COD Conference 2008

Thursday, July 31, 2008 - 12:45pm

In the summer of 2008, the Community Oriented Defender Network ("COD") and the American Council of Chief Defenders ("ACCD") convened Public Defense: Leading the Way to Racial Justice. Over 50 individuals from over 20 public defender offices came to New York City to attend the two-day training conference, which was book-ended by a one day COD planning meeting, and a one day ACCD business meeting.

At the conference, attendees discussed the myriad ways in which racial and ethnic bias pervade the criminal justice system, and discussed creative ways in which defenders can confront these issues with an eye toward harnessing the power of government to effect change. In addition to eight plenary sessions—summarized below—attendees broke into small groups to discuss racial injustice in our own jurisdictions and together explored strategies for tackling the problems we identified. The conference ended with an inspiring visit to the Neighborhood Defender Service of Harlem, a pioneer in community-based, client-centered public defense practice, where we heard from defenders, social workers, investigators, and community outreach leaders on the innovative ways in which the Neighborhood Defender Service serves their clients and community.

We returned to our offices renewed and rededicated to the ideals of community oriented defense, including the pursuit of racial justice public policy reform in our jurisdictions.

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Plenary Sessions

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1. Talking Honestly in Our Offices About Race in the Criminal Justice System
2. Understanding Race in the Criminal Justice System
3. Racial Justice Challenges
4. Building External Support
5. The "Internal Support" Defenders Need to Achieve Racial Justice Policy Reforms
6. Introduction and Framing of Research Projects on Racial Disparity in State Criminal Justice Systems
7. Neighborhood Defenders Northwest (Baltimore) and Brennan Center for Justice Research Racial Disparities in Police and Prosecution Practices
8. Legal Aid Society of New York and NAACP Legal Defense & Education Fund Research Racial Disparities in Police and Prosecution Practices

Talking Honestly in Our Offices About Race in the Criminal Justice System

Richard Goemann, Defender Legal Services Director National Legal Aid & Defender Association
Clara Hernandez, Public Defender, Paso County
Leonard Noisette, Criminal Justice Director, Open Society Institute
Yvonne Smith Segars, Public Defender, New Jersey

Yvonne opened the discussion by recounting her own experience with the changing racial climate in New Jersey, where the term “racial profiling” was coined, and reminded the group that change has to happen through collective and collaborative efforts.

Lenny acknowledged the frustration that many public defenders share concerning racial injustice and the sense that little is being done, even within the profession, to address it. So enormous is the problem in some places (for example, in Manhattan, where virtually everyone in the system is of color), that it becomes invisible, making it difficult to motivate people to fight racism. However, Lenny noted that reducing racial prejudice can be easier than one may think; when public defenders really work to understand their clients’ backgrounds, communities, and lives, they are dealing with racial injustice.

Lenny urged public defenders to recognize the role they could play in combating racial discrimination, given that they have the unique ability to highlight, track, and legally address the indiscretions that law enforcement personnel routinely commit in the name of community safety.

Richard emphasized the importance of bringing the issue up as a topic in the workplace and described the discomfort that is common in discussions of race. He invited suggestions for how to discuss race in the office, and in dialogue together, the group addressed the issue.

Clara agreed with Richard about the difficulty of discussing race directly in our society, noting that people understandably fear offending other people or being misinterpreted. She commented that people are hesitant to upset the equilibrium of avoidance that has developed around the conversation of race, observing that silence has led to people becoming accustomed to the prejudice without recognizing it as such. Racial justice issues are not only a law enforcement problem, Clara commented, noting the difficulty her office had in recruiting black applicants.

Yvonne added that the depth of honest conversation depends on the heterogeneity of the offices themselves, observing that public defenders must strive for diversity in hiring in addition to having the courage to speak out about these issues in order to end the culture of silence.

Understanding Race in the Criminal Justice System

Alan Rosenthal, Co-Director, Justice Strategies Center for Community Alternatives

In his presentation, Alan presented the view that the criminal justice system, especially with respect to the reentry into society of individuals who have been incarcerated, is a reincarnation of “Jim Crow” post-slavery laws and practices that persisted through the late 1960s, and that operated to keep African Americans separate from, and subordinate to, white Americans. Similar to the Jim Crow experience, a long time will be required to overcome this modern institutionalization of racial divisions.

The criminal justice system perpetuates the racial divide in America in three ways on a systematic, rather than individual basis:

Mass Imprisonment

  • Two million people are incarcerated today compared to 100,000 just 25 years ago
  • Over 60% are black men
  • One out of every 14 black men are in jail

Mass Reentry Barriers to reentry

  • Have a much more pervasive impact on African Americans than racial profiling
  • Ex-prisoners lack access to the “four E’s” essential to the Civil Rights Movement: employment, education, enfranchisement, and equality

Mass Criminalization

  • If the current trend continues, one out of every three black men born today can expect to be imprisoned at some point in their lives

The worst part of the criminal justice system as it exists today is not necessarily imprisonment, but rather the long-term effects that a criminal conviction can have on people's lives once they are released. In addition to facing poor income, education, and employment prospects, convictions have disenfranchised 5.4 million from voting. It is neither in the public's interest nor in the interest of public safety to release people from prison into worse conditions than before their incarcerations.

