Prosecutors and defense attorneys are viewed as being on opposite sides in the court room. For those prosecutors who truly care about justice being served, they realize that justice is not served in the court room by prosecuting cases that should never have been charged and sending people to jail who need social services, alcohol or drug counseling or mental health services and not jail time. And it is difficult for prosecutors seeking justice and criminal defense attorneys, with their divergent views, to ignore the disparity in the criminal justice system.
It is difficult to ignore that on any given day in any given urban city court room, that the court houses are filled with African Americans, mostly men. From Los Angeles, Chicago, Detroit, Baltimore, Washington and other urban cities, the court rooms, jails, probation offices and parole offices are filled with African American men. This disparity exists even in cities like Washington, DC with changing and higher white demographics. Surprisingly, most of the crimes are for misdemeanors and not for violent felonies. In most states, misdemeanor dockets or court rooms are 4 to 5 times higher than felony courts.
Black men make up approximately 6% of the U.S. population but represent over 40% of the prison population. The massive number of black males in the criminal justice system whether pending trial, on trial, awaiting sentence, on probation or parole or in jail exceeds the amount in slavery in 1850. And that’s why the mass incarceration of African Americans is referred to as the “new slavery”.
The media portrays the most violent crimes. The perception is that African American men commit the most heinous crimes and mostly on each other. While there is no denying that crime occurs among African Americans, the vast majority of those facing trials in the system are not for murders, rapes or other heinous crimes. The majority are facing trials and jail for misdemeanors. Approximately 1 million convictions are for felonies whereas 10 million on average are for misdemeanors.
When I prosecuted, I recall being first assigned to the misdemeanor unit whose courtrooms overflowed with defendants. My first cases that I recall were of young black men stealing items like deodorant from the CVS. In the book, How Can You Represent Those People edited by Georgetown Professor and former criminal defense attorney, Abbe Smith, the stories by 15 lawyers, including those representing clients charged with a minor theft for stealing a birthday card for a brother, to a woman who solicited an undercover cop to perform oral sex in exchange for food tell of a system that needs to be revamped. These types of cases are routinely found on a court’s misdemeanor docket. Often defendants will plead guilty rather than risk a trial. In fact, almost 95% of all criminal cases end with a plea.
And that’s where the problem begins for many young black men. Once someone is in the criminal justice system, it becomes a slippery slope. Being on probation requires attending probation meetings with a probation officer. And if an emergency happens or transportation problems occur, the person becomes subject to a probation violation facing jail for what started as sometimes an almost laughable minor crime. I recall in Baltimore, there was a judge who put almost everyone on probation. The only problem was the probation was usually for 5 years. And 5 years is a long time to avoid having any unforeseen problems occur which may cause a probation violation and jail time. Five years would be a long time for anyone to be on probation on a job without any infraction occurring. Five years is an eternity to be on probation without an infraction occurring—which may not be another crime but missed appointments.
Many people did not understand the racially different reasons for how blacks felt about the George Zimmerman trial versus many whites. The treatment of the criminal justice system towards blacks as defendants and the experience of many blacks or family members in the criminal justice system accounted for the outrage about Zimmerman’s case. And recently, the murder of Renisha McBride, a 19 year old African American, echoed the feelings of how whites are treated in the system versus black defendants. While it did not take 44 days like in Zimmerman’s case for Renisha McBride’s alleged killer to be charged, it did take 2 weeks. For blacks who commit even the most innocent of crimes, like stealing a birthday card, the benefit of the doubt of whether to charge is almost never an option. African American men are almost always charged for even the most lesser crimes.
In America, until there is an end to mass incarceration of blacks, the U.S. criminal justice system will have failed its goal of being a just system. This past weekend, I guest hosted After Words on C-Span 2 , where the many problems with our failed criminal justice system were discussed from the viewpoint of former defense attorneys and now Georgetown University Law Professors, Abbe Smith and Vida Johnson. To gain more insight on the topic, please watch the 1 hour show of what’s broken with our system and what needs to be fixed.
Washington, DC based Debbie Hines is a trial lawyer, former prosecutor and speaker who appears frequently in the media, including BET, C-Span, RT America, Fox5 News, WUSA 9 and the Huffington Post.