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 involuntarily 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 attitudes 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.
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.
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.
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Cross-Examination Trial Pack
NACDL’s new Cross-Examination Trial Pack includes three of our best-selling Cross-Examination resources: “Damage Control: Situational Cross-Examination Techniques Trial Guide”, "Ultimate Cross 2.0: Audio Recordings & Written Materials" and "Sample Cross-Examination Questions."
This masterful collection of cross-examination resources provide countless tips, techniques and strategies for a variety of criminal case-specific scenarios. Learn to cross-examine a variety of trial witnesses!
Death Investigation: Forensic Pathology in the Courtroom and Cause & Manner of Death (2022)
This unique program provides criminal defense lawyers with an accurate and clear overview of forensic pathology and the countless factors to consider in a death investigation and will methodically explain what happens during an autopsy to determine cause and manner of death.
You'll uncover the different types of medicolegal death investigations, what to request from your MDI expert, quality benchmarks for accreditation and certification, guidelines and standards, common terminology and frequently asked questions.
The Psychology of Persuasion & Storytelling for Criminal Defense Lawyers
This Trial Resource Guide is a masterful collection of practical tips, techniques and strategies focused solely on using the arts and sciences of persuasion to improve your storytelling skills at trial.
You'll learn how to master the ability to communicate with juries, deliver powerful openings and closings, perform convincing cross-examinations, use effective courtroom choreography and non-verbal communication, identify and develop the optimal theme and theory for your case, and offer compelling arguments during mitigation and sentencing.
Zealous Advocacy in Sexual Assault & Child Victims Cases (2022)
Defending charges of sexual assault and child abuse can be daunting — but with the right tools, it doesn’t have to be.
Every year, NACDL identifies the hottest topics and most pressing issues when defending these cases, and brings-in nationally-renowned lawyers and experts to help you prepare for battle. This year’s 13th Annual Defending Sex Cases training program is our best yet; packed with topics and speakers you won’t want to miss!
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 Race Matters I and II, as well as related written materials.
Race Matters III and IV are available for purchase online.
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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.
- "Maryland’s top prosecutor, public defender to take on mass incarceration,"
- "Racism and incarceration are unavoidably linked. We need a more developed sense of justice.,"
- "One in Five: Ending Racial Inequity in Incarceration,"
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
Drug Decriminalization in Oregon
The War on Drugs has served, and continues to serve, as a powerful mechanism of mass incarceration and oppression in America. The drug war sought to combat the illegal drug trade in the U.S. through policies intended to discourage distribution and consumption. However, the harsh sentencing policies that followed swelled the nation’s prison population and disproportionately targeted communities of color. At every stage of the criminal justice process – from the geographical distribution of police, to stops and searches, to arrest, to pretrial detention, to sentencing, to post-conviction, to collateral consequences – communities of color, especially Black communities, disproportionately bear the brunt of the War on Drugs. In February 2021, Oregon’s drug decriminalization measure (Measure 110) took effect, making it the first state to remove criminal penalties for possession of small amounts of all drugs. Join this panel to hear from advocates who are working to end the drug war and advance a public health approach. Also hear how things are going on the ground in Oregon!
- Morgan Godvin, Post-Graduate Fellow, Health in Justice Action Lab
- Tera Hurst, Executive Director, Health Justice Recovery Alliance
- Emily Kaltenbach, Senior Director of State Advocacy and Criminal Legal Reform, Drug Policy Alliance
Pretextual Policing: Keeping Minor Stops from Becoming Major Harms
- Dara Baldwin, Co-chair, Transportation Equity Caucus
- Lizzie Buchen, Consultant, Buchen Consulting
- Brad Haywood, Founder, Justice Forward Virginia
- Moderated by: Jumana Musa, Director, Fourth Amendment Center, NACDL
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.
Racial Disparity Champion Articles
- From the President: When You Practice What You Preach and What You Preach Is Racism
- From the President: Voices Loud and Revitalized
- Book Review: The Rage of Innocence by Kristin Henning