Twelve junctures in the criminal justice process are points at which race and class can create a cumulative disadvantage: 1) law enforcement deployment and arrest, 2) arraignment, including bail and detention decisions, 3) public defense, 4) jail, 5) pre-adjudication decisions, 6) jury selection, 7) pre-sentence reporting, 8) sentencing, 9) probation decisions, 10) jail or prison 11) parole decisions, 12) alternatives to incarceration and reentry services

In the courtrooms alone, public defenders cannot end the racial injustice that defines the broader criminal system. Thus, defenders have an obligation to work to maintain the integrity of the justice system in other ways as well, including:

Increase Data

  • Public defenders can work to increase the amount of data on racial disparity, in order to hold law enforcement authorities more accountable for their actions

Promote Administrative and Legislative Reform

  • Public defenders should try to partner with other allies in the court system to effectuate change on a legislative level

Take Care of Things In-House

  • Public defender offices should develop racial justice subcommittees to make racial justice a priority so these issues don’t end up on the backburner

Develop Training Materials

  • Increase awareness within public defender offices and among other groups, for example bar associations

Engage in Reentry Work

  • Every public defender office should do reentry work or partner with an organization that does
  • Public defender offices could implement programs that annually rotate one lawyer to reentry work so everyone can experience the breadth of this problem firsthand

Partner with Community Organizations

  • Though most already do, public defenders need to focus on doing a better job of understanding the entirety of their community

Using the tools available both inside and outside the court room, public defenders can address racial injustice at the junctures where race can become a factor in the administration of justice in order to better address the specific needs of their own communities.

Racial Justice Challenges

Jim Johnson, Partner, Debevoise & Plimpton, LLP
Chair, Brennan Center Board of Directors

Jim emphasized that change doesn’t usually happen unless the time is right, the pitch is right, and people have the right goals in mind. Though it’s impossible to predict when the time will be right, there are ways public defenders can ensure that they are in a position to effect systemic change when the opportunity arrives.

In order to be a significant part of a policy change, the key is to be at the table when the issue becomes relevant. It is extremely difficult to have one’s opinions heard from the outside once the process is already taking place; however, by paying attention to important issues and staying involved in the conversation from the beginning, one can become a trusted part of the inner circle.

Jim told the story of his time serving as co-chair of the National Church Arson Task Force of the Department of Justice, during a period of burnings of African American churches in the South. In response to the arson, Congress held an oversight hearing that called into question the Department of Justice’s leadership during the investigations. As a government official, Jim was appreciative to see the “loyal opposition,” civil rights, church groups, and other nongovernmental organizations, initially critical of the government’s response to the burnings, become the Department’s greatest asset at that time. Because they had been monitoring and linking instances of church arson before the Department became aware of the issue, the Department was able to rely on them as a resource, not only for data, but also for ideas on policy solutions. Using the hearing as an opportunity to provide thoughtful and relevant solutions, the “loyal opposition” ultimately had a huge impact on the Department’s new policies for handling arson cases.

As a demonstration that outside groups can be useful allies and can become insiders, Jim’s example highlighted the need and opportunity for public defenders to think broadly about ways to influence policy and to become involved in government decision-making as a way to help end the perpetuation of racial injustice.

Building External Support

John Stuart, Minnesota State Public Defender

John led a discussion about how to secure racial justice policy reforms (and other leadership goals) by relying on the “Strategic Triangle,” a conceptual tool that is useful for planning advocacy, invented by Mark Moore in his book “Creating Public Value: Strategic Management in Government.” John explained the three essential strategic components (or, sides of the triangle) needed to reach any goal:

  • good idea—a project goal that brings substantive value to your clients or other beneficiaries,
  • authorizing environment—constituents and allies who help ensure that your project is politically sustainable,
  • capacity—the staff, technical expertise, and other resources necessary to ensure that your project is operationally and administratively feasible.

John discussed each side of the triangle in the context of advocacy to secure racial justice reform. As an example he described efforts his office made to address racial profiling. First, the Minnesota Public Defender was able to increase its capacity to identify police practices that could have been motivated by racial bias by creating a searchable database, accessible to all, of all police reports filed with the office. As a result, defenders are able to pull up all prior police reports for any officer involved in their cases, thus enabling them to identify patterns of officer misconduct.

Second, to promote internal buy-in from the staff, the office encouraged defenders to litigate issues of race arising in their cases by issuing monthly “motion of the month” emails which highlight successful motions filed by other defenders.

