A diverse group of criminal justice experts including prosecutors, judges, defense attorneys, scholars, community leaders, and formerly incarcerated advocates gathered last October for a three day conference. On Wednesday, Consultant Tanya E. Coke released the report based on those discussion – Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System.
“The conference was designed not only to acknowledge that racial and ethnic disparities exist in the system, but to examine best practices around the country that address and seek to remedy those disparities,” a release states. “This report summarizes the candid, sometimes painful panel discussions, and identifies the panoply of remedies that may advance the goal of eliminating the disparate racial and ethnic impact from America’s criminal justice system.”
Currently the US has highest population of inmates in the world both on an absolute and per capita basis with 2.2 million presently incarcerated and a staggering 65 million adults (one in four) who have a criminal record. Of those, sixty percent are either Black or Hispanic, more than double their proportion of the population.
The report seeks to explain the factors that have led to this outcome. What was unique about this conference was the participation not only of defense attorney but prosecutors and judges.
“Prosecutors realize that racial and ethnic prejudices often manifest themselves within our criminal justice system, and this report helps us to understand how to better minimize the impact of these prejudices within our jurisdictions,” said David LaBahn, President of the Association of Prosecuting Attorneys.
“In light of the recent outcome of a trial that has galvanized the nation, this report is timely in that it adds critically new insights into the insidious practice of unequal protection of law, fundamental unfairness and the absence of ‘due’ process based on racially disparate treatment within the criminal ‘punishment’ matrix,” added Eddie Ellis, president of the Center for NuLeadership on Urban Solutions. “. This report has the potential to become the catalyst for accelerated movement toward system realignment, community empowerment and the elimination of the myriad race-based injustices that comprise the fatally flawed American ‘justice’ process.”
One of the main sponsors of the event is a group called the Brennan Center a nonpartisan law and policy institute that seeks to improve systems of democracy and justice.
“The racial justice convening that resulted in the report released today is the next step in work that began with an analysis conducted by the Brennan Center into how race plays a role in federal prosecutions,” said Nicole Austin-Hillery, director and counsel of the Washington, D.C. office of the Brennan Center for Justice at New York University School of Law.
“That work has evolved into our current Justice Program focus on efforts to end mass incarceration in this country by examining how economics can serve as the foundation for major reform in the effort to curtail over-incarceration and help reform our criminal justice system,” she continued. “We are at a critical moment in this nation with respect to race and justice and this report, and the best practices identified therein, will serve as an important template for all organizations, government agencies and law makers who are committed to reforming what is broken in our justice system.”
“Race touches nearly every facet of American life – our criminal justice system being no exception. The recent verdict in the Trayvon Martin/George Zimmerman case has drawn a passionate national debate on race and its impact on the criminal justice system, similar to Emmett Till and the Central Park Five,” said Geneva Vanderhorst, NACDL (National Association of Criminal Defense Lawyers) Board Member and Chair of NACDL’s Diversity Task Force.
She added, “This report seeks to replace the debate with dialogue. It targets the raw question about how race plays a role from charging through sentencing and the often revolving door of incarceration. As examined in the historical perspective of the Honorable A. Leon Higginbotham, Jr. and the contemporary work of Michelle Alexander, who examined how race impacts our legal system principled on ‘innocent until proven guilty,’ this report provides practical solutions without ignoring there are ongoing challenges.”
“The criminal justice system is a window into a society’s soul. There is no denying that when we look into that window in America we see racial and ethnic disparity. But thanks to this report, we can also see that solutions are within our grasp if only we have the courage to change,” said NACDL Executive Director Norman L. Reimer.
The report makes a number of key findings. One of those is the role of implicit bias in prosecutions.
They report notes, “Unconscious bias results from subconscious mental shortcuts our brains make to process information and make decisions quickly. “Implicit bias” is thus a universal response in all people of all races, although we are more susceptible to it when considering people different from ourselves.”
Panelists recommended the following as ways to reduce prosecutorial bias: “Data collection: accurate information to help prosecutors track decisions; fresh eyes: an outside consultant or other expert can help to analyze patterns; and courageous leadership. Chief district attorneys and chief defenders must be willing to raise the issue of race; focus on inexperienced prosecutors; change prosecutorial performance incentives; and raise the standard for charging.”
In addition, the report recommends educating defenders about implicit bias and working to ; minimize economic burdens to clients sentenced to incarceration.
For judges, they argue they should “refuse to set monetary bail in misdemeanor case, as defendants face a loss of employment, childcare and housing if they don’t plead quickly.”
Another big focus is the issue of pretrial incarceration. They write, “Research shows that one of the greatest determinants of outcomes in misdemeanor and felony cases is whether the defendant was detained pretrial. Those who are detained pretrial serve on average two weeks in jail, and often plead quickly out of desire to go home.”
