President's Column: What you can do to help salvage the criminal justice system

What you can do to help salvage the criminal justice system E.E. (Bo) Edwards

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

The criminal justice system is broken. As criminal defense lawyers, we see the problems — and their effects — every day, at every point in the process.

  • Public representation is not properly funded; justice is illusory as indigent defendants are railroaded through the system.
  • Traditional lineups often lead to false identifications; innocent people are wrongfully charged and wrongfully convicted.
  • Interrogation processes are not recorded; coerced “confessions” obscure exculpatory evidence.
  • Mandatory minimum drug laws warehouse addicts behind bars; less costly and more effective drug treatment is not an available option.
  • Sentencing discretion has been steadily curtailed; America is now the world’s leading jailer.
  • Post-conviction DNA review is routinely denied; innocent people waste away in prison, begging courts to take notice their proof of innocence.
  • Capital defendants are denied effective counsel with sufficient resources; states therefore execute people that — under their own laws — don’t deserve to die.

In these situations, we are forced to accept that despite our best efforts, injustice prevails, scarce resources are wasted, and the public safety is compromised. It’s enough to make you sick.

But you are litigators, not policymakers, so there is nothing we can do about it. And even if we could, it’s not our job. Right? Wrong!

As criminal defense lawyers, we are not only local experts on the criminal justice system; we are also among the most credible advocates for policy change. What’s more, as members of NACDL, we are able to join forces with our colleagues to effectively advocate the need for such change. Because we possess this expertise, because we have power in organized numbers, because injustice is unacceptable to us, and — last but certainly not least — because our satisfaction with our practices depends on it, we must engage our legislators.

Justice returned

Prosecutors do it. That is not the reason we should be forming relationships with and educating our legislators, but because they do, the matter is even more urgent. If we continue to cede legislative relationships to prosecutors, no matter what advantages they enjoy, we will never see justice returned to the practice of criminal law.

To establish these legislative relationships, I am not asking you to be a lobbyist, testify, or even go to the Capitol. To be an effective force for policy change, you do not have to turn your practice and your life upside down. You do not, in fact, even have to leave your hometown.

What you can and should do to have an impact on criminal law and policy is to meet with your state legislator(s) somewhere in your community, at a time that is convenient to you. It’s very simple. The meeting need not take more than 15 minutes, and since you both live there, it shouldn’t cause you inconvenience. Your discussion can take place at the district office, at a coffeeshop, or before or after a local meeting. Wherever it is, it is vitally important, because those representing you need to hear your perspective.

The reason your legislators need to meet with you — personally — is because legislative advocacy is far different from courtroom advocacy. In jurisprudence, the law rules; in policymaking, people rule. State legislators are not experts on every issue. They therefore rely heavily on people they know and trust for guidance on many legislative matters. And because legislators depend on constituents for re-election, they take constituents’ perspectives very seriously — especially when coming from those with real expertise.

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You may have noticed that I asked you to meet with your legislators, not to write, call or e-mail. This is because what I am talking about is not grassroots campaigning; what I am talking about is building a relationship with your legislator. By introducing yourself to your legislator(s) and explaining your concerns directly to them, they can see you not as a nameless and faceless “criminal defense lawyer,” but as the credible and concerned community member that you are.

By sharing your expertise, answering questions and respecting their responsibilities, you are seen as an ally that they can turn to. Having developed such relationships, your legislators will be more apt not only to listen to you, but also to seek your counsel on questions of criminal law and policy.

Your participation is more important now than ever. “Tough on crime” has gone beyond the pale, and states have the budget crises and horror stories to prove it. Through our State Legislative Network, NACDL has recently strengthened its commitment to state legislative advocacy; visit to find out more about the Network, NACDL state legislative priorities, and the contact people who can provide more information about legislative priorities being worked on in your state.


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Everyday injustices


We cannot expect legislators to fix this broken system until they appreciate the injustices that we, as criminal defense lawyers, see firsthand, every day. If we build the relationships that allow us to effectively share our experiences, we can expect and demand that legislators ensure justice in the criminal justice system. But if we do not present our cases, we cannot expect much less demand anything from those who make the laws under which we toil every day.