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Race and the Criminal Justice System

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					              Race and the Criminal Justice System
                                    William Moffitt*

                                  presented at
                        Gonzaga University School of Law's
                                Luvera Lecture**
                                October 19, 2000

      I always like to start a speech talking about a subject that is depressing in
 a lot of ways with a little levity. I will tell you a joke that I think is an important
one, and kind of sets the tone of the things that I will talk to you about.
      The President was trying to find out what the most affective law
enforcement agency was in the country, so he offered a contest. The contest was
to find a rabbit in the forest. He first called the FBI and told them to find a
rabbit in the forest. The FBI does what it normally does and sent out 300
 informants into the forest looking for the rabbit. After a month they sent their
report to the President and they said absolutely, categorically there is no such
thing as a rabbit in the forest. Unsatisfied with that report, he sent Central
Intelligence Agency. Around the forest they set up electronic surveillance
devices searching for the rabbit. And in about a month they came back and said
that they could not find a rabbit and that their surveillance showed that there is
no such thing as a rabbit in the forest. Unsatisfied with that, he sent the New
York City Police Department in. Five minutes later they came out of the forest
with a badly beaten bear who confessed to being a rabbit. (Laughter.)
      I start there because I have been asked to talk about race and the criminal
justice system. And I guess in many ways I am unequivocally qualified. I am an
African-American. I have spent the last twenty-five years of my life practicing
law in the South, which has been an interesting experience. Some of the
interesting experiences involve the fact that when I have showed up with a


     *.   J.D., Washington College of Law of American University, 1975; B.A., University
of Oklahoma, 1971. William Moffit is an experienced lecturer, primarily on criminal defense
and litigation, and has appeared on many television and news programs. He practices state
and federal criminal defense, Constitutional litigation, and state and federal appellate law.
     **. The Luvera Lecture is named after Paul N. Luvera Jr., a 1959 Gonzaga University
School of Law graduate, and his wife, Lita Barnett Luvera, a 1977 Gonzaga University School
of Law graduate. Through their generosity, the Luveras have endowed this annual lecture. The
Luvera Lecture is intended to address matters of importance and concern to the legal
profession and society. Past lecturers have included noted civil rights attorney, Morris Dees;
former Speaker of the U.S. House of Representatives, Thomas Foley; nationally known trial
attorney, Philip Corboy; and current Washington State Attorney General, Christine Gregoire.
Paul Luvera, who is a nationally recognized trial lawyer, delivered the inaugural lecture in
1990.
                           GONZAGA LAW REVEW                               [Vol. 36:2

Caucasian client, it caused the bench some confusion as to who the client was
and who the lawyer was. As a younger person, I was always angry about that.
As 1 got older, I learned to use that. You see, when they finally figured out that
I was the lawyer, they wanted to take me around and show me all of the
Confederate monuments and show me all the historical sites. I have seen more
Confederate monuments than I care to talk about, frankly. Another experience
was when I was attacked by the sheriff as I approached the bench because he
thought that I was going to attack the bench since I was considered to be the
defendant. I received an apology for that.
     I want to talk to you a little bit, first of all, about how I got started. Twenty-
eight years ago, I was a young man who really didn't know what I wanted to do.
I had a lot more hair on my head because that was the fashion of the day. I was
torn between the Black Muslims and the Black Panthers and the question of
whether I ought to be a participant in the society that I viewed at that time as
being racist. From my past came a person who said, "Well, why don't you go
to law school?" Now, that was the last thing that I wanted to do. Frankly, when
I thought of lawyers, I didn't think of social activism. And I didn't think that
society was going to change. Part of what I want to discuss with you today is
my frustration that twenty-five years later, having made the decision that I
made, I question whether or not that was the right decision.
     However, in those twenty-five years, I have met a lot of good people who
happen to be a different color than me, who have helped me, who have taught
me, who have made me understand that race and racism was not an individual
thing. What I mean by that was when I met them on a one-on-one basis, we
related as individuals and we related as people. But when I watched what my
society was doing, I became concerned. We African-American people make up
 13% of the United States population, yet we make up 42% of the death row
population. Sixty-five per cent of all American executions happen in five states:
Florida, Oklahoma, Missouri, Texas and Virginia. Now, there might be
something that you notice about those states-they are all members of the old
Confederacy. I question whether or not the death penalty, as we know it, has
replaced lynching in those states. Because what happens in those states is very
often legal lynching. I recently had the pleasure of representing Terry Williams.
Terry Williams' case was recently reversed in the United States Supreme Court
last summer. Terry Williams is a forty-five year-old man who spent fifteen
years of his life on death row. He is the longest living resident on death row in
the state of Virginia. I was called by the Legal Defense Fund because they were
looking for a criminal lawyer. Terry's case had been handled by labor lawyers
for fifteen years. They saved his life, but they could not find a criminal lawyer.
I was ashamed of my colleagues in criminal law because we had not come to
these labor lawyers' aid. In the best tradition of our profession, these people had
dedicated their lives to their profession, and to Terry too. I was reminded about
2000/01]     RACE AND THE CRIMINAL JUSTICE SYSTEM                              307

