News Release ~ 07/17/2013

Groundbreaking Conference Report Offers Concrete Steps to Eliminate Racial and Ethnic Disparities in America’s Criminal Justice System

Washington, DC (July 17, 2013) – Issued today, a groundbreaking report on a matter of immense public importance -- Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System – is a critically important and inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them.

This conference report prepared by Consultant Tanya E. Coke is based upon a multi-day, open and frank discussion among a distinguished group of criminal justice experts – prosecutors, judges, defense attorneys, scholars, community leaders, and formerly incarcerated advocates. This three-day convening was held October 17-19, 2012, at the New York County Lawyers’ Association’s historic Home of Law and was co-sponsored by the following organizations: the Association of Prosecuting Attorneys, the Brennan Center for Justice at New York University School of Law, the Foundation for Criminal Justice, the National Association of Criminal Defense Lawyers, the Center for NuLeadership on Urban Solutions, and the New York County Lawyers’ Association.

The conference was designed not only to acknowledge that racial and ethnic disparities exist in the system, but to examine best practices around the country that address and seek to remedy those disparities. This report summarizes the candid, sometimes painful panel discussions, and identifies the panoply of remedies that may advance the goal of eliminating the disparate racial and ethnic impact from America’s criminal justice system. More than 2.2 million people are behind bars in America – an absolute and per capita figure that exceeds any other nation on earth. According to the latest available data, nearly 60% of those incarcerated people are Blacks and Latinos, more than double the percentage of these groups in the general population. And a staggering 65 million adults in the United States – approximately one in four – now have a criminal record, and all of the debilitating consequences of such a record.

As set forth in detail in the report, what lies behind these shocking figures is a system in which racial and ethnic minorities are disproportionately represented as defendants and incarcerated persons. The report explains the factors that have led to this outcome and, while the conference focused on the criminal justice system in New York City, the recommendations put forward by the participants have broad implications for reform nationally.

  • "Prosecutors realize that racial and ethnic prejudices often manifest themselves within our criminal justice system, and this report helps us to understand how to better minimize the impact of these prejudices within our jurisdictions," said David LaBahn, President of the Association of Prosecuting Attorneys. 
  • "The Brennan Center is committed to using our role as advocates and critical thinkers to engage in problem-solving regarding issues of race and justice. The racial justice convening that resulted in the report released today is the next step in work that began with an analysis conducted by the Brennan Center into how race plays a role in federal prosecutions. That work has evolved into our current Justice Program focus on efforts to end mass incarceration in this country by examining how economics can serve as the foundation for major reform in the effort to curtail over-incarceration and help reform our criminal justice system. We are at a critical moment in this nation with respect to race and justice and this report, and the best practices identified therein, will serve as an important template for all organizations, government agencies and law makers who are committed to reforming what is broken in our justice system," said Nicole Austin-Hillery, director and counsel of the Washington, D.C. office of the Brennan Center for Justice at New York University School of Law. 
  • “In light of the recent outcome of a trial that has galvanized the nation, this report is timely in that it adds critically new insights into the insidious practice of unequal protection of law, fundamental unfairness and the absence of ‘due’ process based on racially disparate treatment within the criminal ‘punishment’ matrix. This report has the potential to become the catalyst for accelerated movement toward system realignment, community empowerment and the elimination of the myriad race-based injustices that comprise the fatally flawed American ‘justice’ process,” said Eddie Ellis, president of the Center for NuLeadership on Urban Solutions.  
  • “NYCLA was proud to host such an important conference," said Barbara Moses, President of the New York County Lawyers’ Association. "We are particularly proud of the innovative and concrete recommendations developed during the conference, and presented in today's report, for combatting the racial and ethnic disparities that permeate our criminal justice system. New York City can and should lead the way towards real reform, using the conference report as a roadmap."   
  • “Race touches nearly every facet of American life - our criminal justice system being no exception. The recent verdict in the Trayvon Martin/George Zimmerman case has drawn a passionate national debate on race and its impact on the criminal justice system, similar to Emmett Till and the Central Park Five. This report seeks to replace the debate with dialogue. It targets the raw question about how race plays a role from charging through sentencing and the often revolving door of incarceration. As examined in the historical perspective of the Honorable A. Leon Higginbotham, Jr. and the contemporary work of Michelle Alexander, who examined how race impacts our legal system principled on ‘innocent until proven guilty,’ this report provides practical solutions without ignoring there are ongoing challenges,” said Geneva Vanderhorst, NACDL Board Member and Chair of NACDL’s Diversity Task Force. 
  • "The criminal justice system is a window into a society's soul.  There is no denying that when we look into that window in America we see racial and ethnic disparity. But thanks to this report, we can also see that solutions are within our grasp if only we have the courage to change," said NACDL Executive Director Norman L. Reimer. 

