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.
Continue reading below
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
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.
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.
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.
Additionally, for CLE-eligible opportunities, please check out Race Matters III, a 13-hour webseries available for online purchase. Registration is also open for the 4th Annual Summit, Race Matters IV, which will be held in-person in Chicago, IL, September 1-3, 2021.
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 children make up more than half of the incidents of police using force on kids,"
- "Why was no one listening to complaints about D.C. jail conditions until Jan. 6 defendants raised the alarm?,"
- "Opinion: Biden’s DOJ uses a Trump tactic: Federal prosecutors label Black Lives Matter protesters terrorists,"
Racial Disparity News Releases
- 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.
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.
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.
Angela J. Davis is a Distinguished Professor of Law at the American University Washington College of Law where she teaches Criminal Law, Criminal Procedure, and Criminal Defense: Theory and Practice. Professor Davis has been a Visiting Professor at George Washington University Law School and Georgetown University Law Center. She has served on the adjunct faculty at George Washington, Georgetown, and Harvard Law Schools. Professor Davis is the author of Arbitrary Justice: The Power of the American Prosecutor (Oxford University Press, 2007), the editor of Policing the Black Man: Arrest, Prosecution and Imprisonment (Pantheon, 2017), the co-editor of Trial Stories (with Professor Michael E. Tigar) (Foundation Press, 2007), and the co-author of Criminal Law (with Professor Katheryn Russell-Brown) (Sage Publications, 2015) and the 8th edition of Basic Criminal Procedure (with Professors Stephen Saltzburg and Daniel Capra) (Thomson West, 2021). Professor Davis’ other publications include articles and book chapters on prosecutorial discretion and racism in the criminal justice system. She received the Washington College of Law’s Pauline Ruyle Moore award for scholarly contribution in the area of public law in 2000 and 2009, the American University Faculty Award for Outstanding Teaching in a Full-Time Appointment in 2002, the American University Faculty Award for Outstanding Scholarship in 2009, and the American University Scholar/Teacher of the Year Award in 2015. Professor Davis’ book Arbitrary Justice won the Association of American Publishers 2007 Professional and Scholarly Publishing Division Award for Excellence in the Law and Legal Studies Division. She was awarded a Soros Senior Justice Fellowship in 2004. Professor Davis served as the Executive Director of the National Rainbow Coalition from 1994 - 1995. From 1991 - 1994, she was the Director of the Public Defender Service for the District of Columbia (“PDS”). She also served as the Deputy Director from 1988 – 1991 and as a staff attorney at PDS from 1982 – 1988. Professor Davis is a former law clerk of the Honorable Theodore R. Newman of the District of Columbia Court of Appeals. She is a graduate of Howard University and Harvard Law School.
Wesley Caines is a graduate of Bard College and New York Theological Seminary. His life’s journey has enriched him with a perspective on the importance of human connection and community engagement. Wes is a frequent speaker at colleges and universities as well as on panels and in conferences across the country on his exceptional personal journey and how it informs his work in criminal justice reform.
As Chief of Staff, at The Bronx Defenders, Wes spearheads the organization’s systemic reform efforts which includes overseeing the policy, impact litigation, strategic communications and community organizing teams. Prior to his current role, he was Director of Reentry & Community Engagement, roles which allowed him to work closely with directly impacted communities in understanding and developing strategies to overcome barriers that perpetually punish those ensnared in government systems.
Before joining The Bronx Defenders, Wes worked at Brooklyn Defender Services and launched the Records Accuracy Project which utilized local area law students to identify and correct RAP (records of arrest and prosecution) sheet errors. To date, he has trained nearly 50 law students in the complex world of reentry and reentry policy work. Wes sits on the boards of the New York Civil Liberties Union, the Correctional Association of New York, Inside Change, Brooklyn Community Bail Fund, and Network Support Services, Inc.--leveraging his expertise in the furtherance of helping those who are economically and socially disadvantaged to improve their systems involvement outcomes. Wes is a member of the New York City Bar, Reentry Subcommittee, a former member of the American Bar Association, Criminal Justice Section, and a founding member of the National Justice Impacted Bar Association. Wes’ life goal is the empowerment of underserved and marginalized communities as they become creative self-advocates who challenge policy-makers’ notion of the social contract.
Akhi Johnson leads a team that works with elected prosecutors across the country to end mass incarceration, address racial disparities, and make their offices more accountable to the communities they serve. He joined Vera in January 2019, after serving for five years as an Assistant United States Attorney in Washington, DC. As an Assistant United States Attorney, Akhi handled both local and federal crimes and tried more than 40 cases. Akhi was a senior sex offense and domestic violence prosecutor focused on local domestic violence crimes and sex offenses involving children and adults. Akhi volunteered with community based prosecution programs designed to build positive relationships between citizens and law enforcement, and also taught a gender based violence course in Indonesia for Pakistani prosecutors and police officers.
Prior to joining the U.S. Attorney’s Office, Akhi clerked on the District of Columbia Superior Court and worked as a litigation associate in Jones Day’s Los Angeles Office. Akhi holds a JD from Georgetown Law, where he participated in the Street Law Clinic and taught criminal law in a D.C. public high school. He also holds a BA in Communications from the University of Southern of California.
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.
NACDL Past President Lisa Monet Wayne is an attorney in private practice in both state and federal courts around the country. She handles serious felonies and complex civil litigation including numerous high profile cases. Previously, Wayne was a Colorado State Public Defender for 13 years where she served as office head, training director, and senior trial attorney. She lectures nationally with NACDL, NCDC, NITA, ABA, ATLA and various other organizations. Wayne is currently an adjunct law professor at the University of Colorado where she teaches Trial advocacy, and she serves on faculty at the Trial Practice Institute at Harvard Law School, The National Criminal Defense College, and Cardozo Law School. She serves as a legal analyst for various media outlets including ABC, CNN and Fox News and continues to be an advocate in all venues of the media addressing important issues confronting the criminally accused. In 2005, Wayne was honored with the Robert J. Heeney Award, NACDL’s most prestigious recognition.
Bernice A. N. Corley is the Executive Director. As Executive director she assist in the managing of the agency and carrying out the policies established by the Board of Directors. Prior to joining the Public Defender Council, Ms. Corley served four years as General Counsel at the Department of Education and also served as legal counsel for both the Indiana Senate and Indiana House of Representatives. Her career includes clerking for Hon. Carr Darden. Ms. Corley served as a Marion County Public Defender Agency as trial counsel as well as appellate counsel.
Alexandra Natapoff is an award-winning legal scholar and criminal justice expert. She writes about criminal courts, public defense, plea bargaining, wrongful convictions, and race and inequality in the criminal system. Her book Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (Basic Books) reveals the powerful influence that misdemeanors exert over the U.S. criminal system. Her book Snitching: Criminal Informants and the Erosion of American Justice (NYU Press), won the ABA Silver Gavel Award Honorable Mention for Books: her original work on criminal informants has made her an international expert.
Professor Natapoff is a 2016 Guggenheim Fellow, a member of the American Law Institute, and a graduate of Yale University and Stanford Law School. She has testified before Congress and numerous state legislative bodies; she has helped draft state and federal legislation; her work appears frequently in judicial opinions as well as the national media. Prior to joining the academy, she served as an Assistant Federal Public Defender in Baltimore, Maryland.
Racial Disparity Champion Articles
- The Role of Implicit Racial Bias in Forensic Testimony
- The NACDL Q&A: Fighting for Justice in a Divided World
- Racism — A Persistent Challenge That Impacts Everyone