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Race and the Criminal Justice System
After the Civil War Southern states embraced criminal justice as a means to reimpose racial control over African Americans. This included the passing of “Black Codes” and later Jim Crow laws. The 13th Amendment to the Constitution abolished slavery and involuntary servitude, except as punishment for a crime. It is this loophole in the 13th Amendment that Southern states exploited in passing “Black Codes” and in setting up new economic and labor systems that relied on the arrest and imprisonment of African Americans. For example, these codes implemented vagrancy laws that criminalized unemployment, resulting in African Americans returning to slave-like environments through forced labor and convict leasing. Violation of the black codes also resulted in offenders having to pay fines; those who were unable to were forced by the state into labor until they worked off their balances.
Why is this important? Because the same criminal justice system that was developed after the Civil War to reimpose control over African Americans exists today. Imprisonment has been and continues to be used as a weapon to control communities of color in ways that aren’t used in other communities. We see this in the crack-cocaine sentencing disparity, the over policing of black communities, the excessive criminal fines and fees imposed on defendants, and a bail system that relies on payment to secure one’s freedom.
- Black men comprise about 13% of the general population, but about 35% of those incarcerated.
- Black women comprise 44% of incarcerated women, but only make up about 13% of the female U.S. population.
As stated in the Vera Institute’s 2018 report, An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System:
“racial disparities in the criminal justice system are no accident, but rather are rooted in a history of oppression and discriminatory decision making that have deliberately targeted black people and helped create an inaccurate picture of crime that deceptively links them with criminality.”
"Racism is so universal in this country, so widespread, and deep-seated, that it is invisible because it is so normal."
- Shirley Chisholm
In order to get an understanding of the role race plays in the U.S. criminal justice system, you must first understand the history of race in America. See below to view a presenation from Jeffery Robinson, ACLU Deputy Legal Director and Director of the Trone Center for Justice and Equality, from our Race Matters I Seminar on the history of race in America.
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Full Disclosure Project
According to the Kirwan Institute for the Study of Race and Ethnicity, implicit bias "refers to the attitutes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner. These biases, which encompass both favorable and unfavorable assessments, are activated involunarily and without an individual's awareness or intentional control. Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness. Rather, implicit biases are not accessible through introspection. The implicit associations we harbor in our subconscious cause us to have feelings and attitues about other people based on characteristics such as race, ethnicity, age, and appearance. These associations develop over the course of a lifetime beginning at a very early age through exposure to direct and indirect messages, in addition to early life experiences, the media and news programming." Everyone possess implicit biases. Why is this important? If everyone possess implicit biases, then these biases exist within police, prosecutors, defense attorneys, judges, correction officers, probation officers, etc.
In recent years several states have adopted racial impact statements, tools used to determine whether pending criminal justice legislation will increase racial and ethnic inequities. States that require racial impact statements include Iowa, Connecticut, Oregon, New Jersey, and Florida. In 2008, the Minnesota Sentencing Guidelines Commission voluntarily elected to prepare racial impact statements on proposed crime bills pending before the legislature. In 2019, seven states introduced legislation to require racial impact statements – Illinois, Kentucky, Minnesota, Mississippi, New York, Oklahoma, and Vermont.
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Another way that legislatures have worked to address racial disparities is by passing legislation to require various actors in the criminal legal system to collect and report demographic data, including data on race and ethnicity, in conjunction with data related to arrests, plea negotiations, dispositions, restitution ordered, and other aspects of the criminal legal system. Some recently passed provisions, such as Colorado’s SB 217 and New York’s A 10609, focus on data related to law enforcement and police contacts, such as use of force, arrest-related injury and death, and unannounced entry into a residence. Vermont passed S 219 this year, requiring that the Secretary of Administration only approve grants from law enforcement agencies that have complied with race data reporting requirements. Connecticut SB 880 and Utah HB 288 mandate demographic data collection and reporting from prosecutorial agencies, courts, and corrections. Colorado HB 1297 requires all jails to report quarterly data on their population, including their pretrial population, with a focus on collecting data on race, ethnicity, and homelessness.
In July 2019, Rep. Jerrold Nadler (D-NY) and Sen. Kamala Harris (D-CA) introduced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884/S. 2227). In addition to removing cannabis from the Controlled Substance Act and creating a process for expungement and resentencing of prior convictions, it seeks to address the harm caused by the War on Drugs on communities of color. The legislation prohibits immigration penalties based on marijuana. It would also create a Cannabis Opportunity Trust Fund that will establish (1) the Community Reinvestment Grant Program to fund community organizations providing services in communities most harmed by the War on Drugs; (2) the Cannabis Opportunity Program to fund Small Business Administration loans to support socially and economically disadvantaged individuals who own marijuana businesses; and (3) the Equitable Licensing Grant Program to provide jurisdictions with funds to develop and implement equitable marijuana licensing programs targeting individuals most adversely impacted by war on drugs.
