly different circumstances. Some support is found for each of the five hypotheses, where racial disproportion in criminal processing, judicial non- intervention, and partisanship matter in the adoption of at least one of the four measures types. The severity of black-white disparities in incarceration is once again one of the strongest predictors, increasing the probability of enacting three of the four measure types. Elected officials are 28 % more likely to design prohibitory measures, 19 % more likely to adopt policy-specific measures, and 19 % more likely to introduce compre- hensive measures given a one-unit increase in the black to white incarceration rate ratio. Exploratory reforms are not affected by incarceration disparities, but these reforms may be used to find such inequalities in the first place. A one-unit increase in the ratio of racial disproportion in arrests raises the risk of prohibitory reform adoptions by 30 %. This association can be explained by the frequent adoption of bans on racial profiling by law enforcement officials.

The absence of judicial racial disparity reform efforts in criminal proceedings also encourages the development of more intensive reform measures types. Judicial reform activities decrease the hazard of policy-specific reform and comprehensive reform by 73 and 70 %, respectively. Exploratory and prohibitory measures are less affected by such judicial interventions. Studying racial differences and strengthening anti- discrimination measures may be symbolically “good” policymaking for any elected official. Such provisions may then emerge from the elected branches without regard to similar remedial efforts by the judiciary.

Partisanship influences the creation of weaker racial disparity measures. Exploratory reform is nearly three times more probable under a unified Democratic government. A strong Democratic presence in the legislature increases the probability of elected officials adopting prohibitory and policy-specific provisions. Comprehensive reforms are not affected by Democratic control of the governing branches. A more liberal electorate, however, encourages such reform policymaking concerned eradicating system-wide racial inequalities.

Discussion and Conclusions

Race introduces pervasive and disturbing inequalities in the U.S. criminal justice system. In response, elected officials frequently promulgate policies aimed at

18 Am J Crim Just (2017) 42:1–27

remedying racial distinctions in criminal processing. While prior literature has examined policies adopted by elected officials to make more punitive crime controls (Beckett, 1997; Murakawa, 2014; Tonry, 1995), this article has distin- guished policies in the states that attempt to ameliorate racial inequalities in criminal justice. A framework of racial disparity reform policymaking suggests civil rights ideals in American politics and electoral and institutional benefits of responding to social problems motivate elected officials to take action. In partic- ular, racial disparity reform emerges from the elected branches when Democrats are in power, judiciaries do not initiate corrective efforts, and racial disproportionalities in criminal justice worsen.

This article tests this framework by examining racial disparity reforms in the states. It relied on an original database of policies and various corrective measures within these policies enacted by state legislatures and executives between 1998 and 2011. At first glance, reforms do not appear to be concentrated by region or ideological polarization associated with U.S. national politics. Measures to further study racial differences are very common, followed by provisions that ban race as a decision-making factor for criminal justice officials. Such exploratory and prohibitory measures are weaker reforms because they do not directly modify criminal processing. States less frequently adopt stronger measures that introduce interventions at a particular processing stage (policy-specific reform) or through- out a justice system (comprehensive reform). States with racial disparity reform policies and measures can be described as having more Democrats in elected positions and experiencing greater issues of racial disparity in their criminal justice systems.

Event history analyses showed racial disparity reform is partially a product of ideology and partially a result of elected officials’ responsiveness to social prob- lems. Policy response is more probable under a more Democratic legislature. Politicians are more likely to develop remedial policies when racial disparities in arrests and imprisonment widen and courts do not offer relief through their own reform initiatives. These dynamics similarly affect the creation of different types of racial disparity reform measures within policies. Partisanship helps to prompt the adoption of exploratory and prohibitory measures. Judicial non-intervention encourages the creation of more intensive policy-specific and comprehensive measures. Racial disparity in criminal processing enhances the likelihood of developing all, but exploratory measures.

Empirical support for a racial disparity reform policymaking framework points to two conclusions concerning politics and criminal justice reform. First, criminal justice policies are produced by distinct political processes. Partisanship and racial fears helped to forge the enormous, racially disparate criminal justice system known today. The politics of punitiveness does not generalize all criminal justice policymaking, however. A politics of racial disparity reform recovers partisan differences in criminal justice debates because minority overrepresentation in criminal processing is an intersectional issue. Democrats may even be spearheading progressive criminal justice policymaking with a degree of success. It also suggests a potential receptiveness among elected officials to correct racial inequalities associated with justice involvement, even when government may be responsible for these problems in the first place.

Am J Crim Just (2017) 42:1–27 19

Second, elected branches could be major sites for racially egalitarian change, but reforms themselves can be constrained. Looking at all racial disparity reform policies created, much of this electoral responsiveness is driven by the adoption of weak measures. Indeed, exploratory studies of racial distinctions are the most common reform measures. If elected officials were fully committed to solving racial issues in criminal justice or totally embraced civil rights ideals, comprehensive reform through- out entire justice systems would be the most frequent policy response. Moreover, strong commitments to equal justice would ideally encourage elected officials to introduce reforms in conjunction with judicial systems and before the intensification of existing racial disparities. Racial disparity reforms may not reverse or prevent disparate criminal justice practices that policymakers have long endorsed. An enacted policy corrective may still be better than none at all.

