professor Davis many scholarly work
include arbitrary justice the power of
the American prosecutor and policing the
black man arrest prosecution and
imprisonment which was published in 2017
professor Davis received the Washington
College of Laws Pauline rouille more a
word for scholarly contribution in the
era of public law in 2000 and 2009 the
American University faculty Award for
outstanding teaching in a full time
appointment in 2002 the American
University faculty Award for outstanding
scholarship in twenty in 2009 and the
American University scholar Teacher of
the Year award in 2015 she is a graduate
of Howard University in horror and
Harvard Law School it goes without
saying that those students who had the
great fortune of having Professor Davis
as their professor I've only heard
incredible things about her classes but
more than anything else in the time that
I've been able to spend with Professor
Davis I have been in awe of her
brilliance and her compassion and her
passion for this work and so without
further ado we're going to get started
with our conversation and our
conversation is going to be in two part
professor Davis is going to provide some
context for her book and the work that
led her to this book and then we're
going to jump into discussion with our
audience I'm sure many of our audience
are waiting to be able to ask some
relevant and critical questions and so
professor Davis please get us started
and thanks again for being with us this
afternoon Thank You Fanta I first want
to start by thanking dr. R for having me
today inviting me to address you on June
18th a special day I'm honored to be
here and I also really want to thank all
of you taking the time this afternoon to
join us releasing the black man arrests
prosecution and imprisonment is a
collection of essays about the many ways
that the criminal system police is black
men in the broad sense of the word from
arrest all the way through sentences so
when I was a
and asked to edit this collection of
essays that would explore and
contextualize all of these issues
including the horrible police killings
of unarmed black men I seize the
opportunity because there's no issue
more important to me than the unjust
treatment of black and brown people in
our criminal legal system at every step
of the process from arrest through
sentencing indeed it's the issue that
keeps me up at night so when I started
this project I thought about who I would
ask to join me and so I decided to reach
out to the authors scholars lawyers
activists advocates who've been out here
for years writing about litigating
thinking about teaching and in many
instances living these issues and I was
really very fortunate that so many of
them said yes so from the initial essay
of the book written by Brian Stevenson
the director of equal justice isn't to
you in which he discusses the history of
racial inequity in this country to the
chapter written by sherrilyn Ifill the
director counsel of the NAACP
Legal Defense Fund which is entitled do
black lives matter to the courts and in
fact all of the chapters in between the
contributing authors are the ones who
really made this books I do want to
start by taking this opportunity to
thank all of them not just bright and
cherylin but Marc Maurer Kristin Henning
when they Hutchins Katherine Russell
Brown Tracy Mears writer Fairfax Ron
Wright and Jeremy Travis all amazing
lawyers scholars and authors this book
was published three years ago in fact
July 11th will be the exact publication
date and family here we are today I ever
thought that these killings would stop
after the book was written frankly but I
also never imagined that things would
not only get better but they appear to
be getting worse and yet I think there's
reason to believe that chain
might finally be on horizon so I hope
that we'll get to that point of talking
about that in today's discussion but I'm
going to spend my time talking about my
own chapter my own contribution to the
book which is about the prosecution of
black men and the role of prosecutors
and also tied in with all of the
unfortunate incidents that are going on
around us today so why do I talk about
prosecutors all the time people want to
know I talk about them because they
control our criminal legal system right
they have so much power and so much
discretion and they have used that power
and discretion in ways that in my view
have contributed to many of the problems
in our criminal justice system namely
the crisis of mass incarceration and the
unwarranted racial disparities in our
criminal justice system they're not the
only cause but they have contributed to
and mightily so I think we need to pay
more attention to prosecutors
a lot of people focus on police officers
as well we should obviously we see that
from what's been going on throughout our
history and certainly highlighted in the
past month or two and we should be
focusing on cops because they have a lot
of power - they have a lot of power and
discretion on the street to stop and
frisk and search people and and arrest
people and they use that power and
discretion in ways that unfortunately
sometimes lead to the horrific incidents
that have happened in the past few weeks
and throughout our history so yes we
must focus on police officers but we
must equally focus on prosecutors and
let me tell you why prosecutors police
officers I should say having the power
to arrest a person but they can only
bring that person to the courthouse door
it is the prosecutor who decides whether
the person stays in that criminal legal
system whether they will be charged with
a crime and what that crime will be and
they have total discretion in making
that decision so if a police officer
brings an individual to the court and
says this person you know committed this
offense the prosecutor can charge that
person with the
charge that's recommended can charge
them with a higher offense a lower
offense or the prosecutor can say you
know what I just give this person a
break and I won't charge them at all and
so you can see how that tremendous power
and discretion can give them so much
control over the system and let's be
clear it's very very easy for
prosecutors to bring charges you
wouldn't know that in looking at these
cases involving these police officers
you wouldn't know that but in fact it's
incredibly easy for prosecutors bring
charges and they charge a lot the
standard for charging is very low is
something called probable cause more
probable than not it's one of the lowest
standards in our criminal legal system
and so it's easy for them to bring