 why we do what we do. But in any event, Terry had spent fifteen years of his
 life on death row, not knowing on a day-to-day basis whether he would live. For
 twelve of those years he went untreated for syphilis. Terry is also retarded. That
 is important to know because 10% of the population on death row is retarded.
 Out of 3,600 people on death row-10% are retarded, in a population where
only 2% of the country is retarded. So we kill the deaf and the dumb, the blind,
the black and the poor. That's who we kill in this society. I got a chance to meet
Terry, and talk to Terry, and understand what his life was about. And I can tell
you that nothing that I had done as a lawyer, as an activist, was more gratifying
than saving Terry Williams' life. I am not going to tell you that Terry Williams
wasn't a murderer; he is, he killed. But he had spent the last fifteen years of his
life working in death row. He polishes the concrete. That's what he does. He
wanted to show me how good a job he did. What Terry reminded me of, and
what we had forgotten in this society, is that justice must have a redemptive
quality. Justice cannot be all about punishment. Justice cannot be how many
years or how many lives we can take. What I understand to be true is that most
of the people in this country are good people. What frustrates me is how all of
the good people allow all of the bad things that happen, to happen. Because I
am sure that when I speak to each of you individually, you would be shocked
by some of the things that I have seen, some of the things that I have heard, and
some of the things that I have even written.
      There are only two countries in the world that execute juveniles-only two
that executed juveniles in the year 1999-you live in one; the other is Iran. I
want you to think about that. Why has the rest of the world said that this is
wrong and why, in our society, do we continue to persist in the rightness of this?
I ask you that question because I don't want to examine your heart, but I want
us to examine our need for a new kind of activism to change our society to a
society that we believe in. Fifty years ago, if I had walked in and I asked you to
examine this question: "What is the leading civil rights issue in America?"
What do you think it might be? In 1950? It was lynching. Only fifty years ago.
That was what concerned civil rights leaders. In fact, there were petitions to the
United Nations, "We Who Cry Genocide," and it profiled the lynching in the
South.
      If we examine the statistics today of who is in jail, who is being
disenfranchised-and by disenfranchise I mean who is losing their right to vote
or to participate in this society, and who is being arrested-you will be amazed
at the statistics and data. It is worse than you would think. Fifty years ago, the
black man comprised 5 % of the population and a disturbing 30% of the prison
population. Today, Black men constitute 6% of the population and 50% of the
prison population. In some places, for example Washington D.C., one-half of
the African-American men under the age of twenty-seven are either
incarcerated, on parole, or under some criminal justice. One-half.
                         GONZAGA LAW REVIEW                            [Vol. 36:2

