Keynote Address: Judge Bernice B. Donald

Keynote Address: Judge Bernice B. Donald

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It’s my great honor today to introduce
this year’s keynote speaker for the E. Lawrence Barcella Memorial Address the
Honorable Bernice Donald of the United States Court of Appeals for the Sixth
Circuit Judge Donald received her law degree from the University of Memphis
Cecil C Humphreys School of Law and holds a Master’s in Judicial studies
from Duke University and an honorary doctors in law from Suffolk University
prior to being appointed to the US Court of Appeals by President Barack Obama in
2011 she served on the US District Court for more than 15 years Judge Donald is
currently a member of the American Law Institute and serves as chair of the ABA
Center for Human Rights prior to this she served as chair of the ABA criminal
justice section and secretary of the American Bar Association along with
serving in the ABA House of Delegates until August of 2018 Judge Donald has
been a faculty member at the National Judicial College the Federal Judicial
Center and the Judge Advocate General’s Legal Center and school and has also
served as faculty for the federal magistrate judges conference and as a
jurist in residence at American University Washington University and
several other schools in addition she has served as faculty for international
programs in more than 20 different countries I have had the great pleasure
of working with Judge Donald for many years now in the criminal justice
section and I can tell you that there is no one who brings more energy and
excitement to the work that we do as chair of the section Judge Donald
focused on many pressing criminal justice issues what I want to mention in
particular is her important work related to implicit bias bringing attention to
this issue and its impact on criminal justice was a centerpiece of her year as
chair and she has continued to lead our efforts in this field as co-chair of the
sections implicit bias initiative under her leadership the section has published
one of the leading texts on implicit bias and the law and has led trainings
and conferences on this topic all over the country and in fact the world
through this work Judge Donald has become a thought leader in this field
and bias see Asian she has made the
criminal-justice section a leader in this work as well I want to thank Judge
Donald for her incredible contributions to the criminal justice section of the
ABA and to the larger criminal justice community we are inspired energized and
excited by your work and were honored for the opportunity to hear from you
today please join me in welcoming Judge Bernice Donald Lucien thank you for that
generous introduction I plan to simply acknowledge him as our
inspired and visionary leader but that introduction compels me to tell you a
story and I will tell you that this will not
count against my time there was a story in The Reader’s Digest many years ago
about a man who lived a life of excitement and rowdiness he was the kind
of guy who was sort of always at the bar and not the legal bar but he was there
where they were consuming alcohol and he would get into fights and he would
challenge people and one day he got into one and someone got the best of him and
he died there was a funeral and it’s been said that there’s always somebody
no matter the life you’ve lived who will find something good to say about you on
that one occasion on this occasion the minister who was eulogizing him talked
about what a kind family man he had been how much he had contributed to the
community how much he loved his family and supported them and on and on and at
that moment the widow watched her young son and said David go up and look in
that casket and see if that’s your father because I think they’ve got the
wrong man and in listening delicious introduction
as I was sitting there it was at times for me remarkable and I was a little bit
unsure that I was the person I was supposed to get up but thank you so very
much I want to acknowledge the iconic Rabin own who is really the the
inspiration the leader the founder the collaborate of this of this white-collar
crime program were it not for him we would not be here today and Ray we
continue to thank you not only for organizing and beginning it but also
continuing to support and work in this field I want to thank all of my
colleagues at the criminal justice section and I want to especially thank
my friend and criminal justice colleague sandy Weinberg for inviting me here
today to give this room our that give these remarks and now I will get into my
official talk what I thought about what I might say to you today I went back
over my own life and my journey to the law and the constant that has been in my
life has been service and so I thought I would talk to you about that because you
are the best and the brightest you enjoy the highest reputation for knowledge
skill and ability in the legal profession I want to lift up the name of
Charles Hamilton Houston for you many of you may not know that name but he was
the architect of the Brown versus Board of Education strategy and one of the
leaders in the civil rights movement he was the Dean of Howard University and he
