Shhh! It’s Time for Criminal Justice Reform. Keep Race out of It.

Posted in: Criminal Law

There is no word in the English language that captures the quintessentially American practice of debating an issue without mentioning the one thing that everyone knows is central to the issue’s resolution. We have expressions for it, like “the elephant in the room.” But we really ought to have a word, since the practice is so common. And it’s front and center when it comes to criminal justice reform.


Much of the talk about changes in the criminal justice system nowadays refers to the work of the Justice Reinvestment Initiative (JRI), which is a public-private partnership between the Department of Justice, PEW Charitable Trusts, and the Council of State Governments (CSG).

Typically, it works like this: A bipartisan coalition at the state level—say, for instance, the governor, the attorney general, the chief justice, and the ranking Democrat and Republican in both chambers—secures a grant from DOJ to hire technical consultants from PEW or CSG, who study the local landscape and recommend data-driven reforms that will improve performance and save money without sacrificing public safety. That, at least, is the theory.

JRI has plenty of critics. Many people complain, quite rightly, that the reforms do not go nearly far enough to reverse the wreckage caused by two generations of irrationally punitive criminal justice policy. Among those who follow this most closely, one often hears the expression, “low hanging fruit.” In addition, the process focuses exclusively on the back end of the criminal justice system (sentencing and corrections) and ignores entirely the problems at the front end (policing, prosecution, and indigent defense), a disconnect that is a particular concern of mine.

Still, more than 30 states have followed the JRI path and implemented some type of legislative reform. And let there be no doubt: these reforms have helped reduce prison populations in a number of states, sometimes significantly.

But what is JRI’s goal? Take a look at its website, and you will learn that “Justice Reinvestment is a data-driven approach to improve public safety, examine corrections and related criminal justice spending, manage and allocate criminal justice populations in a more cost-effective manner, and reinvest savings in strategies that can hold offenders accountable, decrease crime, and strengthen neighborhoods.”

Well, I suppose no one can disagree with a program that will “hold offenders accountable, decrease crime, and strengthen neighborhoods.” But what about correcting racial disparity? What about the fact that people of color are overwhelmingly more likely to end up in jail or prison than whites? Or that perhaps as many as one in four black men will spend time behind bars, or that one in eleven are currently under some form of correctional supervision? What about the evidence of implicit (and sometimes explicit) bias that operates throughout the criminal justice system? Doesn’t JRI have anything to say about that?


In fact, across the entire JRI site, including sections on the “Goals and Outcomes of Justice Reinvestment,” “The Justice Reinvestment Process,” and “Key Requirements for All Jurisdictions Interested in Participating in JRI,” the words “race,” or “racial” (as in “racial disparity”) nowhere appear. Even if you click on a link to a “JRI State Assessment Report,” a comprehensive survey of statewide JRI reforms released by the Urban Institute in January 2014, all reference to race is conspicuously absent. The focus instead is on “data-driven,” “cost-effective” “strategies” to “reduce spending on corrections and increase public safety.” With only occasional exceptions, the same is true for PEW and CSG.

This is clearly no accident. “Right on Crime,” for instance, is a coalition of prominent conservatives who have joined to support criminal justice reform. Its “Statement of Principles” makes no mention of race or racial disparities in offending, sentencing, or prison populations. Instead, it advocates the application of “conservative principles” to achieve “a cost-effective system that protects citizens, restores victims, and reforms wrongdoers.”

Indeed, in the rare instance when race has been mentioned at all, it has been purposely described as irrelevant to the reforms. Recently, for instance, CSG published a report on the changing racial composition of the prison populations in Georgia, North Carolina, and Connecticut in the wake of JRI reforms. In each state, the extent of racial disparity in the prison population has declined, and in the latter two states, the improvement has been fairly dramatic. Admissions to prison in North Carolina among blacks and Latinos fell 26 and 37 percent, respectively, between 2011 and 2014. In Connecticut, the total number of people in prison fell by nearly 17 percent between 2008 and 2015, but the drop in the number of black and Latino prisoners was three times as steep as the decline in the number of white prisoners.

You’d think CSG would shout these numbers from the rooftop. Yet the authors of the study were quick to note that addressing racial disparity was not the objective of the JRI reforms. “State policymakers designed their respective reforms in these three states to increase public safety and to reduce spending on corrections,” and they carefully note that “any finding of a causal relationship between the reforms and the changes in the states’ prison populations is premature.” In short, whatever improvements one may observe in racially disparate outcomes is treated as icing on a cake that was baked for an entirely different purpose.

Other examples could be added, but you get the idea. And in case there were any doubt that this is a deliberate strategy, contrast this report with another written by CSG just a few months ago on racial disparities in school discipline, entitled “You Can’t Fix What You Don’t Look At: Acknowledging Race in Addressing Racial Discipline Disparities.” The entire report is dedicated to developing strategies for “a race-conscious approach to intervention, as a way of beginning to frankly discuss and directly address racial disparities.”

