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August 30, 2022

Fair and Impartial Courts

Please note: Many of the questions asked by students below do not ask about a specific law but are more philosophical in nature. Therefore, some of the following answers represent the opinion of the author only and not of the ABA or any of its entities. Answers to the question will differ depending on who responds.

Non-citizen's Rights

Q: If a person is summoned to court as a witness to a crime and is a non-citizen, could they be deported? Delmi from Washington, D.C.

A: It is possible. But there are many caveats: does the person have a legal right to be here? (i.e. if they have a visa or greencard they cannot be deported). If the migrant is undocumented, this answer is largely up to the policy of any given presidential administration.  Court houses are sensitive areas and to ensure the fair administration of justice, people should not be deterred from reporting or testifying to a crime because of their immigration status. But the law does not protect undocumented people and the prior president, for example, did not place any limits on who the government would target for deportation—including at courthouses.

The Justice System and Police Officers

Q: Why do cops have more leniency in the justice system? I understand that they serve the people and deserve some form of trust, but the amount of videos on the web of cops doing horrible things is absurd. For example: the cop (Daniel Pantaleo) who killed Eric Garner got off free without any sort of punishment even though he choked a kid to death. To me the justice system sometimes doesn't feel just.". a high school student from Pennsylvania

A: If a police officer violates your civil rights, you should be able to sue that official for that violation. (Or, in the case, of Eric Garner, Mr. Garner’s family should be able to sue the officer for killing their family member). But several years ago, the Supreme Court created a legal doctrine called “qualified immunity.” This means that a police officer who is sued for violating your civil rights can invoke a special defense to that lawsuit. Basically, if the officer can show that she or he did not violate “clearly established law” when he choked Mr. Garner to death, he can’t be held responsible for Mr. Garner’s death. So while it may have been wrong for the officer to kill Mr. Garner, if the law did not explicitly prohibit the police from using a chokehold the officer could invoke qualified immunity and not be held responsible for Mr. Garner’s death.

As for criminal prosecution of officers who kill unarmed people, this is another matter entirely.  The prosecution would have to show beyond a reasonable doubt that the officer intended to kill Mr. Garner. It is a high bar and often an accused officer can raise a reasonable doubt in the minds of jurors by showing that what he or she did was not explicitly prohibited by the law or that what they did was a reasonable response to the circumstances.  Prosecutors are also traditionally reluctant to investigate the police since they rely so heavily on the police in all criminal cases that they prosecute. 

Public outcry just as you expressed in the last line of your question has state and federal lawmakers working to address these issues and provide greater transparency and accountability for misconduct and abuse. And better accountability could actually improve trust between police and the communities they serve, which would in turn help improve public safety. I would encourage you to contact your elected representatives and push them to build in accountability (like limiting qualified immunity) and other reforms--like training on implicit bias--to build trust and create a more just system.                                                      

The Supreme Court

Q: What is someone’s role in the supreme court? Vanessa from California

A: The Supreme Court was established by the Constitution to interpret the law.  When Congress passes a law, sometimes there are questions left unanswered about what the law actually means. Or, there may be objections to whether the law that Congress (or a state legislature) passed is even constitutional. For example, what if Congress passed a law that prohibited people from protesting?  The first amendment to the Constitution protects the right to protest, so a person could file a lawsuit that would likely be heard by the Supreme Court to invalidate that act of Congress. Presently, there are nine justices on the Supreme Court.  Each justice has a vote in each case.  Their job responsibilities include deciding which cases the Supreme Court will hear, reviewing all briefs filed in those cases (briefs are filed for each side in a case and seek to persuade the court to rule in their favor), listening to and asking questions at oral argument, deciding how to rule in a case and, in some cases, writing the decision in the case.  Justices who disagree with whatever the majority decides also often write a “dissent,” explaining why they believe the majority decision to be incorrect. The Supreme Court only hears cases involving constitutional questions or cases concerning the interpretation of a federal law. Its review is “discretionary,” meaning that it does not have to hear any particular case. It decides which cases it wants to hear.

Implicit Biases and Advocating for Change

The next set of questions all relate to implicit biases and how to advocate for change:

Q: What can I do to fight back against systems placed against me and my community?  Devin from South Dakota

A. Knowing your rights will empower you to feel confident and at ease if you ever find yourself in an engagement with law enforcement. By knowing your rights, you will be armed with tools to demonstrate that you too should be treated with dignity and respect.

1. Practice the phrases outlined below so you become comfortable with the language. Please share this with your family, friends, and neighbors. Knowledge is power!

▪ “Officer, I wish to remain silent.” 

▪ “Officer, I’d like to see a lawyer.”

