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I wish this column were unnecessary. I wish that the promise of my youth had long ago been fulfilled. I wish that the dream of a post-racial society had come true. I wish that we had arrived at the place where all persons are treated with equal respect and fairness, where, as Dr. Martin Luther King so famously and eloquently expressed it more than half a century ago, all persons are judged by the content of their character, and not by the color of their skin. But that is simply not the case in the nation’s criminal justice system. And NACDL now has a president whose mission is to mobilize the defense bar to eliminate the racism that delegitimizes the American system of justice.
President Rick Jones rose to the leadership of this Association with a background that uniquely qualifies him to call out and confront racism in the criminal justice system. He is an African American man from Detroit who understands what it is to be a person of color in this society. It is no exaggeration to observe that, as a founding member and longtime Executive Director of the Neighborhood Defender Service of Harlem, he has personally represented thousands of individuals and overseen the representation of tens of thousands more. He has done so in New York, the nation’s largest city, often described as the capital of the world. Further, during his years of service to NACDL, Rick Jones has chaired projects that have had great impact, including the Task Forces on Problem-Solving Courts and the Restoration of Rights and Status After Conviction. By the time this magazine is in the hands of its readers, he will have convened NACDL’s first Presidential Summit and Seminar: Race Matters: The Impact of Race on Criminal Justice, scheduled for mid-September in Rick’s home town.
Rick’s experience as a citizen, defense lawyer, and bar leader has earned him the right to call things as he sees them. So when he stated in his inaugural message, “[t]he problem with our justice system is not that it’s broken, but that it’s racist to the core, and deliberately so,” everyone must take notice. While it is easy to recognize disparate impact, it is painful to hear that disparity characterized as intentional. It is one thing to speak of implicit bias, and there is plenty of that. Implicit bias is the subtle subconscious thinking that contributes to disparity, but is understood and rationalized as a product of societal conditioning rather than malicious intent. In contrast, an assertion of deliberate bias is far more difficult to accept. For white people of good will who have long opposed racism and made every good faith effort humanly possible to support the civil rights movement, there is a visceral and profound discomfort when a person of color and a brother in the defense bar decries disparate impact as intentional. As painful as it may be, Rick Jones is giving voice to a truth that is well known to the criminal defense bar. We see it when we look at the accused persons in any court in this country that has within its venue any population of color. We see it when we visit any jail or prison. We see it when bail is set, charges are filed, and sentences are imposed. We see it when we look at just about any statistic that measures the racial and ethnic impact of the criminal justice system.
When one discovers, as I did on the first day that I entered a courtroom as a third-year law student in a criminal defense clinic, that every single accused person in the courtroom is a person of color, we know in our heart of hearts that this is not an accident. In Manhattan, a portion of New York City that at that time was substantially white, it simply could not have been chance or the residual effect of implicit bias that there were no white faces in the courtroom or in the crowded jail cells behind the courtroom to which those who could not afford cash bail were taken in shackles. When in case after case after case, we learn the police justification for a stop and search was a hairline crack in a windshield or a nonworking tail light, and these stops are only made in certain neighborhoods — Harlem rather than Great Neck, Crown Heights and not Scarsdale — that is a reflection of an intentional decision to enforce the laws differently against people of color. When the sole reason an officer gives for stopping and searching a young African American man approaching a boarding gate in a train station is that he wore baggy pants and was running — during rush hour in Penn Station — and a federal judge threatens to hold a defense lawyer in contempt, as happened to me, for questioning the officer’s motivations, that is evidence of a system that tolerates intentional racism.
In his first President’s Column, Rick Jones provides a litany of statistics that substantiate the institutional racism that he has pledged to confront during his term. (See page 5.) The Race Matters Summit, and the training materials it generates, will further the process of arming the criminal defense bar with the tools necessary to demonstrate disparate impact and confront racism at every stage in the criminal justice process. That federal judge who threatened contempt for probing racial motivation wielded his power against an attorney who instinctively knew that the client’s race was the true basis for the stop and search, but lacked the hard evidence to support that line of questioning. Things might have gone a lot differently had I been armed with data, now available, which confirms that the stop and frisk policies were indeed targeting certain racial and ethnic groups. Similar data that proves the exclusion of certain groups from jury pools or the disparate imposition of release provisions is the kind of information that can truly empower defense lawyers to force courts to confront institutional racism. Indeed, when a client’s sentence may be enhanced because a criminal history reflects overpolicing of certain communities, supporting data will justify an evidence-based presentation that racial motivation has improperly disadvantaged the client.
Across the criminal justice landscape, the evidence of bias is plain. This bias unjustly disadvantages whole classes of clients. Every defense lawyer has an obligation to recognize it and confront it. A steadfast determination to rid the criminal justice system of this continuing stain — case by case, issue by issue, and motion by motion — is the only path to a society in which at long last discriminatory disparity is ended. That is what lies at the core of Rick Jones’ message that it is time to stop accepting that the criminal justice system is merely broken, and to attack the root cause of pervasive and enduring disparity.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
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