But prominent criminal justice reformers don’t want a “race-conscious approach,” and have no desire for a discussion, frank or otherwise, of racial disparities. The narrative that has taken shape among the most prominent institutional actors deliberately makes no mention of race, despite the fact that everyone recognizes the racially disparate impact of the American criminal justice system.

And here’s the thing: this might be precisely why it’s working. I was recently in Alabama having lunch with Republican State Senator Cam Ward, who is a leader in the JRI legislative reforms that are underway in his state. I asked him why reformers in Alabama weren’t talking about race. He dropped his voice, glanced quickly around the restaurant and said, “If we make this about race, we’ll lose the narrative.” He’s absolutely right.

The sad fact is that for most whites, evidence that blacks are overrepresented in prison makes them more fearful of crime and less likely to favor reform of the policies that produced this result. For most whites, in other words, making a case for criminal justice reform based in the first instance on evidence of racial disparity is exactly what not to do. (The study that found this result is available here).

And this helps explain why JRI, PEW, CSG, and so many other key actors in the reform movement assiduously avoid all mention of race: they have come to believe it’s counterproductive. Instead, they have developed a bureaucratic narrative, to which they scrupulously adhere, of “cost-effective,” “data-driven,” “strategic” reform that “increases public safety” even as it “holds offenders accountable.”

A number of people are deeply disappointed by this whitewashed narrative. They consider it appalling that reform is couched in the cold language of actuarial efficiency, and that the moral bankruptcy of mass incarceration—what Michelle Alexander calls “the New Jim Crow”—cannot be denounced for what it is. By contrast, when a mosque is defaced, no one thinks the proper response is to fret about the effect on property values.

Critics also point out, with considerable justification, that the current narrative relieves white America of the obligation to confront its responsibility for the programs and policies—like the war on drugs and disparate sentencing for crack and powder cocaine—that contributed so much to create these disparities in the first place. Likewise, they note, again with great force, that an obsessive focus on “data-driven,” “cost-effective” reform makes it too easy to ignore the morally urgent obligation to repair the socially, culturally, and economically devastated environments where crime is so rampant.

I am sympathetic to these criticisms, as are many of the people involved in various aspects of criminal justice reform. No one should think, for example, that the Obama/Holder Justice Department doesn’t get it. But many reformers have made a conscious, pragmatic decision to get behind the colorblind narrative because it’s finally allowing for some progress.

Some of these reformers have toiled in these fields for decades, during which time mass incarceration grew only worse. Now, finally, there is a possibility for change, and they would rather endorse an incomplete narrative that produced modest improvements than a complete narrative that accomplished nothing.

I cannot fault them for their decision, but on balance, I have to believe that burying our head in the sand is not a sign of progress. I think the authors of the CSG report on school discipline had it right when they observed:

Racial disparities are not easy for Americans to confront, in large part because of a longstanding reluctance to talk about issues of race and ethnicity frankly and openly. . . . [But if] we are to undo the racial inequities that continue to plague us, we must find constructive ways to talk about them and intervene constructively and consciously to end them.

Fortunately, there are people working on creating this constructive and conscious narrative; their work will be the subject of my next column.


After this column appeared, I was contacted by Michael Thompson, the Director of the Council of State Governments, who took issue with several of my observations. We had what I thought was a productive conversation about the limits and promise of criminal justice reform. The upshot of it all is this:

First, the study on racial disparities in school discipline that I cited in the column was not written by CSG. It was re-posted on their website at a page with the CSG logo, but was in fact prepared by The Discipline Disparities Research to Practice Collaborative. My apologies to both organizations for that error. Thompson asked me to stress, however, that CSG has authored a number of other reports on racial disparities in school discipline, just not this one.

Second, Thompson thought I was overly critical of CSG in my remarks about their report on the changing racial composition of the prison populations in Connecticut, North Carolina, and Georgia. Thompson interpreted my remarks as a call for CSG to go beyond the limits of their research and to stress a causal connection that has not yet been proven. That was not my intent and I have no desire to see CSG argue a causal connection that cannot be supported by the evidence.

Instead, my point was that CSG has consistently omitted race and racial disparity as a reason for criminal justice reform, even in a report like this, which was otherwise about race. Thompson agreed with this, and explained that their work is bounded by the nature of the request put to them by state legislators, who have likewise steered clear of race. I’m sure that’s true, which was the point of my column.

The challenge, as I indicated in my initial column, is to develop a narrative about the meaning and direction of criminal justice reform that does not ignore race, but incorporates it into a productive conversation that transcends black and white. Thompson and I agree this is not the current narrative of JRI.

Posted in: Criminal Law

Tags: Legal