From the President: Criminal Justice, Electoral Justice, and NACDL

Should criminal defense attorneys consider electoral and political stability to be a criminal justice issue?

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.

My mother immigrated to Chicago in 1957 to pursue a real education which, in my family, means the hard sciences and not the path I chose in life. She left behind her world in Argentina — family, friends, and the comfort of espresso at every corner — to travel on a cargo ship first to New York and then from New York to Chicago via the St. Lawrence Seaway. She set foot in Chicago during the early days of Mayor Richard J. Daley’s 21-year reign, arriving enthralled by the opportunity that this country offered her as an educated, middle class immigrant. To a privileged immigrant, at that moment and in that place, optimism represented the most natural response to the world unfolding before her.

Since that time, however, her optimism has faded and, in recent years, crumbled. For years, she has warned her friends and family of the “Argentinization” of the United States — the division of the country into two camps unable to agree on the most fundamental facts and willing, to different degrees, to sacrifice institutional stability (including the legitimacy of the justice system) for the sake of short-term political expediency. Speaking with the wisdom of age and the perspective of an immigrant, she has quietly called out the consistent escalation of assaults on our institutions — institutions that have enabled peaceful transitions of power — and she has called out the accelerating ideological polarization fueling this suicidal dynamic.

The purpose of this column is not to celebrate my mother’s prescience but to pose a question that many of us have been asking ourselves more and more in the wake of the 2020 election and as the 2022 midterm elections approach: Should we, as criminal defense attorneys and as a criminal defense organization, consider electoral and political stability to be a criminal justice issue? Can we represent clients well, and can we pursue criminal legal reform, in the context of a political system characterized by division, discord, and disenfranchisement? Obviously, each of us should care as citizens, but should we care as defenders and as the leader of the nation’s criminal defense bar?

Before we go any further, I confess that I have no special insight into this issue or useful answers apart from the apprehension inspired by my mother. I am, however, focusing my last column on this question in the hope that each of you will devote thought to this question so that NACDL can be prepared to pursue its Mission in the increasingly troubled waters of American politics. I have no answer, and I have no expectation that we will all agree. In fact, I suspect that NACDL members will have varied positions on this issue apart from the understanding that NACDL cannot be partisan. Despite coming to you empty-handed in terms of solutions, I submit that this fundamental question deserves our attention. As far as calls-to-action go, this one is heavy on the noise and light on the insight.

I can, however, offer a point of departure: Our criminal legal system is often unfair, irrational, and inhumane in sharp contrast to NACDL’s vision of “a society where all individuals receive fair, rational, and humane treatment within the criminal legal system.” The profound flaws and inequities in our criminal legal system are rooted, of course, in the laws enacted by legislators and signed by governors and presidents, the practices of elected or politically appointed prosecutors, and the philosophies of elected or appointed judges.{1} 1  Recent debates, sparked by the nomination of Ketanji Brown Jackson, over the exclusion of defenders from the federal and state judiciary exemplify the direct impact of electoral politics on the work we do to serve our clients. Put simply, elections determine those who control the operation of the criminal legal system writ small (case by case) and writ large (the vector of change or the weight of inertia).

To illustrate, we should note that since the murder of George Floyd numerous reform bills and measures have been introduced at the state and federal levels, including measures to reform drug laws, pretrial detention, sentencing, and mass incarceration generally. Some have become law but many, if not most, have failed or faded away during the legislative and veto processes. “Progressive” district attorneys have been elected and, in one case, recalled. From this perspective, as obvious as the point may be, we cannot sustain criminal justice reform without an electoral process that ensures that “reformers” have a seat at the table and, of course, to have a seat at the table, the electoral process must not exclude our voices through policy (for example, widespread disenfranchisement or gerrymandering) or practice (for example, the de facto exclusion of former defenders from elected public office based on “soft-on-crime” rhetoric). Obviously, the Supreme Court’s decision in Dobbs and subsequent legislative action or inaction brings this issue — the relationship between criminal justice and electoral justice — into sharp focus. No matter how skilled we are as cross-examiners, no matter how well organized and funded our public defender or private office, the post-Dobbs landscape promises a new era of overcriminalization and, potentially, mass incarceration based on the consequences of elections.

As you can probably guess from the frame I have chosen for this discussion, I would answer the question I framed in the affirmative and in the strongest of terms. I believe that defenders and NACDL should care about electoral reform because we cannot bend the arc of criminal justice as our Mission demands if the arc is being bent hard the other way thanks to a broken electoral system that excludes the voices of our members, their clients, and their communities. In this respect, as defenders we have always played on an uneven playing field and, therefore, reform efforts are almost as important to the welfare of our clients as is direct advocacy — perhaps less important for the clients we have today and more important for the clients we will have tomorrow. And, of course, without voting reform, few politicians have any interest in serving those impacted by the criminal legal system. In this respect, as sixth-grade civics class clarified for many of us, elected leaders hold the cards to effect change despite the fact that community leaders are the heart of justice reform efforts.

Put simply, all reform ultimately requires political action and, with politicians focused on eligible voters, elected officials largely ignore the rights of individuals “involved” in the criminal legal system. In this respect, we cannot forget that the War on Drugs decimated communities of color and effectively disenfranchised nearly five million Americans including a disproportionate number of people of color.{2} 2  In fact, restrictive voting laws most often affect Black voters thanks in great part to disenfranchisement related to felony convictions. As many as 11 states permanently strip voting rights for some individuals with felony convictions. Another 15 states have complex processes to restore voting rights. Only three states do not automatically revoke voting rights from people with criminal convictions. 

I write this column — my last — as I sit in Bristol, Rhode Island, the new home of the National Criminal Defense College. Tomorrow, together with a faculty comprised of dedicated teachers, most of whom are NACDL stalwarts, I will train defense lawyers to select juries in trials that are rapidly disappearing from our world thanks to the laws, policies, and practices of elected leaders. I will do so with appreciation for the opportunity to serve clients facing the power of the state, but I will do so understanding that our work on behalf of individual clients must be complemented by our efforts for systemic reform, and that reform cannot be achieved without sympathetic and empathic voices in places of power. I leave it to all of you to shape the role of NACDL in ensuring that those voices are heard and not silenced in the corridors of power. NACDL’s capacity to serve our members and our clients through reform may depend on restoring fairness, rationality, and humanity to the electoral system.

About the Author

Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.

Martín A. Sabelli (NACDL Life Member)
Law Offices of Martín A. Sabelli
San Francisco, California

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