     Now I ask of you more questions because I am an African-American male
and I ask myself these questions. "Are my people inherently more criminal than
others? Was I not raised in a home where religion and the social values of this
society where imposed upon me, or part of my inculcation to this culture? Is
there something inherent about criminality in my people?" These are questions
I have to ask when I look at these statistics. And I certainly come to the
conclusion that this is not the case. As a participant in the criminal justice
system, I realize it is an imperfect broken system, and that is what you need to
understand. The system is broken.
     We have had drug wars. We have had drug wars since before I was born.
If you go back to read and learn and try to figure out where all of this comes
from, you will find that early in the twentieth century the first drug war
occurred. The first drug war categorized people by the drugs that they used.
Mexicans were supposed to use marijuana, Chinese were supposed to use
opium, African-American people used cocaine. In 1914 when the Harrison-
Mathias Act was passed-the first federal regulation involving drugs-it was
passed in part because the South (who didn't want to go along with the
legislation) was infiltrated with literature concerning the fact that white women
were going to be raped by black men if this legislation was not passed.
     To date, a racial history and bias exists in our law, is part of our society,
and we must weed it out. We cannot just ignore people. Okay? You have to
understand that. We talk about things like racial profiling. What does that
mean? The use of race as a presumption of guilt without evidence of criminal
conduct. Seventy-three percent of the motorists stopped and searched on the
state highways of New Jersey are black. Only 18% of the traffic cops were
black. Seventy percent of the stops and 80% of the searches in Florida were
against black and Latino motorists. However, these stops of over 1,000 black
and Latino motorists resulted in only ten traffic citations. Why were these
people being stopped? In Chicago, Black women were being stopped at the
border and strip-searched by the Customs Service.
     What I want to talk to you about is how we share our reactions to these
things. How we say that they are horrible. I know that the good people in this
room know that they are horrible. I know that you are appalled by them in the
same way that I am appalled by them. And yet nothing changes. That is what
troubles me.
     I've lived on this planet for fifty-one years. My mother is a person who
believes in the American Dream more than any human being that I have ever
met. She is a person who was born in 1918. She professed that dream to me as
a child. She believed that the world would be a better place for me when I was
fifty years old. And then I have seen her discouraged and knew something was
wrong. I share this with you because I don't want to frighten you and I'm not
here to scare you. I am here to tell you that we have got to change because
2000/01]     RACE AND THE CRIMINAL JUSTICE SYSTEM                             309

people have lost patience and are disheartened by what has happened. The war
on drugs is seen by many African-Americans as a war against us. Every time
a black man is stopped on the highway he loses faith. He ceases to believe. He
is one more strike in the question of, "When is it going to change?" My
grandfather was hoping it was going to change, my father was hoping it was
going to change, I am now hoping it is going to change. And what do I tell my
 16 year-old daughter? Because I know that somewhere in the course of her life
she is going to meet up with this ugly thing and how do I prepare her for it? Do
I ignore it? Let it happen? Do I prepare her for it and put a set of defense
mechanisms inside her that perhaps she should not have? These are the
questions that I have to ask myself as a parent. What do I do to prepare her for
the world that she is going to live in? Have I done enough as a man to make her
world better than my world? Do I have the belief that my mother had, that my
world was going to be better than hers? That is the question that is being asked
in minority neighborhoods and that is the question that we need your help in
getting the answer.
     Bad things happen because good people don't act. We are living in a time
where we are more concerned about the reaction of our activism than we are to
our activism. I remember when Speedy Rice and I were participating in the
Benetton project. The Benetton project was a project where we sent people out
with the business Benetton to interview people on death row to attempt to
humanize them. To tell their story. To tell the story that these are human beings
and that we are taking their lives.
     Now I want to say something to all of you who favor capital punishment.
I ask you to go to death row or to the local prison and ask yourself the following
question: "Could you live there for the rest of your life?" If you don't think life
without parole is punishment, before you make that statement, go out and see
how we punish people and how we treat people. Because life without parole,
without the possibility of parole, is the most severe punishment. And frankly,
given the choice, I would rather die. I have been on death row, I have seen how
prisoners are treated. I have been in many of the places that people in society
don't go. So when we talk about punishment in our society, don't believe that
nobody is being punished. We have two million people in prison in this country.
More than any other civilized country of our heritage. Ask yourself the
following question: "How was it that the South Africans appointed amendments
to do away with the death penalty and we can't?" Ask yourself the following
question: "How was it that South Africa, an inherently racist society, as long
as any of us can remember-upon its liberation, can do away with the death
penalty and we can't?" Why are we holding on to something like that?
     What I am here to say to you is that we need your activism-we need
whatever it can be, because we are losing credit. "Whether the American dream
will affect all of us?" is a question that we African-Americans ask everyday. I
                          GONZAGA LAW REVIEW                            [Vol. 36:2