This project is supported in part by a grant from the Ford Foundation. Additional financial support for the conference provided by the Foundation for Criminal Justice, the Brennan Center for Justice and the New York County Lawyers’ Association.

A number of academic articles on race and the criminal justice system prepared for the conference will be published in a supplement to the New York University Journal of Legislation and Public Policy.

Attached to this news release, and below the descriptions of the co-sponsoring organizations, is a short summary document touching upon just some of the issues and recommendations discussed at the conference and in the report.

A link to the complete report is available here: www.nacdl.org/reports/eliminatedisparity. And a link to a podcast introduction to the report is available on the report’s landing page on NACDL’s website here and can also be accessed directly at: http://traffic.libsyn.com/nacdl/CriminalDocketEpisode031.mp3  

For more information, or to be put in touch with a representative from a co-sponsoring organization, please contact:  

Ivan J. Dominguez
Director of Public Affairs and Communications
National Association of Criminal Defense Lawyers
202-465-7662
idominguez@nacdl.org

The Association of Prosecuting Attorneys (APA) was founded as a national “think tank” to represent all prosecutors and provide additional resources such as training and technical assistance in an effort to develop proactive innovative prosecutorial practices that prevent crime, ensure equal justice and make communities safer. APA is the only national organization to represent and support all prosecutors, including both appointed and elected prosecutors, as well as their deputies and assistants, whether they work as city attorneys, tribal prosecutors, district attorneys, state’s attorneys, attorneys general or U.S. attorneys. The association’s activities include acting as a global forum for the exchange of ideas, allowing prosecutors to collaborate with all criminal justice partners, conducting timely and effective technical assistance and providing access to technology for the enhancement of the prosecutorial function. 

The Brennan Center for Justice at the New York University School of Law is a nonpartisan law and policy institute that seeks to improve systems of democracy and justice. The Center works to hold our political institutions and laws accountable to the twin American ideals of democracy and equal justice for all, exemplified by a campaign to reduce mass incarceration. The Center’s work ranges from voting rights to campaign finance reform, from racial justice in criminal law to constitutional protection in the fight against terrorism. A singular institution — part think tank, part public interest law firm, part advocacy group, part communications hub — the Brennan Center seeks meaningful, measurable change in the systems by which the nation is governed. 

The Center for NuLeadership on Urban Solutions is a twelve-year old independent, activist, public policy think tank and advocacy training center, formerly at Medgar Evers College in the City University of New York. Its staff is comprised of academic professionals who have had experiences within the criminal punishment system. It is the first and only center of its kind in the country. It was created to reduce reliance on prisons and mass incarceration as solutions to the problems of economic inequality and poverty in under-served urban communities. The Center is dedicated to creating new and innovative paradigms for solving community-development and related public-safety challenges that move from criminal justice to human justice. It serves as a platform to advocate for and give voice to the huge emerging constituency of citizens recently released from correctional supervision and returning to local jurisdictions after paying their debts to society. It seeks to achieve systemic change through increased transparency and accountability; community empowerment through targeted advocacy, network development and civic engagement; and individual transformation through motivated education and activist training. 

The Foundation for Criminal Justice (FCJ) preserves and promotes the core values of the National Association of Criminal Defense Lawyers and the American criminal justice system. Ongoing and recent projects supported by the FCJ include an unprecedented study of obstacles to the restoration of rights and status after conviction; a conference to identify concrete and easily achieved solutions to racial disparities in the criminal justice system; an ongoing series of events to celebrate the 50th anniversary of the Supreme Court’s landmark Gideon v. Wainwright decision; free trainings for lawyers on a variety of topics including representing juveniles accused of wrongdoing and individuals facing immigration-related collateral consequences of conviction; and efforts to improve indigent defense in federal and state courts. 

The National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the mission of the nation’s criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL’s approximately 10,000 direct members in 28 countries — and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys — include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors, and judges committed to preserving fairness within America’s criminal justice system. 

The New York County Lawyers’ Association (NYCLA), founded in 1908, was the first major bar association open to all lawyers admitted to the bar regardless of race, gender, religion or ethnicity.  Throughout its history, NYCLA has promoted the public interest by advocating for access to justice and reforms in the law, providing pro bono services for those in need, and encouraging diversity in the bench and bar.  With 9,000 members today, NYCLA continues to be in the forefront of most legal debates, ranging from criminal justice to consumer rights.