While this study represents an initial attempt to document and predict racial disparity reform by state policymakers, its findings highlight several avenues for future research. Policy enactments may be motivated by partisanship and problem-solving interests, but the political processes by which racial disparity reforms are proposed or evaluated by elected officials may be influenced by other non-electoral factors. For instance, a legislature may be more likely to pass a bill when policy entrepreneurs are present, similar legislation is passed in other states, or a diverse coalition of interest groups comes together around the cause of criminal justice reform. Subsequent large-N research on racial disparity reform policymaking might focus on the use of model legislation to understand interest group influence and the diffusion of racial disparity reforms across states (Garrett & Jansa, 2015). Future small-N, qualitative studies might focus on the issue frames and coalition-formations that make reforms possible. O’Brien and Grosso (2011)’s work on the North Carolina Racial Justice Act, for example, details how anti-death penalty and civil rights organizations successfully lobbied a legislature to address judicially sanctioned disparities in capital punishment. Other research might explore the roles of criminological evidence or experts in determining whether racial disparity reforms were formulated based on realistic expectations of substantive change. Vast literatures on policies’ abilities to diminish racial profiling (Liederbach et al., 2007), disproportionate minority youth contact (Leiber & Rodriguez, 2011), and other racial distinctions can inform analyses of why effective or ineffective reforms are politically developed.

Today’s fiscal and political environment has arguably lower obstacles for elected officials to see problems in criminal processing. Bipartisan alliances like the Coalition for Public Safety have challenged policymakers to overhaul crime controls that have ignited racial tensions, fractured communities, and increased costs to taxpayers (Hulse, 2015). Protests and mass demonstrations following events in Ferguson, Missouri have made racial injustice a more urgent concern (Belton, 2015). Yet the nation still remains divided over racial problems in criminal justice (Pew Research Center, 2013, 2014, 2015). Learning from past racial disparity reforms, racial justice proponents should be prepared to see exploratory and weaker measures as potential remedies by elected officials, especially when these measures are framed by policymakers as stepping- stones to subsequent reforms. Evidence of growing disparities and attention to inade- quate government action may strengthen appeals for reform. Recognizing different policy responses and potential catalysts for reform can make racial justice advocacy more successful at a political moment when criminal justice reform is imperative.

20 Am J Crim Just (2017) 42:1–27

Appendix: Coding Process for Racial Disparity Reforms in the States

Enacted legislation and executive orders were identified as racial disparity reforms through a three-step process. First, keyword searches for enacted legislation and executive orders between 1998 and 2011 were completed using the terms “minority,” “race,” “communities of color,” “racial,” “ethnic,” “black,” “African American,” “Hispanic,” “Latino,” “Asian,” “Native American,” “disparate,” “disparity,” “discrim- ination,” “discriminatory,” “inequality,” “unequal,” “bias,” “overrepresentation,” “dis- proportion,” and their variants. Searches were completed using one keyword at a time. These keywords broadly fall into two categories: terms describing citizens belonging to minority groups and terms defining problems of racial inequality. Within these termi- nology sets, keywords were selected to maximize the number of relevant policies targeting racial minority groups (Hochschild et al., 2012; Omi & Winant, 1994) and racial problems commonly identified by policymakers (Blumstein et al., 1983).

Keyword searches were narrowed to 1998 and 2011. Any policy enacted before 1998 or after 2011 was omitted from the sample. Any bill that was not adopted into law was also omitted. Enacted policies that were later reversed are contained in the sample. For example, the North Carolina Racial Justice Act of 2009 remains in the sample even though it was repealed in June 2013 (Associated Press, 2009).

All policies containing these terms were then inspected for their relevance to criminal justice issues. Specifically, the section of the legislation or executive order where the keyword is located must be related to 1) the treatment of racial minorities and 2) any aspect of criminal processing like arrest, judicial procedure, sentencing, incar- ceration, jailing, youth detention, parole, probation, or policing. To illustrate, the Capital Punishment Reform Study Committee in Illinois was tasked with examining several issues in death sentencing reforms, including whether the revised policies eliminated differences in outcomes related to geography and the race of victim (20 Ill. Comp. Stat. § 3929/2 2003).

At this juncture, policies affecting racial minorities or racial issues in ways that do not relate to criminal justice (e.g. employment regulations, general civil rights commissions, or health disparities task forces) were eliminated from the sample. Policies corresponding to criminal justice issues without explicit regard to race were also excluded. For instance, the statutory requirement for parole agencies in Alaska to generate reports that consider unjustified disparity in the sentencing of prisoners is not included because it does not explicitly consider race (Preparole Reports).