was the person who taught many of the iconic lawyers in that area about how to
go and attack the institution of segregation and Jim Crow
he is the person who sort of provided the strategy to Thurgood Marshall and
others as they went around the country and challenged that institution he said
that a lawyer is either a social engineer or a parasite on society and
while his comments were directed primarily to those lawyers upon whom he
placed a burden to go around the country and attack those institutions which were
not espousing and emblematic of our laws that that edict those Commandments are
no less relevant today there are issues that we need as lawyers to challenge
today and that’s what I want to talk to you about and I want to go back to 2003
when Associate Justice Anthony Kennedy came to the American Bar Association its
meeting in San Francisco California they gave the lawyers there a call he
observed that the responsibilities of the criminal justice system is the
responsibility of every member of the criminal justice system including civil
practitioners prosecutors criminal defense attorneys judges police and he
said of every citizen Justice Kennedy noted at that time that the inmate
population in the United States was at some 2.1 million people and we know that
today it has spiraled even beyond those numbers although some reports say that
it is either leveling off or coming down with some of the initiatives that have
taken place but he recall he remarked that one in 43 peat persons in the
United States would be incarcerated compared to one in 1,000 in places like
England Italy France and Germany he affirmed that we in the United States
and carcere eight more people than any other place on the planet he also noted
that more than 40% of the prison population
was african-american and those statistics are still true according to
Justice Kennedy the federal sentencing guidelines played a really pivotal role
in some of those statistics and he noted that some of them the principles that
undergirded that that system of guidelines really had an unintended
consequence he said as Justice Breyer pointed out then the compromise that led
to the guidelines led also to and increase in prison terms and he urged
that that compromise be revisited he said the federal sentencing
guidelines should be revised downward he made an important statement he said I
can either I can except rather than either the necessity nor the wisdom of
federal mandatory minimums in too many cases mandatory minimum sentences are
unwise and unjust well today 15 years later Justice Kennedy has retired from
the court a lot of things have changed but a lot of things remain the same and
as he mentioned we lawyers have a role in impacting policy in helping to shape
legislation and in helping to really attack some of the things that provide
those unjust conditions about which he spoke why do I say that I say that
because of my own life experience and no I have not been to jail or prison but
there are other things that I want to compare it to we as the United States of
America have always had good strong laws we’ve always had them we had good strong
laws during the time of slavery we had good strong laws during the time of the
Civil War we had good strong laws during the second reconstruction we’ve always
had them but laws are not self-executing and it takes more
more than strong laws it takes people of goodwill to go forward and make certain
that the laws that we have are just an equal and produced justice
the American Bar Association has it as slogan pursuing par be defending Liberty
and pursuing justice that pursuit requires a commitment a sustained
commitment of men and women of the profession and other related professions
to make certain that we achieve that objective I want to mention as I said
before about my own life experience and I want to just give you this real-life
example because many of us as we sit here today say that those things to
which I advert a long past we have moved well beyond that and that was a long
time ago but I want to point out to you the recency of that and I know judge
Carlton Carlton Reeves is in the audience today but you’ll have him later
on but I want to invite you to go back and read an opinion of judge Reeves or
asking about it when he’s up on the panel where he really sort of bring some
of that history to the fore I grew up in Olive Branch Mississippi during the time
of intense segregation I was one of four african-american students to desegregate
it the previous white school in in Olive Branch we know that the first of the
brown cases were filed in 1951 and at that time I was unborn the court the
Supreme Court issued brown one in 1954 in Brown two in 1955 I began school in
Mississippi in 1957 and please don’t don’t do math on me because I’m not
attempting to tell you how old I am but but when I began school in 1957 and this
is three years after brown one and two years after brown
I began school in a two-room cinderblock school where grades 1 and 2 were in room
1 in grade 3 he was in room 2 a school had no cafeteria no running water it had
no facilities for the students to really get the kind of quality education that
they should have the students who went to school who were great score and above
