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How Defense Attorneys Can Eliminate Racial Disparities in Criminal Justice

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How Defense Attorneys Can Eliminate Racial Disparities in Criminal Justice © freshidea | AdobeStock afford bail on a robbery charge that was later dismissed, How Defense Attorneys committed suicide after his release. And Eric Garner, who was selling untaxed loose cigarettes in Staten Island, died Can Eliminate Racial from being placed in a chokehold during an arrest. The contrast between these sets of cases — with those in the latter group being African American and low- Disparities in income — has led some to call for more punitive treatment of white and affluent defendants, as exemplified by Criminal Justice Stanford Law professor Michele Dauber’s successful cam - paign to recall Judge Persky. But ending mass incarceration requires reducing excessive punishment for everyone, rather than ratcheting up penalties for the privileged. “The I. Introduction United States would still have an incarceration crisis,” hy did Judge Aaron Persky not sentence University of Pennsylvania professor Marie Gottschalk has Stanford University student-athlete Brock noted, “even if it were locking up African Americans at WTurner to longer than six months in jail for ‘only’ the rate at which whites in the United States are cur - sexually assaulting an unconscious woman? Why was rently incarcerated — or if it were not locking up any Texas teenager Ethan Couch, characterized as suffering African Americans at all.” 1 Unfamiliarity with these facts from “affluenza,” sentenced to only probation for a suggests that the disproportionately harsh treatment of drunk driving accident that killed four people? Why was people of color in the criminal justice system is not just a Dylann Roof, who was eventually convicted of killing travesty in its own right, but also skews assessments of nine individuals at the Emanuel African Methodist what makes a fair criminal penalty for anyone. Episcopal Church in South Carolina, taken into custody This article presents a framework for understanding unscratched and served a fast-food meal? the sources of racial disparity in the criminal justice system These cases have acquired a high profile because many and suggests actions that defense attorneys can take to believe that these individuals’ whiteness, and in some cases address this problem. The roots of this racial disparity pre - wealth, contributed to their relatively favorable treatment. cede criminal justice contact: conditions of socioeconomic In contrast, Henry Montgomery, whose Supreme Court inequality contribute to higher rates of some violent and case gave juveniles sentenced to mandatory life-without- property crimes among people of color. But four features parole a shot at resentencing, was denied parole in of the justice system exacerbate this underlying inequality: Louisiana after serving 54 years for killing a sheriff’s (1) laws and policies with a disparate racial impact; (2) deputy. Kalief Browder, who was held for over a thousand racial bias in discretionary decisions; (3) underfunding of days at New York City’s Rikers Island because he could not key criminal justice services and the imposition of financial BY NAZGOL GHANDNOOSH 36 WWW.NACDL.ORG THE CHAMPION burdens; and (4) the collateral conse - and sell drugs at similar rates as whites. First, defense attorneys can join police quences of a felony conviction. Criminal justice outcomes both reflect and chiefs in decrying policies that are counter - As described below, jurisdictions skew these patterns: productive as crime-reduction strategies around the country have worked to — as with recent advocacy against loosen - address each of these sources of inequal - v Higher rates of geographically con - ing gun laws and tightening immigration ity. Defense attorneys can contribute to centrated socioeconomic disadvan - enforcement. Many urban police chiefs, these efforts by assessing their casework tage contribute to higher rates of cer - including former Milwaukee Police Chief for bias; engaging in public education, tain violent and property crimes Edward Flynn, have called for stricter gun litigation, and advocacy; and by reform - among African Americans. 6 In 2016, laws. 12 In 2018, the International ing hiring, admissions, and discipline African Americans represented 13 Association of Chiefs of Police opposed policies in the institutions to which they percent of the U.S. population. Congress’s efforts to require states to belong. Specifically, they can mitigate the But they comprised 38 percent of honor concealed-carry permits issued in impact of implicit bias in their case arrests for violent crimes (53 percent other states. 