see it every day. In the Eastern District of Virginia, the sentencing day is
Friday. And every Friday I walk into a courtroom and see the minds of young
black men who are there, recognizing that there is no redemption once they get
there. There is no coming back to us again-they are gone. I have heard the
cries of people in the community that this is like slavery. I have been vilified
myself for being a representative of a system that I can't explain.
     In the federal system today is a system of sentencing guidelines. We have
mandatory minimum sentences. We have a 100 to 1 ratio difference between the
possession or distribution of crack or powdered cocaine. So, if you distribute
5 grams powder cocaine, you are treated one way. If you distribute 5 grams of
crack cocaine you are treated as if you distributed 500 grams powder cocaine.
No one understands why that disparity exists, but the people who use crack
cocaine happen to be minorities. So they get the disadvantage of that, and you
have not lived until you have to try and explain to a parent that their son or
daughter is going tojail for 15 years, mandatory minimum sentence and serving
85% of that time. People look at you and say, "How did that happen? How can
that be? This is my child and he picked up a package and ran it around the
corner and somebody gave him $100. It was easier than working at
McDonald's."
     I have represented kids who work every day of their life selling drugs. For
those of you who think people who sell drugs are at the low end of the scale of
living a great life, these kids get up at eight in the morning and are on the street
until five at night and they work as hard as anybody I know. That sounds crazy,
but that was their opportunity, their ability to acquire the things that we shove
in their face every day on television as being the important acquisitions in life.
That was the only way that they thought they could do it. Some of these kids are
smart and some of these kids bright and some of these kids could succeed in
anything. But we need to understand what happens in our society. Do you know
who are the people who view the most television in our society? They are
minority and poor people. And what are they being exposed to? They are being
exposed to how they get the American way of life, and what is important to
show status. The most powerful marketing influences are used for minority and
poor people and they have no means. So they seize the means. Some of these
kids supported families, supported their moms, their dads, some the moms and
dads were middle-class people who were taking money from the kids. Some of
these kids went to jail for twenty-five to thirty years. It's wrong, what we are
doing. It's telling people that they have no stake in this society. And the danger
for all of us is when a significant portion of the population begins to believe it
has no stake in society.
     We've heard a lot in the past several months about innocence. The fact is,
there is a real question out there about whether or not we have executed an
innocent person. I have no doubt of it. I have no question of that. I know that the
2000/01]     RACE AND THE CRIMINAL JUSTICE SYSTEM                             311

 criminal justice system is designed to execute an innocent person. It is designed
 in many ways to execute an innocent person because it allows people to sleep
 while defending people who are on trial for their lives. In the Terry Williams
 case for instance, Mr. Williams' lawyer in the middle of his trial had a nervous
 breakdown and nobody cared. Mr. Williams' lawyer did not call a government
 expert who said Mr. Williams did not constitute a danger to the community.
 That statement was in a report written by an expert that he did not call. In the
 Williams case, that very same lawyer allowed the State to call the defense
 psychiatric expert and get a private opinion placed on the record that Mr.
 Williams was a danger to the community from the defense's own expert.
      Two Texas cases were recently reversed by the United States Supreme
 Court, where a psychiatrist testified that because of the color of a man's skin,
 he constituted a danger to the community. That testimony was admitted,
 accepted, and death penalties resulted there from it. This happened in your
 country. And today, after 144 executions in Texas , we have presidential
 candidate George W. Bush-that's one every two weeks-since he's been
 governor, running on a platform that he kills people. We have got to ask
ourselves a question, "What kind of society do we want to live in, what kind of
 status do we want everyone to have in this society?" I am frustrated because I
 don't know the answer. There was a time that I believed that the answer was
 obviously that we wanted a just and fair society. Sometimes I wonder whether
all we want is an orderly society. That it is more important that we have order
 so we can invest our money in the stock market and live as individuals, not as
 a society. We all have a stake in this society. This is my country, this is your
country and I feel the same pain when somebody blows up a ship in a foreign
harbor. When I looked at the memorial service for the U.S.S. Coles yesterday
and I saw those people crying, the color of their skin did not matter. They all
had lost somebody. They were all Americans. It seems that the only time that
we join together is in the moment of national tragedy. It is the only time that we
acknowledge our American-ness.
      The differences that we have in this room are important in making this a
better society. It is time for us to use those things to our advantage and not to
our disadvantage. It is time for us to care about one another and the quality of
justice that we have in this society. Because eventually an argument is going to
be made by someone if we don't; that we ought to disconnect from one another.
And sometimes I even ask the question, "Why shouldn't I be like that young
Palestinian man in the street with a rock in my hand?" Throwing a rock to try
to get the justice that I think we need. We have to change. We need your
activism, we need your belief in the American Creed and in the American
Dream. And we need to not just talk about it. We need to live it. It is not enough
for us to go home at night and turn on the six o'clock news and talk how terrible
it all is. It is time for us to do something about it.
312                       GONZAGA LAW REVIEW                            [Vol. 36:2