charges and the probable cause standard
is much lower obviously than the proof
beyond a reasonable doubt that
prosecutors need to convict a person so
that often results in them piling on
charges right and it gives them an
advantage when it comes to the plea
bargaining stage people you all probably
have heard of plea bargaining 95 to 98%
of all criminal cases in our legal
system I result by way of a guilty plea
prosecutors pile on charges because all
they need is probable cause and so
people feel pressured to believe guilty
to one offense or two on the prosecutors
promise to dismiss the rest of them
because if they decide to go to trial
and they're convicted of all of the
charges they could go to prison for a
very long time so there's the kind of
pressure that goes on in our criminal
justice system every day have
prosecutors control all of that we
control charging and they control plea
bargain and so you can see when there's
this much discretion there is the
potential for disparities and not only
is there the potential for it there are
tremendous racial disparities in our
criminal justice system black and brown
people are treated much worse than their
similarly situated white counterparts at
every step of the process from arrest
you're sentencing much research
documents that and so if a prosecutor
for example decides I'm gonna give this
person a break
yeah they were caught with all this
these drugs but that come from a good
family and they remind me of myself I
did a few drugs when I was growing up I
don't want to ruin this person's life
they're college bound I'm gonna dismiss
this case against this person first
offender I'll dismiss this case
another individual same charge same lack
of BAC lack of a criminal record etc
might not be bound for college might not
have the same opportunities and they
don't really empathize with that person
so much so they end up charging that
person so you've got two similarly
situated people who've allegedly
committed the same act one gets a break
and one doesn't and those decisions
often break down along class and race
lines that's how we end up one of the
reasons why we end up with all these
awful racial disparities in our criminal
justice system and so that's why I focus
on prosecutors because they play a huge
role just as they have the power the
power and discretion that they have has
resulted in these disparities they can
also use that same power to do good and
I'm going to talk about that a little
later on but that charging power is so
critical and they mostly overcharge
that's why we have so many people in the
system being charged with petty offenses
they mostly overcharge charging when
they shouldn't have to except when it
comes to police officers right when it
comes to police officers the script is
flipped
prosecutors rarely charge police
officers when they engage in brutality
and even when they kill black and brown
bodies even not when they have not just
probable cause but even when they have
overwhelming evidence of guilt so for
example we all saw a little
twelve-year-old to me rice playing in a
park with a toy gun and we saw with our
own eyes those police officers shoot him
and kill him right overwhelming evidence
videotape evidence yeah that police
officer was never charged with kill
Tamir rice we saw that painful video of
Eric garner on Staten Island to death by
that police officer right who stopped
him for selling loose cigarettes not not
raping somebody and murdering somebody
selling loose cigarettes yes he choked
him to death then we saw that with our
own eyes that police officer was never
charged and even when police officers
are charged they're rarely connected so
we saw the videotape of Terence Crutcher
in Tulsa Ohio on that Highway hands up
in the air
a videotape from a helicopter and
videotape from you know from from land
level as well with his hands up in the
air and we saw that police I wasn't
murder him yes she was found not guilty
we saw Orlando crews in his car with his
girlfriend and his little and his child
right who had a gun but he was carrying
it legally in his hands we're back and
he said officer I'm just letting you
know um I have a license police officer
killed him just like that we saw that
with our lives
yet he was found not guilty and here we
are today so a Marberry was hunted down
like an animal and killed on February
23rd yet no charges were brought until
May 7 why because the videotape came out
it emerged and we learned that the first
prosecutor who heard about that awful
killing which was really a lynching in
my view looked at it instead it was
justifiable and didn't charge and then a
second prosecutor came in but turns out
that prosecutor was friends with the
people who did the killing and then a
third now we have I think the fourth
prosecutor in that case the charges
weren't brought until the pressure was
there Brianna Taylor a 26 year old woman
but here at first the first responder
was killed on March the 13th ran in her
bed shot eight times and still charges
have not been brought in that case and
then there was George Floyd we watched
for
and excruciating 8 minutes and 46
seconds while this police officer
deliberately just squeeze the life out
of him with his knee on his neck as he
begged for life saying I can't breathe
as he called on his dead mother as
people around begged this police officer
to stop you're killing him and that
officer not only continued to do it he
looked right in the video cam he knew he
was big videotaped and he looked right
into that cell phone camera as if to say
go ahead you know film me and he kept
kept murdering this man um that happened
on May 25th charges were not brought
against that police officer until May
29th but that was only after people
protests it and burned they burned the
Pope they actually burned the police
station down in Minneapolis and it
wasn't until that happened that charges
were finally brought in the initial
charges were very weak brought by the
local prosecutor it wasn't until
Attorney General keith ellison came in
and brought murder charges against him
and his accomplices and that happened on
June 3rd amazingly despite all the
protests that happened and so many
protests happen all over the world right
all people of all races of all ages of
all over the country all over the world
begin to protest and people started to
think you know things are changing but
the killings are still happening even
after all of that the killings continued
a number of protesters were killed
police officers kept killing right even
after that and this latest case of
