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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 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 City’s 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, , 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 2018, the professor Paul Butler has written, “black the least restrictive sentencing alternative Commission’s lone surviving member male violence should not distract from may involve diverting clients to drug concluded that “in many ways, things have also focusing on state violence by the courts. In these contexts, defense attorneys gotten no better — or have gotten worse.” 5 police.” 11 Before turning to how defense can work to make these courts more effec - In large part because African Americans attorneys can challenge police violence tive tools in tackling mass incarceration are more likely to experience concentrated and racial inequality in criminal justice and racial disparities by ensuring that they urban poverty, they are more likely to more broadly, it is worth considering two protect clients’ due process rights, have commit certain violent and property ways that they can also address the inclusive admissions criteria, and provide crimes — although people of color buy underlying disparities in crime rates. effective forms of treatment. 18

WWW.NACDL.ORG JUNE 2018 37 Fighting mass incarceration will 1. Many ostensibly race-neutral sworn statements from clients, and pub - require doing more than fighting crime. As policies and laws have a lic records from the state and municipal Gottschalk has argued, “In plotting an disparate racial impact. courts — was critical in contextualizing escape from the carceral state, we need to Myriad criminal justice policies that both Michael Brown’s death at the hands resist the belief that the only real option is appear to be race-neutral collide with of police and the ensuing outrage. to tackle the ‘root causes’ of these high lev - broader socioeconomic patterns to create In addition to engaging in research, els of crime — massive unemployment a disparate racial impact. In particular, defense attorneys can litigate and advo - and underemployment, massive poverty, police policies that cast a wide net in neigh - cate for reforms and their implementa - and unconscionable levels of social, politi - borhoods and on populations associated tion. For example, in response to reports cal and economic inequality.” 19 This is with high crime rates disproportionately that everyone arrested under because incarceration levels and crime are affect people of color — whether or not Mississippi’s gang law in recent years was not as closely connected as some might they live in these neighborhoods or are black, State Public Defender Andre de think. For example, while crime rates have engaged in any crime. Also, sentencing Gruy proposed that the state would ben - fallen to half their peak levels in the 1990s, laws that are designed to more harshly efit from a racial impact analysis of the by the end of 2016, the number of people punish certain offenses or offending pat - law, saying: “[A] provision could be held in U.S. prisons had declined by just terns can also often have a disparate crafted to review the racial impact annu - six percent since its 2009 peak. 20 impact on people of color. For example: ally.” 26 In Washington, D.C., after e Ending the disproportionately high Washington Post criticized the city’s levels of incarceration among people of v Policing policies such as “broken win - Youth Rehabilitation Act — which color will require a focused effort, as dows” and stop, question, and frisk allows for sentencing alternatives and illustrated by recent trends in the juve - disproportionately affect people of record sealing for youth under age 22 —

S nile justice system. Between 2001 and color. In New York City, researchers the Public Defender Service defended

E 2015, overall juvenile placements fell by have shown that police stopped the existing law and called for extending I

T 54 percent, including declines for African Americans and Latinos at the age limit to 25, given the age cutoff of

I whites, blacks, Latinos, and American rates that could not be explained by many youth services “make age 22 to 25 R Indians. But since white placements fell the overall crime rate of these popu - a particularly vulnerable time period A to a greater degree than for other lations or of the communities in when the District’s poor and marginal - P 22

S groups, racial and ethnic disparities which individuals were stopped. ized young adults are susceptible to

I increased from the start of the century. Moreover, research shows that order- involvement in criminal activity.” 27 In

D The racial gap between black and white maintenance strategies have had only New York City, public defenders have

L youth in secure commitment increased a modest impact on serious crime helped to create Court Watch NYC, a

A by 22 percent during this period, and rates while causing great damage to group that sends observers to courts I the gap between American Indian and communities of color. 23 across the city to ensure that district C white youth increased by 14 percent. 21 attorneys are living up to their reformist A To help reduce both levels of incarcera - v Sentencing laws such as drug-free promises. 28 In this way, as Fordham R

tion and racial disproportionality, the school zone laws mandate sentenc - University law professor John Pfaff has

G following section outlines the four ing enhancements for people caught argued, public defenders are ensuring

N mechanisms through which criminal selling drugs near school zones. The that “ substantive, systemic change hap - I justice policies and practices have disad - expansive geographic range of these pens.” 29 To bring about meaningful T vantaged people of color, and highlights zones coupled with high urban den - change, some defense attorneys have A efforts to reverse these trends. sity has disproportionately affected themselves entered district attorney N

I residents of urban areas, and partic - races, as with Larry Krasner’s successful

