Race, Justice, and the American Judicial System
9:57PM Oct 6, 2020
Nicole Lewis '05
Judge Andre Davis
Judge Casey Cooper
Attorney General Karl Racine
criminal justice system
Good evening, everybody. Welcome, welcome to this event. This is our first event in honor of Georgetown Day School's 75th anniversary. For those of you who might not know, my name is Russell Shaw. It is my privilege to be Head of School at GDS—for 11 years now. We're going to be holding more GDS Presents Speaker Series throughout this year, sharing more of how we are celebrating this big occasion for our school, and this big moment in the life of our school as we really kick off the official celebration come January. We are honored to have with us tonight a fabulous panel two federal judges with lengthy and respected careers and the current Attorney General of the District of Columbia. Thank you to the Honorable Andre Davis, the Honorable Christopher R Cooper and Attorney General Karl Racine, for joining us tonight. Judge Cooper also has the great wisdom to be a GDS parent. I also want to say thank you to alumna Nicole Lewis who graduated from GDS in 2005. She currently serves as a staff writer at The Marshall Project, which is a New York City-based nonprofit news organization covering the U.S. criminal justice system. Her work on criminal justice has appeared in The New York Times in Slate and Mother Jones. She is going to be our moderator, this evening.
Tonight's panel will be exploring the topic of Race, Justice, and the American Judicial System. At GDS our mission calls us to "honor the integrity and worth of each individual," and since our founding—and really the act of our founding—was an act of racial justice. Learning about and advocating for equity, and for racial justice has been at the heart of a GDS education for 75 years. Recent months in our country have seen a watershed in the national conversation around racial equity, as we have seen an important and broad-based reckoning with centuries of anti-Black racism, racism that continues to plague our country. As an institution GDS is called both to examine our own practices, how are we doing, and to foster an environment where young people go into the world with the capacity and the will to build a more just and better world.
I will say that our students make me hopeful. And I am grateful for the opportunity as a community to interrogate the ways in which racism is manifest in our justice system and to explore together pathways for change.
Tonight we will hear from individuals with unique and really important vantage points on our justice system, and who can help us make sense of this moment, and perhaps provide a window into what's possible, as we move forward. Thank you again for joining us. We are grateful and thank you, Nicole for moderating, and over to you.
Thank you, Russell, and welcome, everyone to Race, Justice, and the American Judicial System, the kickoff event for GDS's 75th Anniversary Speaker Series. Tonight's event will be a moderated panel followed by a Q&A. So if you'd like to submit questions for the QA, there's a link that's going to be dropped into the chat. And we'll select from questions as they're submitted. We're handling questions this way so that I'm able to combine similar questions, ask questions that I know the panelists will be able to answer, and keep the panel discussion on topic. So please allow me to introduce our esteemed panelists. Tonight we'll hear first from Judge Andre Davis. Over a 30-year judicial career, the Honorable Andre Davis served as an associate judge on both the district court of Maryland, and the circuit court for Baltimore City, as a federal district judge on the US District Court for the District of Maryland, and as a federal appellate judge on the Court of Appeals for the Fourth Circuit. Upon retirement he served as Baltimore County Solicitor until his retirement in February, 2020. In his role as counsel to the Baltimore City Police Department, he was at the forefront of the city's implementation of the federal court consent decree requiring broad reforms. He is the uncle of GDS storyteller Danny Stock. Welcome, Judge Davis.
Thank you very much.
We'll also be hearing tonight from Judge Cooper. Judge Christopher R Casey Cooper was appointed to the United States District Court for the District of Colombia in March, 2014. Following his unanimous confirmation by the US Senate. A native of Mobile, Alabama, Judge Cooper received a BA summa cum laude from Yale University in 1988 1988. Judge Cooper went on to graduate with distinction from Stanford Law School in 1993, serving as a president of the Stanford Law Review and as a board member of the laws law schools pro bono legal clinic. Judge Cooper sits on the Governing Board of St Albans School and Trinity Preparatory School in Winter Park, Florida. He's also a member of the United States judicial conferences committee of space and facilities. Welcome, Judge Cooper.
Thank you, Nicole.
And last but not least we'll be hearing from Attorney General Karl A. Racine, the District of Columbia's first elected independent Attorney General. Now in a second term, Attorney General Racine's mission is to use the law to solve problems for vulnerable district residents. His priorities include consumer protection, preserving affordable housing employing evidence-based juvenile justice reforms cracking down on slum lords, holding unscrupulous employers accountable for wage theft. He's committed to Smart on Crime policies to interrupt violence in the district and address childhood trauma. Mr. Racine earned a BA from the University of Pennsylvania, and a JD from the University of Virginia. Born in Haiti, he has lived in the District since he was three. Welcome, Attorney General Racine.
Thank you so much. It's a pleasure to be on with such outstanding panelists.
Thank you all for joining us. Just a reminder to the audience, the chat is now closed, and it will reopen at the close of the panel. Tonight's discussion is broken into three sections. First we'll hear from panelists about the experiences that shaped their view of the American legal system, and the decisions that led them to pursue a career as arbiters of justice. Then we'll move on to their observations about the current state of the justice system paying close attention to one of its most defining aspects: the racial disparities of those held behind bars. Finally, we'll close with an eye towards the future as the panelists discuss policies and practices that could help the conflict could help reduce the country's reliance on incarceration and potentially repair some of the harms caused by decades of mass incarceration. So let's get started. My first question is for all three panelists. Can you share a bit about how any of your personal experiences with racial injustice shaped your understanding or interest in the courts and the legal system? Perhaps, it might be best to sort of go alphabetical order so we're not speaking over one another. So in that case, we'll start with Judge Cooper.
