Criminal Justice in the 21st Century:
Eliminating Racial and Ethnic Disparities
in the Criminal Justice System

Supported in part by a grant from the Ford Foundation. Additional financial
support for the conference provided by the Foundation for Criminal Justice,
the Brennan Center for Justice and the New York County Lawyers’ Association.
The views expressed herein by conference participants do not necessarily reflect the views
of the participating organizations.
Copyright © 2013 National Association of Criminal Defense Lawyers
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Criminal Justice in the 21st Century:
Eliminating Racial and Ethnic Disparities
In the Criminal Justice System

CONFERENCE REPORT BY
Tanya E. Coke

TABLE OF CONTENTS

2

ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ABOUT THE CONTRIBUTING ORGANIZATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CRIMINAL JUSTICE IN THE 21ST CENTURY REPORT:
Eliminating Racial and Ethnic Disparities in the Criminal Justice System . . . . . . . . 6
Introductory Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I. Conference Mission and Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. What Is the Scope of Racial Disparities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
III. Town Hall Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Differing Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. What Would Systemic Reform Require? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
D. Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
E. The Role of Interest Convergence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. Charging, Plea Bargains and Diversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. The Role of Implicit Bias in Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Recommendations for Reducing Prosecutorial Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. The Role of Defenders in Combating Racial Disparities . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Recommendations for Reducing Defender Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. The Role of the Judge and Racial Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Strategies for Reducing Judicial Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
V. Pretrial Incarceration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
VI. Jury Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A. Uncovering Bias and Preserving a Diverse Panel in Jury Selection . . . . . . . . . . . . . . . . . . 17
B. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
VII. Search, Seizure and Identification Issues . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Stop-and-Frisk Policing in New York City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B. The Role of Civil Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. Education vs. Structural Approaches to Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
D. Legislative Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
E. Criminal Litigation Challenging Stop-and-Frisk Arrests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
VIII. Sentencing and Community Corrections — A Tale of Two Systems . . . . . 22
A. The Role of Probation in Reducing Racial Disparities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. The Role of Corrections in Reducing Disparities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
C. Sentencing Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
D. Networks for Sharing Best Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
IX. Community Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. Defender-led Community Justice: The Bronx Defenders . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Community Prosecution in Brooklyn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Community Courts: The Red Hook and Brownsville Examples . . . . . . . . . . . . . . . . . . . . 26
C. Do Community Justice Models Really Impact Racial Disparities? . . . . . . . . . . . . . . . . . . . . 28
X. Recommendations for Moving Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ENDNOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
APPENDIX A: BIOGRAPHIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
APPENDIX B: AGENDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Criminal Justice in the 21st Century

T

ACKNOWLEDGEMENTS

anya Coke, this report’s author, and the convening organizations would like to thank the Ford
Foundation for its support of this project. We would also like to thank the following NACDL
staff for their careful editing and helpful suggestions: Kyle O’Dowd, Associate Executive
Director for Policy; Quintin Chatman, Editor of The Champion; Ivan Dominguez, Director of Public
Affairs and Communications; and Elsa Ohman, National Affairs Assistant. The author wishes to
acknowledge Cathy Zlomek, NACDL Art Director; Ericka Mills, Graphic Designer; and Jennifer
Waters, Graphic Intern, for the design of the report.

This report would not have been possible without the insightful contributions of our esteemed conference panelists, identified throughout the report and in Appendix A. Sincerest gratitude goes to
the following individuals, who worked behind the scenes to make the conference possible: Judge
Marcy Friedman, New York County Supreme Court; David LaBahn, President & CEO, APA;
Norman L. Reimer, Executive Director, NACDL; Marilyn Flood, Counsel to NYCLA and Executive
Director of the NYCLA Foundation; Angelyn C. Frazer, State Legislative Affairs Director, NACDL;
Nicole Austin-Hillery, Director and Counsel, Brennan Center for Justice, D.C. Office; and Eddie
Ellis, President, Center for NuLeadership on Urban Solutions. We also wish to thank Elsa Ohman,
National Affairs Assistant, NACDL; Kate Suisman, former Court Attorney to Justice Marcy
Friedman; and the following staff from the Brennan Center for Justice: Molly Alarcon, Policy
Associate; Emily Harris, Executive Assistant to the Vice President for Programs; Meghna Philip
and Gabriel Solis, former Research Associates; and interns Katherine Robards and Raquel Smith.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

3

ABOUT THE CONTRIBUTING ORGANIZATIONS

4

The Association of Prosecuting Attorneys (APA) was founded
as a national “think tank” to represent all prosecutors and provide additional resources such as training and technical assistance in an effort
to develop proactive innovative prosecutorial practices that prevent
crime, ensure equal justice and make communities safer. APA is the
only national organization to represent and support all prosecutors, including both appointed and
elected prosecutors, as well as their deputies and assistants, whether they work as city attorneys, tribal
prosecutors, district attorneys, state’s attorneys, attorneys general or U.S. attorneys. The association’s
activities include acting as a global forum for the exchange of ideas, allowing prosecutors to collaborate
with all criminal justice partners, conducting timely and effective technical assistance and providing
access to technology for the enhancement of the prosecutorial function.
The Brennan Center for Justice at the New York University School
of Law is a nonpartisan law and policy institute that seeks to improve
systems of democracy and justice. The Center works to hold our political
institutions and laws accountable to the twin American ideals of democracy and equal justice for all, exemplified by a campaign to reduce mass
incarceration. The Center’s work ranges from voting rights to campaign finance reform, from racial
justice in criminal law to constitutional protection in the fight against terrorism. A singular institution
— part think tank, part public interest law firm, part advocacy group, part communications hub — the
Brennan Center seeks meaningful, measurable change in the systems by which the nation is governed.
The Center for NuLeadership on Urban Solutions is a twelve-yearold independent, activist, public policy think tank and advocacy training
center, formerly at Medgar Evers College in the City University of New
York. Its staff is comprised of academic professionals who have had experiences within the criminal punishment system. It is the first and only center of its kind in the country. It
was created to reduce reliance on prisons and mass incarceration as solutions to the problems of economic
inequality and poverty in under-served urban communities. The Center is dedicated to creating new and innovative paradigms for solving community-development and related public-safety challenges that move
from criminal justice to human justice. It serves as a platform to advocate for and give voice to the huge
emerging constituency of citizens recently released from correctional supervision and returning to local jurisdictions after paying their debts to society. It seeks to achieve systemic change through increased transparency and accountability; community empowerment through targeted advocacy, network development
and civic engagement; and individual transformation through motivated education and activist training.

Criminal Justice in the 21st Century

The Foundation for Criminal Justice (FCJ) preserves and promotes the core
values of the National Association of Criminal Defense Lawyers and the
American criminal justice system. Ongoing and recent projects supported by
the FCJ include an unprecedented study of obstacles to the restoration of rights
and status after conviction; a conference to identify concrete and easily
achieved solutions to racial disparities in the criminal justice system; an ongoing series of events to celebrate the 50th anniversary of the Supreme Court’s
landmark Gideon v. Wainwright decision; free trainings for lawyers on a variety of topics including
representing juveniles accused of wrongdoing and individuals facing immigration-related collateral
consequences of conviction; and efforts to improve indigent defense in federal and state courts.
The National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the mission of the nation’s criminal defense lawyers to ensure justice and due process for persons accused of crime
or other misconduct. A professional bar association founded in 1958, NACDL’s approximately 10,000 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, active U.S. military defense counsel, law professors, and judges committed to preserving fairness within America’s criminal justice system.
The New York County Lawyers’ Association (NYCLA), founded
in 1908, was the first major bar association open to all lawyers admitted to the bar regardless of race, gender, religion or ethnicity.
Throughout its history, NYCLA has promoted the public interest
by advocating for access to justice and reforms in the law, providing
pro bono services for those in need, and encouraging diversity in
the bench and bar. With 9,000 members today, NYCLA continues to be in the forefront of most
legal debates, ranging from criminal justice to consumer rights.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

5

Criminal Justice in the 21st Century:
Eliminating Racial and Ethnic Disparities
In the Criminal Justice System

6

O

Introductory Statement

ne only has to step into a typical courtroom in the United States to
see that profound racial and ethnic disparities persist in the American
criminal justice system. On October 17-19, 2012, the National
Association of Criminal Defense Lawyers (NACDL), the Foundation for
Criminal Justice (FCJ), the New York County Lawyers’ Association
(NYCLA), the Brennan Center for Justice at New York University School of
Law, the Association of Prosecuting Attorneys (APA), and the Center for
NuLeadership on Urban Solutions together co-sponsored a conference
designed to bring to light concrete ideas for remedying racial disparities. The
conference was convened in lower Manhattan in the shadow of the World
Trade Center site at the New York County Lawyers’ Association’s historic
Home of Law. This report summarizes the candid, sometimes painful panel
discussions, and identifies a panoply of remedies that may advance the goal
of purging disparate impact from America’s criminal justice system.

Criminal Justice in the 21st Century

I. Conference Mission and Overview

The conference assembled a distinguished group of criminal justice experts — prosecutors, defense attorneys, judges,
scholars, community leaders, and formerly incarcerated advocates — to identify critical points of intervention and concrete,
practical reforms to redress racial disproportionality at every stage of criminal proceedings. Rather than belabor what has
gone wrong or has not worked, participants shared innovative disparity-reduction practices from around the country, as
well as new ideas for reforming policies that produce mass incarceration.
The conference focused on the criminal
justice system in New York City, but the
recommendations put forward by participants have broad implications for reform
nationally. A number of academic articles
on race and the criminal justice system prepared for the conference will be published
in a supplement to the New York University
Journal of Legislation and Public Policy.
The conference included a town hall panel
that presented the major issues, as well as
roundtables that explored in greater depth
what system actors could do to reduce bias
and disparities at charging, in pretrial detention and motions practice, at jury selection,
and in sentencing. The discussion also explored emerging models of community justice in New York City.

7

Rather than belabor what has gone
wrong or has not worked, participants
shared innovative disparity-reduction
practices from around the country, as
well as new ideas for reforming policies
that produce mass incarceration.

II. What Is the Scope of Racial Disparities?

The conference sponsors opened the proceedings by emphasizing the unparalleled size, cost and scope of the U.S. criminal
justice system: 2.2 million people incarcerated as of 2012,1 many for non-violent offenses, at a cost of 70 billion dollars.
Millions more are under some form of restraint or supervision, either while the case is pending or as component of the final
sentence. A staggering 65 million adults in the United States — approximately one in four — now have a criminal record, and
live with the increasing public exposure, civil disabilities and other consequences that flow from a criminal record.2
The Hon. Marcy Friedman, a judge on the New York State Supreme Court, New York County, and former NYCLA Justice
Center board member, noted that according to one study as of 2007, some 69 percent of arrests in New York City’s criminal
justice system are for misdemeanor offenses or lesser violations.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

Report

“Never before have so many been
arrested for so little.”

8

“Never before have so many been arrested
for so little,” she remarked, citing a scholarly
article.3 Despite the minor nature of most offenses processed through the system, a large
number of defendants will be too poor to post
bail, will plead guilty to time served to get
out of jail, and then will suffer one or more
of the collateral consequences of criminal
conviction: deportation from the United
States, the inability to get or keep a job, the
loss of housing, student loan disqualification,
and/or the denial of the right to vote.

Norman Reimer, executive director of NACDL, remarked that the “criminal justice system is a window into a society’s
soul.” If this is true, what are we to make of harsher outcomes for people of color at every stage of the criminal justice system: from arrest to decisions about bail and pretrial detention and from adjudication to sentencing? What is the role of
prosecutors, defenders, judges, and police in propagating racial disparities in the system, even if unintentionally? More
important, what can system actors do to reduce or eliminate disparities?

IIII. Town Hall Meeting

Panelists: Theodore Shaw (moderator), Columbia University School of Law; Eddie Ellis, Center for NuLeadership on
Urban Solutions; Hon. George Bundy Smith, former associate judge on the New York Court of Appeals, NYCLA Justice
Center; Zachary Carter, former U.S. Attorney and partner, Dorsey & Whitney; Lisa Wayne, past president, NACDL; Vanita
Gupta, American Civil Liberties Union; Glenn Martin, Fortune Society; Rick Jones, Neighborhood Defender Service of
Harlem; Leroy Frazer, Manhattan District Attorney’s Office.
The Brennan Center’s Nicole Austin-Hillery kicked off the Town Hall Meeting, describing the vast racial disparities in the
criminal justice system and their impact on the fundamental values underlying that system.

A. Differing Perspectives
Disparity vs. Mass Incarceration. Conference panelists expressed differing views as to whether the problem we seek to
address is one of disparate treatment between minority and white defendants, or the larger phenomenon of mass incarceration that has consigned 1.3 million African American and Hispanics to prison. According to the latest available figures,
these two groups comprise 58 percent of all inmates, even though they make up only one quarter of the U.S. population.4
Responsibility. At several points throughout the three-day conference, some prosecutors, defense attorneys and judges insisted
that their practice is blind to race. Prosecutors said that they often do not know the race of the defendant until arraignment or the
grand jury. Some judges equated the discussion of disproportionality in the criminal system with an accusation of personal racism.
Societal Factors. Others endorsed the argument of Michelle Alexander, author of The New Jim Crow: Mass Incarceration
in the Age of Colorblindness (2010), that the criminal justice system operates like a modern-day system of social control,
and ought to be addressed as the urgent civil and human rights issue of the century.
Role of Bias. Most panelists and attendees agreed that both systemic and individual bias — often unconscious and unintentional
— are at work, and combine to produce jails and prisons that are largely filled with black and brown men and women. Whether
that bias originates from “animus or an absence of empathy or indifference doesn’t really matter,” said Zachary Carter, a
partner at Dorsey and Whitney and former U.S. Attorney for the Eastern District of New York. “From the point of view of
those stopped, the insult to personal dignity is the same, regardless of the motive of the officer who makes the stop.”
Raising the Issue in the Courtroom. Change, concluded most conference participants, will require prosecutors, defense
attorneys and judges to recognize the influence of race in the criminal justice system, and for defense attorneys in particular

Criminal Justice in the 21st Century

to call it out in court. “If the defense lawyer isn’t comfortable talking about race, no one else in the courtroom will
understand or confront it,” said Lisa Wayne, a criminal defense attorney and past president of NACDL. Ensuring that
there are leaders of color in bar associations, public defender and district attorneys offices who are willing to raise
the issue of racial bias is important, she said.
Economic Status. While race is an important determinant of
outcomes, money also matters. Wayne and other defense attorneys who had transitioned from government offices to private practice observed that black and Latino defendants with
the means to hire their own attorney command greater attention and leniency from prosecutors and judges. Poor defendants, by contrast, are at a disadvantage both at disposition
and on probation, where they risk being violated and returned
to prison if they lack the means to pay for monthly GPSmonitoring, drug-testing and other probation fees and requirements that have proliferated in recent years.
Individual Services vs. Systemic Reform. The conference
also addressed the unresolved tension between solutions that
focus on individuals versus those that focus on structural reforms. Barry Campbell, a special assistant at the Fortune
Society, an organization that serves and advocates on behalf
of former prisoners, emphasized the importance of mentors
who can reform the ways of young people involved in crime.
“When I was younger, what I needed most of all was someone who looked like me, talked like me, knew me, who
could help me get on a better direction . . . someone who
lived in my neighborhood and who did something positive.”

challenge policing practices that disproportionately target
people of color in poor neighborhoods, as well as policies that
use the criminal justice system to deal with a host of social
ills, such as deficient public education, and a lack of employment opportunities and mental health services. Defenders and
several prosecutors agreed that more must be done to challenge the escalation of “broken windows” policing that has
flooded the justice system with misdemeanor arrests for criminal trespass, marijuana possession and disorderly conduct in
New York and other cities. “Prosecutors should be reviewing
these kind of arrests for credibility and dismiss the charges in
cases where they can’t be proven,” said Irwin Shaw of the
Legal Aid Society, “and defenders should examine them very
carefully before pleading them.”

