October 8, 2019

Criminal justice race, ethnicity data may be coming to NM

Illustration by Anson Stevens-Bollen

A state senator says she’ll push for laws in the coming years to answer a long-troubling question in New Mexico: does the criminal justice system here disproportionately target non-white people?

Sen. Antoinette Sedillo Lopez, an Albuquerque Democrat and former law professor, tells New Mexico In Depth she was “stunned” to learn during this year’s legislative session, her first in the Senate, that few agencies collect or share data on the race and ethnicity of people caught up in the system.

“I thought, how was I not aware of this?,” she said in an interview this week. “It was really weird.”

So Sedillo Lopez is working up a memorial she plans to introduce at the 2020 session, which begins in January, directing the New Mexico Sentencing Commission to study how — and whether — the state’s jails and prisons gather demographic information on people who are locked up or on probation.

Though she doesn’t yet have a detailed plan for the next step, she aims to use the study to bolster a bill in 2021 that would “ensure that this data is collected and continues to be collected regardless of who’s in charge.”

The Sentencing Commission says it’ll be glad to do the work.

Deputy Director Douglas Carver said it’s precisely the sort of analysis that led to the creation of the commission, which is composed of prosecutors, defense lawyers, legal experts and longtime justice system observers.

“We are a neutral arbiter,” Carver said. “But we can’t do proper research unless we have data.”

The announcement comes after a NMID story in March — published during this year’s legislative session — that found New Mexico lags behind other states and the federal system in tracking race and ethnicity across the justice system: from first contacts with law enforcement officers to arrests to incarceration rates.

For Sedillo Lopez, studies on disproportionate treatment of nonwhite people in the federal system and in states that do collect race and ethnicity data such as Florida and California had her wondering what was happening here.

Then she began touring New Mexico prisons as a member of the Legislature’s Courts, Corrections and Justice interim committee.

During a recent visit to the Southern New Mexico Correctional Facility in Mesilla, Sedillo Lopez said, “it’s visible that there’s an over-representation” of non-white people.

And in multiple prisons, she noticed something else.

“This is just a visual, but the (state) population of African Americans is 1 or 2 percent, and it’s really clear when you go to the prisons that the population is larger than that—just counting who you see,” Sedillo Lopez said. “We need to know that. We need to know why.”

It’s an especially important question, she said, because New Mexico is one of just five states in which a majority of residents aren’t white.

New Mexico Corrections Department staffers do ask people as they enter state prisons or the Probation and Parole program questions about their race and ethnicity. But the information collected isn’t stored in a searchable database.

And this state is one of just a handful in the nation in which nearly half the people either locked up or under some other form of justice system supervision are in jails or other county-run programs — not in the Corrections Department’s system.

At the state’s largest county jail, the Bernalillo County Metropolitan Detention Center, booking officers decide by sight and surname about an incoming inmate’s race or ethnicity, then either enter it into a form or leave it blank.

Some of New Mexico’s other 30 county jails have no system at all for collecting demographic information.

“So that’s a huge population that is unaccounted for,” Carver said.

The dearth of data leads to uninformed conversations among communities and policymakers alike, experts say, and that often leads to distrust of the system and ideologically based arguments.

“Right now we have an inability to describe any disparity that is anecdotally described at numerous meetings where we hear a lot about disparity,” said Linda Freeman, director of the Sentencing commission. “Until we have a consistent way to collect that information, we’re at a disadvantage right now. We can’t use evidence to either support the anecdotal or to discredit those claims.”

If Sedillo Lopez’s memorial passes, Freeman plans to survey the county jails and state prisons on the race and ethnicity data collection practices. From there, she hopes to offer some suggestions on a uniform system for the whole state.

Carver, meanwhile, will examine how other states and the federal system are collecting the information to help inform a way forward in New Mexico.

“There might not be a best practice yet,” he said.

The Sentencing Commission staff and Sedillo Lopez already agree on one detail: for jails and prisons, a person should report their own race and ethnicity rather than leaving that decision up to a booking officer.

“It would be far more accurate,” the senator said.

Another question looms: How far up the justice system stream should race and ethnicity data collection go? 

For maximum transparency, Sedillo Lopez said gathering the information at the arrest and possibly even traffic stop levels would tell a more complete story. But she has concerns about stereotyping and people’s privacy.

Freeman shares some of those concerns, but says the picture is incomplete if collection is limited to jails and prisons.

“A lot of the disparity we see in the system is in the informal contacts,” she said. “So only having race and ethnicity data for those on supervision or in correctional facilities is not ideal, but we can start to begin to analyze that data and see what it tells us about the racial composition of our prison population and our probation and parole population, but we really need to know earlier in the criminal justice process, because oftentimes, that’s where most of the bias probably happens.”

For now, that broad a net isn’t likely on the table — at least not legislatively.

“At a minimum, we need to know who’s in our jails and in our prisons,” Sedillo Lopez said. “I think this memorial is really important in getting us going in the right direction. Once you’ve done a study and you have a task force making a report and recommendations to the Legislature, it’s easier to get legislation passed.”

This article first appeared on New Mexico In Depth and is republished here under a Creative Commons license.