raesha and Brooks the man who was not
attacking anybody or committing some
violent crime when the police officers
approached him he was asleep in a
fast-food line failed a sobriety test
somehow he ended up being murdered by
police on us and he now finally has been
charged by the Fulton County DA's
so here's the question why does this
keep happening why the video camera
everything I mean first of all it's been
happening since the time of slavery
since we were brought to these shores
right Polly black people have been
killed by law enforcement people who
have taken the law in their own hands
right unarmed black people and it has
continued from slavery to the black hos
through the period of lynching which
apparently is still going on through Jim
Crow Emmett Till seemed like a moment in
history it's continued and so many cases
that we don't know about because police
officers would kill people and even when
it was reported and nothing happened and
police officers would lie and say you
know the person was attacking me or
whatever so now the only thing that has
changed is we've got cell phone cameras
and we've got social media so now we
know because we're seeing it with our
own eyes and yet and yet even with the
cell phone cameras it keeps happening so
the question is why well I think there
are a lot of reasons why it keeps
happening I want to talk about a few one
you know racial prejudice racial bias
racial animus these police officers
don't see the humanity in black and
brown bodies right and so they kill
right and so that's a huge problem is
the racial animus that these officers
have that we all you know frankly I'm
not saying police officers are the only
ones who have you know there's something
called implicit bias which we can talk
about these unconscious views that all
of us have that caused us to view people
differently because of their race or
their ethnicity skin color body type
body size sexual orientation I could go
on and on gender we all suffer from it
but when the person who is suffering
from it acts on it and they are in a
position of power carrying a gun it has
a whole different consequence so there's
there's racist that's number one number
two police officers are trained to use
violence that's what they're trying to
do the Supreme Court
so Terry versus Ohio you said even when
police officers stop a person on the
street and frisk them they can use force
to do that and certainly they can use
force to arrest so when police officers
arrest people whether they arresting
them for you know shoplifting or murder
they grab them they handcuff them they
throw them down they have the power to
do that they are committed to do that so
they are trained to use force and
violence to deal with everything and
that's one of the reasons why we need to
dismantle the entire police function and
start from scratch and there's something
that I'd like to talk about later on we
need to change the police function it is
one that is based on violence and force
no matter what the circumstance and
another reason is the law right the
Supreme Court unfortunately has set a
very low standard for when police
officers can use deadly force right
as long as there's a very loose sort of
reasonableness standard as long as it's
it's reasonable for them to believe that
they are or the public is in danger they
can use force even if they're even if
there's no imminent threat even if the
prison is unarmed that's what the
Supreme Court says is constitutional I
tell people this all the time just
because something is constitutional
doesn't make it right and just because
something is constitutional doesn't mean
that local police departments can't step
set their own much higher standard for
the use of force and they should and
some police departments have done that
but but the constitutional standard is a
low one but then the last reason I want
to talk about is why cops keep doing
this is because they're not held
accountable they're not held accountable
they know they're not gonna be charged
right so that's where the prosecutor
comes in they know that they're likely
not to be charged right and even if they
are charged nothing's going to happen to
them so they keep doing it over and over
again so I think it's a combination of
all of these things we need to hold
prosecutors accountable why are they
overcharging black and brown and poor
people on the sketches of evidence while
almost never charging police officers
when the evidence is overwhelming
why are they doing that because I said
before they have total discretion well
there are a number of reasons first of
all prosecutors have a very close
relationship with cops they work with
cops they're part of the same team
they rely on cops to make their cases to
me they're witnesses to investigate
their cases and so there's a conflict of
interest here right
cops make contributions make
contributions to prosecutors campaigns
so I will close by saying we need to
hold prosecutors accountable the vast
majority of them are elected officials
they're federal prosecutors and state
prosecutors most of what goes on the
criminal legal system happens on the
state and local level 90 percent of all
cases are state and local and in for all
in all but four states and the District
of Columbia the chief prosecutor is an
elected official who runs for office
every four years usually they run
unopposed people don't pay attention to
those races that is starting to change
but it needs to change more we need to
pay attention to district attorney races
and hold them accountable at the ballot
box we need to vote out prosecutors who
are unnecessarily prosecuting black and
brown people and poor people while
allowing cops to get away with murder so
the bottom line folks is this democracy
right we look very broken right now but
it's what we have and change won't
happen unless we demand it so protest
write letters call your elected
officials send emails litigate if you're
a lawyer do what you can and most
importantly vote so I'll stop there and
take any questions that you might have
thank you professor Davis thank you for
our audience please use the Q&A chat box
so that I can in many ways channel your
questions to Professor Davis to get us
started you know haven't had a chance to
go over your book and and the chapters I
keep coming back to this fundamental
question and that has to do with the way
I think we have been socialized and how
we think about in particularly black
boys and
and men in our society and you've talked
about the policing of sort of black
bodies which is not new it's gone on