9

B. What Would Systemic
Reform Require?
Panelists debated whether the goal ought to be to eradicate
racial disparities or, perhaps more realistically, to simply reduce them. Most current reform efforts to address racial bias
and disparity have been “piecemeal efforts, tinkering around
the edges, and never addressing the roots of racism,” observed
Eddie Ellis, founder and president of the Center for
NuLeadership on Urban Solutions. Ellis invoked the late
Professor Derrick Bell’s Critical Race Theory, which states
that racism is a permanent fixture in the justice system, and
an inevitable reflection of racism in the larger society. “But
there is nevertheless a moral imperative for us to challenge
and change it,” said Ellis.

Others challenged the predisposition to fix
people rather than institutions. “We need to
distinguish between those who have chosen
a life of crime, and those innocent people
Nonetheless you cannot fix structural or
who the system has chosen to criminalize,”
said Deborah Small of Break the Chains, a
institutional racism by fixing people;
drug policy reform organization, referring
you can only do it by fixing the
to the thousands of young men of color arrested each year for putting their feet on a
institutions and structures that continue
bus or subway seat, or carrying an open
container of alcohol — behaviors that are
to generate racially disparate results.
routinely ignored in white communities. “I
understand that institutional change is
harder, slower, more difficult to quantify,
and not nearly as personally fulfilling. Nonetheless, you canParticipants across the spectrum considered, and generally
not fix structural or institutional racism by fixing people; you
sympathized, with the view that systemic change would recan only do it by fixing the institutions and structures that
quire bold reforms and identified several key policies that
continue to generate racially disparate results.”
fuel racial disproportionality:

Policing. Although conference organizers intentionally left
the topic of policing off the agenda — a subject they said
could consume an entire three-day conference of its own —
panelists largely agreed that the best way to reduce racial disparities in the criminal justice system was to focus on the point
of entry, i.e., racially disparate arrest practices by police.
Participants called for political organizing and litigation to

• Stop-and-frisk policing, particularly in New York City,
where the police department has sharply escalated the use
of this tactic in poor neighborhoods.
• Coercive use of cash bail. The presumptive imposition of
cash bail, particularly in misdemeanor cases, which un-

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

Report

necessarily incarcerates minority defendants and is used
implicitly to coerce guilty pleas.
• Mass incarceration for non-violent offenses. Rather than
using incarceration as a response to failures of the education, mental health, immigration, and child welfare systems, prison should be used as a last resort reserved for
truly dangerous offenders.
• Marijuana arrests. Many conference participants — including judges and prosecutors — voiced their personal
(if not institutional) view that possession of small amounts
of marijuana fuels unnecessary arrests and ought to be decriminalized.

10

E. Martin, Vice President of Development and Public Affairs
of the Fortune Society, argued that the status quo benefits
not only private prison corporations, but also a host of criminal justice actors whose employment depends upon a steady
stream of arrestees: police, prosecutors, corrections officers,
defense attorneys, social service counselors, companies that
contract with corrections departments, and communities that
benefit from free prison labor.

E. The Role of
Interest Convergence

Rick Jones of the Neighborhood Defender Service of
Harlem closed the opening town hall with a provocative
statement: the surest path to reform would be to arrest
more
white people. Jones reasoned that, if white people
C. Litigation
were arrested in numbers anywhere near their percentages
in the overall population, the system would, overnight, bePanelists also concurred that criminal and civil litigation is
come less punitive and tendencies towards overcriminala necessary, but insufficient, tool to combat racial dispariization
and mass incarceration would be relaxed. Lisa
ties. “The law can be an instrument of social change, but is
Wayne
and
others agreed with the truth, if not the practinot inherently so,” said Ted Shaw, a professor of law at
cality,
of
this
position, noting that it took the controversy
Columbia University and former director of the NAACP
surrounding
the
conviction of Alaska Senator Ted Stevens
Legal Defense and Educational Fund. “Progressive lawyers
to
motivate
a
serious
discussion of reforming the federal
and activists have bent the law against its natural inherent
rules
of
discovery.
Nkechi
Taifa, a criminal justice policy
conservatism and its inclination to maintain the status quo.”
analyst for the Open Society Foundations in Washington,
observed that the most effective criminal
justice reformers in recent years have been
conservative white elites, such as Pat
Nolan and Chuck Colson, who went to
prison and emerged as reformers. But is
Rick Jones of the Neighborhood
arresting more white people a practical solution? Deborah Small of Break the
Defender Service of Harlem closed the
Chains, a drug policy reform organization,
suggested that this might not make much
opening town hall with a provocative
difference, as those whites most likely to
statement: that the surest path to reform
be incarcerated would be poor, undereducated and unemployed, and not the midwould be to arrest more white people.
dle-class people whose criminalization
would spark controversy or debate.

D. Legislation
Some of the best reform opportunities now lie in the legislatures, said some, where fiscal conservatives are coming to
the realization that states can no longer afford to incarcerate
so many people. Advocates must unapologetically embrace
economic arguments that speak to policymakers, even if
these do not always acknowledge the inherent injustices of
the current system, argued Vanita Gupta, director of the
ACLU’s Center for Justice. Similarly, advocates must be
clear-eyed about the fact that the prison and justice systems
have become powerful, self-perpetuating industries. Glenn

Criminal Justice in the 21st Century

IV. Charging, Plea Bargains And Diversion

Panelists: Thomas Giovanni (moderator), Brennan Center for Justice; Lance Ogiste, Office of the Brooklyn District
Attorney; Irwin Shaw, Legal Aid Society, Manhattan; Wayne McKenzie, New York City Department of Probation.

Conference participants examined the role of prosecutors and defense attorneys in charging, plea bargains and alternatives
to incarceration, with an emphasis on the role that implicit biases play in their activities.

A. The Role of Implicit Bias in Prosecution
Current or former district attorneys on the panel emphasized that the business of prosecution in large, urban offices, where
upwards of 300 cases a day are processed, is largely a “paper practice.” In a fast-paced system, line prosecutors focus on
the police complaint and the reliability of victims’ statements, they said, and often do not even know the race of the defendant or victim until the case is presented to the grand jury. Similarly, Irwin Shaw, Attorney-in-Charge of the Legal Aid
Society, New York County, stated that most defenders do not consciously or unconsciously “bring their A game to white
clients, and B game to clients of color.”

11

Wayne McKenzie, General Counsel for the New York City Department of Probation and former director of the Vera
Institute’s Project on Race and Prosecution, characterized this as a common refrain. “We are processing cases so fast and
don’t even know the race of defendants; how could we be biased?” But this stance fails to acknowledge the all-important
role of implicit bias, said McKenzie. “If you accept that there are disparities, you must accept reality that we all have prejudices learned from birth. We should also accept that not every disparity is the result of bias.”
Advances in neuroscience have shown that
people can consciously believe in equality
while simultaneously acting on subconscious prejudices of which they may not be
aware. Unconscious bias results from subconscious mental shortcuts our brains make
to process information and make decisions
quickly.5 “Implicit bias” is thus a universal
response in all people of all races, although
we are more susceptible to it when considering people different from ourselves.
Because of racial images that saturate the
media and social sphere, explained
McKenzie, prosecutors who are processing
cases may readily assume the 18-year-old
defendant from Brooklyn with the truancy
charge is a black male, and the embezzlement charge against a middle-aged man
from Long Island involves a white person.
These often unconscious assumptions ultimately influence our actions and reactions
to others.

The good news, said McKenzie, is that
the research shows that unconscious
biases can be effectively reduced
when people are made aware of them
and commit to changing practice.

Recommendations for Reducing Prosecutorial Bias

The good news, said McKenzie, is that the research shows that unconscious biases can be effectively reduced when people
are made aware of them and commit to changing practice.6 In one district attorney’s office with which the Vera Institute
worked, the data showed that African American women arrested for drug offenses were prosecuted more frequently, and
stayed in the system longer, than white women with the same charges. While some staff proffered justifications for the
higher rate (for example, the theory that some of these women were also prostitutes), six months after raising the disparity
and asking employees to scrutinize their charging practices, the disparity had disappeared.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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12

All system actors will need guidance to help them analyze
disparities and confront racial bias in their practice.
Essential components of an effective intervention to reduce
implicit bias are:

Panelists also called for structural reforms that would constrain the prosecution of very low-level misdemeanors
where racial disproportionality is most prevalent. Specific
suggestions were to:

• Data collection. Accurate information to help prosecutors
track decisions in their offices is critical. The data must
then be used to ground a discussion of strategies to address disparities. “You can’t manage what you can’t measure,” warned McKenzie. “Overall rates of prosecution
may look similar, but it is necessary to dig deeper to see
which offenses generate disparity.” For example, in
Milwaukee, Wisconsin, the Vera Institute found that while
the overall likelihood of prosecution was virtually the
same for black and white defendants, two subcategories
— drug crimes and public order offenses — were generating large racial disparities.

• Change prosecutorial performance incentives.
“Generally, the lower a DA’s dismissal rate, the higher
your office is regarded,” said McKenzie. However, this
may not be appropriate when police are making disproportionate arrests. Others suggested that, instead of evaluating prosecutors by conviction rate, they should be
assessed based on “appropriate charging” — i.e., the
alignment between the original charge and the final charge
of conviction. This would discourage the practice of overcharging. McKenzie and other current and former prosecutors warned, however, that such a change requires
including legislators and community members in the conversation. “When a DA’s dismissal rate goes up, he or she
will be attacked and need political cover,” said McKenzie.

• Fresh eyes. An outside consultant or other expert can
help to analyze patterns of decision-making and facilitate a conversation with staff about issues presenting in
the data.
• Courageous leadership. Chief district attorneys and chief
defenders must be willing to raise the issue of race and
create a safe space to collaborate with their staff and outside agencies. Panelists described an example of a prosecutor in Philadelphia who, alarmed at the disparate rate of
arrests of minorities for marijuana offenses, worked with
judges and defense attorneys to divert many of the city’s
7,000 prosecutions annually to a weekend program.
• Focus on inexperienced prosecutors. McKenzie recalled
working with one office in which the largest racial disparities appeared in the charging of first-time possession of
marijuana and cocaine. Among white defendants, there was
a 67 percent chance of dismissal. Among black defendants,
however, only 27 percent of the cases were rejected. Further
discussion with staff revealed that young prosecutors
viewed the presence of drug paraphernalia such
as crack pipes as more serious in urban neighborhoods than
needles and bongs in suburban ones.

Accurate information to help
prosecutors track decisions in their
offices is critical. The data must then
be used to ground a discussion of
strategies to address disparities.

• Raise the standard for charging. Others suggested that
DA offices shift the standard for charging from “probable
cause” to “likelihood of conviction,” or alternatively,
make an office-wide decision not to prosecute certain lowlevel offenses. The Milwaukee district attorney’s office,
for example, made non-prosecution of first-time arrests
for drug paraphernalia the default position, and made a
decision to divert second offenses to an alternative-to-incarceration program. Any decision to override office policy requires approval from the chief.

B. The Role of Defenders in
Combating Racial Disparities
Jonathan Rapping, founder and director of the Southern Public
Defender Training Center (now Gideon’s Promise), described the
journey from arrest to incarceration as a pipeline, with the role of
the defender “to provide friction.” In truth, said Rapping, “there
are two pipelines: one for white folks, and a second for black and
brown people, with more points of entry and more WD 40 lubrication, that generally fails to provide the same
level of defense attorney friction.”
Rapping suggested that implicit bias affects
defenders as well as prosecutors and other
actors in the system: “All of us harbor implicit racial bias, and as a result of our socialization tend to equate aggressiveness
and other negative qualities [to black people]. As defenders, many of our clients are
black and brown and wear an orange jumpsuit. I am just as guilty of saying, ‘What’s
going on here?’ when I see the rare white
defendant in a court-issued jumpsuit.”

Criminal Justice in the 21st Century

Recommendations for
Reducing Defender Bias

Rapping and other conference participants
described several steps to more effective, less
racially disparate outcomes:
• Self-awareness. Educate defenders about
implicit bias so they can be more conscious
and effective in combating it.
• Patience. Realize that we are not going to fix the problem
overnight, but that it is important to fight nonetheless.
“Rather than focus on all the clients who may be falling
through the cracks, focus on those you can save through
zealous representation,” said Rapping.
• Prevent pretrial detention, and fight zealously against
cash bail and detention in misdemeanor cases. At bail
hearings, defenders must zealously advocate for release
pending trial, given the clear evidence that pretrial detention increases the likelihood of conviction and longer sentences.7 Defenders must inject into the discussion the
damning statistics showing disparity in the release of similarly situated whites.
• Education. Educate other actors about their implicit biases at different stages of proceedings.
• Voir dire. At trial, defenders should make motions and
present experts to educate courts about implicit bias. The
question “Can you be fair and impartial?” is not sufficient,
said Rapping. “All jurors harbor racial biases and we need
to get at these in voir dire to understand their experiences,
not simply their aspirations.”
• Trial. Call experts to testify at trial or sentencing on the
social science of implicit bias, which shows that jurors are
more likely to associate a black or dark-skinned defendant
with guilt. “Even if you aren’t granted the request, the
judge will have read the papers and have been educated
about the role of unconscious bias,” said Rapping.
• Out of court judicial interactions. Engage with judges
both in and out of court, to raise issues of racial disparities
in situations where the clients will not bear the brunt of
any animosity generated by the confrontation.
• Familiarize judges and district attorneys with alternative-to-incarceration programs. First-year DAs should
visit jails and community diversion/release programs, suggested Barry Campbell of the Fortune Society. Seeing defendants of color in alternate settings run by well-regarded
providers makes prosecutors more amenable to diversion
programs. Campbell noted that the Fortune Society also
encourages newly appointed parole commissioners to visit

“Most clients would rather
plead and go home than stay in
jail while discovery proceeds.”
halfway houses and release programs. This has helped to
persuade commissioners to release more prisoners with
histories of violence.
• Minimize economic burdens to clients sentenced to incarceration. Defenders should argue for suspension of
child support payments for prisoners when they have no
resources to pay during their term of incarceration, said
Divine Pryor of the Center for NuLeadership on Urban
Solutions.

