The Federalist Society blogsite has an interesting post by James Scanlan on proposed legislation in New Jersey that would require racial and ethnic impact statements for any legislative measure that affects pretrial detention, sentencing, probation, or parole policies. Mr. Scanlan notes that racial-impact-statement laws have already, alas, been enacted in Connecticut, Iowa, and Oregon and that similar legislation has recently been introduced in Arkansas, Florida, Mississippi, and Wisconsin; and, what’s more, frequently the legislation addresses not just post-arrest and conviction policies, but what is made criminal in the first place.
Mr. Scanlan does a wonderful job of pointing out how this law is methodologically flawed and practically unworkable, and we’d like to elaborate briefly on why the whole approach is bad policy and probably unconstitutional as well.
There are, for starters, no laws that don’t have a disparate impact on some racial or ethnic group — tax laws, antitrust laws, environmental laws, criminal laws, you name it. In the criminal context, this is because human beings don’t commit crimes in the same exact proportion that their particular racial or ethnic group is to the general population, and indeed those proportions change over time.
And what is the government supposed to do with this information, anyway? What it should do, of course, is ignore it: Criminal laws should be written without regard to race, and let the chips fall where they may. It is disturbing to contemplate a legislature carefully crafting a law with an eye on racial and ethnic outcomes; such race-based decisionmaking is precisely what the Constitution enjoins, and its presence will only encourage lawsuits.
But obviously there is an expectation here that the disparities will be addressed and, in some way, diminished. There are two ways that this might be done, both bad.
The first is not to make some type of behavior illegal that should be illegal because it is dangerous or in some other way bad for the community. This will be unfortunate for the public generally, and especially for those who live in the area where the activity is going on — most often, poor urban areas with high crime rates. But as is often the case, the Left appears more concerned with the race of the perpetrator than it is with the race of his or her victims, even though they are usually the same.
The second way to deal with a predicted disparity is to tweak the law so that more white (or, likely, Asian American) people are arrested, too. That’s probably not what the ACLU has in mind, but one could see an effort to bundle together two bills so that there is racial “balance”: the original one that had a disparate impact on blacks, say, and a second one written not because it is really needed but so that it has a disparate impact on whites. So, for example, a bill that increased penalties for some of the types of street crime that happen in poor, inner-city neighborhoods would be combined with a bill that increased penalties for some types of white-collar crime.
The next white-collar criminal prosecuted under that law would then have a ready-made challenge, namely that the law being applied to him was passed with racially discriminatory intent. That’s unconstitutional.
According to the crime statistics amassed by the FBI for 2015, it is an unfortunate, and politically incorrect, fact that African Americans commit crimes at a greater rate than other racial and ethnic groups including Asian Americans, whites, and Hispanics. But the reason for this is that too many African Americans grow up in homes without a father and live in broken and dysfunctional communities; and those problems will not be solved, and indeed will be exacerbated, by the Left’s ignoring and excusing this reality and instead insisting that any disparity is due to “institutional racism” in our criminal justice system.
This piece originally appeared in National Review