went to school at the black church the one-room black church across the
cemetery and those grades were organized around church pews there will be two
church pews at house grade for two more the house grade five and the teachers
sought to teach students in that environment where they were all
collected in this one room even though we had wonderful laws in my community
african-americans were still in separate in the segregated shopping facilities
and restaurants in fact it was not until my junior year in high school that I had
the opportunity to actually go to a restaurant proper but we had those good
strong laws we just did not have people who were actually making sure that the
laws were either properly applied or were totally inclusive in the early 60s
when I was still a young person three young lawyers came to Mississippi came
to Olive Branch to help people register to vote and to help desegregate public
facilities they were three young white lawyers no doubt young lawyers from the
American Bar Association too were from California and Ron Juan was from New
York and those young lawyers were brave young people and as I think about it now
they were incredibly brave because they didn’t know us we didn’t know them and
they had no obligation to come to the south to help a people with whom they
had no real connection three of them stayed in our home those are the three
to which I referred there were men span out in the community and I looked
at those young people and I saw how brave they were and how telling it they
were it occurred to me that I might want to become a lawyer but when I did my own
inventory there was nothing about me that suggested that I could do what they
did there were no lawyer role models in my community and I put that thought out
of my head for a very long time but with those young people they stayed in folks
homes because they were unwelcome they were outside agitators and sometimes if
we’re gonna really make change we have to go where we’re not invited and we
have to do what is unexpected of us they had to stay in homes because they were
unwelcome and also they stayed in homes because at that time in Olive Branch
Mississippi there were no hotels and so in private homes were the only places
they could stay we do have hotels now so if you want to come to Olive Branch you
don’t have to worry about trying to find a place to stay but that experience
early on taught me that lawyers really can make change but sometimes it means
that they have to go beyond their comfort zone and do things perhaps that
do not enrich them but I think that when we think about it all of us as they say
have been able to drink water from wells that we didn’t dig to take shelter and
buildings that we didn’t construct and to walk through doors that we didn’t
open and we have to do that same thing for others in talking about thank you in talking about public service in
criminal justice being involved in this section has been one of the great joys
of my life because it’s given me an opportunity to be on the fringes of some
great work and we know that our criminal justice system still needs work fifteen
years after Justice Kennedy’s address I want to share with you again that almost
60 years ago an organization known as the National Conference of Christians
and Jews did a study on people’s satisfaction on outcomes in civil and
criminal courts they surveyed people to talk to to have a sense of whether or
not they believe they could go into court and get a fair outcome and what
they found almost 60 years ago was that by an overwhelming majority African
Americans believe that they could get neither they could not get a fair
outcome either in civil courts or criminal courts that was followed
closely by Latinos Asian Americans had a higher degree of confidence that they
could get a pair outcome but the study used the term Caucasians
had the highest belief that they could get a fair outcome whether they were in
civil or criminal court and you say well it was a long time ago and probably
things have changed the rand study Rep the RAND Corporation where the replicate
of that study within the last decade and not much has changed and when people
believe that they cannot get a fair outcome in court that is an indictment
against each and every one of us and all of us are responsible for doing what we
can to change the environment in which we live now you might say well that is
an unreasonable belief by people well you should mention that I became a
judge in 1982 becoming the first African American woman to serve as a judge in
the history of Tennessee thank you without when I was sworn in on September 1 I had
a wonderful investiture Munder that morning in the courtroom that afternoon
I had a docket the man who staffed my courtroom was a friend he was a
middle-aged a white male Jim mr. Goolsbee he’s now deceased so I can say
his name and he was invested in me he wanted me to succeed and so when I took
the bench in my elevated position that afternoon I had only four cases on my
docket for traffic cases but my point is about how my courtroom looked I have two
minute clerks seated just below me Cynthia I had a an african-american
female to my left and an african-american male to my right at a
45-degree angle I had a prosecutor an african-american