13

Conference participants debated, without agreeing, whether
defenders should take more cases to trial rather than engage
in routine plea bargaining. Some formerly incarcerated panelists said defense attorneys pressure clients to accept a plea
deal. Irwin Shaw of the Legal Aid Society explained that, to
the great frustration of many defense lawyers, the imposition
of excessive monetary bail and the lack of discovery put many
clients in the quandary of passing up freedom in order to go
to trial. “Most clients would rather plead and go home than
stay in jail while discovery proceeds.” This also frustrates
lawyers’ ability to bring systemic litigation challenging disparities because clients are eager to take a deal that will enable
them to go home. However, Shaw and others pointed to a
number of things defenders can do to root out bias and affirm
the humanity of their clients:
• Include clients as presenters in legal training programs
to talk about the indifferent treatment they have received at
the hands of defense attorneys and other criminal justice
system personnel.
• Oppose the criminalization of clients who themselves
are victims, such as female defendants in prostitution and
human trafficking cases.
• Employ social workers to assist clients who have mental health or other needs, and work to get these defendants out of the criminal justice system.

C. The Role of the Judge
and Racial Bias
Some conferees agreed that white defendants were easier to
humanize in court, and judges more likely to view them as
victims, or simply worthy of a break.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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Research shows that one of the greatest
determinants of outcomes in misdemeanor and
felony cases is whether the defendant was
detained pretrial. Those who are detained
pretrial serve on average two weeks in jail, and
often plead quickly out of desire to go home.

14

Thomas Giovanni, director of the
Community-Oriented Defender Network at
the Brennan Center for Justice at New York
University School of Law, related his experiences that white clients charged with
prostitution were much easier to characterize as victims of sex trafficking than black
females. As a result, prosecutors and judges
were more likely to dismiss these cases.
“The same case and facts with a black female defendant means ‘more work to do,’”
said Giovanni.

Wayne McKenzie, a former prosecutor, related an illustrative story about disparate
treatment of white and black defendants
charged with Christmas tree theft in a large midwestern city. Each Christmas, white fraternities at the local university competed to see who could steal the most trees from outdoor lots. Black defendants were generally young men reselling the
trees for Christmas spending money.
When arrested, white college students would appear at arraignment with private counsel — often in tears, as they imagined
their career prospects spiraling down the drain. They would often appear before a judge who graduated from the same
local university and who was inclined to view the incident as a youthful indiscretion. Invariably, the case would be dismissed. Young black males, by contrast, would appear at arraignment represented by a public defender. They would stand
stoically before the bench with a blank look (“because I can’t cry and look like a punk.”) These cases would end with a
misdemeanor conviction. “Both sets of young men were scared out of their mind,” said McKenzie, but would evoke different reactions, and ultimately results, from judges.

Strategies for Reducing Judicial Bias

Conferees offered a number of suggestions as to how judges could reduce racially disparate outcomes in the criminal justice
system:
• Refuse to set monetary bail in misdemeanor cases. System officials agreed that the criminal justice system discourages
litigation by offering to send pretrial detainees home in exchange for a guilty plea. Clients face a loss of employment,
childcare and housing if they don’t plead quickly. If defendants are truly presumed innocent, there ought to be a presumption against requiring monetary bail in misdemeanor cases, argued several defense attorneys.
• Pre-conviction diversion for misdemeanors. The current model emphasizes alternative-to-incarceration programs following
conviction. But several conferees said that more could be done to suspend prosecution and divert cases prior to conviction (in
New York, this is called an adjournment in contemplation of dismissal, or ACD). Cases are typically adjourned for six months;
if the defendant does not get into further trouble during this time, the court dismisses the case.

V. Pretrial Incarceration

Panelists: Thomas Giovanni (moderator), Brennan Center for Justice; Marika Meis, Bronx Defenders; Hon. Melissa Jackson,
Criminal Court, New York County; Tim Koller, Staten Island District Attorney’s Office; Barry Campbell, the Fortune Society.
Research shows that one of the greatest determinants of outcomes in misdemeanor and felony cases is whether the defendant
was detained pretrial. Those who are detained pretrial serve on average two weeks in jail, and often plead quickly out of
desire to go home. Some conferees suggested that in high-volume criminal justice systems that depend on plea bargains to
process cases, bail is used — whether consciously or unconsciously — as a bargaining chip to coerce pleas, especially in
low-level offenses that likely carry little, if any, jail time.

Criminal Justice in the 21st Century

Marika Meis of the Bronx Defenders reminded participants that the New York
State bail statute, which was enacted as
part of the 1970 criminal procedure law,
Meis questioned why so many defendants
was actually intended to reduce rates of
pretrial detention. The statute strongly faare held pretrial, when nearly a quarter of
vors pretrial release, with the setting of
monetary bail as the exception and only
arrestees who have bail set in their cases
when required to ensure an accused returns
are charged with misdemeanors and do
to court. Yet the reality of courtroom practice is far different: In New York City,
not pose a threat to public safety.
nearly one-third of the over 370,000 defendants arraigned annually are detained
pretrial, even though 80 percent of their
cases involve low-level misdemeanors or
violations like turnstile jumping, marijuana
possession, or fighting in public.8 One reincarcerations. When bail is set at $500 or less, only 13
sult is that nearly half of New York City’s jail beds are ocpercent
of those charged with misdemeanors are able to
cupied by those charged with low-level offenses who,
post
bail
at arraignment. By the time of disposition, 44
despite the presumption of innocence, are incarcerated for
9
percent
are
still detained,17 even though most will redays or weeks because they cannot make cash bail.
ceive dismissals, no jail time, or a jail sentence less than
time served in pretrial detention.18
The racial impact of setting bail in so many cases is stark,
with blacks and Latinos comprising 90 percent of those deA. Recommendations
tained in the city’s central jail on Riker’s Island.10 Meis
questioned why so many defendants are held pretrial, when
nearly a quarter of arrestees who have bail set in their cases
What can system actors do to reduce pretrial detention for
are charged with misdemeanors and do not pose a threat
poor defendants of color? Panelists offered several ideas
to public safety.11 Moreover, research conducted by the
for judges, defenders and legislators.
Bronx Defenders and the Criminal Justice Agency12 indicates that most defendants would return to court even withJudges. The Hon. Melissa Jackson, Supervising Judge in
out posting bail:
the New York County Criminal Court, and Tim Koller, an
assistant district attorney from Staten Island, argued that
• More than 80 percent of those accused of crimes who
disparities in bail outcomes are driven by economics more
are released without bail return for their court appearthan
race: poor people simply do not have the money to
ances. In 2009, the failure to appear rate in NYC was
make
bail. There is little that judges or prosecutors can do,
only 16 percent for those released on their own recognithey
suggested,
given that New York’s bail statute requires
13
zance. More appear voluntarily within 30 days of their
the
imposition
of
monetary bail.
second court date, dropping the warrant rate further to 6
percent.14

• The difference between the return rate of
those released on their own recognizance
(RORs) and those with cash bail was only
3 percent.15
• The difference in return rates between
cases involving bail set at $500 and bail set
at up to $7,500 is slight — no more than 2
percent.16 Yet in cases where bail is set at
$1,000 or less, 48 percent of defendants remain incarcerated for an average of 15.7
days until their case is resolved.
• Judges are setting bail at levels that impoverished defendants cannot meet, resulting in unjust, unnecessary and costly

The Hon. Melissa Jackson, Supervising
Judge in the New York County Criminal
Court, and Tim Koller, an assistant
district attorney from Staten Island,
argued that disparities in bail
outcomes are driven by economics
more than race: poor people simply do
not have the money to make bail.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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15

Marika Meis and others disputed the requirement of monetary bail as a misreading of the statute,19 and pointed to
several things that judges can do to reduce the disproportionate impact of pretrial detention on defendants of color:
• Use the alternatives to cash bail set forth in the statute.
The New York bail statute includes nine forms of bail, including unsecured bond, which is a personal appearance
bond that does not require any money to be posted, and a
partially secured bond, which requires a posting of up to
10 percent of the full amount. A 1986 amendment also allows for bail to be secured with a credit card, but has never
been fully implemented.20

16

• Lower the bail to a token amount that actually takes
into account the finances of the accused. For unemployed or working poor people scrambling to make ends
meet on a minimum wage salary of $1,000 per month, a
$500 bail “might as well be a million dollar ransom,” said
Meis. Yet only 6 percent of defendants in New York City
courts had bail set under $500.21 Seventy percent of nonfelony cases had bail set between $500 and $1,000, and a
staggering 9 out of 10 of those who had bail set below
$1,000 were unable to post it at arraignment.22 “Whether
the barrier is race or poverty,” said Tracy Velazquez of the
Justice Policy Institute, “setting bail at a level that the poor
cannot pay is a violation of civil rights.” Why not set it
at $1 or even a penny to satisfy the statute? This would
“send a message to legislators,” said Lisa Wayne, past
president of NACDL.
• Calibrate the consequences for failure to appear.
Judges, defenders and prosecutors use risk assessments
prepared by the Criminal Justice Agency at every arraignment. These assessments provide the same negative evaluation of a person for a failure to appear, regardless of
whether a defendant voluntarily appears in court one day
late, or is brought in on a new arrest after five years on
the run. Some conference participants argued for greater
calibration in the penalties for failing to appear.

Participants agreed that there were
too many misdemeanants held
pretrial for low-level offenses, and
a statutory waiver of bail in these
cases would be appropriate.

Defenders. Defense attorneys agreed that they could do
more to:
• Make zealous bail applications, and cite the above research showing the high rate of return of those released
on their own recognizance.
• Ask for alternative forms of bail. Panelists urged defenders and judges to closely read the New York State bail
statute, and to consider and request creative alternatives
to cash bail.
• Sensitize system actors to the jail experience, through
jail tours for district attorneys, judges and defense attorneys. Seeing and talking with prisoners who are clearly
mentally ill can be a transformative experience, said one
conference participant.
Legislators. Judges, prosecutors and defenders largely
agreed that what was most needed was legislative reform
of the New York State bail statute. Specifically, participants
recommended that legislators:
• Change the statute to abolish cash bail. If 80 percent
come back on RORs, why set bail on misdemeanors?
Several panelists observed that the statute already creates
a presumption of release, with bail the exception.
• Abolish bail in misdemeanor cases. Participants agreed
that there were too many misdemeanants held pretrial for
low-level offenses, and a statutory waiver of bail in these
cases would be appropriate. One audience member worried
whether abolishing bail would lead legislators to felonize
more misdemeanors, or prosecutors to charge cases more
harshly. Prosecutors said that a move to upgrade charges
was unlikely in low-level cases, such as subway fare evasion, but might well happen in misdemeanor domestic violence and other assault cases, where danger to the
community is at issue.
• Create a pretrial services office that
would provide background assessments
and supervision in misdemeanor as well
as felony cases. Supervision and services
would help assure courts that defendants
will appear, said several judges and prosecutors. However, some defenders questioned whether pretrial supervision was
necessary in misdemeanor cases, especially when the statistics indicate that
most people will return of their
own accord.

Criminal Justice in the 21st Century

VI. Jury Selection

Panelists: Darryl Stallworth, defense attorney and former prosecutor (moderator); Justice Ruth Pickholz, New York State
Supreme Court, New York County; Abbe Smith, Professor, Georgetown University Law Center; Deanna Rodriguez, Kings
County (Brooklyn) District Attorney’s Office Gang Bureau; Cathleen Price, the Equal Justice Initiative (EJI).
The Constitution does not require a racially representative jury, only an impartial “jury of one’s peers.” Panelists grappled
with whether, in the 21st century, race should be considered a proxy for partiality. Deanna Rodriguez, an assistant district
attorney from Brooklyn, observed: “People are people, and one shouldn’t assume alignment between ethnicity and views
on criminal justice. I have encountered some Latinos who are ‘Hang ’em high,’ while others are very suspicious of the
criminal justice system.” Others agreed that a juror’s life experiences are probably the most important factor in selection.
Abbe Smith, a professor at Georgetown University Law Center, argued that race continues to be a relevant factor in at
least two respects:
• Research shows some continuing evidence of same-race favoritism. When jurors sit in judgment of an accused they
can relate to, they more easily extend the presumption of innocence.
• Attitudes about police diverge sharply
between African Americans and
whites. Whites tend to regard police officers as “friendly helpers,” whereas
African Americans approach police with
greater skepticism. According to a 2007
survey by the Pew Research Center, 58
percent of whites but only 23 percent of
blacks believe that police enforce the law
without excessive force and while treating
all races equally.23

17

Rodriguez argued that “judicially
controlled time limits on voir dire are
ridiculous when you’re talking about
somebody’s freedom and a victim who
has suffered a loss. You simply can’t
pick fair jurors in 10 minutes.”

Racially representative juries may not be
difficult to seat in a culturally diverse location like New York, but diverse pools remain elusive in the South and other regions of the country, said Cathleen Price, a capital defense lawyer with the Equal
Justice Initiative in Montgomery, Alabama. Traditional jury composition mechanisms, such as voter rolls and driver license
lists, tend to underrepresent racial minorities. Racially motivated challenges for cause or peremptory strikes may further
reduce the diversity of juries. In a recent report, EJI found that over 80 percent of African Americans qualified for jury
service in Houston County, Alabama, were struck in death penalty cases. In Jefferson Parish, Louisiana, there has been
little or no representation of racial minorities in 80 percent of criminal trial juries.24

A. Uncovering Bias and Preserving a Diverse Panel in Jury Selection
Voir Dire. Panelists vigorously debated who should control juror questioning during jury selection. The Honorable Ruth
Pickholz, a justice on the New York State Supreme Court for New York County, argued that judge-conducted voir dire is
better, faster and more honest than when questioning is conducted by defense counsel or the prosecutor. DAs and defense
attorneys countered that judges are less likely to elicit honest admissions of bias, and that they may be overly inclined to
rehabilitate questionable jurors. Professor Abbe Smith cited jury research suggesting that: “People act differently with authority figures. Judges too often say, ‘I know you were a victim of crime and have some feelings about the charge here, but
you’re a fair-minded person, aren’t you? If I instruct you that the government bears the burden of proof, you can follow
that instruction, can’t you ma’am?’ It is a rare juror who will say no.”
Defense attorneys and prosecutors also objected to the strict time limits that judges often impose on voir dire. ADA
Rodriguez argued that “judicially controlled time limits on voir dire are ridiculous when you’re talking about somebody’s
freedom and a victim who has suffered a loss. You simply can’t pick fair jurors in 10 minutes.”
Racially Based Peremptory Challenges. Over 25 years ago, the Supreme Court declared race-based peremptory challenges
by prosecutors illegal in Batson v. Kentucky, 476 U.S. 79 (1986). Several years later, the Court extended the Batson rule to

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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defense counsel in Georgia v. McCollum, 505 U.S. 42
(1992). Panelists agreed that Batson and McCollum had
largely failed to constrain racially motivated strikes, for
several reasons. First, defense attorneys are often less than
vigilant about tracking racial patterns of peremptory challenges and often hesitant to accuse prosecutors of acting
with racial motives. Second, it is all too easy for prosecutors
to offer pretextual reasons for strikes.
Panelists debated, but did not reach agreement, on whether
peremptory challenges should be outlawed altogether. “I’ll
give up my peremptories when you give up your unanimous
juries,” said ADA Rodriguez to defense attorneys on the
panel, to laughter in the hall.

