May 31, 2020
It is without question that a core feature of the American way of criminal justice has long been and remains its function as an instrument of racial and ethnic oppression. The vast and indefensible racial and ethnic disparities in the criminal justice system -- from disparate policing practices like stop and frisk, money bail, and the pretrial process to implicit bias in charge and case disposition, sentencing, and the collateral consequences of conviction – are well-documented and are on display each and every day for anyone who cares to look.
Last week began with the shocking video of George Floyd’s death in Minneapolis and ended with the preposterous statement by the administration’s National Security Adviser Robert O’Brien that he does not think that there is a problem of systemic racism in America’s law enforcement agencies. Instead, he disingenuously claimed that there are just “a few bad apples.” This continued denial by so many in positions of power is precisely why so many feel so much outrage and why the path to healing remains elusive.
Rooting out the systemic racism that is at the heart of so much of the American criminal justice system, and indeed American society at large, requires tangible action. And it requires that action now.
First and foremost, NACDL challenges the administration and law enforcement agencies at every level of government in the United States to immediately cease and desist from the perennial resistance of so many in their ranks to greater transparency and accountability as relates to police misconduct. If the argument is that it’s just “a few bad apples,” then let the sun shine in so that the public – those the government is meant to serve in this democracy in the first place – can know the truth for themselves. But in most states that is not possible because misconduct complaints against police officers are handled internally and are treated as confidential employment records. Recent history shows, however that many of these so-called bad apples have a long record of complaints – often involving excessive force and racial insensitivity. Accordingly, NACDL supports legislative action to repeal these secrecy laws wherever they exist.
Second, NACDL is committed to developing police accountability databases for the defense bar. These databases are necessary for all stakeholders in the case, including not just defense lawyers, but prosecutors, the judiciary, and the people. Transparency about police misconduct is vital to promote improved decision-making in every case. Awareness of prior misconduct can inform every decision point in the case from the initial charging decision, to conditions of release, judicial determinations about the lawfulness of a stop, a search, an identification procedure, or an alleged confession. This information can also affect the ultimate question of guilt or innocence and the appropriate sentence.
Finally, NACDL calls for federal legislation to promote training and set standards for the use of force when police officers effectuate arrests or prevent escapes. While law enforcement is necessarily empowered to use force, including deadly force, when necessary to apprehend suspects and protect public safety, there must be mechanisms to ensure that the force used respects constitutional rights, proportionality, and fundamental respect for human life. And if there is to be any justice, these standards must be calibrated to differentiate both between the nature of the offense for which a person is arrested and the measure of force appropriate before an individual is effectively restrained and after.
NACDL’s commitment to due process for each and every person suspected or accused of a crime shall never waver, whether it is an individual suspected of passing a counterfeit $20 bill or one is who is charged with murdering a detainee in his custody. The very legitimacy of a criminal justice system demands this, in each and every case.
Similarly, NACDL’s mission and vision is to promote a society where all individuals receive fair, rational, and humane treatment within the criminal justice system and to identify and reform flaws and inequities in the criminal justice system, and specifically address systemic racism. A denial that systemic flaws and racism afflict the nation’s criminal justice system is itself an unwarranted provocation. And a commitment to implement tangible and meaningful reform is the only road to reconciliation and national healing.
Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.
