Head of the Civil Rights Division Vanita Gupta Delivers Remarks at the Howard University School of Law Annual Wiley A. Branton Symposium
Washington, DC United States ~ Friday, October 14, 2016
Thank you, Valecia [Battle], for that kind introduction. Thank you to Dean [Danielle] Holley-Walker, for welcoming us all here to Howard Law School. And thank you to the students at the Howard Law Journal for organizing this inspiring symposium in honor of Wiley A. Branton. From the streets of Pine Bluff, Arkansas, to the halls of Washington, D.C., Wiley Branton made equal justice not just the focus of his career but the cause of his life. He fought fearlessly to end segregation. He worked tirelessly to safeguard the franchise. And he inspired countless students and scholars to engage in public service. It is a pleasure to join so many distinguished judges, faculty and students as we come together to celebrate his legacy. And it is an honor to do so, here, at this outstanding and historic institution.
We are living, right now, through times of great challenge across America. Many people are asking – some with real doubt – can we heal the wounds and bridge the divides of racial tension that plague our communities? Do our public institutions still answer to the people they serve? Does our country truly value the voices, dignity and lives of all people?
In my two years as head of the Civil Rights Division at the Department of Justice, I have heard these questions time and again, most frequently in conversations about policing – a defining civil rights issue of our time. In the streets, on college campuses, on social media – people are struggling for answers, for an end to violence, for justice. Yet the tragedies we have confronted are not new. And the outcry is not the result of any single incident. These challenges have been with us for years, but suddenly they are at the center of our public dialogue. That’s in part because of new technology, like cell phone videos. Today, America is seeing heart-breaking events and police-community tensions unfold in real time and on stark display.
There is little question and broad agreement across all corners of America that our criminal justice system needs reform. And although we have made great legal and social progress towards a more inclusive nation, if we truly reflect on the causes of unrest, we must acknowledge the role of discrimination and its bitter fruit: inadequate schools; segregated housing; unequal economic opportunity; and interference with our most sacred rights – from religious freedom to voting. For far too many people, the color of their skin, their national origin and their gender or faith constrain their options and undermine their opportunities. In order for our nation to reach its full promise and potential, we must ensure equal opportunity and equal justice for all. That’s why in the Civil Rights Division, we are firmly committed to ending discrimination – root and branch – in all aspects of life. The current climate in our country – with widespread public engagement on these issues – gives us a unique opportunity to do so. And I am hopeful that if we address these challenges with candor, we can achieve real progress.
We start with that most basic human need, the need for safety. Whether civilians or officers, we all want to live and work in safe communities and get home to our loved ones at night. And we all have a role to play in making that a reality. We can’t think of public safety as the job of the police alone; the community is central to preventing, reporting and solving crime. And so if residents – including victims and witnesses – don’t trust the police enough to share information, we all suffer. Simply put, public safety requires a foundation of trust between police and the communities they serve.
One critical problem in American policing today is the visible absence of public trust in police. And so it’s worth asking, what fueled this distrust between law enforcement and the communities they serve, particularly communities of color? As many law enforcement leaders have acknowledged, it’s in part the product of the historical role that police, and the law itself, have played in sanctioning and perpetuating – what Dr. King once called – America’s “long night of racial injustice,” from slavery, to the Black Codes, to lynchings, to Jim Crow segregation. Or as FBI Director James Comey noted last year: “At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups.” Distrust is also the product of lived experience and negative interactions that people have had with law enforcement. Experiences like being mistreated during a traffic stop, followed in a retail store, or worse. And distrust is the product of criminal justice policies – often set by legislators and other public officials, not line officers – that have disproportionately harmed communities of color and people living in poverty. Stop and frisk, over reliance on incarceration and barriers to reentry have caused many communities – young black men in particular – to lose faith in the legitimacy of our justice system.
I said earlier that you can’t have public safety without public trust. It’s also true that you can’t build public trust without demonstrating meaningful accountability when police officers violate the law. In the aftermath of officer-involved shootings, the public often demands criminal accountability – prosecution of the involved officer. When officers intentionally use excessive force, the Civil Rights Division brings these cases, but I’ll be honest with you, the federal statute that applies is narrow. In use-of-force cases, federal law requires us to prove both that the officer used “objectively unreasonable” force and that she or he acted willfully – “for the specific purpose of violating the law” – the highest standard of criminal intent in the federal code. Mistake, misperception, negligence, and poor judgment are not prosecutable at the federal level. That said, during the last eight years, we have charged 465 law enforcement officials for committing willful violations of civil rights and related crimes.
Criminal accountability in appropriate cases is critical. Yet criminal prosecution is only one tool, and there are limits to its ability to bring about systemic change. The Civil Rights Division also has civil enforcement authority to hold state and local governments accountable when a police department engages in a pattern or practice of unconstitutional conduct. This includes unlawful stops, searches and arrests; excessive force; racial profiling and other forms of biased policing and violation of First Amendment rights. Many of our investigations resonate so widely because they make visible the sometimes subtle, but dangerous ways that the justice system can corrode a community’s faith in its government.
