Criminal justice bills in New Jersey are supposed to include a public analysis of how the legislation would affect communities of color, after former Gov. Chris Christie signed a bill creating what are known as “racial impact statements.”
But since the bill (S-677) went into effect two years ago, legislative staff members have crafted only one such analysis, for a proposed constitutional amendment legalizing marijuana that New Jerseyans will vote on this November. And that analysis — though distributed to lawmakers before they voted, according to the Senate Majority Office — is not posted online, as required.
"Especially during this time, with the racial unrest we're facing, we should definitely be taking advantage of these statements to make sure Black and Brown communities are at the center of our conversations," said Assemblyman Benjie Wimberly, D-Passaic, a sponsor of the bill.
Experts say that although the intent was laudable, Christie's conditional veto that lawmakers approved broadened the directive to something that was less feasible.
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The original “racial and ethnic impact statement” gained rapid support after a report found New Jersey to have the highest racial disparity in prisons compared with all other states. The statistical analysis was intended to show how the change in policy would affect racial and ethnic minorities, similar to fiscal impact statements or environmental impact statements. It would accompany proposed measures dealing with pretrial detention, sentencing, probation or parole.
Christie’s veto expanded it into a “racial and ethnic community criminal justice and public safety impact statement” that would examine at least six broad factors, ranging from the "rationale" for the bill affecting racial groups to how correctional facilities will be affected to "potential victims."
“The statistical information necessary to create such a broad assessment, the personnel and professional technical expertise to analyze the statistical information, and the procedures for creating, formatting and distributing these statements did not exist when the bill went into effect in August of 2018,” said Jason Krajewski, legislative counsel. “Addressing these challenges has impeded the immediate wide-scale preparation and distribution of statements, but adherence to [the statute] continues to be a priority.”
The Office of Legislative Counsel will create an impact statement if lawmakers specifically request it after a bill moves through committee, according to the Senate Democratic Office.
Lawmakers can also ask for informal, confidential advice about how bills can affect racial groups, and analysts will provide them with confidential advice, Krajewski said.
But the point of racial impact statements is not only to help inform a lawmaker’s vote, but to give the public more information about how a bill could hurt or help communities of color, which could inspire them to testify for or against a bill.
Since the bill was signed, New Jersey hasn't considered many major criminal justice bills that would obviously hurt black communities and require an impact statement, said the Rev. Charles Boyer, pastor of Bethel AME Church in Woodbury and founding director of Salvation and Social Justice.
On the other hand, lawmakers are currently weighing a package of bills that would eliminate mandatory minimum prison sentences and rework other sentencing guidelines, as well as a bill that would decriminalize marijuana, legislation that is intended to reduce the racial disparity in jails and prisons.
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"I think a lot of those pieces of legislation technically should require a racial impact statement," Boyer said. "But these bills are written to reduce the negative impact on Black and Brown folks, so it doesn't serve advocates well to spend a lot of energy pushing for the analyses — although it would be nice to show the scope of the positive impact it would have, to create momentum."
Boyer said he plans to educate advocates and lawmakers this fall to make sure they understand they have this tool at their disposal, and how to make it a regular part of the legislative process.
Just the beginning
Racial impact statements are designed to make people think purposefully about unintended consequences that past policymakers didn’t consider. The bill cited startling statistics: 60% of New Jersey’s prison population is Black, despite Black people making up 14.8% of the population. Black youth are 24.3 times more likely to be committed to a juvenile facility than white minors.
“Criminal justice policies, while neutral on their face, often adversely affect minority communities; these unintended consequences could be more adequately addressed prior to adoption of a new initiative, particularly since such initiatives, once adopted, often are difficult to reverse,” the bill reads.
New Jersey’s racial impact statement for the constitutional amendment legalizing marijuana (SCR-183) did not address all of the categories required by Christie, sometimes mentioning that there wasn’t enough relevant data.
But it did include statistics that the public could take into account when voting for or against legalization: As of January 2019, 63% of inmates incarcerated for a drug offense as the most serious crime were Black, compared with 18% who were white. About 37% of the 63,000 people arrested on drug abuse charges were Black, as of 2016 Uniform Crime Report data.
New Jersey is one of five states that have laws requiring these racial impact statements, along with Colorado, Connecticut, Iowa and Oregon. Florida and Minnesota also analyze racial and ethnic impacts of proposed bills, but it’s not required under their state laws, according to an analysis by the National Conference of State Legislatures.
“They are not a panacea, but they can influence policy,” said Nicole Porter with the advocacy group The Sentencing Project, which aims to reduce mass incarceration.
In Iowa, the first state to require “minority impact statements,” there have been mixed results, according to an analysis by The Associated Press. About six out of 26 bills that analysts found would have a disproportionately harmful impact on minority communities became law, though other factors like lobbying and cost also influenced decisions.
For instance, in 2013, the analysis "sparked an unusually frank discussion of race on the Iowa House floor" about a bill boosting penalties for removing an officer's equipment, according to the Des Moines Register. However, Gov. Terry Branstad ultimately signed the bill, despite the impact statement saying it would disproportionately affect Black individuals.
Legislative leaders or advocacy groups should continually educate lawmakers that they should request these racial impact statements and make sure it is a regular part of the legislative process, Porter said. New Jersey may also want to reexamine the statute and see if it needs to be narrowed or strongly enforced.
Racial impact statements are good first steps, but they should be paired with plans to look back at the already-harmful policies such as mandatory minimums and look at how the state can fix them, as the state’s sentencing commission has done, Porter said.
“Passing the racial impact statement law was the beginning of the conversation,” Porter said. “In order to undo all of the issues that have contributed to high rates of disparity in New Jersey’s prison system, there needs to be an ongoing and active commitment.”
Read New Jersey's racial impact statement for legalizing marijuana below:
Ashley Balcerzak is a reporter in the New Jersey Statehouse. For unlimited access to her work covering New Jersey’s legislature and political power structure, please subscribe or activate your digital account today.
Email: balcerzaka@northjersey.com Twitter: @abalcerzak
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