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Editor’s Note: This month’s “Inside NACDL” column is a condensed version of a segment of the report Norman L. Reimer submitted to the NACDL Board of Directors for the organization’s 2016 Annual Meeting in Palm Beach, Fla.
This summer brought a series of unnerving developments both in the United States and abroad. Not since the events of 9/11 has the country’s sense of well-being been as undermined as it has been in recent months. Those of us who have devoted our careers to criminal defense have long known and recognized the pervasive racial and ethnic disparity that afflicts our criminal justice system. The consequences of aggressive policing, and acts of disrespect toward people of color are a staple of every criminal defense lawyer’s practice, and have been for decades. Similarly, precipitate, unnecessary, and disparate use of force against people of color has long occurred with mind-numbing regularity and, all too often with impunity. Yet nothing has produced the necessary fundamental change. But the spate of apparently unwarranted civilian deaths and the vividly shocking and heartbreaking video of at least some segments of those events have brought much-needed public attention to this long festering travesty of justice.
Sadly and tragically, however, the focus on addressing the underlying causes of the attacks on civilians was abruptly and at least temporarily derailed by wholly irrational and unjustifiable deadly attacks on police officers. All of this was happening simultaneously with increasingly frequent attacks on civilians by individuals who identify with an irrational notion that the random murder of innocents can somehow achieve a worthy goal. Terrorist-style random attacks in various locations in the United States and cities around the world have created a toxic environment in which fear abounds. To the extent that aberrant and isolated acts of violence against police or irrational random attacks on civilians divert attention from the underlying need for policing reform, they immeasurably compound the nation’s tragic failure to deal with disparate policing practices and their negative impact on communities of color.
Collectively, all of these developments breed a sense of insecurity and fear. And when fear is unleashed freedom is at risk. Experience has shown that fear is the demagogue’s best friend.
As I have watched the events of the past several months unfold against the backdrop of England’s vote to leave the European Union, and our own presidential campaign, it is not 2001 that comes to mind. To be sure, we must be mindful of the government overreach that was spawned by the 9/11 attacks. That same risk exists today. And since many of the attacks appear to have been perpetrated not under the operational direction of any central enemy, but rather are hatched in the deepest recesses of disturbed minds, the risk of even more expansive governmental overreach is heightened. But, when we hear political leaders conflate random acts of violence, which sadly have a long history of prevalence in American society, with international terrorism to issue blanket promises to “make us safe,” and trot out that old “law and order” slogan, the year that comes to my mind is 1968. That was the year when American society endured the crescendo of protest against the Vietnam War, multiple political assassinations, and a rising tide of civil rights activism symbolized by the iconic image of American athletes of color defiantly raising clenched fists from medal platforms.
It is now well established that the law and order mantra that began in 1968 is the antecedent to the mass incarceration that has afflicted millions in our society, ripping apart families and destroying whole communities. For decades, politicians of all stripes engaged in a massive contest to outdo each other in showing how “tough” they could be by embracing any measure that superficially appeared to be anti-crime, no matter how ill-conceived or irrational. Concomitantly, there was a tendency by candidates to exploit racial and ethnic differences in an effort to stoke fears that led to irrational responses. The entirely predictable outcome was the obscenely harsh sentencing policies that resulted in the United States leading the world in prisoners, a wholesale erosion of fundamental constitutional protections throughout the criminal justice system, and a cascade of collateral consequences that has created a permanent underclass that numbers in the tens of millions. Society has borne the brunt of this, disproportionately, although not exclusively, in communities of color, and the criminal defense bar has borne witness to this calamity for decades. This is a season in which similar risks abound. We must not forget that when political leaders start down the law and order road, history has shown that it fast becomes a bipartisan political joy ride.
So as the United States prepares for the final weeks of the quadrennial presidential election, these are not just perilous times for the nation.1 They are especially perilous times for NACDL’s reform agenda. But there is a fundamental difference between 2016 and 1968 — at least when it comes to criminal justice. Over the past several years, as NACDL has worked to forge new alliances across the ideological spectrum, a fundamental shift has taken place in the thinking on crime and punishment, and criminal justice more generally. Indeed, in an era of unprecedented partisan divide, criminal justice reform has been the one area in which there has been emerging consensus. Many hoped for a major breakthrough in this Congress as a result of numerous bipartisan initiatives, many of which the staff and I have discussed over the past two years in quarterly reports prepared for the NACDL Board of Directors. That prospect has become less likely as the political posturing of the campaign season makes compromise less achievable. Given the depth and breadth of the desire for criminal justice reform, however, there may well be a natural firewall that will prevent a new outbreak of reckless and mindless “law and order” policies. NACDL can play a pivotal role in making sure that outbreak does not happen.
NACDL is uniquely well-positioned to ensure that the nation does not repeat the mistakes of the past. We must continue to work closely with all those from so many backgrounds and perspectives who have advocated for criminal justice reform, and we must redouble those efforts to ensure that when the hysteria of the moment has subsided, we can return to the hard but important work of promoting reform. Once again, as this Association has done throughout its history, from Wounded Knee to the 9/11 military commission proceedings at Guantanamo to Clemency Project 2014, Liberty’s Last Champion must be ready to rise to meet the most daunting challenges. NACDL must resist any precipitous proposals that threaten fundamental rights. And NACDL must serve as a responsible, effective and constant advocate for criminal justice reform, so that after the maelstrom that is an American presidential year abates, the Association will be poised to lead real reform efforts.
- NACDL does not and will never endorse or oppose any political candidate. It is not the Association’s place to do so. It is inconsistent with its mission. And it is certainly not in NACDL’s interest to enter the partisan fray. NACDL’s one and only issue is promoting criminal justice reform by advancing policies that will generate a more rational and humane criminal justice system and preserve the core values enshrined in the Bill of Rights. We can and must work with leaders in all branches and at all levels of government who support our reform agenda. We must seek out non-governmental entities of all kinds that are similarly inclined to seek criminal justice reform.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
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