Unequal Justice: Mobilizing the Private Bar to Fight Mass Incarceration
Date:  05-05-2015

Lawyers’ Committee for Civil Rights Under Law urges action now
In April 2015 the Lawyers’ Committee for Civil Rights Under Law released a new report, Unequal Justice: Mobilizing the Private Bar to Fight Mass Incarceration which calls on private attorneys to use their collective expertise to bring an end to mass incarceration.

The beginning of the report's executive summary explains:

This report marks the beginning of Lawyers’ Committee for Civil Rights Under Law’s Criminal Justice Initiative, created to mobilize the private bar in the fight against mass incarceration. Mass incarceration – a term that refers to the cluster of issues associated with the historic scale of present-day American incarceration – presents the greatest contemporary threat to civil and human rights in the United States today. Two key facts about this phenomenon gird its importance to the Lawyers’ Committee’s mission: (1) mass incarceration is a racially, spatially, and socioeconomically targeted phenomenon that disproportionately affects lower-class African-American and Hispanic residents of degraded urban spaces, and (2) mass incarceration results in large part from aggregate policy choices, rather than from poor personal decisions or increases in overall levels of crime, meaning solutions too will be legal and policy in nature. There is no single solution to the problem of mass incarceration. This is because there is no single cause. Many issues are subsumed under the heading of “mass incarceration,” some with deep historical roots. It is the combination of various factors working in tandem that produces the result.

Findings of the report include:

There is consensus that the criminal justice system is broken. Or in the words of one participant at a listening session, the criminal justice system does exactly what it is designed to do: to punitively punish large swaths of society’s most disadvantaged individuals. Experts, academics, practitioners, and formerly incarcerated individuals alike agreed that the criminal justice system is unnecessarily punitive, fails wholesale to rehabilitate through its method of incarceration, destroys any opportunity for success after release from incarceration due to the thousands of collateral consequences, decreases public safety, and undermines public trust in the ability of the system to deliver justice. A key fact will guide the Lawyers’ Committee’s work in this area: nationally, 95% of criminal cases end in guilty pleas; of cases in the federal court system, that figure is 97%. In considering how best to harness the resources of the private bar, the importance of the criminal justice system’s negotiated nature cannot be overstated.

Glaring racial disparities are often absent from reform discourse. There is no question that the criminal justice system treats individuals differently based on the color of their skin. This is especially true when combined with other disadvantage factors like income, education, geography, and access to healthcare. However, this fact is often absent in public discourse and almost never formally addressed in reform eff orts. This is particularly troubling since racial disparities in incarceration are often the result of implicit racial bias and structural or institutionalized racial discrimination, deep-rooted species of dysfunction which can only begin to be addressed by the acknowledgement and recognition that it exists.

There is a huge gap in legal approaches to fight mass incarceration. Simply put, very few organizations in the nation have the resources, expertise, and will to fight mass incarceration in the courts. Lawyers’ Committee is particularly well-suited to filling this gap given the organization’s model of engaging large national law firms in impact litigation aimed at strategic and system-wide change.

The time is now. As Lawyers’ Committee heard from a diverse array of advocates, experts, practitioners and those affected by the system, the urgency of accelerated and increased reform efforts became palpable. State and federal budgets are stretched to a breaking point. After four decades of “tough on crime” policies, public discourse around criminal justice has begun to change to “smart on crime” policies which concentrate resources on the most serious crime, reduce overly harsh prison sentences, especially for drug offenses, and focus on rehabilitation and reducing recidivism rates.

Read the full report here.