▪ “Officer, I don’t consent to searches.”

▪ “Officer, am I free to go?”

2. Utilize the Power of Social Media

A key component to effectuating meaningful change is communicating calls for reform to the widest audience possible. Social media is a free, easily accessible platform that reaches persons all around the globe. After a police killing, we typically hear about the incident for a few days and around key milestones in any resulting legal proceeding. Shortly thereafter, the story fades away from news cycle. Utilizing social media can provide the means for continuous dialogue once mainstream media stops covering an issue.

3. Contact Your Local Government

As Thomas Jefferson once said, “The government closest to the people serves the people best.” In our current political climate, this cannot be underscored enough. There is a wealth of opportunities for citizens to engage with their local government. You can testify at a public hearing, write a letter to your representative, or attend a town hall.

Many of the laws and policies that are developed by our legislatures come directly from issues raised by the community. We therefore must invest time and energy to contact our local lawmakers so they are aware that we will not allow these outrageous actions by our police departments to go unnoticed.

4. Volunteer in Your Community

Knowledge is power. When you know your rights, know how to influence your local government, and ultimately know your self-worth, you have the courage to demand change.  The unfortunate reality is that too many people are not in a position to absorb necessary resources or develop personal relationships with positive role models. If we each dedicated just a small amount of time to volunteer in our community on a regular basis, it would make a world of a difference. There are countless ways to do so — check out your local youth groups, senior centers, or nonprofit organizations. Our communities need us.

According to a 2015 study, racial minorities made up about 37.4 percent of the general population in the United States, but they made up 62.7 percent of unarmed people killed by police. What can we do about it? We can require accountability and transparency by taking the actions described above so the senseless cycle of police killings does not repeat itself over and over again. We need to call for independent prosecutors, implicit bias and cultural awareness training for police departments, and improved police-community relations.  Collectively, we must serve as the influencing voice in the fight for justice.

Q: In places in which police response to things like rape or hate crimes is low, what alternative forms of legal engagement can we take in the pursuit of justice? Andrew from California

A: I give you this conversational advice as a former military felony prosecutor, Chief of Legal Assistance, and a Special Victims Counsel, where I represented Soldiers, including a transgender population, navigated defending offenders, and advocated for survivors in equal opportunity, discrimination, sexual assault, and sexual harassment investigations.

There are several options we are going to look at.  You can seek out responsive local agencies—ring another doorbell so-to-speak, try out different people to get the answers. Some survivors retain an advocate, or become their own, to move matters to a higher echelon. The precise answer to the question posed by Andrew: find decision-makers, find leverage points, build your own case (against your offender and/or the system)—then keep moving up the chain of command of local, state, and federal government and investigative bodies until you find a listener. Refine your approaches; don’t rush to define success early, as this will evolve over time. 

So, if your local police response is inadequate—look at who will solve the problem. Who’s going to listen? How can I get them to listen? If a criminal investigation does not get kicked off, you can try to get a civil protection order, often called a restraining order. You could also file a lawsuit against the parties -- that’s in a perfect world where everyone has enough money to go hire an attorney.  Usually, this will not achieve the resolution many survivors seek because a civil lawsuit is generally only about money damages. Typically, survivors want the offender or the failures of police responses to be held accountable.

Most importantly, preserve your options and any evidence. This includes protecting yourself, for example, by filing a restraining order. Assess the survivor’s immediate needs. Does the survivor need a forensic exam to preserve evidence? Photographs of bruises from an assault? What if it’s not physical violence by touch—photos of evidence left to place a survivor in fear? Statements from those who saw threats or slurs?  Even if you’re not sure about reporting, document and preserve everything you can to reserve options for later. To that end, medical treatment does not require the police. So, for a sexual assault or hate crime incident, you can always go to your local emergency room. That evidence will be preserved by law—even if police don’t choose to investigate. 

Consider writing your account of what happened. Even in cases where there is no physical evidence, your written account of the event closer in time to the incident will be more reliable than later attempting to rely on old memories. 

Locate or identify who will be your advocate. Are you going to do this yourself or do you need help? I recommend looking to non-profit organizations and agencies who help survivors of hate crimes, rapes, etc.  Some options include:

  • Within your school, reach out to resource officers. If you’re entering college, speak to a Title IX coordinator. It is their job to help you.
  • Seek out nonprofit organizations: Reach out to your local religious group, survivor therapy groups, Planned Parenthood or Legal Aid. Or, go broader and contact national non-profits, such as the National Sexual Assault Hotline serviced by RAINN—they can help you or put you in contact with someone who can. Research online resources. also provides many resources with legal points that can help you.
  • All these lines of effort start with your own research. Googling.  Find those nonprofits in your area or call larger organizations to address your concerns.

