Race and the Criminal Legal 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 legal 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
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.
Legislatures have also worked to address racial disparities through passing legislation requiring 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.
Consider joining NACDL’s State Criminal Justice Network (SCJN) to exchange information, share resources, and develop strategies for promoting a more just criminal legal system.
NACDL has been and remains committed to examining race as an issue within the criminal legal 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 legal system, in particular as they relate to race.
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Defending Modern Drug Cases (2021)
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Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
The Race and the Criminal Legal System Discussion Series seeks to highlight how race intersects with various issues in the criminal legal system, navigating these racial disparities, and ways to advocate for change. Previous events have focused on issues around policing, pretrial practices, public defense, collateral consequences, and prosecution. Please visit the webinar resources page for access to recordings of previous discussions and updates regarding additional events.
Race Matters Summit: The Impact of Race on Criminal Justice
Race Matters in our criminal legal 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.
Race Matters III and IV are available for purchase online.
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.
- "Jaywalking Sets Stage for Debate on Racial Justice, Pedestrian Safety,"
- "Women of Color Will Face More Criminalized Pregnancies in Post-‘Roe’ America,"
- "Washington justices: Race a factor in analyzing police stops,"
Racial Disparity News Releases
News Release ~ 05/25/2022
On the Second Anniversary of George Floyd’s Murder, Nation’s Criminal Defense Bar Calls for Renewed Focus on Reform – Washington, DC (May 25, 2022) – Two years ago, Minneapolis police officer Derek Chauvin knelt on George Floyd’s neck for 8 minutes and 46 seconds, shocking the nation and setting off a renewed wave of calls for reform of police use of force against people of color.
- News Release ~ 05/31/2020
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.
Racial Disparity Media Items
Race and the Criminal Legal System: Race + Prosecution
The discussion featured Professor Angela J. Davis, Distinguished Professor of Law, American University Washington College of Law (moderator); Akhi Johnson, Acting Director, Reshaping Prosecution, Vera Institute of Justice; and Wesley Caines, Chief of Staff at The Bronx Defenders.
Ramsey County Attorney, police leaders announce plans to reduce non-public-safety traffic stops, Office of the Ramsey County Attorney, September 2021.
The Rage of Innocence: How America Criminalizes Black Youth, Kristin Henning, September 2021.
The Case for a Presidential Task Force on 21st Century Prosecution, Fair and Just Prosecution, August 2021.
Race and Prosecutorial Diversion: What we know and what can be done, Florida International University and Loyola University Chicago, July 2021.
Racial Disparities and Prosecutorial Discretion: An analysis of felony cases accepted for prosecution by the Denver District Attorney’s Office in the City and County of Denver, University of Denver Colorado Evaluation and Action Lab, March 2021.
A Smarter Approach to Measuring Prosecutorial Success by Anthony Thompson and Miriam Krinsky, Law 360, 2020.
21 Principles for 21st Century Prosecutors, Fair and Just Prosecution, Brennan Center for Justice, and The Justice Collaborative, 2018.
Blueprint for Police Accountability and Reform: A New Vision for Policing and the Justice System, Fair and Just Prosecution.
Prosecutorial Performance Indicators, Florida International University and Loyola University Chicago.
The Prosecutor’s Ethical Duty to End Mass Incarceration, Angela J. Davis, 2016.
Arbitrary Justice: The Power of the American Prosecutor, Angela J. Davis, 2009.
Race and Public Defense (SCJN 2021)
When people think of public defense, they often think of it as a service provided in the context of criminal representation. However, historically lawyers who represent indigent defendants have sometimes served a hybrid function as both legal advocates and community organizers.
- Kenitra Brown, Founding Board Member & Criminal Justice Committee Co-Lead, Power in Action; Staff Attorney and Director of Engagement, The Deason Criminal Justice Reform Center
- Emily Coward, Project Attorney, North Carolina Racial Equity Network, UNC-Chapel Hill School of Government
- Johanna Jennings, Founder & Executive Director, The Decarceration Project
- Kimberly O'Neil, CEO, Giving Blueprint; Founding Director, Power in Action
- Moderated by: Monica Milton, Public Defense Counsel, NACDL
Race + the Criminal Legal System: Racially Charged Misdemeanors
Lisa Wayne, Past President of NACDL and the current President of the NACDL Foundation for Criminal Justice, moderates a discussion around Brave New Films’ recently released documentary Racially Charged: America’s Misdemeanor Problem. This short film traces America’s modern misdemeanor system back to the post-civil war period, unpacking the criminalization of certain conduct as a means for social and economic control over Black Americans. Panelists include Bernice Corley, Executive Director of the Indiana Public Defender Council, and Alexandra Natapoff, the Lee S. Kreindler Professor of Law at Harvard Law School and author of Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.
- The Public Safety Benefits of Not Prosecuting Low-Level Crimes, Marilyn Mosby and Rachael Rollins, The Boston Globe, May 2021.
- Misdemeanor Prosecution, Amanda Y. Agan, Jennifer L. Doleac and Anna Harvey, March 2021,
- Alexandra Natapoff on how our massive misdemeanor system makes America more unequal, Harvard Law Today, January 2021.
- “Racially Charged: America’s Misdemeanor Problem,” Brave New Films, 2020.
- Misdemeanor Enforcement Trends Across Seven U.S. Jurisdictions, Data Collaborative for Justice at John Jay College, October 2020.
- Misdemeanors by the Numbers, Sandra Mayson and Megan Stevenson, Boston College Law Review, March 2020.
- Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, Alexandra Natapoff, December 2018.
- The Scale of Misdemeanor Justice, Megan Stevenson & Sandra Mayson, Boston University Law Review, January 2018.
- Misdemeanor Decriminalization, Alexandra Natapoff, Vanderbilt Law Review, May 2015.
- Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts, NACDL, April 2009.
Racial Disparity Champion Articles
From the President: Legalized Coercion and Mass Incarceration
Why the Trial Penalty Does Greater Violence to People of Color and the Poor
The trial penalty – the difference between a pretrial settlement offer and a post-trial sentence – punishes everyone caught in the machinery of the criminal legal system but injures people of color and the poor more than others.
- The Role of Implicit Racial Bias in Forensic Testimony
- The NACDL Q&A: Fighting for Justice in a Divided World