M III. Sources of Racial ularly those in high-poverty areas, bid in Philadelphia and Shannon I who are largely people of color. 24 In McAuliffe’s campaign in Massachusetts’s L Disparities Within 30

E addition, “three strikes and you’re Suffolk County. Taylor Pendergrass, the Justice System out” and other habitual offender who leads the ACLU’s Prosecutorial and Models for Reform laws disproportionately affect peo - Reform Initiative, explains that law ple of color who are more likely to school graduates and early-career attor - Whether intentional or not, have criminal records. neys should consider working for through discretionary decisions or reformist prosecutors because “if they agency-wide policy, and with direct One way that defense attorneys can can’t find staff committed to the mis - impact on people of color or on those support reforms to these policies is sion, they won’t be able to reduce incar - who are low-income, four features of the through research and public education. ceration no matter how great the justice system fuel racial disparities. This This research can be conducted inde - vision/leadership is at the top.” 31 section examines these sources of dis - pendently or in partnership with a uni - Examples of reforms to laws and parity and illustrates reforms seeking to versity, news outlet, or other research policies with a disparate racial impact undo their impact. As described below, organization. For example, a white paper include the following: defense attorneys can work to replicate published in 2014 by ArchCity and strengthen these efforts in their Defenders in St. Louis revealed how v Policing: The highest officials in New jurisdictions — by pushing for needed municipalities such as Ferguson had a York City had “turned a blind eye to reforms and ensuring that promised fiscal incentive to focus law enforcement the evidence that officers are con - ones are carried out — while also work - efforts on traffic violations and petty ducting stops in a racially discrimina - ing to eliminate bias in their individual offenses, disproportionately targeting tory manner,” Judge Shira A. casework and discrimination in their low-income African Americans. 25 The Scheindlin concluded regarding the office hiring practices. report — based on court watching, city’s stop-and-frisk tactic, declaring

38 WWW.NACDL.ORG THE CHAMPION it unconstitutional in 2013 in ® response to a federal class action law - NACDL STAFF DIRECTORY suit filed by the Center for MEMBERSHIP HOTLINE 202-872-4001 Constitutional Rights. 32 The police policy, which broadly targeted male Senior resource counsel Vanessa antoun 202-465-7663 [email protected] residents of neighborhoods populat - ed by low-income people of color to education manager akvile athanason 202-465-7630 [email protected] uncover drugs and weapons, was assistant tatum a. Brooks 202-465-7657 [email protected] shown to be ineffective, and this to the executive Director assessment was further validated when New York City continued its national affairs assistant Shuli carroll 202-465-7638 [email protected] crime decline after scaling back stop and frisk. New York City has also lim - Deputy executive Director tom chambers 202-465-7625 [email protected] ited, but not yet disavowed, Broken Senior editor, the champion® Quintin m. chatman 202-465-7633 [email protected] Windows Policing. 33 membership Director michael connor 202-465-7654 [email protected] v Sentencing: Indiana is among several states that have amended their drug- resource counsel Jessica DaSilva 202-465-7646 [email protected] free school zone laws, in this case after the state’s Supreme Court Senior Director of public affairs ivan Dominguez 202-465-7662 [email protected] and communications

began reducing harsh sentences E

imposed under the law and a univer - Junior Graphic Designer Julian Giles 202-465-7655 [email protected] L I

sity study revealed its negative M impact and limited effectiveness. 34 Director of public Defense Bonnie Hoffman 202-465-7649 bhoffman @nacdl.org reform and training I The reform’s components included N

reducing drug-free zones from 1,000 Director of events tamara Kalacevic 202-465-7641 [email protected] A feet to 500 feet, eliminating them T I

around public housing complexes associate executive Director Gerald lippert 202-465-7636 [email protected] N for programs, Business

and youth program centers, and G Services, and technology

adding a requirement that minors

must be reasonably expected to be R Senior privacy and Jumana musa 202-465-7658 [email protected] A present when the underlying drug national Security counsel offense occurs. In Portland, the C public affairs ian nawalinski 202-465-7624 [email protected] I Metropolitan Public Defender A & communications assistant

Services was successful in defeating L

the city’s Drug Free Zone Ordinance through litigation and by increasing associate executive Kyle o’Dowd 202-465-7626 [email protected] D

Director for policy I

public awareness of the law’s dis - S 35 parate impact and enforcement. Sales and marketing manager Jason Hawthorne petty 202-465-7637 [email protected] P A v Prosecution: Following a two-year Senior litigation counsel michael price 202-465-7615 [email protected] R I

study conducted in partnership T Director of advocacy monica l. reid 202-465-7660 [email protected] with the Vera Institute of Justice, the I E