male and ringing the courtroom I had four deputies in Shelby County Shearer
stivity uniforms with a standard-issue Smith & Wesson’s strapped to their sides
one african-american woman and three African American men the first person to
come into the courtroom that afternoon was a young white male he walked in he
looked around the courtroom his eyes Chris wide as half dollar bills as he
saw no one in the courtroom who looked like him he came to the bench with fear
and trepidation and asked me for a continuance and I granted it for 30 days
30 days later he came back to court with an african-american defense attorney that may have been the person he was
going to hire all along I don’t know it just shocks him I reasoned that that
person felt probably like it was no way you could get justice in that quarter
because there was no one there who looked like him and so what do mr. Goes
gonna say you know I really appreciate your concern for me
I appreciate you wanted me to be comfortable
but we need to make some changes we need to bring it a little bit of diversity
and so we did I tell you that sir because it’s not just african-americans
for concerned about the ability to get justice every citizen regardless of race
gender religion or socio-economic condition ought to believe that they can
walk into a courtroom anywhere in this country and know that their case will be
decided on the merits and not on any other attribute that is one of the
reasons that I do the work I do now for implicit bias i’ma tell you one quick
story but not right now so we know that there’s change occurring
we know about the first step act that’s supposed to help us it recognized this
finally that the length of the sentence is not the real deterrent it is the
encouragement the education the opportunity that’s provided for people
to become productive citizens once they’re back in the community we know
that there’s a lot of work that needs to be done on bail reform I hope that it
affects each of us every time we read a story about someone who is languishing
in jail because they cannot make a 100 200 300 dollar bond we just heard the
story of the woman in Texas 61 years old in jail for criminal trespass who could
not make a 300 dollar bond over a six-month period and eventually died of
cardiovascular complications we have got to relook at how we’re using the tools
that are a part of the criminal justice system and I know that Lucian is already
in the criminal justice section is working on resolutions to urge the
elimination of money bail and that’s not going to be easy but many of you who
don’t live and work in those areas lend your hands to the work of the section so
that we can try and achieve some of these very worthy objections were the
objectives pardoning and then there is the implicit bias initiative and why am
I so passionate about that word I mentioned to you that every
ought to believe that they can get a fair shake in their race their
socioeconomic conditions their class their religion has no impact on the
quality of their justice but statistics tell us otherwise statistics tell us
that even though we may profess to be fair and impartial even though we may
profess not to see gender or disabilities or class and tell us
otherwise and I know that when you start talking about bias people automatically
hear race or racism or sexism or ageism but that’s not in implicit bias is
unconscious where sometimes unaware even that it’s going on in our heads those
things racism that has to be a conscious act or an intentional thing at the
circus at the surface but in implicit bias it’s just the opposite
it is unconscious how does it manifest itself in all so many ways the
statistics tell us and the science tells us that where we have the greatest
discretion there’s the opportunity for the greatest bias and all of us
regardless of our race have it regardless of our occupation we are
invested with that implicit bias on the screen of there you’ll see the cover of
the book that was produced by the criminal justice section and Cynthia
over a past chair of the section is one of the contributing authors to that book
and we look at a whole range of biases and we do work on this area all around
the country but it could because it’s important we cannot ever get to justice
until we get beyond the barrier of bias let me give you an example of how was
manifest in a trowel over which I preside it and I want to tell you I
don’t know how my other federal judge colleagues deal with voir dire but I
want to tell you that judges and juries come out of that same pool in our
vested with the same types of biases and self-reporting doesn’t really tell you
much of anything in this particular case I was presiding over a drug trial and I
have done my preliminary voir dire the prosecutor buying prosecutor did his and
then the defense attorney came up to do hers and she looked at the Benari and
said how many of you know what a drug dealer looks like raise your hand and
all these hands went up and she stopped and in that silence you could see
people’s hands slowly come down as they realized what they were saying by their
actions they said to her I know what a drug dealer looks like and seated over
at the table was a young african-american man who looked like