historically and it continues to be the
case when I'm particularly interested in
is also hearing from you because I think
some of the authors in your chapter
talked about this what is the impact of
this of the interaction of black boys
with the police so yes there is a
chapter in the book written by Kristen
Henning who is in my view one of the if
not the most foremost expert on the
policing of black boys and juveniles in
general in the system and her chapter in
the book is really amazing and I think
we get more questions about that one
than anyone and she's spoken on panels
with me before it's called boys to men
the role of policing and the
socialization of black boys and she has
a book coming out about that issue and
really what evidence shows is that black
boys are actually policed more than any
other group more than black men more
than black women more than girls black
boys when police officers see black boys
on the corner doing what boys do what
kids do playing around whatever their
instinct is to go over to them ask them
what they're doing throw them down frisk
them handle them and of course kids the
juvenile brain is different from the
adult brain they're gonna react like
kids react an adult would react to that
but certainly kids do right and so then
it creates a conflict with doing the
tool and the next thing you know they
are arrested and so there as far as how
black children and particularly black
boys are treated in this system it's
even worse and the racial disparities
are even worse and that chapter the book
outlines outlines that problem and it
also presents some thank you I'm gonna
take some of the questions can you talk
about you know sort of dismantling the
police which certainly will resonate
with many I believe on this you know in
this in this program talk a little bit
more about that there's been a lot of
conversation about defunding the police
there's been a lot of conversations
about dismantling the police what what
is
really meet sure so the defund the
police movement I think is an important
one I don't like the title of it because
when people hear when some people here
return defund the police they
immediately think that what they mean is
we're not gonna have any more police and
if something happens to me and I'm being
harmed I can't call 9-1-1 9-1-1 that's
not what it means basically what the
defund the police movement is saying is
that we need to stop putting the
millions and millions and on the federal
level billions of dollars into police
departments who are using the funds that
they receive to hire more police to buy
more to buy military equipment and to
police neighborhoods when they
oftentimes don't need you and to divert
divert excuse me to divert some of that
funding into social services agencies
that deal with the problems that often
bring people to the police so we have
people calling the police when someone
is having a substance abuse problem or
when someone is is you know drunk in
their car right like like this poor mr.
Brooks or is having a mental health
episode and police officers are not
trained to handle those problems those
people don't need the criminal legal
system they do not they need help and so
police officers go to them and they do
what they're trained to do grab them
arrest them throw them down and then
oftentimes we end up with the tragedies
that we've been witnessing in the past
few weeks and so that needs to stop we
need to have a police department that
focuses we do need police to deal with
the serious violent crimes we can't call
a social worker somebody being killed
maybe we can to help somebody but we
need the police for violent offenses we
even focusing on that and all of this
funding that's being used to have them
police people on issues that they don't
need policing on should be given to
individuals social services agencies
they certainly know how to handle it and
actually it's starting to happen
Albuquerque just recently started an
alternative safety department that is
comprised in time
unarmed social workers violence
prevention experts mental health experts
etc who are trained to deal with those
issues you know I think about poor mr.
Brooks sitting in his car drunk imagine
if that police officer when he was
called by the people at the Burger King
or whatever the place was imagine if the
police I've said going over to the car
welcome up you know okay give him this a
variety test okay you're drunk mr.
Brooks what's your phone them I'm gonna
call your family I'm gonna have them
come get you and take you home to sleep
at all what's wrong with that yeah even
if he was technically you know coming
had committed a DUI do we really have to
arrest him right and so the reality is
that cops do that what a lot of people I
guarantee you mr. Brooks has been white
that's what they would have done they
would have said hey man buddy
wake up what's your wife's name you know
and they do it all the time they resolve
all kinds of issues short of a rest
right but back to your point that's what
the defund the police movement is about
I think it's an important movement we do
need to dismantle it we do need to
divert funds and we also even for the
police that aren't going to remain we
need to train them differently train
them that they don't yet have to use
force all the time that they can train
them in de-escalation techniques train
them not to use violence and train them
only to use deadly force when it is
absolutely necessary and so I think all
that needs to happen in order for us to
have a better police firm if you will so
there are some reforms there's there's a
lot of talk about police reforms and
there are lots of bills that are going
through Congress and you know do you
first of all do you think those do you
think those bills really are covering
the core issue and - do you think
actually that is it is going to make a
difference and if you had to change some
of the the components of the bills that
are being put forward what would what
would what would those be and wife well
there's a lot of different meals going
on first of all that executive order
that the person in the White House and
wasn't nothing it was it was he read it
carefully it was all it was
encourage the police officers to do this
and we'll incentivize them maybe they
can do this if there was no requirement
for police officers doing things only it
was nothing but the bill that's being
put forth by the Democrats in the house
and the Senate does have some important
parts to it they want to get rid of
qualified immunity which is this
doctrine that makes it really difficult
