"Racism is so universal in this country, so widespread, and deep-seated, that it is invisible because it is so normal."
- Shirley Chisholm
History of Race in America
In order to get an understanding of the role race plays in the U.S. criminal justice system, you must first understand the history of race in America. See below to view a presenation from Jeffery Robinson, ACLU Deputy Legal Director and Director of the Trone Center for Justice and Equality, from our Race Matters I Seminar on the history of race in America.
According to the Kirwan Institute for the Study of Race and Ethnicity, implicit bias "refers to the attitutes or stereotypes that affect our understanding, actions, and decisions in a unconscious manner. These biases, which encompass both favorable and unfavorable assessments, are activated involunarily and without an individual's awareness or intentional control. Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness. Rather, implicit biases are not accessible through introspection. The implicit associations we harbor in our subconscious caue us to have feelings and attitues about other people based on characteristics such as race, ethnicity, age, and appearance. These associations develop over the course of a lifetime beginning at a very early age through exposure to direct and indirect messages, in addition to early life experiences, the media and news programming." Everyone possess implicit biases. Why is this important? If everyone possess implicit biases, then these biases exist within police, prosecutors, defense attorneys, judges, correction officers, probation officers, etc.
Race and the Criminal Justice System
After the Civil War Southern states embraced criminal justice as a means to reimpose racial control over African Americans. This included the passing of “Black Codes” and later Jim Crow laws. The 13th Amendment to the Constitution abolished slavery and involuntary servitude, except as punishment for a crime. It is this loophole in the 13th Amendment that Southern states exploited in passing “Black Codes” and in setting up new economic and labor systems that relied on the arrest and imprisonment of African Americans. For example, these codes implemented vagrancy laws that criminalized unemployment, resulting in African Americans returning to slave-like environments through forced labor and convict leasing. Violation of the black codes also resulted in offenders having to pay fines; those who were unable to were forced by the state into labor until they worked off their balances.
Why is this important? Because the same criminal justice system that was developed after the Civil War to reimpose control over African Americans exist today. Imprisonment has been and continues to be used as a weapon to control communities of color in ways that aren’t used in other communities. We see this in the crack-cocaine sentencing disparity, the over policing of black communities, the excessive criminal fines and fees imposed on defendants, and a bail system that relies on payment to secure one’s freedom.
- Black men comprise about 13% of the general population, but about 35% of those incarcerated.
- Black women comprise 44% of incarcerated women, but only make up about 13% of the female U.S. population.
As stated in the Vera Institute’s 2018 report, An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System:
“racial disparities in the criminal justice system are no accident, but rather are rooted in a history of oppression and discriminatory decision making that have deliberately targeted black people and helped create an inaccurate picture of crime that deceptively links them with criminality.”
Browse each section below to learn how racial disparities impact every aspect of our criminal justice system:
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State Reforms Addressing Racial Disparities
In recent years several states have adopted racial impact statements, tools used to determine whether pending criminal justice legislation will increase racial and ethnic inequities. States that require racial impact statements include Iowa, Connecticut, Oregon, New Jersey, and Florida. In 2008, the Minnesota Sentencing Guidelines Commission voluntarily elected to prepare racial impact statements on proposed crime bills pending before the legislature. In 2019, seven states introduced legislation to require racial impact statements – Illinois, Kentucky, Minnesota, Mississippi, New York, Oklahoma, and Vermont.
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Federal Legislation Addressing Racial Disparities
In July 2019, Rep. Jerrold Nadler (D-NY) and Sen. Kamala Harris (D-CA) introduced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884/S. 2227). In addition to removing cannabis from the Controlled Substance Act and creating a process for expungement and resentencing of prior convictions, it seeks to address the harm caused by the War on Drugs on communities of color. The legislation prohibits immigration penalties based on marijuana. It would also create a Cannabis Opportunity Trust Fund that will establish (1) the Community Reinvestment Grant Program to fund community organizations providing services in communities most harmed by the War on Drugs; (2) the Cannabis Opportunity Program to fund Small Business Administration loans to support socially and economically disadvantaged individuals who own marijuana businesses; and (3) the Equitable Licensing Grant Program to provide jurisdictions with funds to develop and implement equitable marijuana licensing programs targeting individuals most adversely impacted by war on drugs.
There’s also a host of federal legislation pending that would address the collateral consequences of a conviction, which would aid in addressing the harm caused by the disproportionate impact of mass incarceration on communities of color.
Visit NACDL’s Legislative Action Center for more information on how you can engage your elected officials and to stay abreast on federal legislation addressing racial disparities in the criminal justice system.
Tackling Racial Disparities in the Criminal Justice System
NACDL has been and remains committed to examining race as an issue within the criminal justice system, convening projects and the Race Matters I and II conferences in 2017 and 2019, to address tackling the issue of racial bias in the court system.
We continued these efforts August 23-25, 2018 at the Presidential Summit concurrent with our 17th Annual State Criminal Justice Network Conference. The event, entitled Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity, was our opportunity to shed light on how the pervasive collateral consequences and legal barriers that arise from contact with the criminal justice system, in particular as they relate to race.
A 2014 webinar series - Under Seige - explored racism, implicit bias, disparate sentencing policies, and over-policing of minority and poor communities.
NACDL's Presidential Summit & Seminar "Race Matters: The Impact of Race on Criminal Justice"
September 14-15, 2017 Detroit, Michigan
Race Matters in our criminal justice system. It affects what happens from initial contact with police on the street, to the end of the case and everything in between. As part of being effective advocates for our clients, criminal defense lawyers face the challenge of confronting the difficult issues presented by race in America. This inaugural Presidential Summit was designed to help practitioners identify and confront issues of racial bias in our courts, the law enforcement community, by prosecutors, and yes, even the defense team. Attendees heard from trial lawyers, academics, and formerly incarcerated individuals who offered their personal perspectives, strategies, and ideas on why Race Matters. This program was created to intentionally challenge you to push the envelope on your understanding of and willingness to attack racial bias in the criminal justice system.