18

Justice Pickholz conceded that Batson was an imperfect
remedy: “But once the challenge is made, it tends to chill
the party, and they do not exercise many peremptory challenges against jurors of color after that.”

to serving, if the importance of their service is explained,”
observed Rodriguez.
• Challenge the pro forma exclusion of jurors with personal or family exposure to the criminal justice system. Professor Abbe Smith counseled defense attorneys
to challenge the routine use of the question: “Has anyone
in your family been caught up in the criminal justice system?” Similarly, counsel should object to strikes based
on the ground that the juror lives in a “high-crime community.” The unprecedented scale of mass incarceration
in America today — with one out of every three black
men expected to serve time in prison during his lifetime
— means that a question about criminal justice contact
can no longer be treated as a race-neutral question or
strike for cause.25 ADA Rodriguez agreed with this assessment: “The mere fact that a family member has contact is irrelevant. What’s relevant is their view on that
experience. Many people of color with family members
who have been arrested or sent to jail will tell you, ‘He
deserved it.’ My interest as a prosecutor is knowing
whether there is anything about that experience that
made you feel that your loved one did not
get a fair trial.”

Jury pools composed only of registered
voters exclude many people of color
who may not vote in numbers
representative of their population,
or who have felony convictions that in
some states disqualify them from voting.

B. Recommendations
Panelists offered several suggestions for what judges and trial
counsel can do to maximize the participation of jurors of color:
• Offer hardship accommodations for jury service.
Jurors of color are more likely to experience financial or
logistical hardship from jury service, and may be more
likely to request recusals. Courts should routinely offer
childcare at the courthouse and public transportation
passes or mileage reimbursement, said panelists. For
courts that do not routinely offer these accommodations,
defense attorneys and prosecutors should move the court
for funds for jurors who state they lack the financial resources to serve. Panelists debated whether courts should
excuse people who do not want to serve, with some favoring dismissal, and others, like ADA Rodriguez, emphasizing the civic duty to serve. “Even initially resistant
jurors sometimes change their minds and make them open

• Restore party-controlled voir dire.
Thorough questioning by the parties allows counsel to obtain sufficient information about jurors’ life experiences so
that they do not have to resort to race and
gender as proxies. Both counsel must
have adequate time, although all of the
experts on the panel emphasized that
good voir dire is about effective questions more than the number of questions.
(Here, prosecutors and defense attorneys
observed that, as more judges take control of questioning jurors, younger
lawyers are not learning how to conduct
skillful voir dires.) Panelists recommended the following time-saving compromise: Counsel should be allowed at
least 30-40 minutes to question the first
venire of jurors. Less time could be allowed in subsequent rounds, as newly
seated jurors will have heard the previous questions and parties can move
through interviews more quickly.

• Advocate for alternatives to voter-based jury rolls.
Jury pools composed only of registered voters exclude
many people of color who may not vote in numbers representative of their population, or who have felony convictions that in some states disqualify them from voting.
Even those disenfranchised through a felony conviction
still have a right to serve on juries, said Cathleen Price of
the Equal Justice Initiative. Price urged trial counsel to
consider litigation challenging the exclusion of felons on

Criminal Justice in the 21st Century

the basis that former prisoners qualify as a cognizable group under “fair cross-section” jurisprudence. While this argument
has not been firmly established in the case law, bringing these kinds of challenges forces courts to articulate why ex-offenders should be disqualified from jury service.26 Price also urged defense counsel and prosecutors to work with court
clerks to expand their jury pool sources. Utility bill rosters are broader, more representative sources than either drivers’
licenses or voter rolls, said Price.

VII. Search, Seizure And Identification Issues

Panelists: Lexer Quamie, Leadership Conference on Civil and Human Rights (moderator); Hon. Mark Dwyer, New York
State Supreme Court, Kings County; Rodney Mitchell, REentry Legal Services; Donna Lieberman, New York Civil Liberties
Union (NYCLU); William Gibney, Director of Special Litigation Unit, Legal Aid Society; Delores Jones-Brown, Center on
Race, Crime and Justice, John Jay College of Criminal Justice; David LaBahn, Association of Prosecuting Attorneys.

“Any program that targets 90 percent innocent people
cannot be an effective crime fighting tool.”

19

— Professor Delores Jones-Brown

A. Stop-and-Frisk Policing in New York City
Delores Jones-Brown, a professor at the John Jay College of Criminal Justice, painted a disturbing picture of search and
seizure practices in New York City. Over the past 10 years, under the leadership of Mayor Michael Bloomberg and Police
Commissioner Raymond Kelly, the New York Police Department has aggressively escalated its use of stop-and-frisk policing, a move it credits with maintaining a historic drop in violent crime. In 2011, New York City police officers made
684,330 stops across the five boroughs — a 14 percent increase over the previous year and more than double the number
of stops under the administration of Mayor Rudolph Giuliani, a pioneer of the “broken windows” theory of policing.
But stop and frisks are a very localized experience, largely confined to the 10 precincts in the city that are predominantly
populated by blacks and Hispanics. Of the 684,330 stops by police in 2011, 87 percent were of blacks or Hispanics; only
9 percent were of whites. Blacks comprised 62 percent of stops and 52 percent of arrests, although only 25.5 percent of the
city’s population is black.27
Most arrests following a stop and frisk are
Of particular concern, said some conference
for misdemeanors. Misdemeanor arrests for
marijuana possession in New York City
panelists, was the common practice of
have skyrocketed — with about 350,000
arrests over the past 10 years, a nearly
ordering suspects to empty their pockets in a
twelve-fold increase over the 30,000 total
stop-and-frisk, and then making an arrest for
arrests in the preceding decade.28 Of particular concern, said some conference panmarijuana under a city ordinance prohibiting
elists, was the common practice of ordering
suspects to empty their pockets in a stop
the possession of marijuana “in public view.”
and frisk, and then making an arrest for
marijuana under a city ordinance prohibiting the possession of marijuana “in public
view.” (The possession of small amounts of marijuana in pockets or outside of public view was essentially downgraded to
a violation in the 1970s.) The commissioner of police ordered officers to cease arrests for “manufactured” plain view arrests
in 2011, but after dropping for a short time, such arrests have risen to previous levels.
This targeting of minority communities for drug enforcement is the principal driver of racial disparities in the city’s criminal
justice system, said many conference participants: blacks and Hispanics comprise 50 percent of NYC’s population, but 88
percent of all arrests.
Perhaps most disturbing, in the view of some panelists, is that the NYPD’s aggressive use of stop-and-frisk policing produces little evidence of crime. Guns are uncovered in roughly .11 percent of stops; contraband in only 2 percent of stops;

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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and summonses and arrests or summons are issued in less
than 12 percent of all cases.29 This means that nearly 90 percent of all stop and frisks are conducted against innocent
persons, said Jones-Brown.

20

Reasons proffered by police for stops are highly subjective,
leaving room for racial bias. The leading reason for stops
cited in police reports is “furtive movement” — a justification that appears more than three times as often as identitybased stops, such as “suspect fits the description of a
perpetrator.” Professor Jones-Brown concluded that young
men of color in New York City are subjected to police contact
based largely on their attire (e.g., saggy pants, hoodies or suspected gang colors), and cited evidence suggesting that lesbian, gay, bisexual and transgender youth and adults of color
are also frequent targets of police harassment.
The Honorable Mark Dwyer, an acting justice on the Kings
County (Brooklyn) Supreme Court — but speaking purely in
an individual capacity — agreed that the practice of making
stops and frisks without the articulable reasonable suspicion
required in Terry v. Ohio, 392 U.S. 1 (1968) must end. Those
practices not only conflict with relevant case law, but also
alienate members of minority communities and make it harder
for police to elicit their cooperation to prevent and solve
crime. But he questioned whether it was possible to address
crime and public disorder in New York City without alternatives to overly robust use of stop-and-frisk that rely upon additional assistance from residents of crime-prone
neighborhoods. Neighborhoods with higher crime need different, more aggressive policing strategies, said Dwyer. And
community assistance to the police is central to potentially
successful strategies. If residents of high crime neighborhoods
want change, they must be part of what changes, he said.

has escalated. It is a violation of civil liberties to subject a
majority of law-abiding residents to oppressive policing in
order to capture or deter a few,” said Jones-Brown.
Panelists discussed a range of interventions needed to address the abuse of stop-and-frisk policing in New York City
and elsewhere.

B. The Role of Civil Litigation
Some conferees agreed that post-arrest litigation in individual
cases is inadequate to address the problem of racially disparate policing practices because district attorneys, defense
counsel and judges see only the small percentage of cases in
which contraband was found — not the majority of cases
where innocents were unnecessarily and unjustly stopped.
For this reason, several defender and public interest legal organizations have brought civil lawsuits to challenge these
practices. The Center for Constitutional Rights is litigating a
class action case, Floyd v. City of New York, challenging the
racial profiling and unconstitutional stop and frisks by the
NYPD. The Legal Aid Society of New York, the NAACP
Legal Defense and Educational Fund and a private law firm
(Paul, Weiss, Rifkin, Wharton, & Garrison LLP) have filed
a pattern-and-practice case, Davis v. City of New York, challenging abusive arrests for criminal trespass in New York
City Public Housing Authority (NYCHA) buildings. The suit
alleges that police officers routinely arrest residents and their
guests who are legitimately on the property.

Separate litigation filed by the NYCLU, the Bronx
Defenders and Latino Justice/PRLDEF challenges a sister
program called Operation Clean Halls, in which police conProfessor Jones-Brown disagreed with the proposition that
duct
“vertical patrols” in private buildings. Advocates have
policing strategies must differ between neighborhoods, citchallenged
the validity of the program based upon the large
ing research showing that a small number of repeat offendnumber
of
trespassing arrests subsequently thrown out in
ers are responsible for the majority of criminal offenses.
court.
“Untold
numbers of people have been wrongly ar“Crime is down across the city, including in ‘high crime’
rested
for
trespassing
because they had the audacity to leave
neighborhoods where aggressive stop-and-frisk policing
their apartments without IDs or visit friends
and family who live in Clean Halls buildings,” said Donna Lieberman, director of
the NYCLU. Recently, the federal judge
presiding over the three cases described
above issued a preliminary ruling calling
“Untold numbers of people have been
trespass policing “a longstanding unconstiwrongly arrested for trespassing because
tutional practice.”

they had the audacity to leave their
apartments without IDs or visit friends and
family who live in Clean Halls buildings.”

These lawsuits are supported by a growing
coalition represented by Communities
United for Police Reform (CPR), which
works to end discriminatory policing practices and build a movement to promote
public safety approaches based on cooperation and respect. Among the remedies
being sought by coalition members are:

Criminal Justice in the 21st Century

• Better police management (specifically,
reform of performance measures for police officers). Although the NYPD denies
enforcing arrest quotas, police department
performance evaluations still refer to the
numbers of arrests in assessing officers’
effectiveness, said reform advocates.
• Education and training for officers on
implicit bias.
• Orientation toward problem solving
and community building.

“. . . . Training police on the proper legal
standard for stop-and-frisk will do little
unless we change the performance criteria
upon which they’re judged. Stop-and-frisk
quotas are fundamentally inconsistent with
the legal standard predicated on
individualized suspicion [Terry v. Ohio].”

C. Education vs. Structural
Approaches to Reform
Conferees engaged in a vigorous debate as to whether training and education to increase the cultural competence of
police are effective in reducing racial disparities, or whether
structural changes that focus on oversight and reform of police accountability measures provide the greater impact.
Professor Jones-Brown described a course she teaches at
John Jay called “Perspectives on Race and Crime in
America.” The students include “a lot of well-intentioned
officers who are learning about their own implicit biases.
They see non-white, poor people, dressed in ways they
think are inappropriate, and decide this non-criminal behavior signals someone who should be stopped.”
Others emphasized the importance of cultural competence
for new officers, who may view people hanging out on
stoops and street corners in poor neighborhoods as troublemakers, when in fact this may be the norm in communities
where residents live in crowded apartments and may lack
the resources to frequent restaurants or other indoor social
spaces. Rodney Mitchell, founder of REentry Legal
Services in Washington, D.C., concurred. A beat officer’s
relationship with the community will determine his effectiveness in resolving crime, said Mitchell. Accordingly,
Mitchell’s program focuses on building relationships
among police, clergy and young people in the neighborhood, and familiarizing police with social networks and
clubs in their service area.
A defense attorney in the audience insisted that the larger
problems are structural ones — in particular, arrest quotas
that encourage officers to make excessive numbers of arrests. “If you want to make detective, you have to make the
collars,” he said. He and others emphasized the need for performance reforms that would reward officers based on the
quality rather than quantity of arrests.

Donna Lieberman, director of the NYCLU, weighed in on
the question of differential policing strategies and the role
of police training versus performance measures: “The
Compstat data are helpful, and police should be responding
to crime hotspots. But the NYPD has abused the data to impose quotas on line officers. Training police on the proper
legal standard for stop-and-frisk will do little unless we
change the performance criteria upon which they’re judged.
Stop-and-frisk quotas are fundamentally inconsistent
with the legal standard predicated on individualized
suspicion [Terry v. Ohio].”

21

D. Legislative Reforms
Advocates are working with several members of the New
York City Council on a package of four bills that they believe would curtail abusive stop-and-search practices.30 The
legislation includes:
• A bill that would outlaw racial profiling and
strengthen its definition, as well as provide a private
right of action for innocent victims of profiling.
• A bill creating an Office of the Inspector General, an
independent office that would review the civil rights and
liberties impact of police policies and practices and make
recommendations for reform. (The NYPD has its own
Office of Internal Affairs, but proponents of the measure
say that an independent agency would provide greater
oversight and accountability.)
• A bill requiring that police give the equivalent of
Miranda warnings before a “consensual” search. This
measure is considered important to counter an atmosphere
in which police leadership have counseled young people
to consent to search — whether or not probable cause exists — if they want to avoid arrest.
• A bill requiring that police state their name and badge
number when conducting a stop and frisk.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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E. Criminal Litigation
Challenging Stopand-Frisk Arrests

“We have a good system —
but it’s the one that white kids get . . . .”

22

Despite the fact that post-arrest suppression motions in criminal court will never
address the majority of cases in which police may have overreached, some conferees agreed that there were several things
that prosecutors and defense attorneys can
do once a defendant is arrested for trespass or contraband arising from a questionable stop and frisk:

• Bring greater prosecutorial scrutiny of “plain view” cases. DAs should refuse to prosecute marijuana possession cases
(particularly for marijuana in “plain view” following an order to empty pockets). The Association of Prosecuting Attorneys
now advises district attorneys to rethink the prosecution of marijuana possession cases, said David LaBahn of the APA,
because it limits, due to volume, their ability to focus on more serious, violent crimes.
• Demand routine interviews with police officers. DAs should require interviews with arresting officers in cases involving
questionable stops and searches. So many trespass arrests in Bronx public housing complexes were thrown out in recent
years that in September 2012, Bronx District Attorney Robert Johnson announced that his office would no longer prosecute
such cases based on a paper complaint alone. Going forward, DAs will be required to conduct face-to-face interviews
with arresting officers.31 This move is widely expected to reduce the number of arrests.
• Bring motions to suppress. Defense attorneys should move to suppress the fruits of illegal stops and searches. Motions
give defense counsel an opportunity to challenge what is going on behind the scenes, said panelists.