to sue police officers almost impossible
to sue them it has a ban of choke holes
there's a lot of important pieces of
what is missing from it is what I just
talked about which is a restructuring of
the whole police function what they need
to do because Congress in the past has
put billions and I mean billions
wouldn't be of dollars through a program
called the cops program the community
oriented policing I forget the one with
the s stands for and they have literally
put billions of dollars into police
departments across the country and
that's under both Democrat and
Republican administration what they need
to do is divert some of that money into
social services or incentivize police
times you will get funding if you train
your officers on de-escalation policies
right and so I think that's what really
needs to be done but the bottom lines of
what Congress has done doing does not
stop local police departments and local
entities states and cities and counties
from doing their own thing so for
example Los Angeles in Los Angeles the
City Council the other day voted to move
a hundred to one hundred and fifty
million dollars from their police budget
into social services so we really need
this to happen on the local level
because that is really it's local police
departments where most of this is going
on and so what's going on in Congress is
fine but it's not enough and it
certainly doesn't stop local entities
from making changes and I don't like
that word reform the word reformed and
using it for yeah we need fundamental
change we want need to reform the police
function we dismantle it and reimagine
it so we've talked about you know
arresting all of that but I
think also the other thing we need and
you've talked about you know the
defunding and the dismantling or frankly
the police as an institution and the
reimagining of it with sort of different
functions I think the other challenge
that we have is mass incarceration and
it goes without saying when you look at
the statistics of you know who is being
incarcerated and at what rate and the
impact of that on communities is is
staggering so talk to us a little bit
about also the institution of mass
incarceration and there's not a
conversation about how do we abolish
that understanding that this has been
very much part of the DNA of our
institutions in this country yes so
we're in a crisis point I think in this
country right we have to point to when
almost 7 million people under the
control of the criminal legal system
meaning in prison parole on probation on
parole or in print I'm sorry in prisons
and jails on both the federal and state
level and on provision of parole we have
2.2 million people in our prisons jails
we have the highest incarceration rate
in the world we have extraordinary
racial disparities black and brown
people as I mentioned before treated
much worse than they are similarly
situated white counterparts and so it is
a huge problem and there it's there are
a lot of complex reasons why it happens
and so there there's going to have to be
varied and complex solutions for it as
well and I think that's why that's one
of the reasons why I focused so much
there love us we have sentencing laws
that are just horrible we have the some
of the longest sentences in the world if
you look at some European countries in
Norway Denmark and others the most time
an individual can get even for murder is
21 years but here in this country
is life without parole the way of the
different more the few countries and in
the Western world is still hit with only
one person world that has the death
penalty right and so we're so behind it
so barbaric when it comes to how we
treat people in this
country we have life sentences that give
life without parole meaning you will
spend the rest of your life in a cage
for nonviolent offenses you can get life
without parole for certain drug offenses
in the federal system especially here a
repeat offender this is you haven't
touched another prison he ever harmed
anybody life without parole and so we
have this punitive attitude in this
country of you know dealing with
problems by locking people up of course
we don't do that with everybody right we
don't do that it with everybody we do it
with poor people and we do it with black
and brown people right and so when I say
is that there are ways of holding people
accountable without putting them in a
cage I'll say that again there are ways
of holding people accountable without
putting them a cage you can have people
pay back something that they did so we
don't know why do we have to treat
people like animals and that's the my
sentence cut them so that needs to
change on a fundamental level at every
single level I talked my dismantling in
the police the prosecutors
they're the ones as I said before who
make the decisions to charge people in
the first place just their laws on the
books does not mean that prosecutors
have to implement them in fact a lot of
times they don't as I said before some
people they don't charge something to do
so prosecutors could play a huge role in
changing this horrible problem we have
and in making a dent on the bass
incarceration problem and some have
started to do it there are I'd say about
a couple dozen of new what people call
progressive prosecutors who have been
elected in various jurisdictions around
the country who ran on a platform of
ending mass incarceration and ending
racial disparities unheard of imitation
prosecutors Kym Fox in Cook County ran
on that model Rachael Rollins in Suffolk
County as the chief prosecutor they ran
on that model larry Krasner a
philadelphia rental mint mall and they
won their elections and they are in fact
diverting cases out of the system
refusing to charge a lot of petty
offenses and they're going after cops
who are abusing their power and so we
need to
like more prosecutors like that too and
we also and I have to say as a former
public defender you know to make our
system better we need to fund our public
defender offices around the country
public defenders play a critical role in
this criminal legal system in protecting
their clients and providing the best
defense possible for their clients and
so we need to make sure that just as we
are voting out bad prosecutors that we
support public defenders as well so you
know when it comes to prosecutors this
is really more on our local level I
think for a lot of times we tend to be
focused on the federal system as opposed
to thinking at the local level right
help our audience understand a little
bit more because I think for the