Manhattan District Attorney’s executive Director norman l. reimer 202-465-7623 [email protected] S Office learned that its plea guide - lines emphasizing prior arrests cre - Graphics assistant Saira rivera 202-465-7635 [email protected] ated racial disparities in plea offers. The office committed to conducting member Services assistant nelle Sandridge 202-465-7639 [email protected] implicit bias training for its assis - Senior membership and Viviana Sejas 202-465-7632 [email protected] tant prosecutors and was urged to operations associate revise its policy of tying plea offers to arrest histories. 36 information Services manager Doug Shaner 202-465-7648 [email protected] v School discipline: Several school dis - public Defense reform renee Spence 202-465-7651 [email protected] tricts have enacted new school dis - and training counsel ciplinary policies to reduce racial associate executive Director for Jessica Stepan 202-465-7629 [email protected] disparities in out-of-school-suspen - Strategic marketing sions and police referrals. Researchers have shown that manager — multimedia Koichi take 202-465-7661 [email protected] schools are more likely to respond production & Sales 8

to African American student misbe - 1

counsel for Special projects Daniel Weir 202-465-7640 [email protected] 0 2

havior with punishment rather than and foundation manager 2 37 0 7

with supportive services. Reforms 0 at Florida’s Miami-Dade and art Director catherine Zlomek 202-465-7634 [email protected] Broward County Public Schools

WWW.NACDL.ORG JUNE 2018 39 have cut school-based arrests by than whites. Federal prosecutors, for making, and hold practitioners account - more than half in five years and sig - example, are twice as likely to charge able for biased outcomes. A 2008 manu - nificantly reduced suspensions. 38 African Americans with offenses al published by the Department of that carry mandatory minimum Public Advocacy in Kentucky, “the state 2. Criminal justice practitioners’ sentences than otherwise similar that brought us Batson, ” can guide attor - use of discretion is — whites. 46 State prosecutors are also neys litigating racial bias issues ranging often unintentionally — more likely to charge black rather from selective prosecution to pretrial influenced by racial bias. than similar white defendants under release, voir dire, and sentencing. 51 While most white Americans no habitual offender laws. 47 Finally, defense attorneys can call on longer endorse overt and traditional prosecutors and judges to devise policies forms of prejudice associated with the era v Judges: Federal judges have been that address upstream disparities. of Jim Crow racism — such as beliefs four times more likely to impose Two discovery efforts in the 1990s about the biological inferiority of blacks imprisonment for convicted nonci - illustrate how defense attorneys can and support for segregation and discrim - tizens than for citizens, even after attempt to demonstrate and challenge ination — a nontrivial proportion con - accounting for sentencing guide - the existence of bias in the work of tinue to express negative cultural stereo - lines and criminal histories. 48 criminal justice practitioners. To types of African Americans. 39 Even more Federal judges have also been more determine if federal prosecutors dis - common among most white Americans, likely to sentence noncitizens to proportionately sought to prosecute and many people of color, is implicit longer prison terms than citizens, African Americans, federal public racial bias: unintentional and uncon - imposing the harshest penalties on defenders in Los Angeles sought to dis - scious racial biases that affect decisions undocumented immigrants. cover data on federal crack prosecu -

S and behaviors. Psychological experiments tions as part of a selective prosecution

E have shown that these biases are pervasive Correctional officers and parole agents: claim. They were ultimately unsuc -

I v

T in society and are held even by people Racial bias among correctional offi - cessful, when the Supreme Court ruled

I who disavow overt prejudice. 40 Implicit cers and parole agents shapes the in United States v. Armstrong that they R racial biases also permeate the work of prospects for release from and read - had “failed to satisfy the threshold A criminal justice professionals and the mission into prison. 49 As revealed by a showing … that the government P 41

S deliberation of jurors. Specifically: New York Times investigation on New declined to prosecute similarly situat -

I York prisons, comparable in-prison ed suspects of other races.” 52 But in

D Policing: In recent years, black drivers misconduct — a major determinant state court, the Public Defender Office

v

L have been somewhat more likely to be of parole decisions — may result in of Gloucester County, N.J., was suc -

A stopped than whites but have been far divergent prison disciplinary records cessful in its discovery motions by I more likely to be searched and arrest - for blacks and Latinos versus whites. using an earlier court decision to C ed. 42 The causes and outcomes of Based on an analysis of almost 60,000 establish a prima facie case of discrim - A these stops differ by race, as described disciplinary cases from the state’s inatory traffic stops by state troopers R 53

next, and staggering racial disparities prisons, reporters found that dispari - in a stretch of Interstate 95. The

G in rates of police stops persist in cer - ties in discipline were greatest for attention drawn to this case con -