VIII. Sentencing And Community Corrections
— A Tale Of Two Systems

Panelists: Nkechi Taifa, Open Society Foundations (moderator); Dr. Divine Pryor, Center for NuLeadership on Urban
Solutions; Clinton Lacey, New York City Department of Probation; Jonathan Rapping, the Southern Public Defender
Training Center; Mike Randle, Cuyahoga County, Ohio Community-Based Correctional Facility.
In New York City, one-third of all probationers are 16-24 years old. The vast majority are young men of color. These levels
of disparity are even starker in the juvenile justice system. Vincent Schiraldi, Commissioner of Probation in New York
City, observed that there was little discussion of racial disparities, or the need to address them, within corrections bureaucracies. Why? “The opposite of love is often apathy,” he said. “We’ve become inured to amazing levels of disparity in our
systems.”
“We have a good system — but it’s the one that white kids get, which diverts kids out of the system and retains the few
who really need to be in prison,” said Schiraldi to a hushed room.
Dr. Divine Pryor, Executive Director of the NuLeadership Center for Urban Solutions, concurred: “There is an unwritten
understanding among police that you don’t arrest white kids and put them in the system, because you don’t want them to
get a record. Young people of color in poor neighborhoods have an entirely different experience of the criminal justice
system,” said Pryor. “Communities are being traumatized by these [policing] practices when 700,000 are stopped and
searched per year. . . . High schoolers assume the position, and drop their backpacks when they see police roll up. Whole
generations have already accepted prison as the norm. This is the destructive effect of mass incarceration on community
consciousness and personal aspirations.”

Criminal Justice in the 21st Century

A. The Role of Probation in
Reducing Racial Disparities

B. The Role of Corrections in
Reducing Disparities

Clinton Lacey, Deputy Commissioner for Adult Services in
the New York City Department of Probation, described
three core approaches that his agency is using to minimize
the impact of the criminal justice system on poor communities of color:

Mike Randle, a long-time corrections executive from Ohio,
observed that many people are surprised to learn that over
half of state prisoners serve only 12 months or less. “Prison
should be reserved for serious, violent predatory offenders,
yet our prisons are clogged with people serving short terms
for less serious offenses.”

• Reduced reliance on incarceration. Under Schiraldi’s
leadership, the NYC Probation Department is using sevNow more than ever, said Randle, there is a new interest
eral means to minimize defendants’ exposure to prison.
among policymakers in reducing incarceration rates in
First, the Department is using risk and needs assessments
order to reduce pressure on state budgets. Although “no
to develop sentencing recommendations to judges. These
politician ever won election arguing for rehabilitation rather
are designed to distinguish between defendants who are
than prison,” in the words of one conference participant,
high risk and defendants who are merely high need. On
there is a willingness to talk about alternatives to incarcerthe back end, the Department has cut the rate of violations
ation that reduce reoffending.
by 40-50 percent in recent years by being more thoughtful, creative and patient. “Our approach is to exhaust other
options before violating a probationer
and sending him to prison,” said Lacey.
Finally, the Department has significantly
increased its requests to court for early
discharge from probation for many peo“The literature is clear that after
ple in its caseload. “The literature is clear
18 months, probation supervision brings
that after 18 months, probation supervision brings diminishing returns, despite
diminishing returns, despite the fact
the fact that misdemeanor charges carry
a three-year term of probation, and
that misdemeanor charges
felony charges five years. Courts often
carry a three-year term of probation . . . .”
agree with us.”
• More services. The Department has
shifted its focus during the probationary
period from supervision and monitoring
to providing services and lifting barriers to employment
and housing.
• Do it in the community. Probationers now report to neighborhood-based centers, part of the Department’s
Neighborhood Opportunity Network, rather than to department headquarters. This encourages greater knowledge of
community context, risks and services among probation officers, and “gives them a different view of the community
where the client lives,” said Lacey. “Communities of color
are not just venues of pathology, but places with assets
where solutions will be made.” Some probation officers are
even embedded in community-based organizations that provide resources and services. A community-based setting
also brings advantages to probationers and parolees, who
no longer have to miss work or other obligations to travel
to faraway offices to report.

After more than 23 years working in state prison facilities,
Randle now runs a new initiative that provides front-end diversion from prison. The Community-Based Correctional
Facility (CBCF) is a secure institution in the heart of
Cleveland, the largest “sending” community to state penitentiaries in Ohio. The program targets offenders with low-level
felonies who are at high risk to reoffend without intervention.
Placement in CBCF is based upon risk level, with residents
otherwise falling somewhere between electronic monitoring
and prison.
The goals, according to Randle, are to give judges another
option short of prison and to help offenders become productive members of the community. Offenders serve up to
6 months with substance abuse counseling, cognitive behavioral treatment, anger management, and employment or
other activities that maintain their ties to the local community. Residents earn the opportunity to leave the facility
after some period of time. Staff interaction with residents
is rooted in evidence-based cognitive practices — as well
as the expectation that they will succeed. “We help offenders recognize risky behavior, engage in more effective de-

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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23

cision-making, and reward positive behavior IMMEDIATELY,” said Randle.

C. Sentencing Reform
Some conferees suggested that tight budgets across the
country and within the federal government have created a
policy window for sentencing reforms that promote crime
prevention, shorter prison terms, and services or other programming to reduce reoffending. Nkechi Taifa, a policy analyst with the Open Society Foundations in Washington,
D.C., noted that two major pieces of federal legislation have
passed Congress in recent years. Both have improved outcomes for people of color in the criminal justice system:

24

• Second Chance Act — Signed into law on April 9, 2008,
the Second Chance Act (P.L. 110-199) was designed to
improve outcomes for people returning to communities
from prisons and jails. The legislation authorizes federal
grants to government agencies and nonprofit organizations to provide employment assistance, substance abuse
treatment, housing, family programming, mentoring, victims support and other services that can help reduce recidivism. In 2012, 58 million dollars was appropriated
toward re-entry services.
• Fair Sentencing Act — Signed into law in 2010 by
President Obama, the Fair Sentencing Act (P.L. 111-220)
reduced the 100:1 sentencing disparity between crack and
powder cocaine to 18:1. The legislation also eliminated

David LaBahn of the APA described a
recent effort in California to downgrade
certain misdemeanors to a $250 fine.
the five-year mandatory minimum sentence for simple
possession of crack cocaine.
Notably, each of these pieces of legislation passed with
strong bipartisan support. Advocates of reform included
state prosecutors and former U.S. Attorneys, who testified
before the U.S. Sentencing Commission.
At the same time, sentencing reform continues to face stiff
opposition from the private prison industry, which makes
its profit on a per prisoner basis and therefore depends on
continued high prison commitments. Private prisons have
won contracts largely on the argument that their operational costs are lower; however, contracts are financed en-

tirely by the taxpayer, and private operators have no incentive to save bed space, noted several panelists. While some
states have barred private prison contractors after poor experiences with them, other states are actively considering
privatizing state facilities.
Conference participants called for additional sentencing reform
efforts on the state and local level that would:
• Reduce certain misdemeanors to infractions, such as
walking between subway cars, fare beating and disorderly
conduct. David LaBahn of the APA described a recent effort in California to downgrade certain misdemeanors to a
$250 fine. Sponsors ultimately could not get it through the
legislature, but district attorneys in some jurisdictions subsequently worked with judges and the defense bar to create
a diversion process that took those cases out of the system.
In 2010, the California legislature approved the downgrade
of simple marijuana possession to a fine of $100.
• Reinvest justice savings in community programs that
prevent crime and recidivism. Justice Reinvestment is
a reform initiative that seeks to reinvest savings from
prison commitments into non-incarceration alternatives
and community resources in high-crime neighborhoods.
• Restrict the use of conspiracy laws. Karen Garrison, a
criminal justice reform activist from Washington, D.C.,
whose twin sons were wrongfully convicted of drug conspiracy, lamented the long reach of conspiracy laws. Conspiracy charges —
which under federal law carry significant
sentencing consequences — are too often
brought against peripheral actors in order
to compel them to inform on others.

D. Networks for Sharing
Best Practices
Some conferees agreed that more should be
done to ensure the sharing of best practices
that reduce racial disparities. Among other resources, conferees
mentioned the following professional networks that help systems reduce the use of incarceration, detention and disproportionate minority confinement:
• The Juvenile Detention Alternatives Initiative (JDAI)
of the Annie E. Casey Foundation. JDAI networks
juvenile justice system stakeholders around the country
and focuses on reducing disproportionate minority
confinement, as well as overall detention rates of
young people. See www.aecf.org/MajorInitiatives/
JuvenileDetentionAlternativesInitiative.aspx for more information and resources.

Criminal Justice in the 21st Century

• The Haywood Burns Institute focuses on strategies to reduce racial disparities in the juvenile justice system. See
www.burnsinstitute.org for more information and resources.

IX. Community Justice

Panelists: Brett Taylor, Center for Court Innovation (moderator); Anne Swern, Brooklyn District Attorney’s Office; Dennis
Lawrence, AmeriCorps; Robin Steinberg, Bronx Defenders; James Brodick, Brownsville Community Justice Center and
NYC Community Cleanup.
For more than 15 years, New York City has been the locus of several pioneering community justice initiatives developed
by innovative defender, prosecution and court offices. This panel explored the role and potential of community justice
models in addressing racial disparities.
Panelists agreed that the core features of a “community justice” approach are: 1) consultation with local residents — including youth, local businesses, offenders and crime victims — about community needs and priorities; and 2) services or
advocacy to address the underlying causes of crime or criminal justice involvement.

25

A. Defender-led Community Justice: The Bronx Defenders
Robin Steinberg is the executive director of the Bronx Defenders, a 15-year-old public defender agency located in the
poorest congressional district in the nation. Steinberg described her office’s model of “holistic defense” as one that seeks
solutions to the underlying issues driving clients into the criminal justice system. The Bronx Defenders also seeks to
mitigate the collateral consequences flowing from involvement in the criminal justice system. This process is “informed by,
and responsive to community voices,” said
Steinberg. “Public defense is not the solution,” she cautioned, “but how we practice
“Public defense is not the solution,”
defense can have an impact on racial disshe cautioned, “but how we
parity.” Steinberg outlined several community-oriented practices that the Bronx
practice defense can have
Defenders developed to do so:

impact on racial disparity.”

• Create structures and mechanisms to
capture community voices regarding
advocacy needs. The Bronx Defenders
has a client advisory board, convenes
regular town hall meetings and conducts open, walk-in intake. It also conducts collaborative information sessions and
Know-Your-Rights workshops with other community-based organizations and city agencies. These efforts “help us develop responses to larger issues that are surfacing,” said Steinberg.
In response to client input, staff at the Bronx Defenders developed several initiatives:
• A voter registration project at the city’s largest jail to counteract the “urban myth” (one often propagated by misinformed
corrections and probation officers) that people with arrest or conviction records cannot vote in New York State.
• Civil litigation challenging stop-and-frisk policies in New York City public housing developments, as well as a class
action lawsuit, successfully settled with the NYPD, challenging illegal arrests for loitering.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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• A data collection and public education project on marijuana arrests. Bronx Defenders staff heard repeatedly
from community members that police were routinely
throwing young men of color against the nearest wall,
going into their socks and pockets, pulling out (non-criminal amounts of) marijuana, and then charging the youth
for marijuana possession “in plain view.” This policing
practice is illegal, but had remained little more than anecdotal. The Bronx Defenders began to collect and publish
data that educated the public about racial disparities in
marijuana arrests. The initiative has helped spur a
statewide debate and a legislative proposal from Governor
Andrew Cuomo to decriminalize public possession of
small amounts of marijuana, lowering the penalty from a
misdemeanor to a non-criminal violation.

26

• A bail initiative that educates defense attorneys and judges
about alternatives to cash bail authorized by the New York
State bail statute. “We do not need pretrial supervision to
throw a wider net of supervision over clients,” argued
Steinberg. “What we need are alternatives to cash that will
assure their appearance in court.” The Bronx Defenders also
created its own revolving bail fund that helps clients meet
bails of $1,000 or less.

B. Community Prosecution
in Brooklyn
Anne Swern, First Assistant District Attorney in the Kings
County (Brooklyn) District Attorney’s Office, described
community prosecution simply as “community justice delivered by the prosecutor’s office.” “My boss is an elected

The Bronx Defenders began
to collect and publish data that
educated the public about racial
disparities in marijuana arrests.
official, so the community must have a role in all I do,” emphasized Swern. For prosecutors, building relationships
with the community is critical to generating confidence in
the criminal justice system. Without that confidence, witnesses will not come forward and people will be afraid to
report crime. For all of these reasons, explained Swern, the
Brooklyn DA’s office “is known as the office of ‘yes.’ We
initiate projects based on what the community tells us is
important.” Swern described some of the needs they heard
over the years and the community justice programs that
emerged in response:

• Alternatives to jail and prison that would keep those
charged with less serious crimes close to their homes and
families, while also ensuring accountability and public
safety. The Brooklyn DA’s office became the first prosecutor’s office in the nation to develop a drug treatment alternative program (called DTAP in New York City, for
Drug Treatment Alternatives to Prison) for putative felons
who normally would have served at least 2-4 years in
prison. “We took seriously the notion that this is a medical
problem,” said Swern.
• The need for support for re-entering prisoners. The
Brooklyn DA’s office created a re-entry partnership called
ComALERT (Community and Law Enforcement
Resources Together). With on-site drug treatment, job development, public health testing, and GED instruction,
ComALERT connects re-entering residents with community services all in one venue. The DA’s office used its
own resources to fund the program, which was later evaluated by a researcher at Harvard University.
• Education for over-age students. The Brooklyn DA’s office collaborated with the city’s Department of Education
to launch a program in Brownsville called “Restart” for
13-14 year olds who have been held back a grade or more,
but who are too mature physically or emotionally to join a
classroom of 6th graders. The project, located in a neighborhood with a high drop-out rate, has had a 100 percent
graduation rate in its first year of operation. Swern described the collaboration as an example of how prosecutors
can leverage their credibility as crime fighters to “connect
the dots between public safety and community initiatives.”
The Brooklyn DA’s office was also instrumental in bringing a community court to
Red Hook, an impoverished neighborhood
in Brooklyn reeling from the shooting of a
popular school principal. Swern recounted,
“We wanted a community court that would
be transparent, accessible and accountable
to the community. We didn’t want to limit
the kinds of cases it could hear but wanted
to think expansively.” Hence the Red Hook
Community Justice Center was born to address the needs of the community, not just
the litigants in court.

Community Courts: The Red Hook
and Brownsville Examples

James Brodick, a project director with the Center for Court
Innovation, described the skepticism that greeted the initial
proposal to build a community court in Red Hook, a geographically isolated neighborhood that lies along the
Gowanus Canal in northern Brooklyn. “No one is standing
up and clapping at the prospect of a court coming to the
neighborhood. When people go to court, it’s never for a

Criminal Justice in the 21st Century

good reason,” said Brodick. Bringing
“early deliverables” to the neighborhood
is a key to getting buy-in for a community
court. Recognizing that most crime results
from a lack of opportunity, the first priority was a community-wide survey, conducted door to door, to understand what
people saw as the biggest issues in the
neighborhood. “Job developers, educators
and social workers are all part of the equation, not just lawyers and judges,” said
Brodick. Several initiatives — as well as
unintended benefits — flowed from the
survey process:

Brodick said that the community court
model had helped to reduce crime
recidivism by 10 percent among adults
and by 20 percent among young people.