There’s also a host of federal legislation pending that would address the collateral consequences of a conviction, which would aid in addressing the harm caused by the disproportionate impact of mass incarceration on communities of color.
Visit NACDL’s Legislative Action Center for more information on how you can engage your elected officials and to stay abreast on federal legislation addressing racial disparities in the criminal justice system.
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Pre-Trial Suppression & Fourth Amendment Issues
This Trial Guide is a topical and practical handbook examining the nuts and bolts of the most current Fourth Amendment & Pre-Trial Suppression issues encountered in modern criminal cases.
Defense Counsel Playbook for Eyewitness ID Cases
This Trial Guide was written to help counsel use existing case law to its strongest advantage, and to create a framework for appellate challenges urging courts to adopt leading cases.
Ultimate Cross 2.0
This special CLE compilation program includes the highest-rated presentations on Cross-Examination techniques from NACDL's most recent seminars (2017-2019).
Forensic Sciences in Criminal Cases: A Multidiscipline Primer
In order to challenge forensic evidence, experts, reports and findings commonly encountered in the courtroom, an attorney must first have a basic understanding of the forensic issues that they will be confronting.
NACDL has been and remains committed to examining race as an issue within the criminal justice system, convening projects and the Race Matters I and II conferences in 2017 and 2019, to address tackling the issue of racial bias in the court system.
We continued these efforts August 23-25, 2018 at the Presidential Summit concurrent with our 17th Annual State Criminal Justice Network Conference. The event, entitled Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity, was our opportunity to shed light on how the pervasive collateral consequences and legal barriers that arise from contact with the criminal justice system, in particular as they relate to race.
Race and the Criminal Justice System Webinar Series
NACDL worked with sociologists Angela Hattery and Earl Smith, co-authors of Policing Black Bodies: How Black Lives are Surveilled and How to Work for Change, to produce a webinar series on race in the criminal justice system. The first Policing Black Bodies webinar examined the ways in which the chattel slavery system of America’s early history manifests itself in the variety of ways in which Black people are literally and symbolically policed today. Policing Black Bodies II: Race and Pretrial Practices looked at the connections between the United State's racial history and its current status as the world's leading jailer. The series featured panelists Cherise Fanno Burdeen Burdeen and Vincent Southerland, with moderator Robert Patillo. Recordings are available.
Race Matters Summit: The Impact of Race on Criminal Justice
Race Matters in our criminal justice system. It affects what happens from initial contact with police on the street, to the end of the case and everything in between. As part of being effective advocates for our clients, criminal defense lawyers face the challenge of confronting the difficult issues presented by race in America. The Race Matters program is designed to help practitioners identify and confront issues of racial bias in our courts, the law enforcement community, by prosecutors, and yes, even the defense team. Check out videos of each presentation from our past two programs, as well as related written materials.
On Thursday, October 16, 2014, NACDL hosted a webinar entitled Under Siege: The Defense Bar Examines Police Militarization, Ethnic & Racial Dynamics of Sentencing, and Their Impact on Criminal Justice Outcomes. The webinar was in response to the uprisings in Ferguson, Missouri subsequent to the police killing of an unarmed black teenager; and the ensuing swift and extreme police response.
The webinar also explored the plethora of polarizing issues including racism, implicit bias, disparate sentencing policies, as well as, the over-policing of minority and poor communities.
Panel I-The Issues, addressed militarization, ethnic & racial dynamics of sentencing and their impact on criminal justice outcomes. Panel II-Community Perspective and Solutions examined the historical and systemic issues associated with crime and the response of police to those communities most affected by crime. The panel also addressed solutions policy makers and communities can make to solve these issues on the local, state and federal level.
Racial Disparity Project
Since 2012, NACDL has embarked upon an important and timely project addressing racial and ethnic disparities within the criminal justice system. NACDL, along with the Brennan Center for Justice, the New York County Lawyers' Association, the Center for NuLeadership on Urban Solutions and the Association of Prosecuting Attorneys, initiated the project with a two and a half day convening entitled Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System, culminating with the release of academic articles recently published in the New York University Journal of Legislation and Public Policy.
Elements of the project have included the October 2012 convening; a report detailing recommendations generated from the convening; a series of articles on race published in The Champion magazine; a three-part podcast featuring organizers of the conference discussing the goals and objectives of the convening and subsequent report; the second convening entitled Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System: Advancing the Reform Dialogue Through Action with links to the webcast; and the New York Journal of Legislation and Public Policy academic articles are the final elements of this major undertaking. The Journal series features articles from leading academics on the issue of race and ethnic disparity in the criminal justice system. In addition many of the academics participated on panels related to their articles.
- "Black New Yorkers Are Twice as Likely to Be Stopped by the Police, Data Shows,"
- "A police shooting ignited unrest in Kenosha. Current and former officers say the department’s problems with race go much deeper.,"
- "“They didn’t see me as innocent”,"
Racial Disparity News Releases
News Release ~ 01/07/2019
In Landmark Case, Vermont Supreme Court Issues Unanimous Racial Profiling Decision -- Washington, DC (Jan. 7, 2019) – On Friday, January 4, 2019, the Vermont Supreme Court unanimously found that law enforcement can be civilly liable for discriminatory searches and seizures in violation of the Vermont Constitution.