audience that would be here you can
imagine these are students who are
deeply passionate about these issues and
want to see change and have the ability
to not change talk to us a little bit
about how does one do that at a local
level what does it take to do this at a
local level because a lot of the
questions that are coming up are about
prosecutors about the transparency of
how for example they get elected where
is the funding coming from and how do
they kind of get themselves more
involved how can our students and others
get involve at our local level in these
issues okay question one by one so as I
mentioned before we have a federal
system and we have a state and local
system and federal prosecutors are
appointed in these various districts we
don't vote for them there's even less
accountability there but only about 10%
of all criminal cases are handled on the
federal level most handle on the state
local level and prosecutors are elected
officials you have States they're called
sometimes they call District Attorney's
sometimes they're called common in
Virginia they're called the Commonwealth
Commonwealth attorney in Maryland there
called state's attorneys some places
they're called prosecuting attorneys but
they're the chief prosecutor they're
elected and the way people can get
involved is by holding them accountable
not just at the time of the elections
but ask for a meeting with your local
prosecutor you know I was talking to a
relative the other day who lives in
Louisville and she's very upset about
the fact that no
the officers who killed Brianna Taylor
hasn't been charged like what can I do
like you need get together if there's a
local group n-double-a-cp whatever group
demand the meeting with the local
prosecutor and ask him why these charges
haven't been burnt understand they're
they deferred it to the Attorney General
but the point is that we have to be
vocal
you know if there's ways of doing it
there are organizations out there that
you can join you know if you don't want
to do this by yourself
make your own organization and go to
these people and demand that they be
responsible to you because they serve
you the people so there are a lot of
things that people can do and everybody
can't do everything there are people
protesting in the street and that's so
important the black lives matter
movement so important we wouldn't be
where we are today without the founders
of that movement and people participated
in that movement critical we have to be
out there you know protesting and
demanding right what we want but we also
have to be doing things in other ways we
have to you know call our elected
officials email them write to them
demand meetings talk to them demand
accountability right in a variety of
ways there are lawyers out there who are
litigating there there's you know use
what everybody's eye tell me everybody
can't do everything but everybody can do
something can pick one thing to do and I
accountability I think and I'm hearing
from you that you know the focus you
know has been on the police and and the
need and and the major reform that are
needed there from as an institution but
that there hasn't been as much focused
on the prosecutors and I assume that
part of that is because it's not as much
of an understanding of the role of
prosecutors for the average person and
the question that keeps coming up from
our audience really is you've mentioned
you know this piece about the probable
cause as being one of those standards
and you've talked about plea bargaining
and what happens with plea bargaining
and so forth it seemed it sounds from
from the questions that I'm getting from
our audience are you suggesting that we
need to reform those as well yes we do
so just to give an example of how this
whole plea bargaining thing works so
let's say we've got an individual who
gets arrested by the police with a whole
white let's use of drugs as an example
let's say he's been caught with I don't
know six bags of cocaine and the police
officer arrests and brings the case of
the prosecutor and the prosecutor decide
and again remember they can decide to
throw the case out or they can decide to
charge them with the distribution of
cocaine on kick instead of charging them
this mean totally up to the prosecutor
they make these decisions behind closed
door they'll have to justify them to any
which is problematic in and of itself
but let's say they decide to charge this
individual with five counts of
distribution of cocaine let's say each
one of those counts carries ten
mandatory minimum years in prison
meaning that if they're convicted they
have to serve 10 years because it's
required by law the judge has no
discretion right so all the discretion
is in the hands of the prosecutor once
they charge this person right you can
see how that gives them so much power
well the prosecutor then has the option
of and it's totally after the prosecutor
I'm offering what they call a plea and
let's say this prosecutor says okay I'll
make you a deal I'll let I'll allow you
to plead guilty to one count of
distribution of cocaine and I'll just
miss the other four counts right and and
so the person is saying wait a minute
but I didn't do it but if they go to
trial on all five counts and they're
convicted of all five counts looking at
fifty years in prison so you can see how
even an innocent person would feel
compelled to take the deal and many do
95 to 98% of all cases are resolved by
way of a guilty plea and the way this is
done oftentimes there are no real rules
around it because prosecutors can do
what they want so I've many situations
where prosody would say okay I'll let
your client plead guilty to one count of
distribution but he's got to take the
plea tomorrow and the defense attorney
might say well wait a minute I have an
ethical duty to investigate the case my
client might be innocent I need time to
investigate the prosecutor can legally
say too bad take the deal tomorrow or
it's off the table
this happens in courtrooms every day
around this country right and that's
what passed
justice so yes we do need to have
reforms around that we need to have more
you know we need to have enforcement of
the rules that in place
prosecutors have for example a
constitutional duty to turn over all
exculpatory evidence of any evidence
that would tend to show that the
defendant is not guilty they're required
to turn it over it's something called
they called it Brady material because
it's it's named after a case Brady
versus Maryland the problem with that
case is that the Supreme Court doesn't
make it clear and in fact does not