These organizations aren’t the police, but they know the systems and can direct you to the right paths. Utilize the expertise that you can get from these resources.  

Once you begin engaging with people—ask for updates. Ask to speak to a survivor-witness liaison. If they don’t follow through, continue advocating and then you can even raise it up to your Congressional representatives. Your Congressional representatives have Constituent Representatives in their field offices, local to the states. You can call or visit the office in person.  For state and federal agencies, look up the Inspector General offices and inquire about filing complaints.  Ask yourself, “who are their bosses’ bosses?” “Who are the decision makers? Who is the staff point person, for that decision maker?”  

Let’s say, for example, that you elevate it to the Department of Justice using their online forms you found from Googling, using their phone numbers, using their different complaint links and submission links online.  Let’s say you’re still not getting anywhere. This is where you are building your evidentiary basis of support—every time you contact someone, keep that record. Write down, ”I called these organizations on these days, and no one responded to me.” This will build up proof that you’re not being answered and, in some cases, might show that you are being discriminated against even further.

One cautionary note: be careful what you say or post on social media. Understand that whatever you share with other people, you might be questioned about later. If they do finally prosecute somebody for a sexual assault or hate crime accusation—you will be asked about your past statements.  

As you are elevating to these higher echelons, they may start asking the right questions. “Why was this not handled correctly? Why was an investigation not started?” In a perfect world the outcome would be “I demand an investigation be started.” And those higher echelons would hold the subordinates accountable for their failures alike.  Sometimes this may be all a survivor can accomplish through these lines of efforts, but sometimes an investigation is not initiated for evidentiary reasons, or other reasons.  Our definitions of success may change over time in these cases. But with each of these, continue to advocate for yourself and utilize resources outside of the judicial systems. 

Q: Why can people be arrested and do time for crimes they did not commit? (the jury system does not seem to work as it relates to the question) AB from California

 A: Our criminal legal system is administered by human beings and therefore mistakes are made. Juries hear the evidence presented to them by the prosecution and defense and make judgments based on their interpretation of that evidence; their interpretation is often influenced by their lived experiences and biases. While juror misconduct may be partially to blame, there are other systemic problems that lead to wrongful convictions as well. Police officers and prosecutors sometimes use techniques that are more likely to result in a misidentification of suspects or, in some cases, evidence has been hidden that would tend to show the defendant’s innocence. In many parts of the country, prosecutors and judges are elected and could be under political pressure to “get a conviction” at any cost in order to win re-election (note that most democracies in the world do not elect judges). Also defendants, for various reasons, often feel pressure to plead guilty even if innocent. Additionally, many are unable to afford an attorney —and the quality and effectiveness of public counsel assigned to a defendant in such instances can vary greatly, especially given massive caseloads, fewer resources for experts and insufficient maximum amount of billable hours.  In many cases, it is not a person’s innocence or guilt that makes the difference in the outcome of their case, but their ability to afford or be appointed a good lawyer.  Knowledge is power so know your rights and advocate for change; steps you can take are listed above.

Q: Why are so many black people being wrongly convicted in the justice system? Bernaiah from Washington D.C., and

Q: How can racial injustice within the jail system be resolved? Ryann from Texas

A: Racism and the legacy of slavery in America is with us in many ways, but especially in the criminal legal system. Since the founding of this country, the criminal legal system has been used as a tool of racial oppression. In the days of slavery, “slave codes” created stricter laws and harsher punishments for enslaved people. After emancipation, Jim Crow laws created an entire legal system based on the separation of races and penalizing people of color who violated the rules of segregation.  Once segregation was formally outlawed, the country turned to mass incarceration—creating new crimes and punishments that were race neutral on their face, but absolutely racist in their effect (for example, with the crack/powder cocaine sentencing disparity:  Congress passed a law in the 1990s that punished possession of crack cocaine 100X more seriously than powder cocaine.  It was common knowledge that when the law was passed, crack cocaine was used in Black communities while powder cocaine was used in White communities.) And part of this current system of mass incarceration depends on the over policing of communities of color. Black people are not more likely to be perpetrators of crime than white people, but Black communities are far more policed than white ones, resulting in far more instances to be erroneously identified as a perpetrator of a crime. Then, once arrested, many problems often arise compromising the fairness of the legal system. Use of junk science, police and prosecutor misconduct, eyewitness bias, ineffective or overworked/underpaid counsel, etc., help lead to Black people not only being disproportionately targeted by the criminal legal system, but also erroneously targeted more often.  

