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African American Forum

Recommendations to the UN Special Rapporteur

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As the research presented in this report indicates, the causes of the racial disparities in the U.S. criminal justice system are complex and deeply rooted. As studies repeatedly demonstrate, the cumulative impact of racial disparity is experienced throughout the country’s criminal justice system. Beliefs that the current system is unaffected by centuries of an explicitly racist past is wishful thinking and potentially blinds decision makers to the implicit racial bias that orients the American consciousness and is embedded in its formal policies.

The United States can adopt concrete measures to reduce both the existence and the effects of racial bias in its criminal justice system. As such, The Sentencing Project respectfully urges the UN Special Rapporteur to recommend that the United States adopt the following recommendations.

End the War on Drugs.
The United States should substantially end its War on Drugs. Specifically, the Department of Justice should reconsider and reduce the volume of low-level drug offenders prosecuted in federal court. State officials can also adopt law changes to divert prison-bound defendants into effective alternatives to incarceration programs. Local police departments should significantly scale back drug arrests. The resources saved by decreasing the number of prosecutions should be invested in evidence-based drug prevention and treatment measures.

Eliminate mandatory minimum sentences.
The United States should eliminate mandatory minimum sentences. Judges should be allowed to consider individual case characteristics when sentencing a defendant in every case. Mandatory sentences do not eliminate discretion in the courtroom—they simply shift it from judges to prosecutors, thereby reducing transparency in decision making.

Reduce the Use of Cash Bail.
Defendants should be detained pretrial only if they pose a safety or flight risk, not because they cannot afford to post bail. A well calibrated and transparent risk-assessment instrument can be used to determine who should be released on their own recognizance, who should be released with some requirements, and who should be detained.

Fully fund indigent defense agencies.
The United States should fully fund and staff indigent defense agencies through an appropriate mix of local, state, and federal resources. The federal government should increase support for training and technical assistance for indigent defense, and document shortcomings of jurisdictions that fail to meet established bar association standards for caseloads and professional training.

Adopt a policy requiring the use of racial impact statements.
Policies should be adopted at the federal and state levels requiring the use of racial impact statements for proposed sentencing policies. Such a policy would require legislators to prepare an analysis assessing the possible disparate racial consequences of any proposed legislation before enacting it in order to avoid any unintended disparate racial effects. Four states—Iowa, Connecticut, Oregon, and New Jersey—have adopted racial impact statement requirements since 2008.

Develop and implement training to reduce racial bias.
The United States should develop and implement training designed to mitigate the influence of implicit racial bias at every level of the criminal justice system: police officers, public defenders, prosecutors, judges, jury members, and parole boards. While it is difficult to eliminate completely racial bias at the individual level, studies have repeatedly shown that it is possible to control for the effects of implicit racial bias on individual decision-making. In other words, while it may be impossible in the current culture of the United States to ensure that individuals are cognitively colorblind, it is possible to train individuals to be behaviorally colorblind. The United States should work with leading scholars on implicit bias to develop the most effective training programs, and couple this with systems of monitoring and accountability to reduce the influence of implicit racial bias.

Address Collateral Consequences.
Denying the right to vote to an entire class of citizens is deeply problematic to a democratic society and counterproductive to effective reentry. The federal government should allow Americans to vote regardless of their conviction status, and certainly after they have concluded their sentences. States should also allow the full democratic participation of their citizens. Government officials should also revise policies that serve no public safety function but impose collateral consequences on people with criminal convictions—such as in the realms of employment, education, housing, and in the social safety net—and encourage similar reforms in the private sector.


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