     There was another time when a woman decided not to move on the bus. She
changed the face of this country because it was the right thing to do. Each and
every one of us can make a difference in our own small way. I'm not asking you
to go out into the street, I'm asking you to be aware of what your society is
doing.
     I am sorry to share my frustration with you, but I know of nothing else to
do at this point. I am not here to paint an encouraging picture. I want my
daughter to live in a better world. In a better society. I want the last part of my
life to be about that, because I think that you should enjoy her for the human
being that she is and she should enjoy you for the human being that you are.
That's the dream! It is not any more difficult, but it is not a dream that can be
realized with 3,600 people on death row. It is not a dream that can be realized
with war declared against our own citizens, after thirty years of drug wars
against our own citizens and locking two million people up and locking them up
in the manner in which we do, in the racial and disparate way that we do. It does
not solve the problem.
     I promise you, if this was happening somewhere else in the world, the
United States would be commenting on it. If it was happening anywhere else in
the world, the United States would be screaming about it and speaking about
its human rights record. Recently, Rice and I were over in Geneva at the Human
Rights Conference. When we gave our presentation, the United States
delegation took off their badges and refused to be acknowledged as the United
States delegation. They were embarrassed. Now why should the U.S. go to a
world forum and be embarrassed about its conduct in its own country? The
removal of badges was an acknowledgment about the truth of what was said.
No one denied the truth of it. They just hid.
     I sometimes introduce myself as a fifty-one year-old black man, an
endangered species. I do this because the next question is, "Where is the next
group?" Look around, look in your law school, where are the black men? They
are in jail, they are in prison. That's our America today and it's a message that
I wish I didn't have to bring, but it is a message that I must bring. There is a lot
of good in this place; I've seen it expressed in the many favors and the many
kindnesses that people have done me over my twenty-five year legal career.
There have been people who have given me everything. And on an individual
basis I have counted on it, I have seen it, so I know it's there.
     What is it going to take to change our society? Some proof that an innocent
person was executed? Is it going to be three million in jail before we decide that
we have had enough? How much are we going to spend for prisons, but close
a college? So where are we going to be? We have incarcerated all of these
people. We are not going to kill them all, we are not going to kill all two million
of them. So ponder: When taking a seventeen year-old off of the street because
we have decided that he was dangerous, we put him in jail for ten years and we
2000/01]    RACE AND THE CRIMINAL JUSTICE SYSTEM                             313

force him to serve 85% of his sentence. We have not educated him, we have not
rehabilitated him, we have not done anything. We warehoused him for that 85%
of the sentence, 8.5 years. At 25.5 years-old he is about to be released and he
is eight years behind the curve that he was behind already. What is going to
happen? And we have two million folks like that. What is going to happen? We
have decided that all we should do in prison is lock them up because we want
to be sure that they are punished. Who is really being punished?
     Our economic statistics are so wonderful because they do not count the
people in prison. So that whole work force in prison, that wouldn't be working
if out of prison, make our unemployment statistics look really great. They are
not being counted. What are we going to do when they get out of prison? I don't
want them to prey on you, I don't want them to prey on me. But what is their
alternative if they are ten years further behind? We have to worry about them.
     The criminal justice system, ladies and gentlemen, is asked to do things it
is not equipped to do. It was never equipped to deal with narcotics abuse, it is
not equipped to deal with mental illness. Do you know how we deal with mental
illness? We have a standard that has existed since the seventeenth century. Do
you know the difference between right and wrong? You can't go to a doctor and
talk about stuff like that. The only place that is talked about is in the criminal
justice system. They won't even talk about mental illness. Do you know that at
least five percent of our prison population is seriously mentally ill and being
untreated as we speak? What do we do? How many more?
     I grew up in New York City. I was thirteen years-old when I began taking
the subway to go to high school every day. I was never attacked, beaten, raped
or anything. Yet, I read stories about how horrible that must have been. The
question that we have got to ask, is what is the truth about society? Is it as
crime ridden as we think it is? Are other societies similar to ours? An economist
wrote an article about a year ago saying that our crime rate for many crimes
was lower than the European crime rate, yet the time that our people was
serving in jail was much greater.
     I ask you to open your mind and open your hearts. I ask that if anything that
I have said to you today makes any sense, go home, pick up a phone, make a
contribution somewhere, put your body on the line with something, believe in
something. Help us restore this dream, because the alternative is ugly.

				
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