In 1968, Congress passed the Anti-Drug Abuse Act (“ADAA”) in response to the drug overdose of Len Bias, a basketball star at the University of Maryland.[1] The Act imposed harsh sentences for crack cocaine offenses; a person charged with possession of crack cocaine faced the same mandatory minimum prison sentence as someone charged with possession of one hundred times more powered cocaine.[2] For example, a person charged with carrying five grams of crack cocaine would receive the same sentence as someone carrying five hundred grams of powdered cocaine.[3] Historically, the enforcement of drug-related crimes disproportionately targeted Black Americans, and this trend was amplified by the implementation of the ADAA and the War on Drugs.[4] Under this policy, over 90 percent of individuals convicted and incarcerated under the enhanced sentencing guidelines were Black Americans, despite the majority of crack cocaine traffickers and about half of all crack cocaine users consisting of white Americans.[5] Despite multiple reforms, such as the Fair Sentencing Act of 2010, there are still harsh sentences for crack cocaine offenses.[6] Today, possession of crack cocaine carries the same mandatory minimum sentence as possession of eighteen times that amount of powdered cocaine.[7]
A possible method to avoid the mistakes of the ADAA may be to require lawmakers to conduct minority impact statements. Analogous to fiscal impact statements, these studies are designed to inform lawmakers of the potential unintended consequences associated with proposed reforms in criminal law and sentencing.[8] Policies that have implications for racial justice should require minority impact statements prior to their enactments. As observable with the still-enduring guidelines introduced with the ADAA, it is usually more difficult to reverse an existing sentencing guideline than it is to implement it.[9] Minority impact studies of such nature have considerable promises for criminal justice.[10] By being informed of potential consequences for legislation, lawmakers may be able to better serve the public by seeking alternative approaches to enhance public safety without exacerbating racial disparity in the criminal justice system.[11]
Many states have passed minority impact statement measures which have been proven to be successful means of proactively addressing racial inequality.[12] In 2008, Iowa became the first state to pass a minority impact statement statute, HF 2393.[13] In 2007, prior to the law’s passage, Black Iowans were 13.6 times more likely to be incarcerated than white Iowans.[14] After 26 separate minority impact statements under HF 2393, the rate of incarceration for Black Iowans decreased to 9.3 times more likely by the end of 2019.[15] This decrease is a promising sign that these measures are effective.[16] By outlining the potential negative or positive ramifications of policies, lawmakers may be enticed to choose policies that may reduce racial disparity.[17]
However, minority impact statements are currently not required at the federal level. The Wayne Ford Racial Impact Statement Act (H.R. 613) is proposed legislation that seeks to address this issue by providing a federal process for minority impact studies, affording lawmakers the tools to draft equitable laws.[18] Named after Wayne Ford, an Iowa state representative who authored the first state minority impact statements, H.R. 613 is currently referred to the Subcommittee on Crime, Terrorism, and Homeland Security.[19]
H.R. 613, if passed, would mandate online publication of minority impact statements to increase availability and transparency of such data.[20] The minority impact statements are required to indicate whether a proposed law would have positive, neutral, or negative impact on racial inequality.[21] Furthermore, the reports must indicate the legislations’ potential impact upon increasing or decreasing the number of incarcerated individuals in the United States, and require the Comptroller General to prepare an annual report regarding all the relevant changes in the law on racial inequality.[22] The bill also explicitly mentions that such statements are required for any legislation that applies to youth or juveniles.[23]
This legislation aims to address one of the main concerns of federal and state level efforts to address racial inequality: data availability.[24] However, as currently written, the Wayne Ford Act fails to include precise means of data collection and does not mandate agency collaboration, which is a significant weakness.[25] Nonetheless, the bill represents a positive step towards increasing data availability for policymakers and the public, ultimately creating a more informed electorate.[26] While there remains concern that without mandating agency collaboration and processes of data collection, the statute may be less effective than it could be otherwise, the statute is still valuable for addressing issues of racial inequality in the United States at the federal level.[27] In addition, the specific inclusion of juveniles within the category of protected individuals under the Wayne Ford Act is progress towards better protecting a particularly vulnerable subset of population.[28]
Policymakers must address issues of racial disparity before a piece of major criminal or economic reform lands on the president’s desk for approval. Environmental and health assessment statements are already common practice for legislation concerning both, so requiring minority impact studies would not be a significant change to how Congress already conducts itself.[29] By proactively seeking to reduce flaws in legislation that may have a disproportionate effect on different communities, the United States may be able to avoid the mistakes of the War on Drugs.[30]
[1] Ashlee Riopka, Equal Protection Falling Through the Crack: A Critique of the Crack-to-Powder Sentencing Disparity, 6 Aʟᴀ. C.R. & C.L.L. Rᴇᴠ. 121, 123 (2015).