Systemic racism also means that people – victims of crime, police, prosecutors, etc – harbor implicit biases. Because we live in a country and culture that has weaponized skin color, we have internalized biases about who commits crime. And for many, those biases result in the disproportionate targeting and blaming Black people for societal problems like crime. 

Knowledge is power so know your rights and advocate for change; steps you can take are listed above.

Roles of Courts/Judges and Asian-Americans Rights

Q: What roles do courts/judges have in upholding the civil rights of Asian-Americans who are experiencing more visible displays of discrimination since the COVID-19 pandemic? A Middle School Student from Connecticut

A: Throughout the COVID-19 pandemic, Asian Americans have experienced an increasing number of civil rights violations, especially as hate crime victims.  A hate crime involves targeting a victim because of membership in a group such as a particular race or ethnicity.

Along with the other branches of government—the legislature and the executive—the courts as a part of the judiciary are responsible for protecting the public against criminal behavior, including hate crimes.  Understanding the roles of each branch in the criminal justice system helps to explain how hate crimes are addressed in the courts. 

First, the legislature makes the laws that define and set the punishment for crimes, including hate crimes.  Hate crime laws exist in forty-seven states, the District of Columbia, and the federal system.  (Arkansas, South Carolina, and Wyoming do not have hate crime laws.) 

Second, as part of the executive branch, prosecuting agencies (known as district attorneys, state’s attorneys, or U.S. Attorneys) file charges against persons suspected of committing crimes.  The prosecutor exclusively decides whether to charge a crime.  The prosecutor bases this decision on evidence collected by the investigating police agency. 

Finally, the judiciary includes the courts in which the criminal cases are filed.  The courts operate separately from the prosecuting agencies.  After the prosecutor has charged a person (called the defendant) with a crime, the judge presiding in the court cannot independently change the crime or add other crimes.  For example, the judge cannot charge the defendant with a hate crime if the prosecutor did not initially charge it.  The judge can only add a crime if properly asked by the prosecutor.

The judge oversees the criminal case through its completion.  A case is typically resolved by a guilty plea or a trial.  With a guilty plea, the defendant admits to the crime.  In a trial, either the judge or a jury determines whether the evidence supports guilt beyond a reasonable doubt.  For any crime, including a hate crime, if the evidence does not support guilt beyond a reasonable doubt, the defendant is found not guilty. 

If the defendant is found guilty after a trial or by a plea, the judge imposes the punishment or sentence.  Hate crimes usually have a greater punishment than crimes that involve the same conduct but are not targeted against a member of a particular group.  The judge should determine the appropriate punishment based on the facts of the case, the defendant’s background, and the attorneys’ recommendations.  At sentencing as well as all other stages of the case, the judge must ensure fairness for both the defendant and any victim, whether it is a hate crime or any other crime.  

Using Community Service vs Arrest

Q: Why do we not use community service rather than arrest for nonviolent offenses? Do they need to be considered arrestable offenses? It seems as if more nonviolent offenses may be prosecuted when involving POC and that starts a cycle. A Middle School Student from Connecticut

A: You have asked a very sophisticated question which raises very important questions. You have also included a suggested response. This is a complicated subject which includes many issues. These issues include school rules and codes of conduct, whether police are stationed in schools and, if so, what is their relationship to teachers and school administrative staff. In some states, including California, students cannot be arrested for any offense, whether in school or not, unless they are at least 12 years of age (except for the most serious crimes).  

Arresting children in school who are younger than that age is very questionable. Many states have expanded programs to divert cases involving children and youth to avoid any court involvement. Community service programs and restorative justice initiatives are better ways of addressing non-violence offenses than bring children into often traumatizing court environments. Arresting children below the age of 12 in school or in the community for non-violent behavior doesn’t make good sense as it affects the ability to succeed in school and is bad for public safety. Students who are arrested are less likely to graduate high school and more likely to later be arrested. Many jurisdictions are adopting policies that will help students succeed. These policies include moving away from zero tolerance codes of conduct by allowing for more individualized consideration of fair and proportional discipline instead of suspension or expulsion and about 33 school districts have removed police from schools. If police are to remain in schools, there is a need for clear guidance limiting police from becoming involved in school discipline that should be left to teachers and administrators.

You are right to raise the issue about people of color. Research has shown that children and youth of color are much more likely to arrested than are white students. The research also shows that police have been stationed in many schools with high percentages of children and youth of color which have never had a school shooting. As a Los Angeles high school student recently asked, “I live in Los Angeles, CA. Why are there police officers on my school campus? I am not a criminal.”

On balance, students with records of strong academic achievement are less likely to be suspended or arrested. Community service instead of arrest helps students stay in school and progress.