• The launch of an AmeriCorps program and teen court.
Instead of the usual model, in which privileged people
come from afar to help a blighted neighborhood, the court
launched an AmeriCorps program with young people
from the Red Hook and Brownsville neighborhoods who
serve their own community. The program has trained
young people as organizers and community leaders.
Among the initiatives is a teen court, in which youth
trained as mediators help to resolve cases involving other
young people. “This is an empowering experience that
gives them a different lens on the criminal justice system,”
said Brodick. “It teaches accountability, fairness and getting people on the right track.” Dennis Lawrence, a lifelong Brownsville resident and AmeriCorps volunteer,
praised the program’s interventions as literally life saving.
“Brownsville is in a state of genocide — we have young
people who are killing each other. We help to mediate between their current situation and future incarceration.”
• Pretrial supervision. The community court model houses
a pretrial services office on site. The pretrial investigation
and monitoring services have given judges greater confidence that defendants will appear in court. As a result,
community courts are 14 times less likely to require bail
than traditional courts, said Brodick. “It will mean more
conditions, but no cash.”
• One-stop services. The community court offers drug
treatment, a job center and other services, all at the courthouse site. Job training programs include driving instruction, culinary arts classes and GED training.
Brodick said that the community court model had helped
to reduce crime recidivism by 10 percent among adults
and by 20 percent among young people. Red Hook is now
one of safest places in Brooklyn, he said, and has attracted
new stores/employers like Ikea and Fairway to the neighborhood.
Another positive, although unintended, consequence of the
community court model was greater system accountability,
said Brodick. “The culture changes when cases go in front

of the same judge, prosecutor and Legal Aid attorney every
week” in a small court, he said, because officials more readily see patterns of injustice and act on them. Brodick gave
as an example a judge who heard repeatedly from young
defendants coming before him that a certain police officer
was harassing them. That judge called on Brodick, as the
court administrator, to contact the precinct chief and investigate. “Downtown, when you’re working cases in front of
different judges, you’re less likely to worry about what’s
best for this person or the community, and more concerned
about moving the docket,” said Brodick. Anne Swern
agreed. She noted that the Brooklyn DA’s office had also
adopted a catchment zone model that divided staff among
23 police precincts of heterogeneous crime rates that better
allows prosecutors to identify troublesome patterns and
hotspots and develop local relationships. “It’s not as comprehensive as a community court with everything and
everyone under one roof, but it requires far fewer resources,
and thus can address the remaining 20 police precincts that
do not have community justice centers with a similar philosophical approach,” said Swern.

27

The Center for Court Innovation is now taking its community court model to Brownsville, a two-square-mile
Brooklyn neighborhood of 115,000 people, 40 percent of
whom live in public housing. Brownsville has a serious
drug and crime problem. As part of its start-up effort, the
court has launched a joint program with the Department of
Probation, which targets 16-to-24-year-olds for job training.
Enrollees participate in classes for six months and even receive a stipend.
The court is also trying to ease the tension between young
people and police in the neighborhood. Brodick described
a typical dynamic in which young rookies — wary of
Brownsville’s reputation as a tough neighborhood — were
getting into ego-fueled altercations with young neighborhood men that frequently spiraled out of control. The rookies would “go in with their guard up, not willing to nod and
smile at residents, or look people in the eye. Given how
young people in those neighborhoods already view cops,
you can guess how those interactions end up,” said Brodick.
As court officials, “We walk the line of keeping good relations with the police and community, which is not always
easy. We say to the local captain — whether this is an impact zone, or whether you do stop-and-frisk policing is not

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

Report

Ann Swern of the Brooklyn DA’s office
added mental illness and insufficient mental
health services to the list of problems that
are deposited on the doorstep of a
criminal justice system neither
designed nor equipped to handle them.

28

our call. But we can help introduce your officers to the
neighborhood.” The community court began to arrange
community tours with teams of young people from the
neighborhood. The community walks have helped to “get
both parties to see eye to eye. The truth is that both the
rookie cops and young people in Brownsville are scared.”
Brodick summed up by saying, “Engaging communities in
the planning process, and using the right professionals to
come up with good outcomes to cases, helps to hold systems accountable.”

C. Do Community Justice
Models Really Impact
Racial Disparities?
Robin Steinberg challenged the element of complacency
underlying the presentations. Community justice programs
in courts, prosecution and defender offices, “while interesting, innovative and an improvement over traditional models,” are essentially “palliative care” that fails to address
the larger issues of racism, poverty and lack of opportunity
that went “unaddressed long before anyone hits the courthouse steps.” Steinberg also said:
We have decided that rather than solve those
problems of racism and poverty, we will cede
them to the criminal justice system. It shouldn’t
be the case that the biggest building and most resourced entity in a poor neighborhood is the
courthouse — not the schools, hospitals or conflict resolution organizations, but the courthouse.
. . . Criminal justice agencies aren’t really addressing the larger issues of racialized policing
and how we respond to poor versus wealthy communities. . . . [O]ur agencies need to be pushing
and asking the larger questions. It’s not good
enough to say to police, “How you do your stop
and frisk — that’s your call.” It’s NOT their call,
it’s OUR call [as officers of the court]. We should
be calling that out as a problem.

Steinberg also questioned the value of offering services after arrest, because “people
needed those services long before they got
arrested into the criminal justice system.”
She also refuted the assumption of therapeutic justice models that every defendant
needs to get “back on track”:

In New York City a majority of people
being hauled into the criminal justice
system — almost all of them poor people of color — are coming in on lowlevel misdemeanors. These are not
[offenses] that actually require ‘getting back on track.’ We have to question why we
are using the long arm of the criminal justice system to arrest young people who write on their
desk, or black and Latino men who write their
name on a wall, or why we arrest kids for pot in a
pocket when we don’t arrest other kids for pot.
This has less to do with lives off track, and more
to do with how we define crime, whom we target,
and how we police certain communities.

Like earlier panelists, Steinberg argued that “we’d resolve
most race disparity if you either policed evenly, or made
the decision that we shouldn’t be criminalizing non-violent,
non-victim crimes. The impact of this policing model is to
further victimize and disenfranchise people who, together
with their families, suffer horrible consequences that flow
from even a marijuana arrest.” Community justice models
and criminal justice agencies, she concluded, are “too late
in the game” to eliminate racial disparity in the criminal
justice system.
Ann Swern of the Brooklyn DA’s office added mental illness and insufficient mental health services to the list of
problems that are deposited on the doorstep of a criminal
justice system neither designed nor equipped to handle
them. But Swern argued that the system must still hold people accountable for less serious offenses in order to create
a livable society. “Don’t talk to me about decriminalization
unless you have a plan and some details about how you’re
going to do it and provide resources to hold people accountable. I don’t need a bicyclist riding on the sidewalk in the
criminal justice system, but I don’t want him mowing down
an old woman either.”
In these less serious cases, Swern suggested that agencies
do have a duty to reduce the harm of criminal arrests. “I
can separate out those cases that are serious and victimizing
the community. As for the other, far larger group of cases
— I have to ask myself whether there is anything I can do
to make the trip to the courthouse less than a complete harm
or waste of time.”

Criminal Justice in the 21st Century

Swern explained that the Brooklyn DA focuses on jail and prison diversion, particularly for drug crimes, as a strategy for
minimizing racial disparity, because “we understand that incarceration undermines family and economic support relationships.” Her office was one of the first in the country to create a drug treatment alternative for both felony and misdemeanor
drug offenders. In the face of criticism from defense attorneys, who argued that the year-long program widened the net of
surveillance for clients who would otherwise face a limited or suspended jail sentence, the parties compromised upon a
policy that requires drug treatment, but only after the 12th misdemeanor drug arrest.
Even though these approaches cannot completely address the full range of problems steering cases to the courthouse, “we
can remediate what we see,” concluded Swern.
James Brodick argued that strategies undertaken by community courts, like community-police walks, build relationships that
can in fact reduce racial bias. “Officers should know who the young people are in the communities they police. It’s problematic
that young people run when they see cops,” he argued. “If we can identify a police captain and young people who are willing
to put themselves out there [to build relationships], that’s good,” he said. AmeriCorps volunteer Dennis Lawrence agreed. “Ego
can get in the way of patience and courtesy. It’s important [for police officers] to show some respect, and know your name.”
Brodick also argued that by reducing crime, community justice initiatives lay the groundwork for economic development
in poor neighborhoods. Pointing to the transformation of Red Hook as an example, Brodick noted, “Fairway and Ikea
aren’t willing to put businesses into neighborhoods they do not view as safe.
Economic development and jobs depend
on public safety.” He also suggested that
hope and motivation were essential ingre“Officers should know who the young
dients in a community-transformation
strategy. AmeriCorps and other youth depeople are in the communities they
velopment programs show young people
police. It’s problematic that young
that they are “worth more than jail, and
that with patience and concern, I can bepeople run when they see cops.”
come somebody.”

X. Recommendations For Moving Forward
The conference ended with a call for advocacy on two fronts to reduce the race-related harms of the criminal justice system:
1. Structural reform at points of entry and sentencing, by ensuring fair and equal law enforcement across socioeconomic and geographic groups and/or repealing policies and practices that drive racial disparities (e.g., racially disproportionate policing and excessive drug and other sentences); and
2. Fair administration of justice reforms to minimize the impact of existing racial and economic disparities,
through periodic monitoring, assessment and review of racial outcomes in bail decisions; prosecutorial charging and diversion; post-arrest service programs; and post-release programs that help ex-offenders lead productive lives.
The conference focused mainly on the second set of strategies — assessment, diversion and provision of services — that
reduce the worst impacts of the criminal justice system on racial minorities. The discussions spotlighted a host of innovative
strategies being developed by forward-thinking prosecutors, defenders and judges to reduce the disparate impact of the
criminal justice system on people of color. While more can and should be done to replicate these best practices, most participants urged greater efforts to address the structural factors that funnel so many blacks and Latinos into the criminal
justice system in the first place. Some conferees especially called for changes in policing practices that disproportionately
target poor people of color and other policies that use law enforcement to address social and economic problems. Without
greater efforts to address harsh policing and sentencing policies, initiatives aimed at the fair administration of justice in
courts will be insufficient to eliminate the racial disproportionality that currently defines the U.S. criminal justice system.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

Report

29

A recurring theme in the conference was a call for greater
public debate and conversation about what are — and what
should be — our priorities for the criminal justice system.
Do our laws, policies and practices reflect public consensus on these priorities? If not, what needs to change? How
do we move the system away from a paradigm focused on
arrest, punishment and social control of communities of
color to one that focuses on healing and restoration? How
do we avoid using courts as the dumping ground for difficult or seemingly intractable social problems?

30

Conference participants underscored the need to bring police, mayors and elected officials — as well as members of
the public to whom they respond — into the conversation
about the need for deeper structural reform. Specifically,
some conferees called for more vocal advocacy to reform
the wide-ranging policies and practices that drive racial disparities. These include:
• outlawing racial profiling practices by police;
• strengthening civilian review and control of local police departments;
• reforming bail policies to make release for non-violent offenders the default, and reducing or eliminating the requirement of cash bail;

• repealing post-conviction consequences that impede the successful re-entry of those with criminal histories; and
• assessing the impact of political fund-raising and corporate
contributions on sentencing.
This is, no doubt, an ambitious agenda. Deborah Small, a
conference advisor and leader in the drug policy reform
movement, encouraged bold goals and bold thinking:
“Our vision and goals should be ones that future
generations will believe were sufficient to the
problem. We would not remember the Montgomery
Bus Boycott if its demand was limited to two or
three extra rows to sit on in a segregated bus. It is
because they demanded and fought for dismantling legal segregation that they sparked a national movement and achieved historical
significance. Given the magnitude of mass criminalization in the United States and its continuing
devastating impact on African American and
Latino families and communities, our goals should
be equally ambitious and our methods equally
committed.”

• bringing transparency and accountability to prosecutorial decisions — especially charging and plea bargains;
• decriminalizing more non-violent drug offenses;
• ending the practice of adjudicating juveniles in adult courts;
• repealing mandatory minimum sentencing schemes;
• repealing zero-tolerance school discipline policies that funnel
youth into the criminal justice system;
• reforming “truth-in-sentencing” laws that prevent or delay
the consideration of parole;

“Our vision and goals should be ones
that future generations will believe
were sufficient to the problem . . . “