We found this kind of breakdown in our investigation of the Baltimore City Police Department. In Baltimore, we saw how a “zero tolerance” street enforcement strategy became a quest to produce numbers – pedestrian stops in particular – regardless of their limited impact on solving crime and their damage to community relationships. The city’s African-American residents bore the brunt of this activity. The Baltimore Police Department made roughly 44 percent of its stops in two small, predominantly African-American districts that contain only 11 percent of the city’s population. Officers routinely arrested people for loitering or trespassing if they could not provide a “valid reason” for being on the sidewalk or standing near a public housing development. The police department condoned and encouraged this behavior. In one instance, a shift commander emailed a template for describing such trespassing arrests; the template provided blank fields to be filled in with details, except that it had the words “black male” pre-filled for the suspect description. In Baltimore, blanket assumptions and stereotypes about certain neighborhoods and certain communities led residents to see the justice system as illegitimate and authorities as corrupt. These perceptions drove resentment. And resentment prevented the type of effective policing needed to keep communities and officers safe.
We identified a similar set of problems in Ferguson, Missouri, last year, where the city’s mistreatment of its own residents – especially African Americans and those living in poverty – ultimately led people to take to the streets. Although African Americans made up 67 percent of the population, from 2012 to 2014, they constituted 85 percent of those subjected to a vehicle stop, 90 percent of those who received a citation and 93 percent of those arrested. During our investigation, we spoke with city officials and residents who explicitly distinguished Ferguson’s African-American residents from the city’s “normal” residents or “regular” people. In addition to racial bias, we also found another troubling dynamic at play: the city’s undue focus on policing as a means to generate revenue. The city routinely issued multiple citations with excessive fines and fees for minor violations. Fines like $302 for jaywalking, $427 for disturbing the peace and $531 for allowing high grass and weeds to grow on your lawn. When people living in poverty could not pay these fines and fees, they were subjected to multiple arrests, jail time and payments that far exceeded the cost of the original ticket. These policies broke the law. They criminalized poverty. And they destroyed trust.
In police departments around the country, we’re working with communities to implement sustainable reform through court-enforceable, independently monitored consent decrees. We’re focusing on policies, training and guidance so that officers can prevent racial bias, de-escalate tense encounters and avoid using excessive force. We’re working with police departments to invest in officer wellness so that men and women who wear the badge receive the care and support they need. We’re promoting community-oriented policing so that all stakeholders get a voice in the process of ensuring public safety. And we’re improving accountability mechanisms, supervision structures and data collection measures to ensure adequate oversight. During this process, our goal is not minor change but lasting, comprehensive reform that transforms relations between police and communities. And – not overnight, but over time – to change culture. As others have said, “culture eats policy for lunch.” Of course, changing culture takes sustained effort from all stakeholders. That’s why the success of our police reform work depends on the commitment of police leaders, line officers, city officials and average residents. Ultimately, any progress will be brought about by the local community itself.
The reforms in our consent decrees are working and saving lives. In Seattle, a federal monitor found that, over three months, officers used force in only 2 percent of roughly 2,500 encounters with individuals in crisis. In Detroit, after about a decade with the police department under a consent decree, we found improved training and revised use-of-force policies helped lead to a nearly 60 percent decline in the average number of officer-involved shootings per year. And in Ferguson, as of mid-August, the city had dismissed more than 32,000 court cases and cancelled more than $1.5 million in fines.
We also know that we cannot achieve police reform in a vacuum. Day-in and day-out, police officers – the vast majority of whom perform their demanding, at times dangerous jobs with honor and integrity – confront social, health and economic challenges that they didn’t create. Challenges like mental illness, addiction and poverty. For too long, we – as a society – have thrown the criminal justice system at all these issues. And we’ve given law enforcement just one set of tools to respond: arrest and incarceration. So now we – as a society – share an obligation to reverse this trend.
In response to these challenges, today there is a widespread, bipartisan movement for comprehensive criminal justice reform. And I’m proud to say that the entire Department of Justice is playing a lead role. We’re building partnerships and creating resources for law enforcement and mental health professionals to help people with mental illness access treatment from community-based services. We’re combating the school-to-prison pipeline, where discriminatory discipline practices too often result in children of color and children with disabilities getting sentences rather than diplomas. We’re addressing unlawful and harmful fine, fee and bail practices that result in the jailing of tens of thousands of people simply because they are poor. We’re advocating for bipartisan and much-needed sentencing reform legislation. We’re shifting the paradigm for prisons by insisting that solitary confinement be used rarely – not by default – and banning its use on juveniles. We’re phasing out our use of private prisons – due in part to growing concerns about safety, services and cost savings. And we’re working hard to ensure that people who served their time and paid their debt to society get the support they need to restart their lives.