require the prosecutors to turn over
that material at any particular time is
something like in a timely fashion some
prosecutors tend not to turn it over if
at all until the trial well if there's
not going to be a trial it's never
turned over we're pleading guilty
without getting that information those
rules need to change and in local
jurisdictions can change those rules and
some jurisdictions do have what they
call open found discovered where they
turn over all this information but
unless you've got that's why I keep
going back to elections because there's
so much power and especially if you have
a chief prosecutor who believes that up
and found discovery and who requires his
assistant district attorneys to turn
over all the information on day one and
to not overcharge cases and not to make
unreasonable plea offers and we can have
some progress like I I hate to say it
but I've almost got when it comes to a
lot of these issues like in the criminal
justice feel of giving up almost on the
sale most i've given up on the supreme
court because they set such a low
standard I’m focusing now let's just get
some decent people in there who believe
in justice who want to change this
criminal legal system to to address this
crisis that we find ourselves in and
have them require these prosecutors to
do the right thing you know the supreme
court says it's in a case called berger
versus united states that it's not the
role of the prosecutor to seek
convictions the role the prosecutors to
seek justice and sometimes justice may
mean seeking the conviction but a lot of
times of justice meetings not seeking a
conviction not charging a person because
the prosecutor don’t represent like
one they don’t even if it's a case
that has a victim prosecutors do not
the victim they represent the community
they represent everyone and that
includes the victim the defendant and
the entire community and they're
supposed to make their decisions in the
best interest of all and far too many of
them don't do that far too many of them
just see convictions and farce for many
chief prosecutors are still out there
who measures success by the number of
convictions that a prosecutor has
whereas we need more prosecutors who
promote people when they based on the
number of cases they divert out of the
system right that's best we need a whole
new way of thinking I said before
fortunately we do have some of those
prosecutors I mentioned a few Kim
Gardens and Lewis Kim Fox in Cook County
larry Krasner there are many others not
many others but you know I'd say a
couple dozen and we need more like that
I do think we could have more
fundamental change in our system so I
want to switch back again to policing
and the institution of policing our
audience really do have some questions
about training but also more importantly
do you believe that measures such as
restorative justice could be good
alternatives to what we currently have
with the system and the approach to how
we deal with with situations yes I do
the restorative justice is a very
interesting one where you have the
person who's charged with the offense
meet with the victim and the victim has
to agree with two to agree to this
meeting and talk to the victim about
what they really want what we what
people don't understand is that victims
don't always want blood right victims
don't always want the person to go to
prison for the rest of their lives
sometimes they want to just be made
whole sometimes they want an apology
from the person who is committed the
offense and there been some remarkable
things that have happened with
restorative justice I will say right
here in addition of Columbia and a
digital Columbia is different because we
ran out of state in addition of Columbia
so we don't have a district attorney so
the prosecutor and the District of
Columbia that prosecutes most criminal
cases is the federal
it's not like that anywhere else but the
federal prosecutor in DC the US attorney
for position of Columbia prosecutor
local cases and federal case but we do
have an elected prosecutor in DC and
that's our Attorney General and that's
we have a great one now his name is Karl
Racine former public defender actually
from the DC public defender service he's
now the Attorney General and he's doing
some remarkable things because most
Attorney General's deal a lot with
consumer protection a lot of civil
issues but they also and especially in
the District of Columbia deal with some
minor offenses and they deal with
juvenile cases and so that office
handles juvenile cases and they're doing
extremely you know wonderful things in
terms of diverting cases I mean they're
doing a lot with restorative justice and
so there are some good models of
restorative justice and we do need to
and I think that's important because
it's not enough to just divert
misdemeanors out of the system that's
not going to put a dent in our mass
incarceration problem we have to find
out a way to deal with violent crimes
and by the way a lot of crimes that are
called violent crimes are not
necessarily violent so for example if
you've got a robbery case where you've
got a bunch of kids running on the
street one of them grab somebody's purse
that's a robber and that's a violent
offense when you grab it but you might
have two or three running behind them
you know cuz that's what kids do and
they never touch the woman or you know
there and they're called aiders and
abettors
but they weren't the people who actually
committed the act yet if they're
convicted it's a robbery that's a
violent offense even though there was no
vows so you have to look behind the
terminology a lot and the point I'm
making here is we need to be looking
more individually at what happens in
these cases are not just looking at what
the charges because so many of these
cases don't need to be in the system in
other ways that they can be resolved and
I do think restorative justice is a good
model that's been used successfully in a
lot of jurisdictions so you mentioned
you know that the difference between now
and before is that we have social media
we have cameras that are available and
so we can see it with our own eyes and
so as a result we're seeing in some
cases whether it's being arrests made
and charges in some of the
in cases talk to us a little bit about
for some folks they see that that that's
really where justice justice has been
served in that you've had the arrests
you've had these charges that have come
in and so forth talk to us about really
from your perspective what does justice
look like professor Davis what is