he’d stepped right out of central casting for the role of drug dealer now
how do you give someone the presumption of innocence how do you assure their
right to a fair trial if the fat binder says I know what one looks like
and by the way looks just like you we’ve got to make certain that the people who
are making these decisions are aware of the phenomenon of implicit bias of
social cognition or unconscious bias and that that does not invade our judicial
process I know that in the news lately we heard a lot about re-entry all of us
now know the name of Alice Johnson who had her sentence commuted and we have
celebrated that because it spoke to redemption and that was one case Kim
Kardashian did great work there but you know what
long before Kim Kardashian was busy trying to get someone released the
criminal justice section on the leadership of Jim Feldman worked
with other entities and lawyers all around the country to go through some
40,000 applications and petitions and help people who were deserving of
commutations get those commutations and many of those people almost I believe
3000 have been reunited with their family and you might say in the grand
scheme of things that’s not a lot but the effort that was put forward that the
energy the resources that this section dedicated to that work is enormous and
the number of hours that lawyers like Jim and others like you put into that is
just amazing we have got to continue to where we can step in and do those good
works I want to mention one other thing quickly and that is felony
disenfranchisement right now there 5.3 million people around the United States
who cannot vote because they have been convicted about that only many of them
have served their time but still they cannot vote and that is another issue
that all of us must be concerned about in our state if that condition still
exists then we ought to be concerned about that I know that Florida has
recently passed legislation Tennessee’s got something in the hopper if there’s
nothing going on in your state you need to look at that because are we a nation
that says we want to judge people but ever by the worst mistake they’ve ever
made and once they’ve paid their price do we still want to say you can never
again be a full citizen in these United States I don’t think that’s what we want
to do it’s a time for us to look at restorative justice in various
communities I think so but I can’t do that you individually can’t do that but
we can through organizations like the American Bar Association’s Criminal
Justice section we can put those things at the forefront we can impact recognize
the role that mental illness plays in our criminal justice system I know
that Elizabeth Kelly’s in the audience somewhere she is a person who is
passionate about that work but I want to tell you a story about unintended
consequences and mental illness and then I’m going to take my seat after one
other statement when I was on the trial court there came before me a man who was charged with a very serious crime he was
charged with being a felon in possession of ammunition he was a person who had
been diagnosed as being paranoid schizophrenic and he was also bipolar he
was on medication but living in the community he as so many people do got
out of his medication and he went on a multi-day liqueur crack holiday while he
was out living on the streets smoking crack and drinking liquor and picking up
things and doing whatever he did his condition began to deteriorate and
fortunately he had the presence of mind at some point to realize that he was
nearing crises he called the police helpline identified himself and said
help can you please come and get me and take me into the hospital I’m afraid if
you don’t I could end up hurting someone good police officers they said where are
you give me a description we’ll be right there to get you and they did they came
and he was there ready and waiting had a bag of things he’d picked up on the
street he had been engaging in you know activities over the time of his
vacation and he was really talking about some of those things as good police
officers before they put him into their squad car before they took him to the
hospital they said you know we got to first check that bag to make sure
there’s nothing in there to hurt you us or the people in the hospital and they
took the bag and did an intake on the hood of the squad car they dumped the
contents and in that bag there was one 45 caliber bullet they took him to the
hospital he was admitted they checked his background he was a felon they took
the bullet first to the state prosecutors in the end of the belt
federal prosecutors the federal prosecutors accepted it and they
obtained an indictment and about ten months later when he was adjusted and
back home with his family that was a knock on the door and the warrant was
served he was taken into custody because of his record he was detained and at
some point the prosecutors offered him a 15 year deal he said that’s a long time
can’t take it this lawyer said okay we’ll go to trial and they went to trial
only three elements to prove in a 922 G case possession got on a record
interstate commerce Nexus good prosecutors were able to secure a
conviction because he had the bullet menator at minimum said 15 years mr.
