Criminal Justice Reform: Insights from Our Experts
By Abbott Brant
Professor Angela Davis
Distinguished Professor of Law Angela J. Davis is a nationally recognized expert in criminal law and procedure, with a focus on prosecutorial power and racism in the criminal justice system. Davis teaches a number of criminal justice-related classes, including Criminal Procedure, Criminal Defense: Theory and Practice, and Criminal Justice Ethics. She is the author of Arbitrary Justice: The Power of the American Prosecutor and editor of Policing the Black Man: Arrest, Prosecution and Imprisonment.
Professor Llezlie L. Green
Professor Llezlie L. Green, affiliate faculty member of AU’s Antiracist Research and Policy Center, specializes in critical race theory, civil procedure, employment discrimination law, poverty law, and civil rights. As the director of AUWCL’s Civil Advocacy Clinic, Green supervises students who represent low-income clients with economic justice cases, with a particular focus on wage and hour and unemployment benefits, in the courts and administrative agencies of Washington, D.C., and Maryland.
Q: ACTS OF POLICE VIOLENCE, LIKE WE SAW IN THE GEORGE FLOYD CASE, HAVE BEEN GOING ON FOR DECADES. WHY ARE THESE INCIDENTS STILL OCCURRING IN 2020?
PROF. DAVIS These killings of unarmed of black and brown women and men are not new. Law enforcement officers have taken the law into their own hands and killed unarmed black men and women from the time of slavery, and the killings have never stopped—from the post-slavery days of convict leasing, to the Jim Crow Era, through the Civil Rights Movement, up until the present day. The only difference is that in recent years, because of cell phone cameras, people are realizing that these killings have been unjustified. Cops would lie, and claim they were being attacked to justify their actions. But even with cell phone cameras, the killings have continued, and the officers are rarely charged, or jurors overwhelmingly acquit them.
One reason is because I don’t believe officers see black and brown people as human beings—whether it’s because of implicit bias or explicit racism—so they treat them in inhumane ways. The other reason is that police officers are trained to use force—even when they don’t have to. But one of the main reasons is that they’ve never been truly held accountable. If they aren’t being charged, they aren’t deterred from using violence.
Q: WHY DID THE DEATH OF GEORGE FLOYD SPUR SUCH A STRONG, NATIONAL RESPONSE AGAINST POLICE BRUTALITY?
PROF. DAVIS This was a turning point. We certainly had protests after the deaths of Trayvon Martin, Eric Garner, and others. The Black Lives Matter movement was born and it has been an important movement in terms of changing laws and policies. But the response to George Floyd’s murder was different, just because of the sheer volume of demonstrations across the country and the world. And all kinds of people—I have never seen so many white people getting involved in these protests. And it’s people of all ages, not just young people. This time, it’s different.
I think the reason why so many people have responded is because that police officer killed George Floyd in such a nonchalant way, staring into the camera knowing he was being taped. Yet he continued to drain the life out of this man as if to say, “Go ahead, tape me, I don’t care.” That nonchalant attitude shocked the consciousness of this nation. It woke something up in this country. It’s not that the killings have stopped since George Floyd’s murder, but people are now open to serious and radical changes in policing, and in the criminal justice system in general.
Q: WHY HAVE CALLS FOR CRIMINAL JUSTICE REFORM GROWN SO GREATLY IN THE WAKE OF GEORGE FLOYD’S MURDER?
PROF. GREEN Advocates and the Black Lives Matter movement have been calling for reform for years, but there was resistance to the message. The call is not new, but the response has been different. I don’t think anyone could have anticipated we’d be at this point at this exact moment. There are a number of interconnected factors that likely explain why the call to reform has reached this level. In many ways, I think COVID has played a significant role. We’re sitting at home, watching all these things play out on our TVs and computer screens. And we know the pandemic is impacting people of color disproportionately. So there’s been a lot of pain as we’re watching the ways that structural racism in this country has been laid bare.