justice in these instances in those and
those okay in those cases and those in
the cases where people were police the
police have been arrested and they've
gone through the system what should
justice look like in in these instances
that's an interesting question you know
as I listen to what I've been watching
you know the painfully a lot of these
families who've lost loved ones
talking about you know their loved ones
and how they should still be here and
what many of them have said is you know
yes we've arrested the police officer
and charges have been brought we don't
know if there's going to be a conviction
but maybe they'll even be a conviction
but they're gonna bring their loved one
back right and still is that really
justice right we can't go back right
after that person we these police I
wasn't get locked up but there's not
agreeing that person's loved one back
nor is that going to miss best nor is
that going to stop this from continuing
to happen so for me justice looks like
us dismantling the whole structure that
we have now for policing to me that
would be some semblance of justice
because then we would have a situation
where we're not having these individuals
who are trained and just instinctively
use force that sometimes results in the
loss of life so just as to me would be a
dismantling of the current police
function and building something new
where police officers are truly there to
protect and serve
and not you know control and harm people
and use force against them and where we
bring in individuals from the community
to resolve a lot of things so there's we
don't have to resolve everything with
the criminal legal system in fact I
think most they're probably a very few
cases that we really need to you know
involve the criminal legal system
obviously very serious and violent
crimes that need to be dealt that way
the vast majority of what's now I'm from
a legal system shouldn't even be there
so to me justice would be a reimaginination
of this whole system that we have
now to make it a more fair system one
that's not based on retribution and harm
and and and based on profit which a lot
of them are but one that's based on
human dignity and treating all human
beings with dignity right Bryan
Stevenson often says you know we don't
want to be measured by the worst thing
that we've ever done right because
everybody has and so we we want to be
willing to be judged by our worst day
you know everybody makes mistakes in
their lives and we need to have more
humanity you know in this system and
treat people with dignity to me that
that would be some semblance of justice
do you have hope I do have hope and you
know and I probably shouldn't have hope
because I turned 64 in two weeks and I'm
just tired of seeing this stuff happen
over time again I tell us there on time
I grew up in the south right where there
was wine colored signs I experienced
that and so it's painful to be here 64
years old seeing not just the same thing
but some of the worst racial violence
I've ever seen in my life so you would
think I would be helpless but I'm not
because all of these protests going on
around the country when I look at the
faces of these people when I see you
know people of all races and ages and
you know from all backgrounds coming
together saying that black lives matter
it does give me hope people all over the
world like and I tell the story all the
time about this little town Alabama
Mountain View I think is the name of
Mountain View Alabama has knock it's 98
percent white 1% black
they had a black lives matter rally 400
people showed up and so when that
happens I have to have hope I think that
this is a moment in time when change is
possible and I think we need to seize in
this moment you know and most
importantly vote vote in November
everybody professor Davis without saying
that for many of us who are not in the
legal field this has been incredibly
incredibly educational in so many levels
what are your last words for our
audience and and you know a lot of them
are asking what can we do and especially
for those who are not always the voices
at the table it's it's particularly a
lot of the white students and others
asking a lot of these questions what
what are you what's your last word to
our audience well I think I've already
said it but I'll say it again everybody
can't do everything but everybody can do
something
find the issue that you care deeply
about and work on and also educate
yourselves there are all kinds of
wonderful reading lists going around
about race about the history of racial
injustice in this country three books
right not just my book I'm not here
pushing my book but there are all kinds
of wonderful books out here about racism
in the krona just in the criminal
justice system and in the country in
general so we need to educate ourselves
first and foremost and then take action
on whatever level you can you know there
are student organizations there are
community organizations that are working
on these issues
the n-double-a-cp the ACL u--'s Don
doing remarkable work as well there are
all kinds of groups out here that are
working on various issues in the
criminal legal system from bail all the
way through sentencing and they're all
over as soon as know more about them
probably Ben I do because a lot of that
information is out there find one thing
that you feel passionate about and do it
because it's going to take all of us
working together and as I said before
you know most importantly
as you're working on these issues hold
hold your elected officials accountable
you know my ancestors died so that I
could have the right to vote and so I'm
not gonna waste that and all of us we
may not have the perfect choices but we
shall have choices and and they those
choices are there and it makes a
difference so that's what I would say
you know whole whole your officials
accountable and make sure you vote in
November well my dear friend it goes
without saying that it's been an
incredible one hour thank you thank you
for your wisdom thank you for the
insights and more importantly thank you
for sharing your time and your knowledge
with so many of us today I very much
appreciate it and I think for all of our
audience that are out there there is a
lot of work to be done a lot of work to
be done and we do not have the option to
be tired in the work that is so ahead of
us the stakes are high and so with that
we're going to end our program for today
and again professor Davis thank you
thank you so much thank you so much for
having me and thanks to everybody for
joining me today
thank you