News Release ~ 08/14/2017
Nation's Criminal Defense Bar Responds to Racism, Bigotry, and Violence in Charlottesville, VA -- Washington, DC (Aug. 14, 2017) – The National Association of Criminal Defense Lawyers (NACDL) is profoundly disturbed by recent events in Charlottesville, VA. While NACDL respects the First Amendment rights of all people peaceably to assemble and express their views, even unpopular ones, NACDL deplores violence, racism, and bigotry.
News Release ~ 05/24/2016
Nation's Criminal Defense Bar: The Continuing Collapse of the Case for Capital Punishment -- Washington, DC (May 24, 2016) – Yesterday, in its 7 to 1 judgment in Foster v. Chatman (14-8349), the U.S. Supreme Court found that prosecutors violated the Constitution in the 1987 capital case against Timothy T. Foster, an African-American man accused of killing a white woman, when they struck every prospective black juror from the pool.
Racial Disparity Media Items
Policing Black Bodies II: Race and Pretrial Practices
An important discussion on the ways in which systemic racism manifests itself in the pretrial process and how we can work towards change.
Presented by sociologists Dr. Angela Hattery and Dr. Earl Smith; Cherise Fanno Burdeen, Executive Partner, Pretrial Justice Institute; Vincent Southerland, Executive Director, Center on Race, Inequality, and the Law, NYU School of Law; moderated by attorney Robert Patillo
- Mapping Pretrial Injustice: A Community-Driven Database
- "Machine Bias" by Julia Angwin, Jeff Larson, Surya Mattu and Lauren Kirchner, ProPublica (May 23, 2016)
- Speech by Mitch Landrieu Addressing Removal of Confederate Statutes, May 19, 2017
- Confederacy: Last Week Tonight with John Oliver, Oct. 8, 2017
- Black Lives Matter Statement, Pretrial Justice Institute, 2020
- Updated Position on Pretrial Risk Assessment Tools, Pretrial Justice Institute, Feb. 7, 2020
- A Racial Equity Transformation: PJI's Rationale, July 2019
- See more attached
- Policing Black Bodies: How Black Lives are Surveilled and How to Work for Change (2018)
- The Process is the Punishment by Malcolm M. Feeley (1979)
- Pulled Over: How Police Stops Define Race and Citizenship by Charles R. Epp, Steven Maynard-Moody, and Donald P. Haider-Markel (2014)
- Predict and Surveil by Sarah Brayne (2020)
- Misdemeanorland by Issa Kohler-Hausmann (2018)
- Are Prisons Obsolete by Angela Y. Davis (2003)
- Crook County: Racism and Injustice in America's Largest Criminal Court by Nicole Gonzalez Van Cleve (2016)
Policing Black Bodies: A Discussion on Race and the Criminal Justice System
This conversation examines the ways in which the chattel slavery system of America’s early history manifests itself in the variety of ways in which Black people are literally and symbolically policed today.
- Policing Black Bodies: How Black Lives are Surveilled and How to Work for Change by Drs. Angela Hattery and Earl Smith
- White Privilege: Unpacking the Invisible Knapsack by Peggy McIntosh
- See more attached
Practicing Cultural Humility
Presented by Gina Pruski, Director of Training and Development, Wisconsin State Public Defender
Race Matters II: The Impact of Race on Criminal Justice
January 10-11, 2019 | Los Angeles, CA
[see materials attached]
Racial Disparity Champion Articles
Inside NACDL: Rooting Out Bias: How a Bad Stop Can Make Good Law
A dubious traffic stop of a young man in Vermont provided a unique opportunity for NACDL to further its mission to redress systemic racism in the criminal justice system. In February 2018, NACDL submitted an amicus brief in the Vermont Supreme Court urging the court to find an implied right of action under Article 11 of the Vermont Constitution to permit an action against the State for damages and declaratory relief to challenge an unlawful stop based on racial bias.
Making Sense of Pretrial Risk Assessments
Pretrial risk assessment tools have emerged as the favored reform in the movement to lower pretrial jailing and limit the abuses of money bail. Critics have voiced concern, however, over the threat that risk assessments perpetuate racial bias inherent in the criminal justice system. When a risk assessment tool recommends that a client be detained or released with conditions — particularly a client of color — lawyers must be prepared to point out the tool’s limitations and biases.
How Defense Attorneys Can Eliminate Racial Disparities in Criminal Justice
Nazgol Ghandnoosh presents a framework for understanding the sources of racial disparity in the criminal justice system and suggests actions that defense attorneys can take to address the problem. In addition, she identifies the mechanisms through which criminal justice policies and practices have disadvantaged people of color, and highlights efforts to reverse these trends.