In closing, John urged defenders to partner with community organizations, other service providers, and foundations – these allies are the “external support” component of the “authorizing environment,” needed to secure racial justice policy reforms.

The "Internal Support" Defenders Need to Achieve Racial Justice Policy Reforms

Richard Goemann, Defender Legal Services Director, National Legal Aid & Defender Association

Following up on John’s presentation, Richard focused on “internal support” as an essential part of the “authorizing environment” needed to secure racial justice policy reforms. In other words, a “good idea” and “capacity” are not enough. To effect change you also need “buy-in” from staff and management. This often requires a change in office culture. Richard discussed how public defenders can alter their office culture. He described how, as a state-wide chief, he worked towards bringing a stronger client-centered orientation through an exercise that re-focused staff on the values that brought them to the work of public defense. The office also redesigned the public defense system's letter head by replacing the state seal with positive images of the client population, a move that implicitly told clients, "we work for you."

Introduction and Framing of Research Projects on Racial Disparity in State Criminal Justice Systems

Melenca Clark, Counsel, Justice Program
Brennan Center for Justice at NYU School of Law

Melanca discussed the persuasive power of research that goes beyond demonstrating the over-involvement of African-American men in the criminal justice system. For example, statistics that demonstrate that one out of three African-American men born today can expect to be imprisoned at some point in their lifetime, while staggering, will not necessarily prompt engagement on the part of the public and legislators around criminal justice policy reform. For many, it is precisely the over-involvement of black and brown men with the criminal justice system that has been cause for complacency about our nation’s mass incarceration rates, overly harsh sentencing schemes, and the failure of imagination around rehabilitation.

Melanca noted that in the respective jurisdictions in which we work, research that focuses on a local problem, demonstrates not only disparity, but the fact that similarly situated individuals receive vastly different criminal justice outcomes based on race, and which is methodologically rigorous, will be most effective in highlighting injustices endemic to the justice system, and galvanizing stakeholders in the pursuit of reform.

Melanca pointed to two projects being undertaken by the Neighborhood Defenders Northwest in Baltimore, and the Legal Aid Society in New York, (described below), as excellent examples of the ways in which public defenders can tackle systemic problems affecting their client communities, despite limited resources. Both defender offices have targeted and are researching law enforcement and prosecutorial practices that could unfairly, and perhaps intentionally, burden African American and other minorities. Melanca observed that the projects are feasible, in part, because both leverage partnerships with other organizations to help increase the defenders’ capacity for analyzing the problem(s) they have identified. When the projects are complete, these partner organizations can help educate the media and the public about the results, and ultimately, help the defenders create a strategy for, and achieve, racial justice policy reform.

Neighborhood Defenders Northwest (Baltimore) and Brennan Center for Justice Research Racial Disparities in Police and Prosecution Practices

Natalie Finegar, Director, Neighborhood Defenders Northwest
Mary-Denise David, Related Services Attorney, Neighborhood Defenders Northwest

Natalie and Mary-Denise of Neighborhood Defenders Northwest described a project their office is undertaking to examine law enforcement and prosecutorial practices in Baltimore’s Early Resolution Court. Baltimore’s Early Resolution Court has jurisdiction over criminal citations and arrests in Baltimore City for minor misdemeanors, including marijuana possession. The Defenders experience in the Early Resolution Court led to a concern that steps within the criminal process might be influenced by racial bias. Neighborhood Defenders Northwest, in partnership with the Brennan Center for Justice, will conduct an analysis to determine whether statistically significant racial disparities exist in decisions i) to arrest or merely issue a criminal citation, ii) to prosecute or dismiss, and iii) to offer pleas to more, or less, serious crimes.

Legal Aid Society of New York and NAACP Legal Defense & Education Fund Research Racial Disparities in Police and Prosecution Practices

William Gibney, Director, Legal Aid Society Criminal Practice Special Litigation Unit
Roger Abel, President, Northeast Region of The National Black Police Association
Johanna Steinberg, Assistant Counsel, NAACP Legal Defense and Educational Fund, Inc.

The panelists discussed an array of New York City police department practices that have a disproportionate impact on African Americans. The Legal Aid Society, with the assistance of the NAACP Legal Defense Fund, is currently examining one of those practices, so-called “vertical sweeps,” in which officers search proceed from floor to floor in public housing developments, detaining individuals in order to identify and arrest those who do not reside in the building. This practice has resulted in a dramatic surge in trespass arrests over the last several years. Johanna Steinberg and William Gibney discussed the work that Legal Aid and NAACP LDF are doing to collect and analyze the trespass arrest data and to identify racial disparities in who is arrested during the sweeps, and they also spoke about community outreach that is being done to speak with the residents. Roger Abel discussed the importance of reaching out to former and current members of law enforcement to brainstorm fair and effective police practices to address the realities of crime without sacrificing the rights of the community.


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