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Race Judicata - January Issue

As we begin a new year and a new administration, many are reflecting on the ongoing movement to end mass incarceration. Marc Mauer, executive director of The Sentencing Projectassessed President Obama's contributions, which included the Fair Sentencing Act of 2010, the use of prosecutorial discretion and executive clemency for people charged with federal drug offenses, and easing of barriers to reentry. 

The NC Public Defender Commission on Racial Equity (NC PDCORE) is a committee of the North Carolina Public Defender Association. The mission of NC PDCORE is to reduce and ultimately eliminate racial and ethnic disparities in the criminal justice system through education, collaboration, and litigation. This post is reprinted with permission from the December 2016 edition of Race Judicata, NC PDCORE's newsletter. This issue was submitted by James Williams, Founder of PDCORE, and written by Elizabeth Gerber, Assistant Public Defender in the 26th District Public Defender Office in Charlotte, NC. 

First, the news:

Alice Speri of The Intercept interviewed Bryan Stevenson of the Equal Justice Initiative, who says, “I don't think we're free in America — I think we're all burdened by this history of racial injustice, which has created a narrative of racial difference, which has infected us, corrupted us, and allowed us to see the world through this lens.”

The Marshall Project covered a series of “field trips” to prisons in 17 states organized by the Vera Institute and touched on prison reforms in North Carolina, including a drop in the number of people in solitary confinement from 5,500 to 2,500 in the last year. 

The Sarasota Herald-Tribune investigated Florida's sentencing schemes and found rampant racial disparities in sentencing patterns for White and Black defendants. For example, “[n]early half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.” 

Two stories in the New York Times cover the costs and inequalities of pretrial diversion programs, one focusing on an Alabama prosecutor and one reviewing the issue nationally. The latter stated that the available research showed “that whites are far more likely to get diversion than blacks.”

The Washington Post's Fatal Force project tallied 963 people fatally shot by police in 2016; 24% of them were Black although Blacks make up only 13% of the United States population.

A Pew Research Center survey of 8,000 police officers found large differences in attitudes towards race and policing between White and Black officers. The survey also shows attitudes of officers towards their profession in the wake of protests against police brutality.

President Obama discussed race in his farewell address: “Race remains a potent and often divisive force in our society. . . . If every economic issue is framed as a struggle between a hardworking white middle class and an undeserving minority, then workers of all shades are going to be left fighting for scraps while the wealthy withdraw further into their private enclaves.”

As we begin a new year and a new administration, many are reflecting on the ongoing movement to end mass incarceration. Marc Mauer, executive director of The Sentencing Projectassessed President Obama's contributions, which included the Fair Sentencing Act of 2010, the use of prosecutorial discretion and executive clemency for people charged with federal drug offenses, and easing of barriers to reentry. President Obama notably published a commentary in the Harvard Law Review with his own summary of his efforts to eliminate mass incarceration and of what remains to be accomplished; in it, he noted that “many of the most tragic failings of the justice system are disproportionately felt by communities of color.”

Nevertheless, mass incarceration “remains a durable monstrosity,” argues Daniel Denvir at Jacobin. The improvements have been modest and “can be ascribed to idiosyncratic factors in a small number of states and Obama-era reforms.” The Brennan Center for Justice released a report concluding that an “estimated 39% [of prisoners] (approximately 576,000 people) are incarcerated with little public safety rationale.” As for racial disparities in incarceration, we currently incarcerate Blacks at a rate 5.5 times higher than that of Whites, and “it would take 100 years for the disparity to disappear at the current trend.” The report's authors further lay out a detailed sentencing approach designed “to create more uniform sentences and reduce disparities, while preserving judicial discretion when needed.” The Brennan Center's report contains a wealth of information about how we got here and about the social science establishing the connections (or lack of connections) between incarceration and public safety. Its specific, evidence-based recommendations for reform should be taken seriously by advocates for change, and the charge-specific recommendations in Table 1 may bolster your arguments for reduced sentences for your current clients.

As part of a broader agenda for racial equity, reducing our reliance on incarceration is not in tension with a respect for victims' rights. In “Black Wounds Matter,” Sarah Stillman explores an emerging movement based on the idea “that we must adjust our shared understanding of crime demographics to account for the fact that those most routinely portrayed as perpetrators are often at equal or greater risk of being victims.” For example, analysis by the New York Times of 358 shootings with four or more casualties showed that “nearly three-fourths of victims and suspected assailants whose race could be identified were black.” Likewise, a U.S. Department of Justice study of detained juveniles found that “92.5 percent of youth had experienced at least one trauma, 84 percent had experienced more than one trauma, and 56.8 percent were exposed to trauma six or more times;” “[m]ore than 1 in 10 had PTSD in the year prior to the interview.”

Incarceration “exacerbates trauma and is counterproductive to long-term community safety goals,” argues Professor Samantha Buckingham in her paper “Trauma Informed Juvenile Justice.” Indeed, this fact is recognized by people identified as crime survivors, who face the same cycles of violence, poverty, and inadequate social services as do those we incarcerate. A 2013 survey in California showed that “only twenty-three per cent of victims believed that more jails and prisons would help address crime. Twice as many thought that rehabilitation programs and probation should be central to California's crime response.” (“Black Wounds Matter”)

A trauma-based approach to sentencing reform as advocated by Professor Buckingham dovetails nicely with the efficacy-based efforts exemplified by the Brennan Center. In your current practice, each of these paradigms can inform and enhance your advocacy.

NAPD News

On December 28, 2016, NAPD published its Open Letter to Orleans Parish District Attorney Leon Cannizzaro for his prosecution of Orleans Public Defender investigator Taryn Blume. A bedrock principle of our criminal justice system is that every citizen accused by the government of a crime starts with the benefit of the doubt – with a presumption that they are in fact innocent.  That right becomes meaningless if we do not uphold the equally important right of every citizen-accused defense team who fights for her cause; who digs for evidence of her innocence; who exposes the government when it hides that evidence.  The legitimacy of our criminal justice system depends upon defense lawyers and defense investigators doing their jobs, and doing them well, without fear of reprisal from a prosecutor acting more like a bully than the champion of truth and justice he is supposed to be.

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Last Chance to Register! The NAPD Executive Leadership Institute (ELI-2017) is almost full will will be held from 3:00 pm on April 2 through 11:45 am on April 5, 2017 at the Department of Public Advocacy training facility in Frankfort, KY. You can see more information and registration details HERE