There is no question – racial and ethnic disparities abound in our criminal justice system. Racial bias, both conscious and unconscious, results in more people of color being stopped, arrested, convicted and imprisoned than ever before. Criminal defense lawyers and public defenders are not immune to bias and, of all people in the system, should be aware of their biases and keep them in check.

Brief of Washington Lawyers’ Committee for Civil Rights & Urban Affairs, American Civil Liberties Union of Maryland, Public Justice Center, National Association of Criminal Defense Lawyers, and Maryland Criminal Defense Attorneys’ Association as Amici Curiae in Support of Appellant.

Argument: In 2000, the U.S. Supreme Court concluded in Illinois v. Wardlow, 528 U.S. 119 (2000), that an individual’s “unprovoked flight” in a “high-crime area” created sufficient “reasonable suspicion” of criminal activity to justify a stop, interrogation, and search of that individual under the framework prescribed in Terry v. Ohio, 392 U.S. 1 (1968). In this case, the Maryland Court of Special Appeals interpreted Wardlow as providing that “unprovoked flight from law enforcement in a high-crime area”—by itself—can be enough to trigger such an intrusion. Ct. Spec. App. Op. at 11 (Mar. 24, 2022) (hereinafter, “COSA Op.”). In reaching that conclusion, the Court of Special Appeals acknowledged that a growing number of state and federal courts—following the standard announced in Terry and applied in Wardlow—account for the “reality that Black individuals have no shortage of innocent reasons to flee at the sight of law enforcement.” Id. at 13. But the Court of Special Appeals, “constrained by [its] place in Maryland’s judicial hierarchy,” thought itself powerless to consider that reality in assessing the reasonableness of the detention and search at issue in this case. Id. at 13, 16.

As an initial matter, Wardlow did not expressly adopt a categorical rule that law enforcement is constitutionally permitted to stop and frisk anyone perceived to be fleeing from police in a purportedly “high-crime” area. See People v. Flores, 38 Cal. App. 5th 617, 631 (2019) (rejecting the argument “that ‘flight’ plus ‘high-crime area’ equals reasonable suspicion for a detention,” and confirming that “Wardlow . . . did not make such a bright-line holding”). Indeed, the term “high-crime area” has itself eluded consistent definition. Instead, Wardlow applied Terry’s holistic “reasonable suspicion” standard to the unique facts and circumstances presented. But the Wardlow Court made clear that any reasonable suspicion analysis must be based on “commonsense judgments and inferences about human behavior”—a directive that necessarily requires courts to account for societal advances, including evolving social science, over time.

Our understanding of human behavior has progressed dramatically in the twenty years since Wardlow was decided. State and federal courts around the country have relied on an expanding body of empirical evidence to deem unconstitutional under Terry police stops based on a Black individual’s flight in a supposedly “high-crime area.” Consistent with Wardlow’s teaching and that jurisdictional trend, this Court can—and should—take the opportunity to clarify that in Maryland, too, the “commonsense” implication of a Black man’s flight from police is not criminal guilt, but rather an understandable desire to avoid an interaction fraught with fear and distrust. Amici therefore urge the Court to reverse the decision below, and to hold that the mere fact of flight from law enforcement in a “high-crime area” did not, without more, give the officers in this case adequate cause to stop and search the defendant, Mr. Washington.

Issues of racial bias and racial disparity are pervasive in the criminal legal system. One of the most pronounced is the disproportionate number of persons of color who are detained pretrial. Steps must be taken to address these disparities on both the individual case level and the systemic level.

Race matters in our criminal legal system. It affects how likely you are to be pulled over by police, how likely you are to be released or detained pretrial, how likely the state is to seek the death penalty, and how severely you are sentenced.

NACDL has been committed to examining race as an issue within the criminal justice context.

This month Jeff Gamso reviews Redeeming Justice: From Defendant to Defender, My Fight for Equity on Both Sides of a Broken System by Jarrett Adams.

"Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the War on Drugs."

Michelle Alexander, The New Jim Crow (2010)

Racially biased policing takes many different forms, from elevated police presences in the neighborhoods of marginalized communities, to disproportionate street and vehicle stops and searches, to use of force, to outright expressions of racism within some police departments.

The combined impacts of biased policing, discretionary charging decisions, sentencing enhancements, and the continuing impacts of the tough-on-crime movement have created and bolstered a criminal legal system in which people of color, particularly Black people, are more likely to be sentenced to prison and are subject to lengthier periods of incarceration.  

Additional resources on racial disparities in the criminal legal system.

Coalition letter to members of the House and Senate Judiciary Committees regarding proposed reforms to federal forfeiture law.

We respectfully submit the following comments on the Commission’s tentative priorities for the amendment cycle ending May 1, 2023, with a particular focus on the implementation of the First Step Act of 2018. … In this current cycle, we welcome the Commission’s focus on the decarceration focus of the First Step Act, as well as all efforts to reduce the rate of incarceration in federal cases, the size and racial disparities of our federal incarcerated population, and the guideline rigidity that discourages or limits the recognition of each offender’s humanity and redemptive potential.

Brief of Amici Curiae Electronic Privacy Information Center, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers in support of Defendant-Appellant.

Argument: In this case of first impression, appellant argues that information about the technology and procedures underlying a facial recognition search must be disclosed to the defendant to cure the risk of misidentification and in accordance with Brady v. Maryland, even if the result of the search was used only investigatively, subject to later corroboration, and not admitted into evidence. The amicus brief explains the numerous opportunities for error present in the facial recognition process, and how error in that process determines the course of the investigation and results in racially disparate and otherwise wrongful arrests. NACDL’s Fourth Amendment Center has been working to better understand how defendants’ due process rights are impacted by the growing use of facial recognition technology and to equip defense attorneys with the knowledge and tools to combat resulting Brady violations.