 

Eliminating Racial and Ethnic Disparity in the Criminal Justice System:
Summary and Key Findings 

Charging, Plea Bargains and Diversion  

  • The Role of Implicit Bias in Prosecutions
    • Unconscious bias results from subconscious mental shortcuts our brains make to process information and make decisions quickly. “Implicit bias” is thus a universal response in all people of all races, although we are more susceptible to it when considering people different from ourselves. Because of racial images that saturate the media and social sphere, explained McKenzie [General Counsel for the New York City Department of Probation and former director of the Vera Institute’s Project on Race and Prosecution], prosecutors who are processing cases may readily assume the 18-year-old defendant from Brooklyn with the truancy charge is a black male, and the embezzlement charge against a middle-aged man from Long Island involves a white person.
    • Panelists recommended the following as ways to reduce prosecutorial bias: Data collection: accurate information to help prosecutors track decisions; fresh eyes: an outside consultant or other expert can help to analyze patterns; and courageous leadership. Chief district attorneys and chief defenders must be willing to raise the issue of race; focus on inexperienced prosecutors; change prosecutorial performance incentives; and raise the standard for charging.
  • Recommendations for Reducing Defender Bias
  • Self-awareness. Educate defenders about implicit bias. Educate other actors about their implicit biases; minimize economic burdens to clients sentenced to incarceration.
  • Strategies for Reducing Judicial Bias
  • Refuse to set monetary bail in misdemeanor case, as defendants face a loss of employment, childcare and housing if they don’t plead quickly.

Pretrial Incarceration  

  • Research shows that one of the greatest determinants of outcomes in misdemeanor and felony cases is whether the defendant was detained pretrial. Those who are detained pretrial serve on average two weeks in jail, and often plead quickly out of desire to go home. Conferees suggested that in high volume criminal justice systems that depend on plea bargains to process cases, bail is used — whether consciously or unconsciously — as a bargaining chip to coerce pleas, especially in low-level offenses that likely carry little, if any, jail time.  
  • Example: In New York City, nearly one-third of the over 370,000 defendants arraigned annually are detained pretrial, even though 80 percent of their cases involve low-level misdemeanors or violations like turnstile jumping, marijuana possession, or fighting in public. One result is that nearly half of New York City’s jail beds are occupied by persons charged with low-level offenses who, despite the presumption of innocence, are incarcerated for days or weeks simply because they cannot make cash bail.
  • The difference between the return rate of those released on their own recognizance (RORs) and those with cash bail was only 3 percent.
  • Recommendations to Judges
  • Use the alternatives to cash bail set forth in the New York statute; lower the bail to a token amount that actually takes into account the finances of the accused.
  • Recommendations to Legislators
    • Change the New York statute to abolish cash bail; abolish bail in misdemeanor cases.

Jury Selection  

  • Recommendations
  • Challenge the pro forma exclusion of jurors with personal or family exposure to the criminal justice system: The unprecedented scale of mass incarceration in America today — with one out of every three black men expected to serve time in prison during his lifetime — means that a question about criminal justice contact can no longer be treated as a race-neutral question or strike for cause.
  • Offer hardship accommodations for jury service: Jurors of color are more likely to experience financial or logistical hardship from jury service, and may be more likely to request recusals. Courts should routinely offer childcare at the courthouse and public transportation passes or mileage reimbursement.
  • Advocate for alternatives to voter-based jury rolls.

Search, Seizure, and Identification Issues  

  • Stop-and-Frisk Policing in New York City
  • Targeting of minority communities for drug enforcement is the principal driver of racial disparities in the city’s criminal justice system, said many conference participations: Blacks and Latinos comprise 50 percent of NYC’s population, but 88 percent of all arrests.
  • Recommendations
    • Advocates are working with several members of the New York City Council on a package of four bills that they believe would curtail abusive stop and search practices. The legislation includes: A bill that would outlaw racial profiling and strengthen its definition; a bill requiring that police give the equivalent of Miranda warnings before a “consensual” search; a bill requiring that police state their name and badge number; and a bill creating an Office of the Inspector General. [Note: The first two bills passed the New York City Council with veto-proof majorities on June 27, 2013, and remained unsigned by Mayor Bloomberg as of this report’s publication date.] 

Sentencing and Community Corrections 

  • Sentencing reform continues to face stiff opposition from the private prison industry, which makes its profit on a per prisoner basis and therefore depends on continued high prison commitments.
  • Recommendations
  • Reduce certain misdemeanors to infractions; reinvest justice savings in community programs that prevent crime and recidivism; and restrict the use of conspiracy laws.

Community Justice  

  • The report includes examples of successful community justice practices. 

 

 

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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