Mercier was sentenced and I will tell you I thought under the
circumstances of that case notwithstanding the mandatory minimum
statute that the sentence was cruel and unusual and that it lacked
proportionality I knew that if I adhered to that mandatory minimum no there’d be
no consequences but I wanted to push that up because I don’t think that
that’s what Congress intended I don’t think that’s the kind of case they
intended that law to be used for and so I sentenced for less than 15 years long
sentence but less than that because I wanted to go up and before that case
could ever get to the appellate court before the light of justice could ever
be shown on that mr. Visser died in jail that turned out to be a life sentence in
response to a cry for help when the felon possessed a bullet
I have no criticism of the prosecutors I have no criticism of the police it’s all
along the line the child’s were done but I do say to you that we have to help the
law makers the law givers see that sometimes there are seen and unseen
consequences known and unknown and I think we’ve got to do a better job of
recognizing as lawmakers that sometimes these don’t serve the purpose for which
they were intended I want to tell you today there is a lot of room for work in
the community and we cannot continue to persist in the model that we apply today
I know that you are white-collar crime lawyers but I want you every once in a
while to go down to some of those courts of the people and bring your expertise
to be err for someone who can’t afford a
lawyer for someone who doesn’t have a voice I don’t want you to go and pay
their bail but I do want you to go and see what’s going on and some of those
other courts or your clients don’t necessarily sit doctor carry wrestler
who did a lot of work at Emory University in Atlanta he did Studies on
certain communities and what he found was and we have a lot of these
communities around the country he found that people who live day and day out in
high density high violent high poverty communities have higher levels of PTSD
in many instances than people on the frontlines of war zones there are
policies being formulated right today that do not take those things into
account but you have the voice the expertise the access to work with
policymakers to change some of that some of those things that that the informal
ating people like Sandy’s wife rosemary working tirelessly but they’re working
on the backhand you have the ability to impact that on the front end and I think
that you need to provide voice in situations and for people who otherwise
have no us I know that I have gone over my 20 minutes but I want to just share
with you one final thing all of us all of us have a story all of us are writing
that story each and every day that we live and work we determine what our
story is going to be because we have control in large measure of that destiny
but we can alter the stories of some people and what we can that thing that we
can do I believe we must and none of us can do everything but every one of us
can do something and how you use that time can really make a difference in
that’s where I want to leave you with a petite poem and this is the last time
I’m going to tell you before I take my seat because this is going to show to
you how bold I am in junior high school when I was at the all-black school we
used to have a talent program and this is going to be the stereotype but we had
really talented students at our school they could sing and they could play
instruments they can do all kind of things and I had the ability to do none
of that when I did my own talent inventory I was utterly bankrupt
couldn’t sing couldn’t dance couldn’t play an instrument couldn’t do any of
that but I went to every talent program and I sat there thinking how wonderful
it would be to be up on the talent program but alas I had no talent one day
an idea came to me I loved to read poetry and I decided I would go and
present myself and asked to be on the talent program to recite a poem the
talent a coordinator with gentle persuasion at first tried to dissuade me
but I was persistent even then I pressed her impressed until finally she relented
and put my name on the Tala program and on that Wednesday for that particular
program I was placed in the middle on the roster and I was behind the curtain
waiting and you know how you know you just kind of all pumped up because she
finally got to get that opportunity that’s the way I was there was somebody
out there and they were really good and then it came my turn and I walked out to
the stage took the microphone looked at the crowd and began to recite the point
two roads diverged in a yellow wood sorry I could not travel both but be one
traveler long I stood and looked down one as far as I could to
where it bent in the undergrowth and about that time a noise began to feel
the auditorium and it rose and it finally got to a crescendo or not
excited nor applauding they were yelling hissing and booing and said get off the
stage we don’t want to hear that poem in that moment I realized people were
inviting me to leave the stage and I decided that I would decline their
invitation and I remain but but that taught me a lesson it confirmed for me
that I had no talent and so I never again without another tell appropriate
so today I’m not gonna be long with this coin but I just want to leave this with
you because I haven’t encouraged you to take action where you can so this is the
poem goes something like this ray lost yesterday someplace between
sunrise and sunset two golden hours each set with sixty diamond-studded minutes
no reward is offered but they are gone forever the time is now we will never
again see this time use it wisely thank you
you

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