As I mentioned earlier, the entrenched inequalities in our justice system cannot be separated from the systemic discrimination – and erosion of public trust it perpetuates – elsewhere in our society. Our country does not guarantee, nor do people expect, equal outcomes. But we do promise equal opportunity. Sadly, even 62 years after Brown v. Board of Education – the landmark ruling that Wiley Branton worked to implement in Little Rock, Arkansas – far too many children still attend racially-segregated schools and live in racially-isolated neighborhoods. Earlier this year, following a five-decade-long desegregation battle in Cleveland, Mississippi – a city divided literally by railroad tracks that separate east from west and black from white – a federal court ordered the school district to consolidate its secondary schools. As the court wrote, “the delay in desegregation has deprived generations of students of the constitutionally-guaranteed right of an integrated education.”
Systemic discrimination undermines opportunity in our economy, too – from housing segregation to lending discrimination. Diminished economic opportunity derails hope – hope that through the tenacity of work and the resiliency of spirit, people in this country can lift themselves up, invest in their dreams and seize the promise of a brighter future. Housing can affect where you get a job, the kind of school you go to, how you get to work and whether you live in a safe community. The Civil Rights Division has sued housing authorities and jurisdictions around the country – from Georgia, to Louisiana, to New York – that continue to segregate residents by race well into the 21st century.
Similarly, in the American economy, we know that access to credit is a critical component of building a better life. Credit enables working families to borrow money so they can buy a home, lease a car, stockpile savings, start a business or finance an education. In mortgage lending, when communities of color lack access to credit because of discriminatory barriers, they don’t get the same opportunities that white residents do to own property, to build equity and to increase wealth. In the aftermath of the subprime mortgage crisis – which disproportionately harmed communities of color – my office created a fair lending unit. And since 2010, in partnership with our U.S. Attorney colleagues, the Civil Rights Division has obtained more than $1.5 billion in relief for individual victims and impacted communities. By combating discrimination in the marketplace, we’re defending the timeless American ideal that says if you work hard, if you play by the rules and if you follow the law, you deserve a fair shot and an equal chance to succeed.
Equal opportunity requires protecting all people – no matter who they are, what they look like, whom they love or where they worship – from harm. Violence against people based on their identity not only violates the law. It also denies entire communities the promises of equal protection and true freedom. The Civil Rights Division vigorously prosecutes hate violence, including crimes that target people because of their religion, sexual orientation or race.
Systemic discrimination, however, also extends well beyond acts of violence. We’ve fought to ensure that all people can marry the person they love. As the Supreme Court ruled last year in Obergefell v. Hodges, our Constitution promises all people “equal dignity in eyes of the law.” We’re also working to protect the rights of transgender women and men by preventing sex-based discrimination in schools, businesses, jails, prisons and elsewhere. And – following recent heinous acts of terrorism and divisive rhetoric – we’re combating a backlash of religious discrimination targeting Muslim communities and others perceived to be Muslim. This discriminatory backlash includes hate crimes, but also bullying in schools and unlawful barriers to building houses of worship. Discrimination in these areas may not be the most easily noticeable or explicit, but it still threatens the vibrancy of our democracy and the spirit of America.
Now, no matter what policy issue we care about most, we get closer to these goals through the ballot box. Voting is the right that protects all other rights. The Department of Justice works to ensure that every eligible voter can cast a valid ballot. It makes no difference to us what candidate a voter selects or what party she supports. But we fight day-in and day-out, in elections big and small, to protect her right to have a say. Even with the severe setback of the Supreme Court’s 2013 decision in Shelby County v. Holder, we continue to use every tool at our disposal, including the Voting Rights Act, to protect voters from discrimination and provide the opportunities federal law guarantees. And we’re winning. This year, courts around the country have protected the franchise, including in landmark cases we’ve brought in North Carolina and Texas. And this November, trained Justice Department personnel will travel to roughly half of the nation’s states to monitor elections in the field. Of course, no matter how vigorously and effectively we protect this most fundamental right, eligible voters need to go out and exercise it. Democracy requires active participation. Self-government doesn’t happen by chance.
Even with significant success stories around the country, I fully recognize the unfinished and urgent work ahead. This work is about who we – as a nation – are, and who we aspire to be. It’s about our complex, imperfect, but unyielding story of progress. In America, Justice Thurgood Marshall, the great-grandson of a slave, graduated from Howard Law School and used the law to strike down the same systemic discrimination that the Supreme Court sanctioned just decades earlier. In America, people like Wiley Branton worked courageously to desegregate public schools and protect the ballot. Our story continues. As President Obama said from the Edmund Pettus Bridge in Selma last year, “Oh, what a glorious task we are given, to continually try to improve this great nation of ours.” In the days ahead, let all of us write the next chapter of America’s progress by advancing equal opportunity, by embracing each other’s humanity and by fighting for justice to form a more perfect union. Thank you.