N tain jurisdictions — pointing to infractions that gave discretion to tributed to President Clinton directing I unchecked racial bias, whether inten - guards, such as disobeying a direct all federal law enforcement agencies to T tional or not, in officer discretion. A order. Once in the community on collect demographic information on A closer look at the causes of traffic parole or probation supervision, the people they question, search, or N

I stops reveals that police are more like - racial disparities contribute to people arrest to assess whether they are

M ly to stop black and Hispanic drivers of color being more likely to be engaging in racial profiling. I for discretionary reasons — for returned to prison. For example, the Recent successful efforts to challenge L

E “investigatory stops” (proactive stops Urban Institute’s examination of pro - harmful or biased justice practices include: used to investigate drivers deemed bation revocation rates in a variety of suspicious) rather than “traffic-safety jurisdictions around the country v Policing: After criticism and lawsuits stops” (reactive stops used to enforce revealed that black probationers were about racial disparities in its drug traffic laws or vehicle codes). 43 revoked at levels that “raise concerns law enforcement, some precincts in Nationwide surveys also reveal dis - about the presence of bias to the dis - and around Seattle have imple - parities in the outcomes of police advantage of black probationers.” mented a pre-booking diversion stops. Once pulled over, black and strategy: the Law Enforcement Hispanic drivers were three times as Defense attorneys can mitigate how Assisted Diversion program, or likely as whites to be searched (6 per - implicit bias impacts their triage of LEAD. The program gives police cent and 7 percent versus 2 percent) heavy caseloads through data collection officers the option of transferring and blacks were twice as likely as and oversight, and they can educate individuals arrested on drug and whites to be arrested. 44 Because of their peers to do the same by working prostitution charges to social servic - their high search rate for black driv - with bar associations and local criminal es rather than sending them deeper ers, police officers generally achieve a defense attorney associations. 50 In addi - into the criminal justice system. lower “contraband hit rate” among tion, they can work with researchers and Relatedly, to address disparities in searched black versus white drivers. 45 the media to raise awareness about enforcement, the New York City implicit bias among other courtroom Police Department stated it would v Prosecutors: Prosecutors are more professionals and advocate for policies no longer make arrests for posses - likely to charge people of color with to monitor outcomes, establish objective sion of small amounts of marijuana crimes that carry heavier sentences criteria and guidelines for decision- but would instead treat these cases

42 WWW.NACDL.ORG THE CHAMPION as noncriminal offenses subject to a defense programs. While there are locked detention, evening reporting fine rather than jail time. 54 The dis - many high-quality public defender centers, electronic monitoring, and trict attorneys of Manhattan and offices, in far too many cases indi - expanded use of evidence-based Brooklyn are also considering plans gent individuals are represented by treatment programs. to stop prosecuting the vast majori - public defenders with excessively ty of people arrested on low-level high caseloads, or by assigned coun - v Cash bail: In 2014, New Jersey marijuana charges. 55 sel with limited experience in crim - reformed its bail system to empha - inal defense. Public defenders in size risk assessment over monetary v Prosecution: The Vera Institute of Louisiana have sued the state to bail, a reform that has reduced rates Justice’s Prosecution and Racial address these problems and those in of pretrial detention. 63 Previously, Justice program worked with vari - Kansas City, Missouri, have protest - many defendants were detained ous jurisdictions to reduce racial ed their crushing caseloads. 58 because they could not post bail, and ethnic disparities caused by even if they did not pose a public prosecutorial decision-making. In v Pretrial Detention: African safety or flight risk. Judges now rely Milwaukee, prosecutors previously Americans were incarcerated in local on risk assessment tools to guide filed drug paraphernalia charges jails at 3.5 times the rate of non- bail determinations. In 2016, New against 73 percent of black sus - Hispanic whites in 2016. 59 Given that Mexico voters approved a constitu - pects but only 59 percent of white nearly two-thirds (65 percent) of tional amendment to reduce suspects. 56 The prosecutor’s office people in jail in 2016 were being reliance on cash bail. 64 was able to eliminate this disparity detained prior to trial, policies and

by reviewing data on outcomes, decisions influencing pretrial deten - 4. Criminal justice policies E

stressing diversion to treatment or tion play a key role in driving the dis - exacerbate socioeconomic L I

dismissal, and requiring attorneys parity in the jail population and inequalities by imposing M to consult with supervisors prior beyond. 60 Pretrial detention has been collateral consequences on I

to filing such charges. shown to increase the odds of con - those with criminal records. N

viction, and people who are detained African Americans — particularly A v Jurors: U.S. District Judge Mark W. awaiting trial are also more likely to black men — are most exposed to the T I