They add, “Conferees suggested that in high volume criminal justice systems that depend on plea bargains to process cases, bail is used – whether consciously or unconsciously – as a bargaining chip to coerce pleas, especially in low-level offenses that likely carry little, if any, jail time.”
On Jury Selection they “Challenge the pro forma exclusion of jurors with personal or family exposure to the criminal justice system: The unprecedented scale of mass incarceration in America today – with one out of every three black men expected to serve time in prison during his lifetime – means that a question about criminal justice contact can no longer be treated as a race-neutral question or strike for cause.”
They also suggest offering hardship accommodations for jury service rather than recusals. They argue, “Jurors of color are more likely to experience financial or logistical hardship from jury service, and may be more likely to request recusals. Courts should routinely offer childcare at the courthouse and public transportation passes or mileage reimbursement.”
They also advocated for alternatives to voter-based jury rolls.
The conference took place in New York and they recommended stopping the police of stop-and-frisk. They wrote, “Targeting of minority communities for drug enforcement is the principal driver of racial disparities in the city’s criminal justice system, said many conference participations: Blacks and Latinos comprise 50 percent of NYC’s population, but 88 percent of all arrests.”
Advocates are working with several members of the New York City Council on a package of four bills that they believe would curtail abusive stop and search practices.
The legislation includes: “A bill that would outlaw racial profiling and strengthen its definition; a bill requiring that police give the equivalent of Miranda warnings before a “consensual” search; a bill requiring that police state their name and badge number; and a bill creating an Office of the Inspector General.”
Finally they tackled the issue of sentencing reform which they argue, “continues to face stiff opposition from the private prison industry, which makes its profit on a per prisoner basis and therefore depends on continued high prison commitments.”
They recommending reductions of certain misdemeanors to infractions, and “reinvest justice savings in community programs that prevent crime and recidivism.”
They also suggest restricting the use of conspiracy laws. From the report they argue, “Conspiracy charges – which under federal law carry significant sentencing consequences – are too often brought against peripheral actors in order to compel them to inform on others.”
—David M. Greenwald reporting
crickets when we get a joint body of prosecutors and defense attorneys recommending changes to the criminal justice system. i’m surprised no one has accused the vanguard of playing the race card again.
Maybe his readers are tired of him crying “wolf”.
the Association of Prosecuting Attorneys is crying wolf too?
Don’t understand you issue here, DP. This is very straight-forward reporting, with an accurate headline. I’m sure David has an opinion about this, but he hasn’t offered it yet.
My own opinion is that this study documents some terrible facts about our justice system and offers some important solutions.
Where ever people come down on whether Zimmerman was proved guilty beyond a reasonable doubt, this group of experts make it clear why people feel that race is intertwined in this and every case which involves minorities[quote].”Currently the US has highest population of inmates in the world both on an absolute and per capita basis with 2.2 million presently incarcerated and a staggering 65 million adults (one in four) who have a criminal record. Of those, sixty percent are either Black or Hispanic, more than double their proportion of the population.”[/quote]It’s difficult not to view these statistics as shocking.
The Zimmerman verdict has encouraged a number of African-Americans to describe experiences that the rest of us barely can imagine. Maybe this conversation will be seen a positive effect of the Martin-Zimmerman case.
How many of you know that Trayvon had made it to his parent’s house before the altercation and had to double back in order to attack Zimmerman?
From the report:
[quote]At several points throughout the three-day conference, some prosecutors, defense attorneys and judges insisted that their practice is blind to race. Prosecutors said that they often do not know the race of the defendant until arraignment or the grand jury. Some judges equated the discussion of disproportionality in the criminal system with an accusation of personal racism.[/quote]
It was interesting to see how they unveiled some the hidden racism and unconscious assumptions being made by members of the judicial system.
Just back from 3 weeks in China where there are no juries and racial injustice prevails (“bloody ethnic minorities” Bai, Bulang, Dai, Jinuo, Jing, Jingpo, Mongol, Manchu, Naxi (including Mosuo, Nu, Tibetan and Yugur (“Yellow Uyghurs”) from the Wikip…and “the Tibetans should be thanking us for saving their country,” etc). Tis interesting that they don’t block the DV while they do block the New York Times and most everything else of interest. On the TM case, I will weigh in. The TM case amplified the havoc and ruining of lives wrought by our gun culture. At the same time, I do not disagree with the report or David’s take on it.
It appears that most of the ethnic/racial disparities mentioned above are also economic disparities, and include problems faced by poor whites. Why not focus primarily on economic disparities; perhaps racial/ethnic are secondary disparities (e.g. we all know that rich defendants can afford to purchase a much better defense, regardless of their race).
Because the bias is more heavily pronounced on ethnic/ racial disparities?