Finally, provisions within policies were then coded using qualitative data anal- ysis software according to the four types of racial disparity reforms (i.e. explor- atory, prohibitory, policy-specific, and comprehensive). A policy can possess mul- tiple reform measures, but each reform measure is only classified once as one of the four types according to the definitions set forth above. To illuminate the coding decision process, consider California Penal Code § 13519.4 that concerns racial profiling. The Field Services and Standards for Recruitment and Training (2000) section reads as follows,

“13519.4. (a) The commission shall develop and disseminate guidelines and training for all law enforcement officers in California as described in subdivision

Am J Crim Just (2017) 42:1–27 21

(a) of Section 13510 and who adhere to the standards approved by the commis- sion, on the racial and cultural differences among the residents of this state. The course or courses of instruction and the guidelines shall stress understanding and respect for racial and cultural differences, and development of effective, noncom- bative methods of carrying out law enforcement duties in a racially and culturally diverse environment. (b) The course of basic training for law enforcement officers shall include adequate instruction on racial and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial and cultural groups. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of cultural awareness and diversity. (c) For the purposes of this section the following shall apply:

(1) “Disability,” “gender,” “nationality,” “religion,” and “sexual orientation” have the same meaning as in Section 422.55.

(2) “Culturally diverse” and “cultural diversity” include, but are not limited to, disability, gender, nationality, religion, and sexual orientation issues.

(3) “Racial” has the same meaning as “race or ethnicity” in Section 422.55. (d) The Legislature finds and declares as follows:

(1) Racial profiling is a practice that presents a great danger to the funda- mental principles of a democratic society. It is abhorrent and cannot be tolerated.

(2) Motorists who have been stopped by the police for no reason other than the color of their skin or their apparent nationality or ethnicity are the victims of discriminatory practices.

(3) It is the intent of the Legislature in enacting the changes to Section 13519.4 of the Penal Code made by the act that added this subdivision that more than additional training is required to address the pernicious practice of racial profiling and that enactment of this bill is in no way dispositive of the issue of how the state should deal with racial profiling.

(4) The working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of law enforcement officers in protecting public safety. The good name of these officers should not be tarnished by the actions of those few who commit discriminatory practices.

(e) “Racial profiling,” for purposes of this section, is the practice of detaining a suspect based on a broad set of criteria which casts suspicion on an entire class of people without any individualized suspicion of the particular person being stopped. (f) A law enforcement officer shall not engage in racial profiling. (g) Every law enforcement officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training. (h) The curriculum shall utilize the Tools for Tolerance for Law Enforcement Professionals framework and shall include and examine the patterns, practices, and

22 Am J Crim Just (2017) 42:1–27

protocols that make up racial profiling. This training shall prescribe patterns, practices, and protocols that prevent racial profiling. In developing the training, the commission shall consult with appropriate groups and individuals having an interest and expertise in the field of racial profiling. The course of instruction shall include, but not be limited to, adequate consideration of each of the following subjects:

(1) Identification of key indices and perspectives that make up cultural differ- ences among residents in a local community.

(2) Negative impact of biases, prejudices, and stereotyping on effective law enforcement, including examination of how historical perceptions of discriminatory enforcement practices have harmed police-community relations.

(3) The history and the role of the civil rights movement and struggles and their impact on law enforcement.

(4) Specific obligations of officers in preventing, reporting, and responding to discriminatory or biased practices by fellow officers.

(5) Perspectives of diverse, local constituency groups and experts on particular cultural and police-community relations issues in a local area.

(i) Once the initial basic training is completed, each law enforcement officer in California as described in subdivision (a) of Section 13510 who adheres to the standards approved by the commission shall be required to complete a refresher course every 5 years thereafter, or on a more frequent basis if deemed necessary, in order to keep current with changing racial and cultural trends. (j) The Legislative Analyst shall conduct a study of the data being voluntarily collected by those jurisdictions that have instituted a program of data collection with regard to racial profiling, including, but not limited to, the California Highway Patrol, the City of San Jose, and the City of San Diego, both to ascertain the incidence of racial profiling and whether data collection serves to address and prevent such practices, as well as to assess the value and efficacy of the training herein prescribed with respect to preventing local profiling. The Legislative Analyst may prescribe the manner in which the data is to be submitted and may request that police agencies collecting such data submit it in the requested manner. The Legislative Analyst shall provide to the Legislature a report and recommen- dations with regard to racial profiling by July 1, 2002.”

Three reforms can be identified within this section. First, an exploratory measure is located in part j, whereas “[t]he Legislative Analyst shall conduct a study of the data…” and report to the legislature within 2 years. A prohibitory measure is found in part f, whereas “[a] law enforcement officer shall not engage in racial profiling.” Finally, a policy-specific measure regarding the Commission on Peace Officer Standards and Training’s development of culturally sensitive training course is located in part a and continues to be described in the remaining subsections. Specifically, “[t]he commission shall develop and disseminate guide- lines and training for all law enforcement officers in California…[stressing] understanding and respect for racial and cultural differences, and development

Am J Crim Just (2017) 42:1–27 23

of effective, noncombative methods of carrying out law enforcement duties in a racially and culturally diverse environment.”

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Ellen A. Donnelly, Ph.D., is a Research Associate in the Department of Criminology at the University of Pennsylvania. Her research examines the political development of criminal justice policies and the effects of these reforms on criminal processing outcomes.

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