From the President: A Moment for Change
Tags: Criminal Justice Reform, Criminal Justice, Criminal Defense Lawyer

By Chris Adams, NACDL President

September-October issue of The Champion

On Memorial Day, George Floyd died under the knee of Minneapolis police officer Derek Chauvin. Floyd repeatedly gasped, “I can’t breathe.” Prosecutors allege that Chauvin kept his knee of Floyd’s neck for 7 minutes and 46 seconds until he was lifeless.

Like many of you, my initial reaction was that George Floyd’s death was senseless, sickening, and shocking. Throughout the week I stayed up late into the night watching the protests begin in Minneapolis. I watched as tear gas was shot into the crowds. I watched as the Third Precinct was abandoned and later burned. I watched.

I anticipated that the story and the outrage would fade from the national consciousness in a matter of days or weeks. I expected the story to wane — not because Mr. Floyd’s death wasn’t an important event — because that is what happens with news. Big stories from last week are replaced by the big stories of this week. The fading away has happened so many times before when African American men and women are killed by police — in Ferguson, Baltimore, Staten Island, and many other towns and cities.

I was wrong. George Floyd’s death has stirred awareness across the political spectrum of police misconduct and systemic racism within the criminal justice system. His death has sparked calls for change. And as the summer progressed, the awareness and calls for action increased.

By June 13, there had been protests in more than 2,000 cities and towns across the United States, including in my small hometown of Carrollton, Georgia, and in more than 60 countries. According to the Pew Research Center, more than 17 million Americans have attended protests despite the pandemic.

The public increasingly recognizes that policing and the criminal justice system are unfair and in need of reform. A Washington Post/Ispos poll conducted January 2–8, 2020, showed that 83 percent of people didn’t trust police to treat people of all races equally. Polling of African Americans in the immediate aftermath of George Floyd’s death found that 94 percent believe the criminal justice system treats white Americans better¹ and 87 percent believe police are more likely to use excessive force against Black people.² Sixty-four percent of African American men say that they have been stopped unfairly by police.³ Even the lone African American Republican Senator, Tim Scott (S.C.), has had 18 police encounters in his life that he attributes to his being Black.

We are at a moment in time when change in the criminal justice system is possible. Real change. Big change. Generational change. Not the kind of nibble-around-the-edges change that has been embraced so far in Louisville, Kentucky.

On March 13, 2020, Louisville police officers killed Breonna Taylor while they were executing a no-knock warrant. City officials responded by banning no-knock warrants. Yes, the change in Louisville officials is “real.” But it is not big. It is not generational. From where I sit, the elected leaders in Louisville have chosen to take a small, incremental step rather than meet the moment with bold action.

In the Washington Post, Radley Balko persuasively made the case that the criminal justice system is racist.⁴ His article relies on more than 150 recent studies that show how systemic racism contaminates the criminal justice system from beginning to end. The article examines the role of race in police profiling, school suspensions, driving enforcement, misdemeanor charges, bail determinations, drug laws, jury selection, prosecutorial discretion, sentencing, incarceration, and the death penalty. Throughout, there is compelling evidence that African Americans do not receive the same treatment as white Americans.

Our friend and colleague Jeffery Robinson is as knowledgeable on race and the criminal justice system as anyone I know.⁵ Jeff shows us that systemic racism is not a new problem. It was baked into the fabric of America — in our original sin of slavery and in the Constitution itself with the three-fifths clause — and has continued unabated generation after generation.

Judges know that “Equal Justice Under Law” is an empty promise to people of color. In early July, the National Judicial College polled 634 judges from across the country. The sole question was, “Do you believe systemic racism exists in the criminal justice system?” Sixty-five percent of judges responded that yes, systemic racism exists.⁶ Many of the more than 200 judges who left comments described implicit and unconscious bias as the primary reason for systemic racism.

I am encouraged by the 65 percent of judges who recognize that the criminal justice system is infected by racism. Simultaneously, I am troubled by the 35 percent of judges who do not recognize what we, the criminal defense bar, know to be true.

