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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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