The nine-minute video of a police officer killing George Floyd and the ongoing protests against police violence make undeniable what we as public defenders have always known – communities of color live a different reality. For too long our leaders have asked what is wrong with communities of color to make them so prone to crime. The real question is why our clients are policed so differently, and so aggressively.

Molly O’Neal 

As defense lawyers, we often encounter evidence of unlawful, unethical, and discriminatory police practices.  We read reports that plainly describe the police violence that occurs every single day.  We see videos of the police brutalizing our clients and conditioning their communities to fear law enforcement. And we listen to our clients.  They tell us about being beat up and singled out, and that bad cops, not all cops, but bad cops are lying about what’s happening.

Policing needs to change. At a baseline, our local police agencies should adopt Campaign Zero’s 8 Policy Proposals, which embrace de-escalation and require officers to intervene in incidents of excessive force. Police organizations need meaningful oversight, and police officers must face consequences for misconduct. And we must recognize that our money would be better spent on service intervention rather than arrests and jails.

The courts also need to change. Police tactics aimed disproportionately at communities of color create a separate and unequal experience in the courts. The disproportionate rate at which people of color are arrested is the pipeline that feeds an overrepresentation of people of color in courts and jails. And the courts have their own unfair practices to reckon with.

Every day in our local courtrooms, incarcerated people who pose no risk to public safety are denied release. Prosecutors and judges frequently ignore the independent agency, Pretrial Services,  tasked with advising the court on safe release. Money bail is set, allowing only people of means to purchase their freedom.

We applaud a policy that requires prosecutors to consider immigration, licensing, and other consequences of a conviction. Yet too often when an accused person asks for an alternative – not a lesser – charge to prevent deportation and family separation, the answer is no.

Our local district attorney’s office recently stopped jailing some people for misdemeanor drug crimes. We applaud that. Yet we need alternatives to punishment for all kinds of crimes fueled by addiction, including low-level drug sales and property crime.

The state legislature and the voters have taken dramatic steps. In recent years, they curbed district attorney power to prosecute children in the adult system. They adopted a diversion program for cases driven by mental illness. They repealed and reformed sentencing enhancements, an effort to prevent coerced plea bargains.

More must be done.

Police agencies must grapple with their history and enact reforms. They must internally recognize how they have supported the bad officers among them. We need a system of trauma workers and crisis responders, not just  jails. High conviction rates and swollen prison populations should be measures of concern, not success.

Our court culture must evolve. Clients and their families should be treated with as much care as any judge, prosecutor, or police officer would be. Language  like defendant, inmate, X,  and body dehumanize an accused person. Humans having a meal should not be referred to as “feeding” as though they were animals. The culture of jailers has to change. Elected leaders call for criminal justice reform. That work requires each of us to acknowledge the widespread, systemic inequality in our society, and our own roles in it.

Molly O’Neal is the Santa Clara County Public Defender.