When We Speak and When We Don’t – Bret I. Parker

Fall 2015

When a Staten Island Grand Jury declined to indict a New York City police officer in connection with the death of Eric Garner last year, shortly after another grand jury had declined to indict a Ferguson, Missouri, police officer in the shooting of Michael Brown, many wondered whether the New York City Bar Association should issue a statement. There was unrest in New York City and elsewhere and the criminal justice system was under attack. Many organizations, including some bar associations, spoke out and questioned how those grand juries could have reached those conclusions.

The New York City Bar Association speaks frequently on a variety of issues. With over 160 committees covering topics from aeronautics to zoning, the expertise of the City Bar membership is both wide and deep. Last year, we issued nearly 200 reports and also held nearly 450 programs on as wide a variety of legal topics as you could imagine. We also have a rich history of speaking up when we believe justice is not being served. For example, we have spoken up in favor of a right to counsel in immigration detention proceedings and in housing court for those facing eviction.

With this in mind, we try to ensure that each committee is intentionally populated with attorneys with varying and sometimes conflicting perspectives, because we don’t shy away from controversial issues and when we speak we want to have considered all sides of the particular issue. And, when one committee issues a report, we consider whether there is another committee of overlapping jurisdiction that should have a chance to weigh in, even if that may create a conflict. It provides extra credibility when our positions are formulated with everyone ‘at the table’ and able to express differences of opinion even when not everyone will necessarily agree with our final positions.

So, why wouldn’t we have issued an immediate statement last year in connection with the public debate that was taking place regarding these controversial police incidents? It is true that months later we ultimately issued a report on the Governor’s criminal justice reforms in his budget and we opposed the independent monitor proposal (see http://bit.ly/1xrOpIo). And we did gather experts to discuss NYPD policies and community relations (see http://bit.ly/1NZX8fL). But we resisted the urge to speak at the time of the outcry and protests.

Our general philosophy is that we speak only when we can advance the conversation, bring a unique perspective, or offer our guidance based on the specialized expertise of our committees. We don’t often join the statements of other organizations simply to say, “Yes, we agree.” When we speak, we want to make a difference.

With that in mind, our recent report on mass incarceration (and the creation of a task force – see http://bit.ly/1iEGJS0) is a perfect example of this philosophy in action. We had been issuing reports on some of the various aspects of mass incarceration for over 20 years. For example, in 1994 the Criminal Law Committee advocated for reduced mandatory minimums for low-level drug couriers and sellers with no significant criminal records, no involvement in violence, and no significant role in any substantial drug operation. But now voices with differing perspectives and viewpoints are converging in this unique moment in time when we can tackle the larger issue. It is not enough to simply repeat our earlier points and join the conversation by just saying “Mass incarceration is bad.” Stating the obvious and adding that viewpoint to the debate might raise the volume, but without more it does not help shape the debate in a constructive way. We hope that the recent report and the upcoming work of the task force will make a difference.