Bennett spends 25 minutes dis - accept less favorable plea deals, to be collateral consequences associated with N

cussing implicit bias with the sentenced to prison, and to receive a criminal record. In 2010, eight percent G

potential jurors in his court. His longer sentences. Seventy percent of of all adults in the United States had a

jurors watch video clips demon - pretrial releases require money felony conviction on their record. 65 R strating bias in hidden camera situ - bond, an especially high hurdle for Among African American men, the rate A ations, receive instructions on low-income defendants, who are dis - was one in three (33 percent). 66 People C

61 I

avoiding bias, and sign a pledge to proportionately people of color. with criminal records face a host of A

“not decide the case based on bias - Blacks and Latinos are more likely obstacles to re-entering society even L 57 es.” Although the impact of this than whites to be denied bail, to have after they have fully completed their approach has not been measured, a higher money bond set, and to be term of incarceration or community D I

mock jury studies have shown that detained because they cannot pay supervision. These obstacles include S 62 increasing the salience of race their bond. They are often assessed barriers to securing steady employment P reduces biased decision-making. to be higher safety and flight risks and housing, to accessing the social safe - A because they are more likely to expe - ty net and federal student aid, and to R I

3. Key segments of the rience socioeconomic disadvantage exercising the right to vote. For example: T

criminal justice system and to have criminal records. I are underfunded or impose E v Employment and Housing: Nearly S financial burdens that place The defense bar should advocate one-third of U.S. workers hold jobs blacks and Latinos — who for sufficient resources to prepare an that require an occupational are disproportionately low- effective defense. In addition, calling license, a requirement that some - income — at a disadvantage. for investments in alternatives to incar - times bars and often poses cumber - Underfunding key segments of the ceration and for limitations on the some obstacles for people with criminal justice system — such as financial outlays required from defen - criminal records. 67 In sectors that indigent defense and alternatives to dants would help to even the playing do not require licensing, employers incarceration — leads to worse out - field for low-income people of color in are 50 percent less likely to call back comes for low-income defendants who the criminal justice system. Past efforts white job applicants with incarcer - are disproportionately people of color. along these lines include the following: ation histories than comparable Moreover, many criminal justice poli - applicants without prison records. 68 cies and practices — such as cash bail v Alternatives to incarceration: In African American job applicants, — disadvantage people with limited Berks County, Pennsylvania, officials who are less likely to receive call - resources. By advocating for policies were able to reduce the number of backs than whites to begin with, that create an even playing field for the youth in secure detention — most of experience even more pronounced poor, defense attorneys can uproot whom were youth of color — by 67 discrimination related to a criminal these sources of racial disparity in the percent between 2007 and 2012 in record. As scholar Devah Pager’s justice system. For example: part by increasing reliance on alter - research has revealed, whites natives. These included nonsecure with criminal records receive more v Indigent defense: Most jurisdictions shelters for youth who cannot safely favorable treatment than blacks inadequately fund their indigent return home but did not require without criminal records. 69 People

WWW.NACDL.ORG JUNE 2018 43 with criminal convictions also face its peak level in 2009, states including 6. Ruth Peterson & Lauren Krivo, discrimination in the private rental New Jersey, New York, and Divergent Social World: Neighborhood Crime housing market, and those with Connecticut have reduced their prison and the Racial-Spatial Divide (2012); Robert felony drug convictions face restric - populations by over 25 percent while Sampson, Jeffrey Morenoff & Stephen tions in accessing government- often outpacing the nationwide crime Raudenbush, Social Anatomy of Racial and assisted housing. 70 drop. 75 Declines in levels of African Ethnic Disparities in Violence , 95 AM. J. P UB . American imprisonment have been the HEALTH 224–232 (2005). v Public Benefits: The Welfare Reform most substantial. 76 Between 2000 and 7. See Robert Sampson & Janet Act of 1996 imposed a lifetime 2016, the black prison population Lauritsen, Racial and Ethnic Disparities in denial of cash assistance and food declined by 20 percent nationwide Crime and Criminal Justice in the United stamps to people convicted in state while the white prison population States , 21 CRIME AND JUSTICE 318–330, or federal courts of felony drug declined by seven percent. 77 Reforms 311–374 (1997); Stewart D’Alessio & Lisa offenses, unless states opt out of the to harsh sentencing laws that have dis - Stolzenberg, Race and the Probability of ban. 71 Given the dynamics of social proportionately impacted African Arrest , 81 SOC . F ORCES 1381–1397 (2003); class and the accompanying dis - Americans and the greater willingness Richard Felson, Glenn Deane & David parate racial effects of the criminal of urban rather than rural jurisdic - Armstrong, Do Theories of Crime or Violence justice system, women and children tions to implement criminal justice Explain Race Differences in Delinquency?, of color are disproportionately reforms have helped to reduce African 37 SOC . S CI . R ESEARCH 624–641 (2008). impacted by this exclusionary law. 72 American incarceration. 78 But even 8. Ezekiel Edwards, Will Bunting & after this progress, African Americans Lynda Garcia, The War on Marijuana in Black Advocates have had successes in are incarcerated in state prisons at a and White , American Civil Liberties Union 79 S limiting the collateral consequences of rate that is 5.1 times that of whites. (June 2013), https://www.aclu.org/files/

