Illustration by Topher MacDonald

OREGON JOINED a rather infamous group of states in 2013—it was one of 14 whose prison populations had hit an all-time high.

And if your skin's not white, your odds of getting caught up in that system are much higher. Blacks in Oregon are three times as likely to be on probation as whites, and they're 5.2 times more likely to be in prison, says Craig Prins of the Oregon Criminal Justice Commission.

Until recently, Oregon lawmakers had little notion of how their decisions tilted that situation. Then, last year, the Oregon Legislature approved Senate Bill 463, which created a new educational tool meant to help lawmakers be both smarter on crime and fairer to the state's non-white residents. Now "racial impact statements" can be attached to proposed legislation ["It's a Start," News, June 26, 2013].

"If we agree that minority overrepresentation in the criminal justice system is something we should address, the least we can do is not make it worse, am I right?" the bill's lead sponsor, Senator Chip Shields, D-North Portland, told a friendly crowd during a recent forum on the policy in the Capitol basement. "The more information that they have on a topic, the better decision they can make."

But for all the hope around what Shields has been hyping as a landmark new policy with wide-reaching implications for criminal justice reform and equity, there's a catch:

Legislators must specifically call for racial impact statements to accompany proposed legislation. And thanks to a bit of fine print, those requests must be bipartisan—coming from one Democrat in either chamber of the Legislature as well as one Republican—raising the prospect that the kind of regular analysis Shields is touting may not happen much at all.

Adding to those concerns, lawmakers, facing a passel of ballot initiatives this November, let the deadlines for requesting racial impact statements slip by without invoking their new power.

That omission is particularly glaring in the case of Measure 91, the referendum to legalize marijuana in Oregon. While legal pot might not seem like a racial justice issue on the surface, it most certainly is—despite roughly equal rates of smoking up, African Americans are nearly four times as likely as whites to be arrested for marijuana crimes, according to the ACLU.

Since black people are more likely to get arrested for pot, they're more likely to be convicted of marijuana possession, and they're more likely to carry a record that damages their chances of getting a good job, supporting a family, or having an opportunity to become a leader in the community.

A statement for Measure 91 also might have found that, although Oregon has decriminalized pot and legalized its medicinal use, 52 percent of all drug arrests nationally are for marijuana, and 88 percent of those for possession. The states collectively spend $3.6 billion enforcing marijuana laws each year.

But no two legislators stepped up to request a racial impact statement 90 days before the November 4 election to highlight this particularly positive impact of marijuana legalization.

Racial impact statements have long been a pet cause for Shields, whose district includes the largest black community in Oregon. Shields fought for years to get legislation passed in stodgy Salem that would allow legislators to call on neutral public servants to inform them of the impact on race that new criminal justice laws could have.

Stiff punishments brought on by Measure 11, which spells out mandatory minimum sentences, and its tough-on-crime kin may still have become law in Oregon, for instance. But a more-informed debate might have tempered any disproportionate impact on Portland's black community.

The racial impact statements are supposed to provide free information from a respected, bipartisan source—the Oregon Criminal Justice Commission, which includes a district attorney. Shields won the support of prosecutors by welcoming information about proposed laws' impact on crime victims as well as defendants. Racial minorities are not only more likely than whites to be prosecuted for crimes, they are also more likely to be victims of crimes.

The real test for racial impact statements will come in the 2015 session—when it will become apparent whether or not legislators will use the statements.

Shields wasn't able to pass his bill without it getting caught in some red tape. Representative Jeff Barker, a moderate Democrat from Aloha, chairs the House Judiciary Committee, and Barker amended the bill to require bipartisan requests for statements.

Now, as much as Shields may want to order a racial impact statement on every piece of legislation, he can't do so unless he gets a Republican on board with him.

But Shields was also careful to get buy-in from the Senate's sole African American member, Jackie Winters, a Republican from Salem. And she brought Shields' original bill to a vote on the Senate floor. SB 463 passed with overwhelming bipartisan majorities in both chambers.

The Barker amendment might reduce the statements' use, but there's some hope Winters will also sign off on racial impact statements on any legislation that really calls for them.

Winters, who didn't return messages seeking comment, has been a staunch advocate for getting state agencies to explicitly consider race when collecting data, rather than just assuming that data collected from Oregon's largely white population would be the same as data drawn from a discrete racial group.

"Republicans are realizing that the system is unsustainable," says Midge Purcell of the Urban League of Portland. "We can't continue to spend tax dollars on incarcerating more and more people."

Representative Lew Frederick, an African American Democrat from Northeast Portland, tells the Mercury that he's optimistic racial impact statements will inform the debate around some of the bills he has planned, addressing issues such as racial profiling.

"I'm stopped by police at least once a year," Frederick says.

A racial impact statement contributed to the derailment of a cocaine sentencing law in Iowa that would have raised the penalty for powder cocaine to equal that of crack cocaine. Although harsher crack laws affect African Americans more than whites, the racial impact statement showed that increasing the penalties for powder cocaine also would disproportionately punish blacks and Hispanics. The proposed change also may have forced Iowa to build a new prison, says Nicole Porter, director of advocacy at the Sentencing Project, a group dedicated to reversing the explosion in prison growth since the 1980s.

The new Oregon law goes a step further than similar laws in Iowa, Minnesota, and Connecticut—it allows for racial impact statements to be ordered not just for criminal justice issues but also for laws affecting child welfare. But Oregon's law could stand to go further, advocates say, given the government's historic pattern of separate and unequal treatment of minorities in education, transportation, and housing.

"I would like to see racial impact statements extended across all public policy," Purcell says.

The Urban League plans to work with legislators like Shields and Frederick on passing a "ban the box" law that would prohibit employers from asking for job applicants' criminal history—another widespread practice that disproportionately hurts blacks.

Similar laws have passed recently in Illinois, California, and New Jersey. "If [New Jersey Governor] Chris Christie can sign a ban-the-box bill in the state of New Jersey," Purcell says, "we can do it here."