NACDL has known since our founding that systemic racism is a plague upon the criminal justice system. In 2018, NACDL took the step of modifying our mission statement to specifically reference systemic racism: “NACDL’s mission is to serve as a leader … in identifying and reforming flaws and inequities in the criminal justice system, and redressing systemic racism[.]” We can, and should, continue to pursue that mission.

In the wake of George Floyd’s death, something is happening in America to create an opportunity for major change in the criminal justice system. There is much work to do. We can begin redressing racism in the criminal justice system by identifying and revising practices and laws that have a disparate impact on people of color. We must reduce mass incarceration, eliminate minimum mandatories, dismantle the militarization of police, end cash bail, create police accountability databases so that rogue officers can be identified, etc.

Fortunately, this movement includes a growing number of prosecutors. Progressive prosecutors with ambitious reform agendas are winning elections across the country.⁷ Larry Krasner in Philadelphia is perhaps the most high-profile progressive prosecutor; his office has taken giant strides to end cash bail for low-level offenders, reduced supervision of some parolees, refused to prosecute marijuana possession cases, declined to seek the death penalty in any case (in part because he believes the death penalty violates the state constitution), and created a conviction integrity unit to review old cases. In August, voters in Pima County (Tucson), Arizona, and Fulton County (Atlanta), Georgia, elected new district attorneys who have vowed to not seek the death penalty.

Conservative prosecutors are also seizing the moment. The elected prosecutor in my home of Charleston, South Carolina, is Scarlett Wilson. She is a conservative Republican (and she would want me to emphasize this fact). We have known each other for more than 20 years and have found few opportunities to agree. Last month, Wilson announced that she is hiring a team of researchers to conduct an implicit bias study on her office’s practices. The Justice Innovation Lab from Georgetown University⁸ promises to do a deep, data-driven dive into every decision a prosecutor makes from initial charging decisions to plea offer practices and from recommendations in court to the speed at which charges are dismissed. The analysis is designed to identify unconscious and implicit bias that is impacting the work of her office. In announcing the commission of study, Wilson said, “We know that unconscious bias runs deep in every corner of this county — and we believe that this study will help identify and correct our own biases.”

Wilson is taking a bold and courageous step. It is a step that I had not thought to ask her to undertake. I applaud her decision.

With continued pressure from activists, protesters, and the criminal defense bar; with increasing awareness by the judiciary; and with bold initiatives from progressive and conservative prosecutors, let us meet this moment in time. Let us honor George Floyd in a meaningful way. Let us take action that is not only real, but also bold, to redress systemic racism that infects the criminal system.

Notes

1. Yahoo News/YouGov poll, May 29–20.

2. Monmouth, May 29-June 1.

3. Pew, June 4–10.

4. Radley Balko, Op-Ed., There’s Overwhelming Evidence That the Criminal Justice System Is Racist. Here’s the Proof., Wash. Post, June 10, 2020, https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system.

5. Jeff Robinson is also a fantastic teacher. You may stream his presentation at NACDL’s first Race Matters conference directly from our website: https://www.nacdl.org/Landing/RacialDisparity.

6. Anna-Leigh Firth, Most Judges Believe the Criminal Justice System Suffers from Racism, July 14, 2020, https://www.judges.org/news-and-info/most-judges-believe-the-criminal-justice-system-suffers-from-racism.

7. Daniel Nichanian, Progressives Score New Wins in Prosecutor Elections, Adding to the Movement’s Breadth, Aug. 5, 2020, https://theappeal.org/politicalreport/prosecutor-elections-pima-washtenaw-san-luis.

8. https://beeckcenter.georgetown.edu/project/data-justice-project.

About the Author

After spending 15 years as a public defender and nonprofit lawyer, Chris Adams (NACDL LIFE MEMBER) opened his private practice in 2007. He devotes half of his practice to defending men and women facing the death penalty in federal and state courts throughout the country. He also defends people and businesses facing allegations or investigations in federal and state courts.

© 2020, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.