E criminal convictions, as outlined The persistence of racial dispari - assets/1114413-mj-report-rfs-rel1.pdf. I

T below. Defense attorneys can advocate ties in incarceration underscores the 9. Lloyd Johnston et al., Monitoring the

I for reforms in their communities — need for continued reforms. Crime Future: National Survey Results on Drug Use, R including by reviewing the admissions upticks in some communities and 1975-2012 , The National Institute on Drug A and hiring policies of their alma escalating opioid overdose deaths Abuse & National Institutes of Health P

S maters — while also modelling nationwide have also led to calls to (2012), http://www.monitoringthefuture

I reforms in their workplaces by ensur - undo reforms and implement regres - .org/pubs/monographs/mtf-vol1_2012.pdf

D ing that their firm or agency’s hiring sive policies. As described in this arti - (Tbls. 4-5, 4-6, and 4-7); U.S. Department of

L practices do not discriminate against cle, jurisdictions around the country Health and Human Services, Results from

A people with criminal records. have been tackling racial disparities the 2013 Survey on Drug Use and Health: I in criminal justice, in addition to Summary of National Findings , U.S. C v Employment: To reduce barriers to reducing overall levels of incarcera - Department of Health and Human Services, A employment for those with crimi - tion. Defense attorneys are well (Figure 2.12) (2013), http://www.samhsa R

nal records, many jurisdictions have poised to help expand the scale and .gov/data/sites/default/files/NSDUHresults

G passed laws or issued administrative increase the speed of these efforts. PDFWHTML2013/Web/NSDUHresults2013.

N orders to “Ban the Box” — to pdf; Lloyd Johnston et al., Demographic I remove the question about convic - Notes Subgroup Trends Among Adolescents for T tion history from initial job applica - 1. Marie Gottschalk, Are We There Yet? Fifty-One Classes of Licit and Illicit Drugs A tions and to delay a background The Promise, Perils and Politics of Penal 1975-2012 , The University of Michigan N

I check until later in the hiring Reform, Prison Legal News, Jan. 1, 2016, Institute for Social Research, Figure 6 73

M process. These reforms usually available at https://www.prisonlegalnews (2013), http://www.monitoringthefuture I apply only to public sector employ - .org/news/2016/jan/1/are-we-there-yet .org/pubs/occpapers/mtf-occ79.pdf. L

E ers, but they are sometimes extend - -promise-perils-and-politics-penal-reform. 10 . Katherine Beckett, Kris Nyrop & Lori ed to the private sector as well. 2. Thomas Bonczar, Prevalence of Pfingst, Race, Drugs, and Policing: Imprisonment in the U.S. Population, Understanding Disparities in Drug Delivery v Public Benefits: By 2018, 24 states 1974-2001 , U.S. Bureau of Justice Statistics Arrests , 44 CRIMINOLOGY 105–37 (2006); K. Jack had fully opted out of the federal (Aug. 2003). Riley, Crack, Powder Cocaine, and Heroin: food stamp ban for people with 3. Jeremy Travis, Bruce Western & Steve Drug Purchase and Use Patterns in Six Major felony drug convictions and 21 oth - Redburn (eds.), The Growth of Incarceration U.S. Cities , National Institute of Justice ers had only done so in part, with in the United States: Exploring Causes and 15-16 (December 1997), available at five states continuing to fully Consequences, National Research Council, at https://www.ncjrs.gov/pdffiles/167265.pdf. enforce the ban. 74 A smaller number 154 (2014), https://www.nap.edu/catalog/ 11 . PAUL BUTLER , C HOKEHOLD : P OLICING of states have fully or partially lifted 18613/the-growth-of-incarceration-in-the- BLACK MEN 121 (2017). their ban on cash assistance. united-states-exploring-causes. 12 . Martin Kaste, Gun Debate Divides 4. Report of the National Advisory Nation’s Police Officers, Too, NPR, Oct. 9, 2015, Conclusion Commission on Civil Disorders: Summary of available at https://www.npr.org/2015/ Report (1967), http://www.eisenhower 10/09/446866939/gun-debate-divides Growing public awareness about foundation.org/docs/kerner.pdf. -nations-police-officers-too . mass incarceration has begun to 5. Fred Harris & Alan Curtis, The Unmet 13 . Tom Jackman, Police Chiefs Implore reduce high levels of imprisonment, Promise of Equality , N.Y. T IMES , Feb. 28, 2018, Congress Not to Pass Concealed-Carry especially among African Americans. available at https://www.nytimes.com/ Reciprocity Gun Law, WASH . P OST , Apr. 19, While the total U.S. prison population interactive/2018/02/28/opinion/ 2018, available at https://www.washington has declined by just six percent since the-unmet-promise-of-equality.html. post.com/news/true-crime/wp/2018/04/

