Some defenders have been enormously successful at ad- dressing racial disparities in the criminal justice system, including in the context of racial profiling, selective en- forcement, and sentencing issues, as well as in amending facially neutral programs that have a disparate impact on minority communities. In New Jersey, defenders were recognized for their groundbreaking work in challeng- ing racially disparate police practices. 238 The defenders were instrumental in bringing a civil rights lawsuit that brought to light the New Jersey state police practice of racial profiling. Their work sparked a Department of Jus- tice investigation, as well as other lawsuits, which to- gether led to significant changes in law enforcement practices in the state, as well as ongoing monitoring. In Seattle, the Defender Association established a Racial Disparity Project in 1999. 239 The project initially fo- cused on helping people charged with driving with a suspended license because of the disproportionate num- ber of people of color facing this charge. It then helped to obtain repeal of an ordinance requiring cars driven by drivers with a suspended license to be impounded. Since its formation, project staff have “participated in many discussions with community based organizations, courts and prosecutors, and local law enforcement au- thorities, and have participated in discussions with local and state legislators on a variety of issues” related to disproportionate treatment in the criminal justice sys- tem. 240 The project was initially funded by a grant from the Justice Department and has been maintained through grants from private foundations.
Recommendations — Disproportionate Impact on Minority Communities 1. Defender offices should gather data re- garding racial and ethnic disparities. Most defender offices do not keep statistics on the race of the clients assigned to them. Others collect the data hap- hazardly, through defender reporting based on appearance. Systematic collection of racial and ethnic data can assist jurisdictions to uncover disproportionate arrest trends, as well as other incidents of racially disparate treatment in the criminal justice system. For this reason, each institu- tional defender office, as well as each administration over- seeing assigned counsel and contract defender programs, should find a systematic way to ensure that such data is collected from every defendant to whom a public defense attorney is assigned. 2. Defenders should make efforts to address racial disparities in the criminal justice system. Once it is demonstrable, disparate treatment — or lack of equality — is a powerful agent for reform. Too often, de- fenders observe racial disparity without seeking to address it. For example, a New York attorney observed in response to a survey question that there appears to be disparate ap- plication of bail guidelines. “Black kids and, to a lesser ex- tent, Latino kids are held on bails that they are far less likely to be able to make.” This is the type of practice that, if or- ganized, a defender system can document and bring to the attention of the judiciary. 237
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CONCLUSION T his report demonstrates that the misdemeanor courts in America are in an alarming state of dis- repair. The problems identified in this report significantly compromise the reliability of the criminal justice system, and, in turn, the public confidence in courts. Worse, the assembly line production of misdemeanor convictions is permanently disadvantaging huge swaths of the Amer- ican public at incalculable societal cost. The recommendations in the report are intended to serve as guideposts for judges, lawyers, and policymakers who must address these problems. The problems of misdemeanor courts, and their solutions, are related and interdependent. It is unlikely that the adoption of any one recommendation alone will solve a problem. But viewed holistically, the recommendations, if adopted, will dramatically improve the functioning of misdemeanor courts, and ensure that all defendants receive justice, regardless of the seriousness of the crime with which they are charged, and regardless of socioeconomic, racial, or ethnic background.
Minor Crimes, Massive Waste
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