Race Judicata Update - National Association for Public Defense

NC Public Defender Commission on Racial Equity (NC PDCORE) is a committee of the North Carolina Public Defender Association. The mission of NC PDCORE is to reduce and ultimately eliminate racial and ethnic disparities in the criminal justice system through education, collaboration, and litigation. Race Judicata is the regular email update from the North Carolina Public Defender Committee on Racial Equity (NC PDCORE). This blog post is reposted with permission and includes recent highlights in the defender field, news updates and a deep dive.

First, for those who missed North Carolina Spring Public Defender Attorney and Investigator Conference, here are a few highlights pertaining to the intersection of public defense and racial justice:

The 2017 NC PDCORE James E. Williams Jr. awards were announced. The first award recognized LeAnn Melton (Buncombe County Chief Public Defender) and Yolanda Fair (Buncombe County Assistant Public Defender) for their leadership on the Buncombe County Implicit Bias Training. The second award recognized Ricky Watson and Peggy Nicholson of the Youth Justice Project (YJP) of the Southern Coalition for Social Justice for their work on the Raise the Age campaign and other projects seeking to “keep youth in school by ensuring fair and effective school safety and discipline practices,” “improve the juvenile justice system and ensure that it is only used as a last resort, and minimize involvement of youth in the adult criminal justice system.” Congratulations to all four recipients!
San Francisco Public Defender and NAPD Racial Justice Task Force Co-Chair Jeff Adachi delivered a key note address on racial justice litigation. His packet of racial justice litigation materials, including sample motions and transcripts, will soon be available here.
Sejal Zota, Legal Director of the National Immigration Project of the National Lawyers Guild, presented on “crimmigration” – the intersection of criminal and immigration enforcement. Materials from her presentation will soon be available here.
The retirement of NC PDCORE cofounder and longtime racial justice champion James E. Williams from his position as Chief Public Defender for District 15B is just around the corner. All are invited to his retirement ceremony in the Orange County Courthouse’s Mural Courtroom on May 31 from 2:30pm – 4:30pm. He assures us that he will remain deeply involved in efforts to advance racial justice even in his retirement, so stay tuned for his next act!

Next, a sampling of recent news and publications relating to race and criminal justice:

Former UNC Law Professor Tamar Birkhead recently published a new article titled The Racialization of Juvenile Justice and the Role of the Defense Attorney. The article is full of useful insights relevant not only to juvenile defenders but all criminal defense attorneys. For example, Birckhead explores the tension between a defense attorney’s duty of zealous advocacy and the danger that some zealous advocacy strategies may at times reinforce harmful racialized narratives.
Last Friday, Nashville Public Defender Dawn Deaner published an op-ed in the Tennessean critiquing the characterization of African American distrust in the criminal legal system as a problem of perception. Such a characterization, Deaner argues, “belies the truth which is that those who do not see the injustice are the ones with the perception problem.”
Last week saw the launch of Marc Zuckerburg-supported Measures for Justice, a “Data Portal that tracks how criminal cases are being handled at the county level from arrest to post-conviction…offering unprecedented transparency into local justice systems.” North Carolina is one of the six states included in the portal’s initial launch. Data reflecting jail capacity utilization, cases dismissed, charge reductions, felony cases resolved at trial, felony cases resolved in one year, and misdemeanor cases resolved within six months can be searched by county.
Law Professors Kristin Henning (Georgetown) and Angela J. Davis (American) argue that, “as criminal defense attorneys, we can attest to the fact that as harshly and as unfairly as black men have been treated in the criminal justice system, the fate of black boys has been worse.” They argue that the racial disparities we see in the legal system trace back to disparate treatment that begins at a very early age.
Late last month, a federal judge in Texas ruled that it is unconstitutional to “detain[] indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail.” Slip op. at 181. Professor John Rubin writes about the case on the NC Criminal Law Blog.
William Snowden, a Staff Attorney at the Orleans Public Defender in New Orleans, has launched The Juror Project, “an initiative aiming to increase the diversity of jury panels while changing and challenging people’s perspective of jury duty. Snowden presents at high schools, colleges, churches, neighborhood associations and any other community gatherings to discuss the importance of jury service, the discriminatory practices of some prosecutors, as well as what members can do to actually get on a jury.”
On May 17th, the North Carolina House of Representatives overwhelming passed Raise the Age Legislation, a policy change long sought by advocates in North Carolina. North Carolina is currently the only state in the nation where the age of majority for criminal offenses is set at sixteen. The bill now heads to the NC Senate.
The Brennan Center issued a report on Criminal Justice in Trump’s First 100 Days, concluding that so far the Trump Administration’s actions “evidence a clear return to the discredited ‘tough on crime’ rhetoric of the 1990s, and suggest a significant departure from the Obama administration’s approach to criminal justice.” Attorney General Sessions recently issued a memo to federal prosecutors signaling a return to tough-on-crime approach. In Newsweek, mass incarceration scholar Heather Ann Thompson responds to the Sessions memo, arguing that “[v]irtually every principle in the Sessions Memo is deemed incorrect by countless research studies, including the two-year study conducted by a blue ribbon panel of experts and the National Academy of Sciences.”
At fivethirtyeight.com, Kathryn Casteel explores the tension between the Sessions memo and the emerging state trends of decarceration, observing that Jeff Sessions May be Tough on Crime, But States Want Fewer Prisoners. Data reflecting this trend is analyzed in a new report from the Sentencing Project on state and federal prison populations, concluding that a dramatic nationwide decrease in crime between 1999-2015 has been accompanied by a modest and varied decrease in prison populations. In North Carolina, according to the report, the state and federal prison population peaked in 2014 and decreased .7|PERCENT| from 2014-2015.
The Oxford University Press blog published a post about criminal justice reform co-authored by sociology professors Michelle Phelps, Joshua Page, and Philip Goodman, arguing that “together, citizens, advocacy groups, and policy-makers can resist the second coming of retributive ‘law and order’ and push for a safer and saner system. We always have.”

Finally, today’s deep dive:

New Concerns about Cross-Racial Eyewitness Identifications. Most of you have probably heard of a phenomenon referred to as the “other race effect,” “own-race bias,” or the “cross-race effect.” Numerous studies conducted over the last forty years have concluded that eyewitnesses are less likely to misidentify a person of their own race than a person of another race. See Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol.Pub.Pol’y & L. 3, 4 (2001); Radha Natarajan, Racialized Memory and Reliability: Due Process Applied to Cross-Racial Eyewitness Identifications, 78 N.Y.U.L.Rev. 1821, 1822–23 (2003). The Innocence Project reports that, nationwide, 41|PERCENT| of cases in which a defendant was exonerated as a result of DNA evidence involved cross-racial eyewitness identifications.

A new study suggests that not only are people generally better at identifying people of their own race, some people are actually functionally blind when it comes to identifying people of other races. This study, conducted in Australia, concluded that 8|PERCENT| of the collective study population was “completely blind to features that make other-race faces distinct.” Those individuals “would be completely useless in terms of their legal value as an eyewitness,” says study co-author Elinor McKone, a professor of psychology at the Australian National University. “The world's legal systems do not, however, take into account individual differences in other-race face recognition,” she notes.

You can read more about cross-racial eyewitness identifications and strategies for addressing this phenomenon as a defense attorney here. The NC REN training program will devote a day-long session to challenging cross-racial eyewitness identifications in North Carolina criminal cases.