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.
“Everybody talks about the weather, but nobody does anything about it.”1 This familiar refrain generally refers to inaction in the face of disagreeable conditions that directly impact everyday life — conditions that are beyond the reach of human control. It is not the bright, mild day that prompts the lament, but rather the stormy, steamy, or frigid days, when nature has its way. Now, however, many recognize that although humans may still be powerless to alter the daily weather, their actions very much influence the conditions that give rise to that weather. And so it is with many of the miseries that afflict the human condition. It is certainly the case with racism and disparity. It may not be possible to eradicate the daily manifestations of these afflictions, but as they are uniquely human in their origin, it is certainly within the power of humankind to eradicate the conditions that give rise to them.
Nearly one year ago, this column addressed the problem of racism in the criminal justice system.2 When Rick Jones became NACDL’s 59th president, his mission was “to mobilize the defense bar to eliminate the racism that delegitimizes the American system of justice.” To introduce this special issue of The Champion, which focuses on racism in the criminal justice system, it seems appropriate to reflect back on the past year and note the progress we have made toward Rick’s ambitious goal.
Over the course of the past year, NACDL has materially advanced this noble objective. Through programs, policy initiatives, publications, and in the articulation of a new strategic plan for the Association, NACDL has embraced this challenge. These efforts were designed not only to expose the problem, but also to equip those who are on the front lines in the nation’s criminal courts.
On Sept. 14-15, 2017, NACDL convened its first Presidential Summit & Seminar: Race Matters: The Impact of Race on Criminal Justice. This two-day program in Detroit not only provided an in-depth look at the historical origins of racism and racial and ethnic disparity in the criminal justice system, but it provided practical tools for defense lawyers to combat the problem. Practitioners, academics, social science experts, and formerly incarcerated persons offered specific strategies for confronting racial disparity at every phase of a criminal case: policing and investigative practices, charging decisions, pretrial release conditions; jury selection, sentencing determinations, and the corrosive effects of fees, fines, and collateral consequences. The entire program remains available for use by the criminal defense bar at www.nacdl.org/2017-Race-Matters-Summit. Readers should note that a second program covering similar important topics, Race Matters II, will be held in Los Angeles on Jan. 10-11, 2019.
On July 10, 2018, NACDL released a major report on the trial penalty, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The report shows how the trial penalty is used to extract waivers, not just of the constitutional right to a trial, but of virtually every other right afforded to the accused. While this report focuses on the federal system, it is intended to serve as a model to attack the problem on the state level as well. Reducing the trial penalty may be the holy grail of criminal justice reform. It is the only way to fundamentally tackle overcriminalization, mass incarceration, and the gross racial and ethnic disparity that permeates the system at every stage. Indeed, in setting forth core principles, the report notes that “the decline in the frequency of trials tends to encourage longer sentences thereby contributing to mass incarceration, including the mass incarceration of people of color and the poor.”3
Yet another program that will address extremely harmful disparate impact is Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity. This two-and-a-half-day program, which will be held in Atlanta on Aug. 23-25, 2018, will examine the barriers and obstacles that confront those who have been branded with a criminal conviction. It will bring together leaders from the corporate, legal, policy reform, and entertainment communities to examine the many innovations that are available to restore rights and opportunities that have been stripped away from so many, especially in communities of color. Programs, presentations, and resources related to this event will be available at www.nacdl.org/scjnconference.
Of course, the commitment to tackle racism and disparate impact has been evident throughout the year in this magazine. Each of Rick Jones’ columns as president has focused on aspects of this societal scourge. Rick’s column in this issue, The Police Shell Game: Shedding Light on the Hiding of Bad Cops, addresses the insidious and persistent way that many jurisdictions overlook or shield police misconduct from public view. As we near the end of his term as president, this themed issue features several articles that address the topic. In The Persistence of Discrimination in Jury Selection: Lessons from North Carolina and Beyond, James E. Coleman, Jr. tackles the persistent failure of courts to make the promise of Batson a reality, and once and for all end the systematic exclusion of people of color from juries. In Making Sense of Pretrial Risk Assessments, Brandon Buskey and Andrea Woods address the increasing prevalence of risk assessment tools predicated upon algorithms to forecast pretrial outcomes. They explain how these tools, no matter how well meaning, have the potential to perpetuate disparate treatment, and they provide practical approaches for the defense bar to minimize that risk. Finally, Nazgol Ghandnoosh’s article is a tour de force that describes how defense counsel can understand the sources of racial disparity in the criminal justice system at all phases, and suggests practical actions to combat it. How Defense Attorneys Can Eliminate Racial Disparities in Criminal Justice recognizes that the defense bar is uniquely well positioned to hasten the day when racism and disparity are finally purged from the nation’s criminal defense system.
That objective, equipping the defense bar to combat racism and disparity, is evident in perhaps the most important step NACDL took during the past year. After an extensive planning process, which incorporated the views of NACDL’s constituents and the broader criminal justice community, NACDL adopted a new strategic plan and a revitalized mission. That mission is “to serve as a leader, alongside diverse coalitions, in identifying and reforming flaws and inequities in the criminal justice system, redressing systemic racism, and ensuring that its members and others in the criminal defense bar are fully equipped to serve all accused persons at the highest level” (emphasis added). The conscious determination to redress racism and other inequities in the criminal justice system ensures that the initiatives of the past year are not simply an aberration. It is a commitment. It is a guarantee that in all its educational and reform efforts, NACDL will not shrink from this task. It may still be the case that this bar association cannot do anything about stormy or inclement weather today, tomorrow or next week, but its deliberate actions can over time improve the climate.
- Though this observation is commonly attributed to Mark Twain, it is now generally recognized that it was originally expressed by one of his close friends, Charles Dudley Warner, who was a writer, an editor, and a lawyer. https://quoteinvestigator.com/2010/04/23/everybody-talks-about-the-weather.
- Norman L. Reimer, Racism in the U.S. Criminal Justice System: An Uncomfortable Truth for All of Us, The Champion, August 2017, at 9.
- Nat’l Ass’n Crim. Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It 11, https://www.nacdl.org/trialpenaltyreport.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
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