The Council on Criminal Justice recently published a report analyzing how sentencing law changes in 12 states, including Colorado, affected racial disparity in imprisonment. The report found that over the decade surveyed by the report, 2010 to 2020, “sentencing law changes were generally not associated with changes in racial disparity in imprisonment between 2010 and 2020 in the 12 study states.” But, racial disparity in imprisonment did drop between 2000 and 2019.
In Colorado, the Black-white imprisonment disparity fell 43%, most notably in the disparity rate in imprisonment for drug offenses, where the rate for Black adults declined by 90% and white adults by 47%, according to the report.
Thaddeus Johnson, a senior fellow at CCJ, told Law Week the organization saw racial disparity in imprisonment declining even in its 2016 national report. Johnson said the biggest drop in imprisonment was in drug cases, but the biggest gap at the time was in violent offending.
Extending the data to 2020 in its most recent report, Johnson said CCJ found the declining trend of disparity in imprisonment held, but disparity in violent offending cases remained sticky. A particular interest of the study was the depopulation of prisons in 2020 due to the COVID-19 pandemic.
“But we saw that depopulating the prison didn’t equate to lower disparity,” said Johnson, who has a Ph.D. in criminal justice and criminology from Georgia State University. “And so we thought that maybe it was a couple of states, that maybe California, Texas, Florida, your big states, were driving [the decline in disparity].”
This led CCJ to conduct a state-level analysis in two parts. The first part examined whether one or two states were driving the decline, but Johnson said the data showed it wasn’t the case.
“We found that those disparity trends we saw nationally, you’re seeing it pretty much across all states,” said Johnson.
After that, Johnson said CCJ decided to look at changes to criminal law and penal law to see if there were big changes related to time served, admissions or imprisonment disparities.
“And pretty much what we found out was that a lot of changes happened before the laws were in place,” said Johnson. “So we were like, ‘Let’s start digging deeper and seeing what’s going on.’”
While the legal changes didn’t impact disparity, Johnson said there was an important thing that got lost in those findings.
“It didn’t impact disparity, meaning it also didn’t contribute to further disparity,” said Johnson. “So that means that perhaps we have the most race-neutral or fair statutory backdrop that we’ve had in the past 20 years. That’s good news, but what else is going on?”
CCJ looked at hundreds of state laws, including around 70 laws in Colorado alone. Johnson told Law Week what CCJ found through the analysis of these laws was that the law changes were a reaction to what was happening on the ground level. Johnson said CCJ saw the same thing happening with the 1994 Violent Crime and Law Enforcement Act, where states were already moving toward truth in sentencing, a focus on violent offenders, stricter laws and the three-strike rule before the federal government passed the act.
“So it shows again that law isn’t innovative, law just tends to cement and codify what’s happening on the ground,” said Johnson. “And oftentimes what happens on the ground is associated with public opinion. Because we know during that period that public opinion was ‘We want less people in prison and we want to reserve the prison space for only the most serious offenders.’”
And Johnson said that’s what CCJ has seen across the country, including higher penalties for violence, repeat offenders and firearms, coupled with a raised felony threshold for property crimes.
“Today we have more people in prison than when they were talking about mass incarceration,” said Johnson. “The disparity is going lower, but it doesn’t necessarily mean we have fewer people in our prisons.”
Johnson said the numbers showed there are more people in jail now for violent offenses than there were in the 1990s or 2000s, during the mass incarceration movement. As a result of this focus on violent crime, admissions to prison are still a factor driving disparity.
The report found that in the 12 study states, people convicted of violent crimes made up 68% of the state prison population in 2020, an increase from 49% in 2000. The report also found a steeper increase of Black imprisonment for violent crimes than white imprisonment across the states studied. In 2000, 49% of Black individuals and 48% of white individuals in prison were convicted of violent crimes. By 2020, those rates had climbed to 68% and 54%, respectively, according to the report.
“And part of the reason is if you’re only putting the most people in for violent offenses, they’re going to have longer sentences,” said Johnson. “And what you’re doing is you’re stacking more people on top of each other for longer periods. And that’s even the reason why we’ve seen that the states are starting to, based on some of the sentencing laws and the changes that we’ve seen, starting to play a bigger role, perhaps, in disparity.”