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Sahar Fathi

Excerpted from: Sahar Fathi, Race and Social Justice as a Budget Filter: The Solution to Racial Bias in the State Legislature?, 47 Gonzaga Law Review 531-545 (2011-2012) (100 Footnotes

If we are committed to reducing unwarranted disparities in the system, it will require coordinated efforts among criminal justice leaders, policymakers, and community groups.


In 2009, Marc Mauer, the Executive Director of the Sentencing Project, testified on racial disparities in the criminal justice system before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. He spoke powerfully of data projected by the U.S. Department of Justice--if current trends were to continue, one out of every three black males born today, as well as one out of every six Latino males, will go to prison at some point during his life.

Two years later, states across the country began to report devastating budget deficits. The State of Washington, for example, announced a $2 billion deficit in the fall of 2011. In these tough economic times, legislators are increasingly faced with grim decisions regarding funding for education, health care, and other basic services. Complicating matters are the obvious and troubling racial disparities within our criminal justice system, such as the data presented by Mauer.

These disparities reveal racial bias in the legal system. For the purposes of this article, racial bias is used to describe partiality or favoritism of a particular race and implies unfairness. Such bias is often the product of institutional racism--laws and policies that benefit white people and act to the detriment of people of color. Unfortunately, institutional racism is difficult to identify and frequently overlooked by lawmakers.

In the chaos of working to sustain a balanced budget, lawmakers may cut critical services that are disproportionately detrimental to communities of color. To maintain racial equity in the face of looming cuts to social services, it may prove beneficial to first analyze the effect of proposed legislation on minorities prior to enacting it. Such an analysis is commonly referred to as a racial impact statement. These statements allow legislators the opportunity to thoughtfully consider the impact of proposed legislation on minority groups.

Eliminating institutional racial bias in the legal system may be impossible in our lifetimes, but reducing it significantly can be accomplished by requiring racial impact statements for certain proposed legislation, such as criminal or sentencing laws. The statements would educate legislators, policymakers, and community members about institutional racism and identify any potential racial bias resulting from legislation under consideration. As an additional benefit, this paper argues that racial impact statements can be effective tools for reducing state budget deficits.

Part I of this article begins with a short explanation of institutional racism. It continues by tying racial bias and the legal system together through the historical implementation of laws and policies that benefit white individuals and act to the detriment of people of color. Part I also identifies legislation that has disproportionately impacted people of color (some of which was intended to do the opposite), and demonstrates disproportionalities in the prison system resulting from such legislation.

Part II of this article examines a handful of jurisdictions that have adopted racial impact statements. Part III looks at jurisdictions that have a high number of individuals in the corrections system and have chosen to reduce corrections budgets. Although available data is limited, the tentative results are surprising--a reduction in the corrections budget does not necessarily lead to an increase in crime. Thus, reducing correctional budgets and implementing less costly alternatives to prison may be both cheaper for states and more racially equitable. Racial impact statements can facilitate this process by enabling legislators, policymakers, and community members to engage in the thorough analysis needed to ensure budget cuts and other important fiscal decisions are appropriately made.

. Sahar Fathi is a legislative aide for Seattle City Councilmember Mike O'Brien.