Criminal Justice in the 21st Century

ENDNOTES

1. Sentencing Project, Incarceration, at http://www.sentencingproject.org/template/page.cfm?id=107.
2. NATIONAL EMPLOYMENT LAW CENTER, 65 MILLION NEED NOT APPLY: THE CASE FOR REFORMING CRIMINAL
BACKGROUND CHECKS (2011).
3. Steven Zeidman, Time to End Violation Pleas, N.Y.L.J., April 1, 2008.
4. NAACP Criminal Justice Fact Sheet, at http://www.naacp.org/pages/criminal-justice-fact-sheet.
5. JERRY KANG, NATIONAL CAMPAIGN TO ENSURE THE RACIAL AND ETHNIC FAIRNESS OF AMERICA’S STATE COURTS, IMPLICIT
BIAS — A PRIMER FOR COURTS (Aug. 2009).
6. The American Bar Association offers a toolbox of research and resources on implicit bias, and strategies for “debiasing,”
available at http://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/implicit-bias-toolbox.html.
7. MARY T. PHILLIPS, NEW YORK CITY CRIMINAL JUSTICE AGENCY, A DECADE OF BAIL RESEARCH IN NEW YORK CITY (2012).
8. MARY T. PHILLIPS, NEW YORK CITY CRIMINAL JUSTICE AGENCY, 2008 ANNUAL REPORT at 16 (reflecting a total of 369,440
arraignments of which bail was set in 32 percent of the continued cases); HUMAN RIGHTS WATCH, THE PRICE OF FREEDOM at 35
and Figure 5 (Dec. 2010).
9. See HUMAN RIGHTS WATCH, THE PRICE OF FREEDOM at 21 (Dec. 2010) (reporting that in 2009 there were 98,980 total admissions to New York City’s jails, 51,047 of which were pretrial detainees incarcerated solely because they had not posted bail).
10. Id. Blacks and Hispanics account for 89 percent of all pretrial detainees held on bail of $1,000 or less.
11. Id. Of the city’s 98,980 jail admissions in 2009, 23 percent (22,846) were being held for misdemeanor cases.
12. The New York City Criminal Justice Agency (CJA) is a private, non-profit corporation providing pretrial release services
in New York City’s Criminal Courts. CJA’s Research Department conducts studies on a variety of criminal justice policy issues.
13. MARY T. PHILLIPS, NEW YORK CITY CRIMINAL JUSTICE AGENCY, RESEARCH BRIEF NO. 27, HOW RELEASE TYPE AFFECTS
FAILURE TO APPEAR at 3 (Sept. 2011) (demonstrating that the failure to appear (FTA) rate for all cases with a defendant who was
released pretrial for the combined boroughs was 16 percent).
14. Id.
15. MARY T. PHILLIPS, NEW YORK CITY CRIMINAL JUSTICE AGENCY, 2008 ANNUAL REPORT AT 27, 40 (Dec. 2009).
16. MARY T. PHILLIPS, RESEARCH BRIEF NO. 27 at 5, 7 (asserting that “bail at the lower end of this range is just as effective
as higher amounts in assuring return to court”); NEW YORK CITY CRIMINAL JUSTICE AGENCY, INC. EFFECTS OF RELEASE TYPE ON
FAILURE TO APPEAR (October 2011) at 55 (“the FTA rate was 17 percent for ROR compared to 14 percent for bail”; “Very low
bail had nearly the same probability of FTA as higher bail: 12 percent among cases with bail amounts from $50 to $500, dropping
below 10 percent only when bail rose to amounts over $7,500.”).
17. HUMAN RIGHTS WATCH at 13 (In 48 percent of the cases in which a person arrested in 2008 had bail set at $1000 or less,
the person charged was never able to post bail); NEW YORK CRIMINAL JUSTICE AGENCY, INC., PRETRIAL DETENTION AND CASE
OUTCOMES, PART 1: NONFELONY CASES FINAL REPORT (November 2007) at 22. These numbers remain consistent with bail amounts
from $500 to over $4,000. Id. (reflecting a total percentage of people who made bail at arraignment when bail was set as ranging
from 6 percent to 14 percent and a percentage of those held to disposition when bail is set ranging from a low of 42 percent
(where bail was set between $500 and $749) to a high of 58 percent (where bail was set between $2,000 and $3,999)).
18. HUMAN RIGHTS WATCH at 30 (In 2009, the average length of pretrial incarceration for people charged with misdemeanors was 15 days; yet in 48 percent of such cases resulting in a conviction and jail sentence, the sentence was less than
15 days).
19. Criminal Procedure Law § 510.30(2)(a) requires a judge to consider various factors, including the accused’s “employment
and financial resources” as set forth in subdivision (ii). The preface to this provision states that “the court must consider the kind
and degree of control or restriction that is necessary to secure [an accused’s] court attendance when required.” Id. According to
Meis of the Bronx Defenders, “a fair reading of the statute requires a judge to consider an accused’s finances but only insofar as
a financial restriction would be necessary to ensure return to court. Where an accused has limited finances, no, or a very low financial restriction would adequately ensure return to court.”
20. Beginning on January 28, 2013, this provision became effective in all five boroughs in New York City for amounts
up to $2,500.
21. HUMAN RIGHTS WATCH at 13 (Where bail is set, judges set bail below $500 in only 6 percent of cases, at $500 to $749
in 6.1 percent of cases and at $750 to $999 in 2.7 percent of cases).
22. Jamie Fellner, Bail Shouldn’t Mean Jail for Poor Nonfelony Defendants, NEW YORK LAW JOURNAL, Feb. 9, 2011.
23. Pew Research Center, “Optimism about Black Progress Declines” at 9 (Nov. 13, 2007).
24. EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DISCRIMINATION IN JURY SELECTION: A CONTINUING LEGACY (Aug. 2010).
25. THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 19742001 at 8 (2003).
26. Brian C. Kalt, The Exclusion of Felons from Jury Service, AMERICAN UNIVERSITY LAW REVIEW 53:1 (Oct. 2003).
27. U.S. CENSUS BUREAU, STATE AND COUNTY QUICK FACTS, at http://quickfacts.census.gov/qfd/states/36/3651000.html.
28. Alice Speri, 2010 Marijuana Arrests Top 1978-96 Total, NEW YORK TIMES, Feb. 11, 2011.
29. NYPD Finds Most Guns Outside of Stop-and-Frisk Hotspots, WNYC, July 16, 2012 (Out of more than 685,000 stops
in 2011, about 770 guns were recovered, with most of these in areas outside those most heavily policed by stop-and-frisk hot
spots).
30. Known together as “The Community Safety Act,” the first two bills passed the New York City Council with veto-proof
majorities on June 27, 2013, and remained unsigned by Mayor Bloomberg as of this report’s publication date.
31. Graham Rayman, Robert Johnson, Bronx DA, to NYPD: No More Frivolous Stop and Frisk Trespassing Arrests, VILLAGE
VOICE BLOGS, Sept. 26, 2012.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

Endnotes

31

APPENDIX A: BIOGRAPHIES

STEWART D. AARON is a partner and head of the New York Office of Arnold & Porter LLP. Mr. Aaron practices
commercial litigation with an emphasis on securities law matters. His practice involves the representation of
clients in litigated matters in state and federal courts, and before regulatory bodies and self-regulatory organizations. He is also a past president of the New York County Lawyers’ Association.

32

NICOLE AUSTIN-HILLERY is the first director and counsel of the Washington, D.C. office of the Brennan Center
for Justice at New York University School of Law, which she opened in March 2008. In her role, Ms. AustinHillery serves as the chief advocate for the Brennan Center on a host of justice and democracy issues in D.C. Before
beginning her career at the Brennan Center, Ms. Austin-Hillery practiced with the law firm of Mehri & Skalet,
PLLC where she focused primarily on the firm’s civil rights employment class action litigation practice.

STEVEN D. BENJAMIN is an attorney in private practice with the firm of Benjamin & DesPortes, based in
Richmond, Virginia. In addition, he serves as special counsel to the Virginia Senate Courts of Justice Committee.
Mr. Benjamin is also the 54th president of the National Association of Criminal Defense Lawyers (NACDL).

BARRY CAMPBELL came to the Fortune Society in 1992 after his release from incarceration. While an intern
at the Fortune Society, he impressed everyone with his ability to relate to various people from very diverse
walks of life. He was hired as staff in 1993. He left briefly but returned in January 2004 to work as the special
assistant to the President & CEO Joanne Page ever since.

ZACHARY CARTER is a partner and co-chair of Dorsey & Whitney LLP’s White Collar Crime and Civil Fraud
practice. Mr. Carter served as U.S. Attorney for the Eastern District of New York from 1993 to 1999. Mr. Carter
practices in the areas of white collar criminal defense and securities and other complex civil litigation, representing government contractors and companies in government regulated industries.

INIMAI M. CHETTIAR is the director of the Brennan Center’s Justice Program, which focuses on reducing mass incarceration. Prior to her work at the Brennan Center, Ms. Chettiar helped start up the American Civil Liberties
Union’s Initiative to End Overincarceration. Her reform efforts and publications have been featured in The New
York Times, The Wall Street Journal, The Hill, Politico, NBC.com, NPR, The Huffington Post and many others.

TANYA COKE is a program development consultant for major foundations and social justice nonprofits. From
1998 to 2002, she was a director of the Criminal Justice Initiative and later Counsel to the Open Society Institute's
(OSI) U.S. Programs, where she designed the foundation’s signature initiative to reduce incarceration in the United
States. She began her career as an anti-death penalty advocate with the NAACP Legal Defense Fund, and later
served as Acting Director of the Poverty and Race Research Action Council (PRRAC). After law school, she
clerked for the Honorable Pierre N. Laval on the Second Circuit Court of Appeals and practiced as a trial attorney
in the Federal Defender Division of the Legal Aid Society in Manhattan.

HON. MARK DWYER is a judge in the New York State Court of Claims and an acting justice of the New York
State Supreme Court. He is also the chair of the ABA Criminal Justice Standards Committee and the Chair of
the New York State Bar Association’s Criminal Justice Section. He is one of the five authors of West’s New York
Pretrial Criminal Procedure and is the treasurer of the Eastern District Civil Litigation Fund, a non-profit group
that arranges for pro bono representation of indigent persons in federal civil litigation.

Criminal Justice in the 21st Century

EDWIN (EDDIE) ELLIS is the founder and president of the Center for NuLeadership on Urban Solutions. Under his
leadership, the Center developed several innovative projects, including: Institute for Juvenile Justice Reform and
Alternatives (IJJRA), the Full Employment Opportunities Campaign, NuLeadership Training Institute, NuUrban
Marshall Plan, Criminal Justice Practitioner Training Program, and Project ReNu. He is also the host and executive
producer of “On the Count: The Prison and Criminal Justice Report,” a weekly public affairs program broadcast
over Radio Station WBAI (99.5 FM) in New York City.

HON. FERN FISHER serves as Deputy Chief Administrative Judge for New York City Courts and is also charged
with statewide responsibility for access to justice issues. As part of her responsibilities, Justice Fisher also handles the city-wide administration of the Civil Court. Justice Fisher contributes the views from the bench in
Residential Landlord-Tenant Law in New York, a practice guide by Lawyers Cooperative Publishing.

LEROY FRAZER, JR., serves as Executive Assistant District Attorney for External Affairs at the New York County
District Attorney’s Office. In May 2009, Mr. Frazer was appointed to the position of First Assistant District
Attorney, which he held until he assumed his current post on January 1, 2010. In his current position, Mr. Frazer
also serves as coordinator of the New York State Law Enforcement Council and Attorney-in-Charge of the
District Attorney’s Northern Manhattan Office.

HON. MARCY FRIEDMAN is a justice of the Supreme Court, New York County, Civil Term, and was recently
named to the Commercial Division of that court where she presides largely over complex commercial cases. She
continues to hear arraignments four times a year in Criminal Court, New York County.

WILLIAM GIBNEY has been with the Legal Aid Society Criminal Practice Special Litigation Unit since 1999 and
has been the director of the unit since 2007. He has conducted class action litigation against the New York City and
New York State regarding (i) conditions in the pre-arraignment holding pens, (ii) jail time credit for mentally ill
prisoners, and (iii) improper arrests resulting from police sweeps in public housing.

THOMAS GIOVANNI is counsel to the Justice Program at the Brennan Center, and director of the CommunityOriented Defender Network, a national network of defender offices housed in the Brennan Center’s Justice
Program. Before coming to the Brennan Center, Mr. Giovanni was a public defender for a decade at the
Neighborhood Defender Service of Harlem. And he has collaborated extensively with clinical law programs at
Cardozo and Fordham.

VANITA GUPTA is the deputy legal director of the American Civil Liberties Union and director of the ACLU’s
Center for Justice, which houses the organization’s criminal justice reform, prisoners’ rights, and capital punishment work. She directs the ACLU’s National Campaign to End Overincarceration. In addition, Ms. Gupta is an
adjunct clinical professor at NYU School of Law, where she teaches and oversees a racial justice litigation clinic.
HON. MELISSA C. JACKSON is a judge for the New York City Criminal Court of New York County, New York.
Her current term expires in 2017. Judge Jackson formerly served with the Kings County District Attorney’s Office
for nearly 22 years where she rose to become Deputy District Attorney of the Major Frauds/Rackets Bureau.

RICK JONES is the executive director and a founding member of the Neighborhood Defender Service of Harlem
(NDS). He is a distinguished trial lawyer with more than 20 years of experience in complex multi-forum litigation. Rick is a lecturer in law at Columbia Law School, where he teaches a criminal defense externship and
a trial practice course. He is also on the faculty of the National Criminal Defense College (NCDC) in Macon,
Georgia, and is frequently invited to lecture on criminal justice issues throughout the country.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

Biographies

33

DR. DELORES JONES-BROWN, PH.D. is a former assistant prosecutor in Monmouth County, New Jersey and
is currently a professor in the Department of Law, Police Science and Criminal Justice Administration at John
Jay College of Criminal Justice, City University of New York. She is the founding director of the John Jay College
Center on Race, Crime and Justice and its current faculty research fellow.
HON. BARRY KAMINS is Administrative Judge of the Criminal Court of the City of New York and
Administrative Judge for Criminal Matters, Second Judicial District. Judge Kamins is the former President of
the Association of the Bar of the City of New York. He is the author of New York Search and Seizure, a leading
treatise on the Fourth Amendment.

34

TIMOTHY KOLLER Appointed as Assistant District Attorney in Richmond County in 1980, Koller has served
there for 32 years as a misdemeanor prosecutor, Chief of the Career Criminal Unit, Chief of the Investigations
Bureau, Chief of the Supreme Court, and Executive Assistant District Attorney, a position that he currently
holds where he oversees the day-to-day operations of that office. Koller has lectured at the NYPD Police
Academy, the New York State Division of Criminal Justice Services Basic Prosecutors’ Course, as well as numerous continuing legal education presentations.
CLINTON LACEY recently joined the New York City Department of Probation as the Deputy Commissioner for
adult operations. In this capacity he is responsible for oversight of a division that supervises some 27,000 clients
on probation and is leading a series of innovative initiatives to designed to reform the Probation Department’s
key policies and practices. Previously, Clinton served as the director of the Youth Justice Program at Vera
Institute of Justice, where he oversaw a technical assistance project focused on the reform of New York State’s
juvenile justice policies.

DENNIS LAWRENCE is currently serving as an AmeriCorps volunteer with the Brownsville Community Justice
Center, a demonstration project of the Center for Court Innovation. He is working in conjunction with the Department
of Probation on a project called Justice Community that focuses on adult male probationers ages 16-24.

DONNA LIEBERMAN has been executive director of the New York Civil Liberties Union since December 2001.
Under Lieberman’s leadership, the NYCLU has expanded the scope and depth of its work, supplementing the
pursuit of litigation with an aggressive legislative advocacy and a field organizing program. As a result, the organization is widely recognized as the state’s leading voice for freedom, justice and equality, advocating for
those whose rights and liberties have been denied, especially for those most marginalized by society.

GLENN MARTIN is the vice president of development and public affairs and director of the David Rothenberg
Center for Public Policy at the Fortune Society, Inc., a social service and advocacy organization devoted to the
successful re-entry and reintegration of individuals with criminal histories. Mr. Martin is responsible for developing and advancing Fortune’s criminal justice policy advocacy agenda and providing leadership over the
agency’s Development and Communication Units.

WAYNE S. MCKENZIE is general counsel for the NYC Department of Probation (DOP). He is the primary advisor to the commissioner on all legal matters; ensures that the DOP is operating within the law at all times;
provides direction and administrative review to all agency attorneys; and as a cabinet member participates in
the formulation and administration of city policies, programs and legislative promulgation/review relating to
adult and juvenile crime. Prior to joining DOP, Wayne was the founding director of the Prosecution & Racial
Justice Program at the Vera Institute of Justice.

Criminal Justice in the 21st Century

MARIKA MEIS has been a public defender for over 10 years. She joined the Bronx Defenders in 2004 and has
served as legal director since 2008. As legal director, Ms. Meis supervises de novo bail applications and bail
writs for the Bronx Defenders and trains lawyers on alternative forms of bail and bail advocacy.

RODNEY MITCHELL, a native Washingtonian and formerly incarcerated citizen, is currently a practicing attorney
and an advocate for the formerly incarcerated in the D.C. metro area. Recently, he was appointed by D.C.
Congresswoman Eleanor Holmes Norton to serve as a commissioner on the D.C. Commission on Black Men
and Boys. Mr. Mitchell currently serves as the Re-entry Coordinator for the D.C. Department of Corrections.
LANCE PATRICK OGISTE is the counsel to the Kings County District Attorney Charles J. Hynes. Presently,
among his many duties, Mr. Ogiste oversees the Appeals Bureau, the Major Narcotics Investigations Bureau,
the Gangs Bureau and the ComALERT Program, which is a program to aid ex-offenders by helping them avoid
returning to a life of crime by referring them to services offering job assistance, education, health/mental health
treatment and housing assistance.

