Hispanic Heritage month is an important time to reflect on Hispanic Heritage generally, including how far we still have to go to ensure equitable inclusion and access to justice. One aspect of this is to understand the overrepresentation of and disparate outcomes for people of color, including Latino/Latina/Latinx folks involved in the criminal legal system. Accurate data is needed for that.

Yet, remarkably, we do not know how many Hispanic and Latino people are arrested or how many are incarcerated in the United States because we are not collecting the data. Research by the Urban Institute shows 40 states report race in arrest records, but only 15 report ethnicities.

Counting or failing to count Latinos in our crime metrics has impacts far beyond this specific group of people. Failing to count Latinos means they are often captured as White people in the data. In addition to obscuring the impact of policies on Latinos, this failure obscures disparities between White and Black people in the system.

Without accurate representation we are limiting our chances of advancing racial equity, which is increasingly acknowledged as a key part of legitimate and sustainable strategies to reduce incarceration in the United States.

Self-Identification of Ethnicity Matters

Nineteen percent of America’s population identifies as Hispanic or Latino, but it is important to note that this population is not monolithic. It is a diverse and multiracial group. It encompasses an array of cultures, life circumstances, and regions of the world, including Cuba, Mexico, Puerto Rico, South and Central America, and the Dominican Republic. In the criminal justice system and elsewhere, it is important to identify people in the way they self-identify. Recently more people are using the term Latinx, and it is important to use the term for people who self-identify as such. Research by Pew Research Center shows that only about three percent of Hispanics use the term, countrywide. Sixty-one percent prefer the term Hispanic, and about a third prefer Latino.

Excluding Latinos from Criminal Justice Data Perpetuates Bias

Most states do not track race and ethnicity in a systematic way within local justice systems. The research shows that only one state, Alaska, tracks race and ethnicity consistently across all aspects of its prison population including parole and probation. Other states may be tracking this information but are not reporting on it publicly. This leaves Latinos largely invisible in data-driven discussions about reform. Data informs public policy and excluding Latinos from data collection excludes them from criminal justice policy discussions.

Perhaps most shockingly, states with large Latino populations do not necessarily keep better data. Most jurisdictions rely on arresting officers to classify the race or ethnicity of a person when they are arrested. If officers do not ask a person how they self-identify, bias in race and ethnicity can arise. For example, individuals who are light-skinned may be classified as White, and darker-skinned individuals will be classified as Black. Until about 1980, almost every jurisdiction categorized Latino people as White.

There is much room for improvement in how we categorize people. Because we know that front-end decisions impact subsequent decisions, accurately classifying people in the early stages of system involvement is key.

The MacArthur Foundation’s Safety and Justice Challenge is working to reduce jail populations across America. It focuses significant attention on people who languish in jail before trial, who have been arrested on low-level crimes who are not a danger to their communities, and who cannot afford the cost of cash bail. As a result, people working together in cities and counties participating in the Safety and Justice Challenge are in a good position to influence change that leads to improved metrics on race and ethnicity. This represents a significant opportunity to further racial equity.

Organizing For Change in a Multiracial Society

I have heard often from people working to change the way Latinos are treated in the justice system that it is particularly difficult for us to organize when we are not accurately counted. Indeed, most people remain surprised when they hear the depth of this inconsistency. System actors often rely on existing, incomplete data infrastructure to collect and monitor data. This includes the limited classification for capturing race and ethnicity. There are still tremendous variations between agencies, states, and systems.

It is encouraging to see some SJC cities and counties be proactive in improving their data infrastructure to reflect the population they serve. In the end, we cannot measure the impact of reforms geared toward reducing disparities and inequalities if we do not have a mechanism that accurately counts people. The tracking of race and ethnicity across justice systems needs to change with the times.