Using Racial Equity Impact Notes In The Maryland Legislature
Davis | Guest Feature
Often legislation enacted to solve a problem has unintended equity consequences. Racial Equity Impact Assessments are used to predict these unexpected outcomes.
Perhaps the best example of unintended equity consequences is the long-standing crack versus powder cocaine sentencing disparity. This federal sentencing policy established a minimum 5-year federal prison sentence for distributing just 5 grams of crack, compared to powder cocaine, which required distribution of 500 grams to trigger the same 5-year mandatory minimum sentence. While these penalties were aimed at combating a growing drug distribution problem in the U.S., they also resulted in a disproportionate amount of Black offenders incarcerated under the mandatory minimum compared to White offenders. This was simply due to one groups’ preference for one drug over another. In December of 2022, the U.S. Attorney General issued sentencing guidelines to remove this gap as the policy "drives unwarranted racial disparities in our criminal justice system."
What Are Racial Equity Impact Assessments & Their Role In Government Decision-making?
Racial equity has recently emerged as a critical concern for state legislatures as disparities in measures of socio-economic status and well-being are pervasive across the country by race, ethnicity, and English language proficiency.
Governments at all levels are uniquely poised to address both unconscious and overt bias to expand opportunities and advance equity in their decision-making responsibilities. In response, several states and local jurisdictions have developed racial impact analysis initiatives to better understand the relationships between race and criminal justice and to develop evidence-based policies related to criminal justice. Impact assessments are a critical tool in this regard.
Impact assessments are a systematic examination of how different racial and ethnic groups will likely be affected by a proposed action or decision. In addition to Maryland at least 8 states and Washington DC have active racial impact statement programs - Iowa, Colorado, Connecticut, Florida, Oregon, Maine, New Jersey and Virginia - although the mechanisms for the preparation and content of racial impact statements vary from jurisdiction to jurisdiction.
Racial Equity Impact Assessments In The Maryland Legislature
In 2021, the Maryland General Assembly's presiding officers requested that the nonpartisan Department of Legislative Services (DLS) conduct a pilot program to assess the impact of select criminal justice legislation on various racial groups. In partnership with Bowie State University, the University of Baltimore's Schafer Center for Public Policy, and UMBC, 12 racial equity impact notes were drafted to accompany legislation.
The notes covered diverse topics such as auto theft, parole, felony murder, gun theft, and cannabis legalization and evaluated legislation for its potential to create or exacerbate existing racial disparities using statistical analysis of available data. Individual impact notes can be found online as part of a bill’s legislative history.
In 2022, after a successful pilot project, the Racial Equity Impact Note (REIN) function was established within the Office of Policy Analysis. Since then, Maryland has been at the forefront for developing equity assessments, especially with its use of quantitative measures to assess equity outcomes.
REIN’s approach to measuring equity involves evaluating “disproportionality” and “disparity in the form of ratios.” The disproportionality ratio illustrates over or under representation of a minority racial group given their proportionate share of the overall population. The disparity ratio illustrates inequities in outcomes when comparing one or more racial or ethnic minority groups within a dataset to the white population within that same dataset. For example, disproportionality exists if a minority group comprises 15 percent of a jurisdiction’s population but makes up 40 percent of those incarcerated in prison. Disparity exists if the White population is 30 percent of the jurisdiction’s population, but only 8 percent of the prison population. In this example, Black residents would be overrepresented in the prison population by a factor of 5, given their overall share of the jurisdiction’s population. Additionally, Black residents would be 10 times more likely to face incarceration compared to their White counterparts.
The Role of Data In Racial Equity Impact Assessments
While the process for conducting assessments is evolving, data is key to performing racial impact assessments. HB1023 of 2022 mandated several key state agencies to provide operational data directly to DLS. As a result of the bill, the REIN unit receives large datasets covering traffic enforcement, crimes, arrests, hate bias incidents, juvenile justice, and sentencing data. These datasets allow the unit to analyze demographics and other population characteristics at those critical decision points in the criminal justice system.
Using statistical tools, REIN analysts can reveal existing and potential inequities resulting from laws, policies, practices, and how they are enforced. A recent example is Senate Bill 396, introduced during the 2024 legislative session. The measure would have allowed police officers to search vehicles if the smell or odor of cannabis was present. Cannabis is legal to possess in Maryland under a certain amount. The racial equity impact note for this piece of legislation used Maryland traffic stop data from 2018-2021 to determine that Black drivers would be disproportionately affected by the bill (see chart below). The data indicated that Black drivers consistently constituted over 60 percent of all vehicle traffic stops in the State despite comprising only 29 percent of the State’s population and Black drivers were more than four times as likely to have their vehicle searched by law enforcement without a warrant compared to White drivers.
Often data related directly to the subject of legislation is unavailable. In these instances, REIN is able to provide useful context by discussing national trends, research, and other datapoints. Impact notes also inform the policy discussion when the equity effects are more complex and interdependent.
In Maryland, Racial Equity Impact Notes have become an important tool for legislators, public policy advocates, and other stakeholders to assess the potential equity impacts of legislation just as fiscal and policy notes help to estimate potential costs or savings. Members of the General Assembly have used the information contained in the REINs for debate both in standing committees and on the Senate and House Floors. These impact assessments allow for more informed decision-making in the legislature and bring to light potential effects that may go unnoticed in the public policy discussion. You can find impact notes on the individual bill info pages for legislation introduced in the Maryland General Assembly on its website. To see the full list of impact notes by legislative session, please visit the list on the website.
MICHELLE L. DAVIS is Manager of Racial Equity Impact Notes within the General Assembly of Maryland’s Department of Legislative Services (DLS). The DLS employs more than 400 people who provide legal, fiscal, committee, research, reference, auditing, administrative, and technological support to the members of the legislature and its committees.
