Oregon State Bar Bulletin — MAY 2009
Parting Thoughts
A New Reconstruction
By Jesse Wm. Barton

An article in the “Briefs” section of the January 2009 Bulletin, analyzing federal Bureau of Justice Statistics data on state and federal prison populations, invites an analysis of Oregon’s involvement in the “historically unprecedented national commitment to a sustained growth in prison populations[.]”1 Anything besides a timid analysis would disclose that as of the most recent (2000) census, an African-American Oregonian was eight times more likely to be living in prison than was a Caucasian Oregonian.

In 2000, approximately 54,742 Oregonians were African-American.2 As of July of that year, 1,092 African-American Oregonians were living in prison.3 So about 2.0% of African-American Oregonians were living in prison.

Also as of 2000, approximately 2,962,932 Oregonians were Caucasian.4 As of July of that year, 7,435 Caucasian Oregonians were living in prison.5 So about 0.25% Caucasian Oregonians were living in prison.

The number 2.0 is eight times greater than the number 0.25. So as of the most recent census, an African-American Oregonian was eight times more likely to be living in prison than was a Caucasian Oregonian.6

Various theories attempt to explain this disparity. One is based on the notion that a genetic predisposition or learned behavior somehow drives African-Americans to commit eight times more crime than Caucasians. In support of this theory, some pundits cite a Manhattan Institute report claiming that from 1976 to 2005, African-Americans committed 52% of all murders in the United States.7

Because murder carries the stiffest penalty of all felonies, a 52% commission rate might seem to explain some of the 8-to-1 disparity. But African-Americans comprise only 1.6% of Oregon’s population. The notion that they commit over half the state’s murders can be rejected out of hand. Along with it should go the theory that African-American Oregonians are eight times more likely to be living in prison than Causasian Oregonians, because they are predisposed to commit eight times more crime.

Conclusion 9 of the “Peterson Report”8 states the most plausible reason for the disparity. It explains that owing to various criminal-justice policies and practices, “minorities are less likely to be put on probation,” but “are more likely to be arrested,” “charged,” “convicted,” and “incarcerated” than are “similarly situated” Caucasians.

Coupling such policies and practices with Oregon’s participation in the so-called “war on crime”— in particular, its decades-old dependence on escalating prison populations as a primary means of controlling crime—the 8-to-1 disparity, and its corollary economic inequality, became inevitable. As various studies demonstrate, “In real respects, the war on crime has reversed the gains of the civil rights era and created a new form of racialized domination more intractable in many ways than the mid-twentieth century version of Northern ghettos and Southern Jim Crow.”9 Moreover, the unprecedented level of “incarceration has become one of the engines driving the growing inequality between middle class whites and impoverished blacks[.]”10

Which begs the question: Will Oregon participate in the “New Reconstruction”—the effort to restore the civil rights and economic equality lost during the “war on crime”—for example, by initiating steps to eradicate the racial disparities in its prison population?

It’s not as though Oregon has sat on the sidelines during the civil rights movement. For example, a photograph of a bill-signing ceremony displayed outside the chambers of the Oregon House of Representatives shows that the state adopted a public accomodations law a decade before Congress adopted the Civil Rights Act of 1964. Other Oregonians literally risked their lives by venturing into the Deep South to fight Jim Crow laws.11

Fortunately, participating in the New Reconstruction would not require anything life threatening. It could involve only conventional efforts—like requiring statements analyzing the racial and ethnic impacts of proposed criminal-justice legislation.12 Such “racial/ethnic-impact statements,” as the states of Iowa and Connecticut already require, meet the American Law Institute’s recommendation of “treat[ing] numerical disparities in punishment as an important societal cost that must be considered along with other factors when the existing sentencing structure is assessed, or when changes within the system are contemplated.”13

To be sure, racial/ethnic-impact statements are no panacea. It could take as long to eradicate the racial disparity in the state’s prison population as it took to create it. But as The Sentencing Project’s executive director Marc Mauer explains:

“Issues of race and justice permeate American society, but nowhere are they as profound as in the criminal justice system. Racial and ethnic disparities result from a complex set of factors, many beyond the purview of the criminal justice system. But criminal justice leaders have an opportunity, and an obligation, to ensure that their policies and practices at the very least do not exacerbate any unwarranted disparities. Racial impact statements offer one means by which policy makers can begin to engage in a proactive assessment of how to address these challenging issues in a constructive way.”14

In an effort to repair the war on crime’s collateral damages, which include the 8-to-1 racial disparity in the state’s prison population and its corollary economic distortions, Oregon should participate in the New Reconstruction by doing nothing less than joining Iowa and Connecticut in requiring racial/ethnic-impact statements of proposed criminal-justice legislation

1. Jonathan Simon, The Great Penal Experiment: Lessons for Social Justice, in After the War on Crime: Race, Democracy, and a New Reconstruction 61 (2008).

2. Oregon’s year 2000 population was 3,421,399, and 1.6% of the population was African-American. See Oregon Quick Facts from the US Census Bureau, available at http://quickfacts.census.gov/qfd/states/41000.html. That percentage of the total population is approximately 54,742.

3. Oregon Dept. of Corrections: Inmate Population Profile for 07/01/00, available at http://www.doc.state.or.us/DOC/RESRCH/docs/inmate_pro-file_200007.pdf.

4. Oregon Quick Facts states that 86.6% of Oregon’s total population was Caucasian. That percentage of the total is approximately 2,962,932.

5. See Oregon Dept. of Corrections: Inmate Population Profile for 07/01/00.

6. Similar statistical analyses show that an Hispanic Oregonian was 1.6 times more likely to be living in prison than was a Caucasian Oregonian, and that a Native-American Oregonian was twice was likely to be living in prison than was a Caucasian Oregonian.

7. See George Will, More Prison, Less Crime, washingtonpost.com, June 22, 2008, at B07.

8. Report of the Oregon Supreme Court Task Force on Racial/Ethnic Issues in the Judicial System 3 (May 1994) (named for the task force’s chairman and the report’s principle author, Judge Edwin Peterson).

9. Mary Frampton, Ian López, and Jonathan Simon, Introduction, in After the War on Crime at 9.

10. Simon, The Great Penal Experiment, in After the War on Crime at 65.

11.See Melody Finnemore, Profiles in the Law: Mission to Mississippi: Don and Susan Marmaduke Share Commitment to Service, Oregon State Bar Bulletin (May 2007).

12. The concept of racial/ethnic-impact statements is a product of The Sentencing Project in Washington, D.C. For more information about the concept, see Marc Mauer, Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities, 5 Ohio State J Crim L 19 (2007). House Bill 2352 would require such statements. It presently is in the Oregon Legislature’s House Rules Committee, where it was given a public hearing on February 11, 2009.

13. Model Penal Code: Sentencing 138 (2007).

14. Marc Mauer, Racial Impact Statements: Changing Policy to Address Disparities, 23 Criminal Justice 19, 22 (ABA 2009) (quoted with permission).

Jesse Wm. Barton was lead counsel in State v. Barber, 823 P2d 1068 (Wash 1992).

© 2009 Jesse Wm. Barton

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