Q: WHAT IMPACT HAVE RECENT REFORM EFFORTS HAD?
PROF. DAVIS There have already been some changes in different jurisdictions across the country. The Los Angeles City Council voted to divert $150 million dollars of the police budget to social services. In Albuquerque, New Mexico, a public safety agency has been established comprised of non-law enforcement professionals—mental health experts and substance abuse counselors—to deal with the systemic problems that often lead to police interactions if not otherwise addressed. By taking away the problems police have traditionally dealt with, you change policing.
Q: WHAT ROLE DOES CRITICAL RACE THEORY PLAY IN THESE EFFORTS?
PROF. GREEN The call for change is aligned with critical race theory, and the activists are drawing upon critical race frameworks to promote structural change. Through critical race theory, you have to think about the historical context—the police and its relationship with slavery and the control of property and labor, and how that is still manifesting today. When people advocate for defunding the police, they’re not necessarily arguing that we don’t need some type of law enforcement system, but that we need to rethink the way the system works and whether its resources could be more effective elsewhere. So it challenges the assumption that our particular system of public safety is necessary and effective. Critical race theory also asks us to think about the narratives that have been supporting certain assumptions in our country. What stories have been left out, and who is deciding what we know? Who is writing these stories? What are the critically important narratives strategically removed or left out of the conversation? And how has all of this impacted the development of our laws and policies?
Q: WHAT DOES ‘DEFUND THE POLICE’ ENTAIL, AND WHY IS IT IMPORTANT?
PROF. DAVIS The title of the movement is unfortunate; you hear ‘defund,’ and you think there’s not going to be a police force and you can’t call 911. But it’s not about getting rid of police officers; it’s about allocating funds to professionals who know how to deal with systemic problems that often result in police officers being called to handle problems they aren’t trained to handle. You may have someone having a mental breakdown and behaving in a way that may technically constitute a crime, so the response is to call the police. And cops do what they’re trained to do, which is to use force, and far too often the person ends up dead. But a mental health counselor could be called instead, to provide the help that the person needs.
The movement to defund the police would allow police officers to focus on serious crimes that only law enforcement can and should handle—murders, robberies, rapes, etc. Other cases would be handled by nonlaw enforcement professionals trained to help those in need. This transformation of the police function would save money, save lives, and put resources where they should be.
Q: WHAT PROGRESS HAS BEEN MADE AMID THE CALLS FOR REFORM? HOW CAN WE BUILD UPON IT?
PROF. GREEN There is concern that some responses have been performative, rather than creating structural change. We don’t know yet how successful some of these efforts are going to be; this is a long-term issue, to think about the ways in which systemic racism has infiltrated parts of our society. The policing system is the obvious example, and seeing that violent imagery is what pulls on the heartstrings and demands our attention and response. But I think we have to see more done that considers how various issues are connected. We do not need a policing system built upon militarization, and therefore funded like the military. By defunding the police, you are taking money and putting it toward resources that better serve the community. But, we have to imagine how we would use that funding to improve, for example, housing, employment, and public education. So, it’s good we are even having these types of conversations, and publicly having debates we weren’t having six months ago. In recent months, I’ve regularly heard the term ‘structural racism’ on the news. As someone who studies and writes about critical race theory this phrase is obviously not new to me, but it’s also not something I recall ever hearing before on mainstream television news programs.
We are used to assuming what’s necessary, and we need to redefine what that is. There doesn’t tend to be violent crime when there are job opportunities, living wages, and housing security that allows people to raise their families. But with the systems currently in place, those things can be difficult to obtain. And we shouldn’t be satisfied when one person pulls him or herself out of poverty or out of a difficult situation. The exceptional case should not be our standard. If it requires an extraordinary person to succeed in life, we’re doing something wrong.
Q: CAN THE U.S. CRIMINAL JUSTICE SYSTEM EVER BE TRULY REFORMED TO THE POINT WHERE RACISM AND RACIAL INJUSTICE ARE NO LONGER A THREAT TO PEOPLE OF COLOR? HOW CAN WE GET TO AN ANTI-RACIST SYSTEM?