13 In addition, police leaders triage; engage in or support research, for murder and nonnegligent including William Evans, Commissioner strategic litigation, and advocacy to pro - manslaughter) and 28 percent of of the Boston Police Department, have mote and preserve reforms in policing, arrests for property crimes. Arrest vocally rejected attempts by Donald prosecution, sentencing laws, collateral rates do not always reflect offending Trump and Jeff Sessions to tie stricter consequences, and school discipline poli - patterns, but information gathered immigration enforcement with crime cies; call for investments in crime pre - from victimization surveys and self- policy. As Evans explained: “We need to vention and drug treatment programs; reports of criminal offending suggest build trust with the immigrant communi - and model fair hiring practices and call that, especially for certain violent ty. The last thing we want is for people to E for ban-the-box admissions policies at crimes and to a lesser extent for prop - be afraid of us. … They won’t report L I their alma maters. As described below, erty crimes, the race of those arrested crimes or help us in their communities if M efforts like these have helped to challenge resembles those of the people who they [are] afraid of us.” 14 I 7 punitive and racially disparate policies in have committed these crimes. Second, defense attorneys can advo - N jurisdictions including Mississippi, cate for greater investments in effective A Kentucky, New York City, Portland, v While drug offending does not differ crime-reduction policies such as expand - T I Seattle, St. Louis, and Washington, D.C. substantially by race, drug law ing health insurance coverage to prevent N enforcement certainly does. For and treat substance use disorder, providing G II. Racial Disparities in example, the A CLU found that blacks high-quality early education to expand were 3.7 times as likely to be arrested young people’s educational prospects, and R Both Crime and Justice for marijuana possession as whites in creating residential mobility programs to A At 2001’s levels of imprisonment, one 2010, even though rates of marijuana reduce neighborhood segregation. 15 In this C 8 I in three African American men will be usage were comparable. More broad - effort, they can partner with faith-based A imprisoned at some point in their lives — ly, surveys by federal agencies show organizations and other social service L six times the rate for white men and twice that both recently and historically, organizations. For example, following a the rate for Latino men. 2 Among black whites, blacks, and Hispanics have 2004 study by University of Washington D I men in their 20s and 30s who lack a high used illicit drugs at roughly similar professor Katherine Beckett revealing that S 9 school degree, over two-thirds have served rates. Some studies also suggest that racial disparities in drug arrests were driv - P time in a state or federal prison. 3 These sta - drug users generally purchase drugs en by law enforcement focus on crack and A tistics reveal how low-income men of color from people of the same race or eth - outdoor drug venues, the Defender R 10 I bear the brunt of punitive criminal justice nicity as themselves. Socioeconomic Association in Seattle organized a coalition T policies. Such disproportionately high lev - inequality does lead people of color to of community advocates to develop the I E els of imprisonment cannot be attributed disproportionately use and sell drugs Clean Dreams Project, a street-level out - S entirely to differences in crime rates. outdoors, where they are more readily reach program offering drug sellers imme - Legacies of overt racism and contem - apprehended by police. But dispari - diate access to resources they can use to porary practices of willful neglect have ties in drug arrests are largely driven leave the streets and change their lives. 16 divested many black communities of the by policy decisions and the discre - Relatedly, expanding access to mental economic and social resources that act as tionary choices of officers. health services is believed to be vital in buffers to criminal offending. In 1968, the tackling the high rates at which American Kerner Commission called on the country Absent meaningful efforts to address Indians are killed in police encounters. 17 to make “massive and sustained” invest - societal segregation and disproportion - In addition to calling for policies that ments in jobs and education to reverse the ate levels of poverty, U.S. criminal justice get to the root of disparate crime rates, “segregation and poverty [that] have creat - policies have cast a dragnet targeting defense attorneys can support programs ed in the racial ghetto a destructive envi - African Americans and other people of that mitigate the impact of disparate polic - ronment totally unknown to most white color. But as Georgetown University law ing. In some jurisdictions, advocating for Americans.” 4 Fifty years later in
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