44 WWW.NACDL.ORG THE CHAMPION 19/nations-police-chiefs-implore-congress Policies, The Sentencing Project (Dec. 2013), Rights, U.S. Department of Education, Dear -not-to-pass-concealed-carry-reciprocity http://sentencingproject.org/doc/publicati Colleague Letter: Nondiscriminatory -gun-law/?utm_term=.e831167a7010. ons/sen_Drug-Free%20Zone%20Laws.pdf. Administration of School Discipline (2014), 14 . Nazgol Ghandnoosh, Immigration 25 . ArchCity Defenders, Municipal http://www2.ed.gov/about/offices/list/ocr/ and Public Safety , The Sentencing Courts White Paper (2014), letters/colleague-201401-title-vi.pdf. Project, at 10 (Mar. 16, 2017), http://s3.documentcloud.org/documents/ 38 . David Smiley & Michael Vasquez, https://www.sentencingproject.org/ 1279541/archcity-defenders-report-on-st Broward, Miami-Dade Work to Close the publications/immigration-public-safety . -louis-county.pdf. ‘School-to-Prison Pipeline,’ MIAMI HERALD , Nov. 15 . Nazgol Ghandnoosh, Opioids: 26 . Donna Ladd, Only Black People 10, 2013, available at http://www.miami Treating an Illness, Ending a War, The Prosecuted Under Mississippi Gang Law Since herald.com/news/local/community/ Sentencing Project (Dec. 13, 2017), 2010, , Mar. 29, 2018, miami-dade/article1957319.html. https://www.sentencingproject.org/ available at http://www.jacksonfree 39 . Lawrence Bobo, Racial Attitudes publications/opioids-treating-illness press.com/news/2018/mar/29/only-black and Relations at the Close of the Twentieth -ending-war/; The Sentencing Project, Ending -people-prosecuted-under-mississippi Century, in AMERICA BECOMING : R ACIAL TRENDS Mass Incarceration: Social Interventions That -gan/?eType=EmailBlastContent&eId AND THEIR CONSEQUENCES 269, 264-301 (Neil Work (Oct. 2013), https://www.sentencing =5044b3c6-82ec-4787-8165-ec65f83234f4 . Smelser, William Wilson & Faith Mitchell project.org/wp-content/uploads/2015/12/ 27 . Comments of the Public Defender eds., 2001); Lawrence Bobo, Camille Charles, Ending-Mass-Incarceration-Social Service for the District of Columbia Maria Krysan & Alicia Simmons, The Real -Interventions-That-Work.pdf; Raj Chetty, Regarding Bill 22-0451 Presented by Katerina Record on Racial Attitudes, in SOCIAL TRENDS IN Nathaniel Hendren & Lawrence Katz , The Semyonova Before the Committee on the AMERICAN LIFE : F INDINGS FROM THE GENERAL Effects of Exposure to Better Neighborhoods on Judiciary and Public Safety Council of the SOCIAL SURVEY SINCE 1972 , Figure 11, 38–83

S Children: New Evidence from the Moving to District of Columbia (Oct. 26, 2017). (Peter Marsde ed., 2012).

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L 17 . Sarah Tory, Police Shootings of Be the ‘Progressive Change Candidate’ for DA, Community Members , 103 AM. J. P UB . H EALTH