PROF. DAVIS I have to believe in a better future for us all. I don’t know if we will ever totally eradicate racism, but we should make it our goal. For me, it’s not about reform—it’s about reimagining the criminal legal system, so that we are not focused on solving the problems of our society by putting people in cages. There are ways to hold people accountable without putting them in cages. We should only be locking up people that are truly dangerous to the physical safety of the community. And we’re a long way from that.
Right now, we have unwarranted racial disparities in the criminal legal system at every step of the process from arrest to sentencing. Black and brown people are treated worse than their similarly situated white counterparts at every step of the process—whether they are charged with a crime or a victim of a crime. Cops, prosecutors, and judges are making discretionary decisions that are producing these disparities often times because of their own implicit biases, and we have to work very hard to change that.
Q: WHAT IS YOUR ROLE AS AFFILIATE FACULTY MEMBER OF AMERICAN UNIVERSITY’S ANTIRACIST RESEARCH AND POLICY CENTER? HOW CAN THE CREATION OF THESE TYPES OF CENTERS STRENGTHEN RACIAL JUSTICE EFFORTS?
PROF. GREEN The goal is to connect faculty across campus who are working on racial justice in various disciplines. I will be working to connect the law school to the Center and share what we are doing at AUWCL consistent with antiracist principles. I will also be working on programing, such as putting together a panel likely centered on low-wage workers and wage theft during COVID. There is value in universities creating centers and having a sense of who is looking at anti-racism efforts across the disciplines. Many of the institutions we rely on every day were built in racist spaces. There’s a benefit to having people deconstruct that and look at the vestiges of those racist beginnings. We have to interrogate the foundation of a lot of our institutions, and be willing to disrupt the common and prevalent narratives we hold as a society that do not actually serve us.
Q: WHAT OTHER MEANINGFUL EFFORTS CAN BE MADE, BY BOTH STUDENTS AND LAWYERS ALIKE?
PROF. DAVIS Everybody can’t do everything, but everyone can do something. I tell my students to pick one issue and make an effort. This is one of the most important times to be in law school because of the potential for change. We need lawyers now more than ever, but we also need people to protest, lobby, and advocate for change.
No movement has been successful just because someone went to court. We need advocacy in the courts and in the streets. Everyone has a role to play. We have the highest incarceration rate in the world, and our sentences are longer than any other western country. We need to lobby legislatures to change sentencing laws. We need to change our bail laws. We need to support our public defenders. We need to elect better prosecutors. There is so much work to do.
In my view, the prosecutor is the most powerful official in the justice system, because they decide whether a person is charged, and what that charge will be. If you have a prosecutor who wants to charge everyone at the highest level and is only about getting convictions, you’re going to have a continuation of this failed system. But what if a prosecutor measured success by how many people she kept out of prison? There is a movement of progressive prosecutors across the country, and they are winning—Larry Krasner in Philadelphia, Kim Foxx in Chicago, and many others. They ran for office on the promise to divert cases out of the system and hold police officers accountable. We need to pay attention to district attorney races and support those that want to use their power and discretion to change the system.
Q: WHAT CAN LAW STUDENTS LEARN FROM WHAT WE ARE SEEING WITHIN TODAY’S MOVEMENT?
PROF. GREEN They can learn that the law can be transformative, but it doesn’t stop or begin with the lawyer. There is a push toward movement lawyering, rather than lawyers riding in with the white hats to save the day. In our country, progress that we think of as legal victories often occurred within a larger social movement. Advocacy in the courts mirrors what is going on in the streets. Law students can learn that being client-centered means to be centered in the experiences of the wants and desires of the people we represent. The law only makes sense to the extent that it is improving people’s lives. If we are ignoring the people, and what they want, then we may be creating additional complications. By paying attention to social movements, the need for an intersectional approach becomes clear—rather than addressing issues piecemeal, they can lead to broader changes and reform.