HON. RUTH PICKHOLZ presides in Criminal Term of New York Supreme Court, New York County. Previously,
she held various posts in the New York City Mayor’s Office, including Arson Strike Force Coordinator, Counsel
to the Criminal Justice Coordinator, and Acting Criminal Justice Coordinator. She became a judge in 1990,
when Mayor David Dinkins appointed her to the Criminal Court of the City of New York. Judge Pickholz currently presides over criminal trials and hearings in Manhattan.
CATHLEEN PRICE is a senior attorney with the Equal Justice Initiative, a non-profit law office that addresses
problems in the criminal justice system. Since 1997, she has worked on behalf of death-sentenced prisoners,
other offenders subject to excessively harsh punishments, and communities marginalized by poverty and chronic
discrimination. She litigates on behalf of individuals, advocates before legislators and other policymakers, and
serves as faculty at training seminars on the death penalty and related topics.

DIVINE PRYOR, PH.D. is a social scientist who has extensive knowledge and experience in the health and social
service fields, having spent over half his career administrating youth development, domestic violence, prison
re-entry, substance abuse, and other social service non-profit organizations. He is currently the executive director
of the Center for NuLeadership on Urban Solutions, the world’s first and only public policy, research, advocacy,
and training center created and administered by formerly incarcerated professionals.

LEXER QUAMIE is a policy counsel with the Leadership Conference on Civil and Human Rights and the
Leadership Conference Education Fund. There, she helps facilitate the development of a federal policy agenda
for a broad coalition of civil and human rights groups and analyzes federal current civil rights issues and legislation in the areas of racial profiling and criminal justice, transportation equity, workers’ rights, and equal opportunity. Prior to joining the Leadership Conference, Ms. Quamie was a policy analyst with the Center for
Law and Social Policy, where she provided policy guidance on job quality and work life issues.
MICHAEL P. RANDLE began his career with the Ohio Department of Rehabilitation and Correction (ODCR) in
1990 as case manager and later was promoted to unit manager at the Ohio Reformatory for Women. Since then,
he served in a number of positions including, mental health administrator for three female institutions of ODRC;
deputy warden at Ross Correctional Institution; warden at Chillicothe Correctional Institution; and others. He
is currently the program director of the Judge Nancy R. McDonnell Community Based Correctional Facility.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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35

JONATHAN RAPPING teaches criminal law and criminal procedure at Atlanta’s John Marshall Law School
and is the executive director of the Southern Public Defender Training Center (now Gideon’s Promise). Prior
to joining the JMLS faculty, Professor Rapping was the chief of training for the Orleans Public Defenders and
has been instrumental in the rebuilding of that office in the wake of Hurricane Katrina.

NORMAN L. REIMER is the executive director of the National Association of Criminal Defense Lawyers
(NACDL), the nation’s preeminent criminal defense bar association. Since joining NACDL, Mr. Reimer has
overseen a significant expansion of the Association’s educational programming and policy initiatives, cultivated
external support and launched a major capital campaign. Mr. Reimer also serves as publisher of NACDL’s acclaimed magazine, The Champion. Prior to assuming this position he practiced law as a criminal defense lawyer
based in New York City for 28 years.

36

DEANNA RODRIGUEZ is the chief of the Gang Bureau in the King’s County DA’s Office, which she created
in 1994 and which is the only specialized bureau of its kind in New York State. Ms. Rodriguez is considered an
expert in her field. She speaks at conferences across the nation, including the National District Attorney’s
Association, and has testified before the New York State Legislature and the New York City Council regarding
legislation and policy issues.
IRWIN SHAW, attorney-in-charge, Criminal Defense Practice of the New York County Office of the Legal Aid
Society, has spent his entire 42-year legal career as an attorney with The Legal Aid Society’s Criminal Defense
Practice. As a staff attorney he represented thousands of indigent people accused of crimes in the New York
State Supreme Court and New York City Criminal Court. In 2005 he was a recipient of NYCLA’s award for
outstanding public service.

THEODORE M. SHAW is professor of Professional Practice at Columbia University School of Law. He is also
Of Counsel to Fulbright & Jaworski LLP. Mr. Shaw was an attorney with the NAACP Legal Defense and
Educational Fund for 23 years, where he also served as director-counsel and president.

ABBE SMITH is the director of the Criminal Defense and Prisoner Advocacy Clinic, co-director of the E. Barrett
Prettyman Fellowship Program, and professor of law at Georgetown University. Prior to coming to Georgetown,
Professor Smith was deputy director of the Criminal Justice Institute, clinical instructor, and Lecturer at Law at
Harvard Law School. Professor Smith teaches and writes on criminal defense, juvenile justice, legal ethics, and
clinical legal education.

HON. GEORGE BUNDY SMITH served for 31 years as a judge in the courts of New York State, the last 14 on the
New York State Court of Appeals, New York’s highest state court. Following his retirement in 2006, he became a
partner in the national and international law firm of Chadbourne & Parke, LLP. He now has his own firm, George
Bundy Smith, Senior and Associates, LLP.

DARRYL STALLWORTH is an attorney specializing in the area of criminal defense. Prior to becoming a defense
attorney and opening his own practice, Mr. Stallworth served for 15 years in the Alameda County District
Attorney’s Office, where he tried over 50 cases and resolved over 10,000 cases during his tenure. Mr. Stallworth
has also lectured internationally on effective forms of case resolution.

Criminal Justice in the 21st Century

ROBIN STEINBERG is a leader and a pioneer in the field of indigent defense. Starting as a criminal trial lawyer
with the Legal Aid Society, continuing her career as a founding member and deputy director of the Neighborhood
Defender Service of Harlem, and ultimately creating the Bronx Defenders in 1997, Robin has extensive experience in every aspect of public defense — from representing individual clients to creating a non-profit organization. Today, Robin advocates nationally and internationally for holistic representation, delivering papers,
conducting trainings, providing technical assistance to defender offices moving towards holistic defense, and
hosting visitors from around the world.

ANNE J. SWERN, the First Assistant District Attorney to Charles J. Hynes, District Attorney of Kings County
(Brooklyn), has served as a prosecutor for 32 years. She supervises more than 1,000 attorneys and support staff
members in their prosecutorial and administrative functions. She is the District Attorney’s Office’s senior executive for alternative sentencing policy and programming and is the executive in charge of the nationally acclaimed Drug Treatment Alternative-to-Prison (DTAP) Program, dedicated to diverting prison-bound non-violent
predicate felons into residential substance abuse treatment. She supervises Brooklyn’s three substance abuse
treatment courts, the Red Hook Community Justice Center, the Mental Health Court and the Treatment
Alternatives for the Dually Diagnosed (TADD) Program, which divert mentally ill defendants into treatment.

NKECHI TAIFA is a senior policy analyst at the Open Society Foundations and Open Society Policy Center,
working to influence federal public policy in support of comprehensive justice reform. Ms. Taifa focuses on issues involving sentencing reform, law enforcement accountability, re-entry of previously incarcerated persons,
prison reform, and racial justice. She has played a major role in raising the visibility of issues involving unequal
justice. Ms. Taifa also convenes the Justice Roundtable, a Washington-based advocacy network advancing federal criminal justice policy reforms.
BRETT TAYLOR is deputy director of national technical assistance at the Center for Court Innovation. He has
also been deputy director of the Center’s Tribal Justice Exchange program since its inception in 2008. Before
joining the Center in 2007, Mr. Taylor served as the senior defense attorney for six years at the Red Hook
Community Justice Center in Brooklyn, New York. Mr. Taylor has presented at numerous national conferences
on community courts, tribal courts, community prosecution, and other community justice topics.

WHITNEY TYMAS is the director of the Prosecution and Racial Justice Program at the Vera Institute of Justice.
This is a groundbreaking initiative that is piloting internal assessment and management procedures to help chief
prosecutors identify evidence of racial or ethnic bias in prosecutorial decision making and respond appropriately
when it is found. Ms. Tymas came to Vera from the National District Attorneys Association, where she ran that organization’s Gun and Gang Violence Program and its Southwest Border Crime Program — both of which delivered
training, support, and technical assistance to prosecutors and allied members of law enforcement nationwide.

MICHAEL WALDMAN is president of the Brennan Center for Justice at NYU School of Law, a non-partisan law
and policy institute that focuses on fundamental issues of democracy and justice. Previously, Mr. Waldman was
director of speechwriting for President Bill Clinton from 1995-99, serving as assistant to the president. As the
top White House policy aide on campaign finance reform, he drafted the Clinton administration’s public financing proposal.

LISA MONET WAYNE is the immediate past president of the National Association of Criminal Defense Lawyers
(NACDL). She represents individuals and corporations accused of crime at all stages in both federal and state
courts around the country. She is a frequent national lecturer, a lecturer in law at the University of Colorado
law school in Boulder, a television commentator for national media outlets, and was a Colorado State Public
Defender for 13 years.

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

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37

APPENDIX B: AGENDA
The goal of the conference is to assemble a distinguished group of participants in the criminal justice system — judges, prosecutors, defense attorneys, scholars, community leaders, law enforcement officials, and
formerly incarcerated advocates — who will collaborate to develop a menu of practical reforms to reduce
race and ethnicity as a negative factor in the criminal justice system.

38

WEDNESDAY, OCTOBER 17, 2013
2:00 p.m. — 2:45 p.m.
2:45 p.m. — 3:00 p.m.
3:00 p.m. — 3:30 p.m.
3:30 p.m. — 5:00 p.m.

5:00 p.m.

Registration
Welcome
Steve Benjamin, President, National Association of Criminal Defense Lawyers
Michael Waldman, President, Brennan Center
Opening Remarks
Norman L. Reimer, Executive Director, NACDL
Hon. Marcy Friedman, Justice, Supreme Court, New York County, Civil Term.
Introduction of “Town Hall Panel” Nicole Austin-Hillery, Director and
Counsel, Brennan Center Washington Office
Roundtable 1 — Stakeholders
Moderator: Ted Shaw, Professor of Professional Practice in Law,
Columbia Law School
Panelists: Eddie Ellis, President, Center for NuLeadership on Urban Solutions
Hon. George Bundy Smith, Chair, NYCLA Justice Center, Former
Associate Judge New York State Court of Appeals
Zachary Carter, Partner, Dorsey & Whitney LLP; Board Member,
Brennan Center
Lisa Wayne, Immediate Past President, NACDL
Vanita Gupta, Deputy Legal Director, ACLU
Glenn Martin, Vice President of Development & Public Affairs,
The Fortune Society
Rick Jones, Executive Director, Neighborhood Defender Service
Leroy Frazer, Jr., Executive Assistant District Attorney for External
Affairs, Office of the Manhattan District Attorney
Closing Remarks
Nicole Austin-Hillery, Director and Counsel, Brennan Center Washington
Office
Reception to Follow

Criminal Justice in the 21st Century

THURSDAY, OCTOBER 18, 2013
8:00 a.m. — 8:45 a.m.
8:30 a.m. — 9:00 a.m.

9:00 a.m. — 10:15 a.m.

10:15 a.m. — 10:30 a.m.
10:30 a.m. –11:45 a.m.

11:45 a.m. — 12:00 p.m.
12:00 p.m. — 1:15 p.m.
1:15 p.m. — 2:00 p.m.
2:00 p.m. — 3:15 p.m.

3:15 p.m. — 3:30 p.m.
3:30 p.m. — 4:15 p.m.
4:15 p.m. — 4:30 p.m.

Registration/Breakfast
Welcome
Stewart D. Aaron, President, NYCLA
Opening Remarks
Hon. Fern Fisher, Deputy Chief Administrative Judge, New York City Courts
Inimai Chettiar, Director, Justice Program at Brennan Center for Justice
Roundtable 2 — Charging, Plea Bargains, Diversion
Moderator: Thomas Giovanni, Community-Oriented Defender Network
Director (CODN), Brennan Center
Panelists: Lance Ogiste, Counsel, Office of the Brooklyn District Attorney
Irwin Shaw, Attorney-in-Charge, Legal Aid Society Manhattan
Office of the Criminal Practice
Wayne S. McKenzie, General Counsel, New York City Department
of Probation
Break
Roundtable 3 — Pretrial Incarceration
Moderator: Thomas Giovanni, CODN Director, Brennan Center
Panelists: Marika Meis, Legal Director, The Bronx Defenders
Tim Koller, Executive Assistant DA, Staten Island
Hon. Melissa Jackson, Supervising Judge, Criminal Court New
York County
Barry Campbell, Special Assistant to the President & CEO, The
Fortune Society
Break
Working Group for Roundtables 2 and 3
Lunch
Roundtable 4 — Jury Selection
Moderator: Darryl Stallworth, Defense Attorney, Oakland, California
Panelists: Cathleen Price, Cooperating Senior Attorney, Equal Justice
Initiative, Seminar Lecturer, Columbia University
Hon. Ruth Pickholz, Acting Justice, New York County Supreme
Court, Criminal Term
Abbe Smith, Director, Criminal Defense & Prisoner Advocacy
Clinic and Professor of Law at Georgetown Law
Deanna Rodriguez, Chief, Brooklyn District Attorney’s Gang
Bureau
Break
Working Group for Roundtable 4
Closing Remarks

Eliminating Racial and Ethnic Disparities in the Criminal Justice System

39

Agenda

FRIDAY, OCTOBER 19, 2013
8:15 a.m. — 8:45 a.m.
8:45 a.m. — 9:00 a.m.
9:00 a.m. — 10:15 a.m.

40

10:15 a.m. — 10:30 a.m.
10:30 a.m. — 11:45 a.m.

11:45 a.m. — 12:00 p.m.
12:00 p.m. — 1:00 p.m.
1:00 p.m. — 1:45 p.m.
1:45 p.m. — 3:00 p.m.

3:00 p.m. — 3:15

Breakfast
Opening Remarks
Roundtable 5 — Pretrial Litigation on Search and Seizure and
Identification Issues
Moderator: Lexer Quamie, Counsel, The Leadership Conference on Civil and
Human Rights
Panelists: Hon. Mark Dwyer, Acting Justice, Supreme Court, Kings County,
Criminal Term
Donna Lieberman, Executive Director, New York Civil
Liberties Union
William Gibney, Director, Criminal Practice Special Litigation
Unit, The Legal Aid Society
Delores Jones-Brown, Faculty Research Fellow, Center on Race,
Crime and Justice at John Jay College of the City University of
New York
Rodney Mitchell, Founder, REentry Legal Services
Break
Roundtable 6 — Sentencing and Community Corrections
Moderator: Nkechi Taifa, Senior Policy Analyst, Open Society Foundations
Panelists: Dr. Divine Pryor, Executive Director, Center for
NuLeadership on Urban Solutions
Clinton Lacey, Deputy Commissioner for Adult Services, New York
Department of Probation
Jonathan Rapping, Founder and CEO, Southern Public Defender
Training Center
Mike Randle, Program Director, Cuyahoga County Ohio
Community Based Correctional Facility
Break
Working Groups for Roundtables 5 and 6
Lunch
Roundtable 7& Discussion — Community Justice
Moderator: Brett Taylor, Deputy Director, Center for Court Innovation
Panelists: Anne Swern, First Assistant District Attorney, Office of the
Brooklyn DA
Robin Steinberg, Executive Director, The Bronx Defenders
Dennis Lawrence, AmeriCorps Member
Closing Remarks

Criminal Justice in the 21st Century

This publication is available online at: www.nacdl.org/reports/eliminatedisparity