Ferguson, NYC, New Orleans and the Presumption of Guilt

"We at OPD are the everyday witnesses to the ordinary injustices taking place across the country and each day in New Orleans. In this moment we have an opportunity to shout from the dark at a moment when people are listening."

from Chief Defender Derwyn Bunton: 

As a long time civil rights attorney and public defender, I feel I am predisposed to root for the underdog – the one facing the heavy weight of the state (police, prosecution, courts and incarceration) with only a defense attorney for protection. Yet I too was upset when the media announced in Ferguson, Missouri and Staten Island, New York no indictments are forthcoming in the shooting death of Michael Brown or the chokehold death of Eric Garner. Both African-American men died at the hands of police officers.

The bias in our criminal justice system – whether in Ferguson, Staten Island or New Orleans – is evident from cradle to corrections. African-Americans, other minorities and poor people generally face disproportionate risks of suspension, expulsion and criminalization in school; face increased risk of being unfairly stopped or suspected in public spaces; and face dramatically increased risks of wrongful convictions and longer sentences when criminally prosecuted.

 However, my anger and sadness is rooted in how our criminal justice system treated the officers. It seemed so blatantly unfair, unequal and unjust when compared to how most people accused of crimes are treated every day. In New Orleans, criminal defendants are disproportionately African-American men with little or no income. To illustrate, New Orleans' general population is 60 percent African-American, but more than 85 percent of people arrested and prosecuted are African-American.

Unlike so many people we represent in our criminal justice system, the officers in Ferguson and Staten Island were protected by a presumption of innocence. Even more, the officers were assumed not to be dangerous.

Our clients get the exact opposite treatment. The presumption of guilt and dangerousness fills our jails with people who are sitting, pre-trial, behind bars only because they or their family do not have the hundreds or thousands of dollars to pay bail. So many of our clients – our community – sit in jail needlessly at great human cost to them and their families and at tremendous expense to the city because they are poor and presumed guilty and dangerous. At the same time, men and women in New Orleans with little or no income are largely saddled with the responsibility to maintain a criminal justice system which treats them unfairly. Ferguson and Florissant, Missouri (a neighboring municipality) reported a $3.5 million profit in their municipal courts from fines and fees levied on their constituents. New Orleanians pay well over three times that amount. The fines and fees are especially troubling considering the number of pretrial detainees who are unable to work and lose their jobs behind bars.

The Office of Inspector General found the city pays at least $48 per inmate per day. Too many of our clients sit in jail for months only to have their cases dismissed or receive probation. In one year, the city pays $1,190,400 to incarcerate people pre-trial whose cases are eventually dismissed or receive a sentence of probation.

Virtually every day, our clients with long histories of drug addiction but no history of violence are forced to make a decision: Do I go to trial and risk life in prison, or do I plead to ten years (serving the entire sentence) in prison?

Just recently, a client pleaded guilty – not because he was guilty – but because he couldn't afford bail and it was his only way to get out of jail – a jail which terrified him. He jeopardized his long term future (he is now a convicted felon) to avoid immediate danger.

Whether you think the officers in New York and Ferguson should have been charged or not, the lesson is all people, not just white police officers, should be afforded the presumption of innocence. The lesson is we need to confront and address the presumption of guilt, the assumption of dangerousness and all the other biases that lead to bloated jails and prisons, fractured families and crippled communities.

We at OPD are the everyday witnesses to the ordinary injustices taking place across the country and each day in New Orleans. This is often digested as a burden, but it is also a blessing. We have the privilege and power to stand in dark, lonely, uncomfortable places together with our clients and their families. We do this so we might act as shepherds, navigators and vindicators for our clients.

On December 16, together with our clients, other attorneys and members of the criminal justice system and New Orleans community, we gathered on the front steps of Criminal District Court to show our support for others around the country, but also to highlight what it means to work in these courts every day. We stood together for 4.5 minutes to commemorate the 4.5 hours Michael Brown's body lay on the street in Ferguson. We stood together for 4.5 minutes to show our dissatisfaction with the ordinary injustice we bear witness to every day.

In this moment, we have an opportunity to shout from the dark at a moment when people are listening. As 2014 ends, this is where we stand. Together, united for justice and fighting another day.

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