Videos of presentations at the summit, as well as PDFs of any written materials associated with each presentation are available.
On Thursday, October 16, 2014, NACDL hosted a webinar entitled Under Siege: The Defense Bar Examines Police Militarization, Ethnic & Racial Dynamics of Sentencing, and Their Impact on Criminal Justice Outcomes. The webinar was in response to the uprisings in Ferguson, Missouri subsequent to the police killing of an unarmed black teenager; and the ensuing swift and extreme police response.
The webinar also explored the plethora of polarizing issues including racism, implicit bias, disparate sentencing policies, as well as, the over-policing of minority and poor communities.
Panel I-The Issues, addressed militarization, ethnic & racial dynamics of sentencing and their impact on criminal justice outcomes. Panel II-Community Perspective and Solutions examined the historical and systemic issues associated with crime and the response of police to those communities most affected by crime. The panel also addressed solutions policy makers and communities can make to solve these issues on the local, state and federal level.
Racial Disparity Project
Since 2012, NACDL has embarked upon an important and timely project addressing racial and ethnic disparities within the criminal justice system. NACDL, along with the Brennan Center for Justice, the New York County Lawyers' Association, the Center for NuLeadership on Urban Solutions and the Association of Prosecuting Attorneys, initiated the project with a two and a half day convening entitled Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System, culminating with the release of academic articles recently published in the New York University Journal of Legislation and Public Policy.
Elements of the project have included the October 2012 convening; a report detailing recommendations generated from the convening; a series of articles on race published in The Champion magazine; a three-part podcast featuring organizers of the conference discussing the goals and objectives of the convening and subsequent report; the second convening entitled Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System: Advancing the Reform Dialogue Through Action with links to the webcast; and the New York Journal of Legislation and Public Policy academic articles are the final elements of this major undertaking. The Journal series features articles from leading academics on the issue of race and ethnic disparity in the criminal justice system. In addition many of the academics participated on panels related to their articles.
- "Subway Arrests Investigated Over Claims People of Color Are Targeted,"
- "Legislation filed in Oklahoma requiring racial impact statement in criminal justice reform bills,"
- "On Covering Murder and Race, the Media Must Do Better,"
Racial Disparity News Releases
News Release ~ 12/19/2013
President Obama Surprises with Rare Exercise of Clemency Power -- Washington, DC (December 19, 2013) – Today, the White House announced that President Barack Obama granted clemency to 21 individuals – eight commutations and thirteen pardons. For some time, President Obama has come under blistering criticism for his neglect of executive clemency power.
News Release ~ 07/17/2013
Groundbreaking Conference Report Offers Concrete Steps to Eliminate Racial and Ethnic Disparities in America’s Criminal Justice System -- Washington, DC (July 17, 2013) – Issued today, a groundbreaking report on a matter of immense public importance -- Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System– is a critically important and inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them.
News Release ~ 11/01/2011
Minorities Still Burdened with Mandatory Minimum Sentences - WASHINGTON, DC (Nov. 1, 2011) – The National Association of Criminal Defense Lawyers (NACDL) has opposed mandatory minimum sentences for two and a half decades. The U.S. Sentencing Commission’s comprehensive report on mandatory minimum sentences, released yesterday, shows that statutory mandatory minimum penalties “apply too broadly, are set too high, or both, to warrant the prescribed minimum penalty for the full range of offenders who could be prosecuted under the particular criminal statute.”
Racial Disparity Media Items
Policing Body Cameras: Shaping Policies and Defending Cases in Body Camera Jurisdictions [webinar]
NACDL released its report Policing Body Cameras: Policies and Practices to Safeguard the Rights of the Accused in March 2017. The report outlined NACDL’s position on the introduction and use of body cameras by law enforcement. This webinar walks through the recommendations and talks about how to negotiate stronger body camera policies in your jurisdiction, the technical aspects of body cameras, and strategies and tactics for defending clients in body camera jurisdictions.
Learn more and read the report at: https://www.nacdl.org/policingbodycameras/
Racial Disparity Champion Articles
Inside NACDL: Rooting Out Bias: How a Bad Stop Can Make Good Law
A dubious traffic stop of a young man in Vermont provided a unique opportunity for NACDL to further its mission to redress systemic racism in the criminal justice system. In February 2018, NACDL submitted an amicus brief in the Vermont Supreme Court urging the court to find an implied right of action under Article 11 of the Vermont Constitution to permit an action against the State for damages and declaratory relief to challenge an unlawful stop based on racial bias.
Making Sense of Pretrial Risk Assessments
Pretrial risk assessment tools have emerged as the favored reform in the movement to lower pretrial jailing and limit the abuses of money bail. Critics have voiced concern, however, over the threat that risk assessments perpetuate racial bias inherent in the criminal justice system. When a risk assessment tool recommends that a client be detained or released with conditions — particularly a client of color — lawyers must be prepared to point out the tool’s limitations and biases.
How Defense Attorneys Can Eliminate Racial Disparities in Criminal Justice
Nazgol Ghandnoosh presents a framework for understanding the sources of racial disparity in the criminal justice system and suggests actions that defense attorneys can take to address the problem. In addition, she identifies the mechanisms through which criminal justice policies and practices have disadvantaged people of color, and highlights efforts to reverse these trends.