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46 WWW.NACDL.ORG THE CHAMPION Rights, at 8 (2012), available at public-defenders-fight-back-against Can’t Get Food Stamps , The Marshall Project, http://www.aila.org/content/fileviewer -budget-cuts-growing_us_5a1440d3 Feb 4, 2016, https://www.themarshall .aspx?docid=39289&linkid=245580. e4b08b00ba67341f. project.org/2016/02/04/six-states-where 46 . Sonja Starr & Marit Rehavi, 59 . E. Ann Carson, Prisoners in 2016, U.S. -felons-can-t-get-food-stamps. Mandatory Sentencing and Racial Disparity: Bureau of Justice Statistics (Feb. 2018). 75 . Marc Mauer & Nazgol Ghandnoosh, Assessing the Role of Prosecutors and the 60 . Id. at 59. Fewer Prisoners, Less Crime: A Tale of Three Effects of Booker, 123 YALE L.J. 2-80 (2013). 61 . Cynthia Jones, ‘Give Us Free’: States , The Sentencing Project (Jul. 23, 47 . Charles Crawford, Ted Chiricos & Addressing Racial Disparities in Bail 2014), https://www.sentencingproject.org/ Gary Kleck , Race, Racial Threat, and Determinations , 16 N.Y.U. J. L EGIS . & P UB . P OL ’Y publications/fewer-prisoners-less-crime-a Sentencing of Habitual Offenders , 36 919–962 (2013). -tale-of-three-states/; Ghandnoosh, supra CRIMINOLOGY 481–512 (2006). 62 . Id. at 61. note 20. 48 . Michael T. Light, Michael 63 . S.P. Sullivan, The Good News: N.J. Bail 76 . On jail incarceration trends, see Massoglia & Ryan D. King, Citizenship and Overhaul Is Working. The Bad News: It’s Jacob Kang-Brown & Ram Subramanian, Punishment: The Salience of National Already Going Broke, NJ. COM , Feb. 13, 2018, Out of Sight: The Growth of Jails in Rural Membership in U.S. Criminal Courts , 79 (5) http://www.nj.com/politics/index.ssf/ America, Vera Institute of Justice (June AM. S OCIOLOGICAL REV . 825–847 (2014). 2018/02/report_finds_nj_bail_reform_is 2017), https://www.vera.org/publications/ 49 . Michael Schwirtz, Michael Winerip & _working_—_but_its.html. out-of-sight-growth-of-jails-rural-america. Robert Gebeloff, The Scourge of Racial Bias in 64 . Brett Tolman, Bail Reform Is 77 . For a similar pattern in jail New York State’s Prisons, N.Y. T IMES , Dec. 3, Critical to Fighting Crime Epidemic , SANTA incarceration rates, see Ram Subramanian, 2016 , available at https://www.nytimes FE NEW MEXICAN , Oct. 2, 2017, available at Kristine Riley & Chris Mai, Divided Justice:

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nyregion/in-shift-police-dept-to-stop Race and Redemption , 16 N.Y.U.J. L EGIS . & P UB . I E -low-level-marijuana-arrests-officials POL ’Y 963-997 (2013); Mireya Navarro, Lawsuit About the Author S -say.html?_r=0. Says Rental Complex in Queens Excludes Ex- 55 . Benjamin Mueller, Two District Offenders , N.Y. T IMES , Oct. 30, 2014, available at Nazgol Ghandnoosh is a Senior Research Attorneys May Stop Prosecuting Most https://www.nytimes.com/2014/10/31/ Analyst at The Sen - Marijuana Offenses . N.Y. T IMES , May 14, 2018, nyregion/lawsuit-says-rental-complex-in tencing Project, an available at https://www.nytimes.com/ -queens-excludes-ex-offenders.html. organization that 2018/05/14/nyregion/two-district 71 . Marc Mauer & Virginia McCalmont, promotes reforms -attorneys-may-stop-prosecuting-most- A Lifetime of Punishment: The Impact of the in sentencing poli - marijuana-offenses.html?eType= Felony Drug Ban on Welfare Benefits , cy, addresses unjust EmailBlastContent&eId=4512a623-53b9- The Sentencing Project (Sept. 2015), racial disparities 45fa-bebf-b6f2d3ed0273; see also Pfaff, http://sentencingproject.org/doc/ and practices, and supra note 28. publications/cc_A%20Lifetime%20of advocates for alter - 56 . Angela J. Davis, In Search of Racial %20Punishment.pdf. natives to incarceration. Justice: The Role of the Prosecutor , 16 N.Y.U. J. 72 . Id . at 71. LEGIS . & P UB . P OL ’Y 821–852 (2013). 73 . Beth Avery & Phil Hernandez, Ban Nazgol Ghandnoosh, Ph.D. 57 . Jerry Kang et al., Implicit Bias in the Box: U.S. Cities, Counties, and States Adopt The Sentencing Project the Courtroom , 59 UCLA L. R EV . 1124, Fair Hiring Policies , National Employment Washington, DC 1181–84 (2012). Law Project (Apr. 20, 2018), 202-628-0871 58 . Teresa Wiltz, Public Defenders Fight http://www.nelp.org/publication/ EMAIL nghandnoosh Back Against Budget Cuts, Growing ban-the-box-fair-chance-hiring-state @sentencingproject.org WEBSITE Caseloads, HUFF POST , Nov. 21, 2017, available -and-local-guide. www.sentencingproject.org at https://www.huffingtonpost.com/entry/ 74 . Eli Hager, Six States Where Felons

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