[2] PL 99–570, October 27, 1986, 100 Stat 3207.
[3] Ashlee Riopka, supra note 1 at 124 (2015).
[4] Id. at 125; Ignacio Diaz Pascual, America’s War on Drugs — 50 Years Later, Lᴇᴀᴅᴇʀsʜɪᴘ Cᴏɴғᴇʀᴇɴᴄᴇ ᴏɴ Cɪᴠɪʟ ᴀɴᴅ Hᴜᴍᴀɴ Rɪɢʜᴛs (June 29, 2021) https://civilrights.org/blog/americas-war-on-drugs-50-years-later/ [https://perma.cc/2CFD-U6R8] (The War on Drugs was a long running policy of United States beginning in the Nixon era to greatly increase criminal punishments for drug-related offenses.).
[5] Id. at 124.
[6] Marc Mauer, Racial Impact Statements Changing Policies to Address Disparities, Cʀɪᴍ. Jᴜsᴛ. 16, 17 (Winter 2009); Tyler B. Parks, The Unfairness of the Fair Sentencing Act of 2010, 42 U. Mᴇᴍ. L. Rᴇᴠ. 1105, 1108 (2012).
[7] Id.
[8] Nicole D. Porter, Racial Impact Statements, Tʜᴇ Sᴇɴᴛᴇɴᴄɪɴɢ Pʀᴏᴊᴇᴄᴛ, (June 16, 2021) https://www.sentencingproject.org/reports/racial-impact-statements/ [https://perma.cc/KA4F-XTMC].
[9] Id.
[10] Marc Mauer, supra note 6 at 17
[11] Marc Mauer, supra note 6 at 19–20.
[12] Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, Tʜᴇ Sᴇɴᴛᴇɴᴄɪɴɢ Pʀᴏᴊᴇᴄᴛ 16, (2021) https://www.sentencingproject.org/app/uploads/2022/08/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf [https://perma.cc/VEV2-XX54].
[13] Id. at 17.
[14] Id. at 16
[15] Id.
[16] Ryan J. Foley, Racial-Impact Law Has Modest Effect in Iowa, Dᴇs Mᴏɪɴᴇs Rᴇɢɪsᴛᴇʀ (Jan. 21, 2015), https://www.desmoinesregister.com/story/news/politics/2015/01/21/racial-impact-law-effect-iowa-legislature/22138465/ [https://perma.cc/J5QX-8KAC ](“A review by the Associated Press shows that the first-in-the-nation law appears to be having a modest effect, helping to defeat some legislation that could have exacerbated disparities and providing a smoother path to passage for measures deemed neutral or beneficial to minorities.”); Leah Sakala, Can Racial and Ethnic Impact Statements Address Inequity in Criminal Justice Policy?, Uʀʙ. Iɴsᴛ. (Feb. 23, 2018), https://www.urban.org/urban-wire/can-racial-and-ethnic-impact-statements-address-inequity-criminal-justice-policy.
[17] Catherine London, Racial Impact Statements: A Proactive Approach to Addressing Racial Disparities in Prison Populations, 29 Lᴀᴡ & Iɴᴇᴏ̨. 211, 227 (2011).
[18] Wayne Ford Racial Impact Statement Act of 2023 § (2)(b)., H.R. 613, 118th Congress (2023-2024).
[19] Cᴏɴɢʀᴇss, H.R.613 - Wᴀʏɴᴇ Fᴏʀᴅ Rᴀᴄɪᴀʟ Iᴍᴘᴀᴄᴛ Sᴛᴀᴛᴇᴍᴇɴᴛ Aᴄᴛ ᴏғ 2023, (2023-2024) https://www.congress.gov/bill/118th-congress/house-bill/613/all-actions.
[20] Wayne Ford Racial Impact Statement Act of 2023, supra note 18 at § (3)(f)(1), 3(e).
[21] Id. at § (3)(d)(1).
[22] Id. at § (3)(d)(2).
[23] Id. at § (3)(g)(1).
[24] Jancy Nielson, Esq., The Slow Race: Achieving Equity Through Legislative and Agency Minority Impact Statements, 41 Mɪɴɴ. J.L. & Iɴᴇᴏ̨. 45, 97 (2023).
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] 42 U.S.C.A. § 4332; Jancy Nielson supra note 26 at 47 (2023)
[30] London, supra note 17 at 221-26.
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