First of all, thank you very much for having me. It's a real honor to help celebrate GDS's 75th anniversary. First of all, let me sort of orient the audience particularly folks who may not be lawyers. I sit on the federal district court, which is a trial court as opposed to an appellate court. I hear cases involving violations of federal law or federal statutes both criminal and civil, all with some connection to Washington, DC either physically or that involved the federal government in some way. To your question, I grew up in Alabama, as you said, from a fairly large family from Mobile and Selma in the late 60s and 70s. My family was active in the civil rights movement. And there were several lawyers in my family, and they went on to careers in government service and in politics. And I don't think there's any one defining thing that led me to a career in law but one can't grow up at that time and that, in that place without having a sense of how the law has been used to maintain racial inequalities, as well as a way to promote social change. And I can't tell you that I went to law school, you know, in order to to change the world. I went because I thought it would be intellectually challenging and interesting and a way to help people both individuals and to provide public service in some way. And those are the same reasons that a judgeship interested me. In my view, it's one of the most meaningful positions, meaningful jobs, someone can have in the legal profession.
Judge Davis, what about you?
Well, again, like my fellow panelists, it's really a privilege to participate. And I appreciate very much the invitation to do so. I grew up in an inner city neighborhood in Baltimore. I'm a little more than a decade older than my fellow panelists so I grew up at a time when Brown versus Board of Education was just emerging as a legal doctrine. I literally started kindergarten in 1954, a few months after the Supreme Court of the United States decided Brown versus Board of Education. So I attended an all-Black elementary school and an all-Black Middle School.
And so I got an education from just some phenomenal phenomenal teachers who, whether they knew they were doing it or not were instilling in their students a pride of place and a pride of community, and the sense that one can be whatever one wants to be. But I have to say, it never occurred to me to become a lawyer, to say nothing of becoming a judge, until I happen to take a course in my sophomore year in college, which was actually taught by a law professor to undergraduates. It was a constitutional law course taught by a law professor to undergraduates at the University of Pennsylvania, and it was in that course on constitutional law that I came to see for the first time that as great as Justice Marshall was as a Supreme Court justice, and he'd been appointed to the Supreme Court just a couple of years before I took this course. It was his role as a lawyer, as a civil rights lawyer that actually animated my sense of justice and the role that lawyers, particularly Black lawyers could play in achieving real social justice and civil rights. And it was at that moment that I decided that I was going to be the best civil rights lawyer in America, or I was going to do my best to become that. And that started me on my path.
Thank you. And Attorney General Racine?
I'm really loving this panel as I'm getting to know people who I've known for a while and or long admired and really getting a sense as to what motivated them. For me, I'll focus on just, you know, three quick sort of experiences, if you will. First I grew up in Washington, DC after as you noted, immigrating from Haiti. And we eventually settled, not so far away from where GDS is located in Ward three around Nebraska and Connecticut Avenue. And I have a distinct recollection of, you know, playing sports, and then traveling around the city to compete. And then eventually going to Deal Junior High, and I've got to say that it was very clear to me that growing up with a 20008 zip code meant that my life was going to have more opportunities and less risk than some of my teammates who lived in other zip codes. So I grew up with an early sense and a keen sense of just flat out, random unfairness. Secondly, during my study at Penn—clearly Judge Cooper didn't get into Penn so we had to go to Yale—[laughter]—but you know I bumped into Charles Hamilton Houston along the course of, you know, history classes, and I was inspired by his story and Aiden Washingtonian World War I veteran who really started the great legacy at Howard Law School, and Charles Hamilton Houston often talked about lawyers job, and that was to use the law to be a social engineer or a tool to help people. And then lastly, I'd say that as a first year lawyer at the firm I worked at immediately after law school of Venable. I was assigned to work on a death penalty case in Virginia that all went all the way up to the Supreme Court. And through that representation client Timothy bunch. I got another firsthand view of the inequality of the system, just based on class. Mr. Bunch was not able to afford counsel and the public sort of defense in Virginia at that time wasn't so good. My client was eventually executed. And I just committed myself at that point to try as best I could to work at the Public Defender Service where I could help indigent defendants.
We're here tonight to talk about race, justice, and the American judicial system, and it feels important to me that before we go any further, to think about what does justice mean to each of you. And how have you been able to bring this vision, bring your vision of justice to bear on the work that you do in the courts or in the attorney general's office and, you know, Attorney General Racine, let's start with you, we'll work our way the other direction.
That's a powerful question. And you know justice as you suggest can mean different things to different people. I think what it means for me is an opportunity, and indeed a right for people to be treated with decency respect and fairness, you know without regard to where they come from, how they look. Or, you know, what they have done that the process requires fundamental fairness. And I think that when I, when I think about the protests and protests of course they have overwhelmingly been incredibly peaceful. I see that what folks really want is a system that they can believe in that they can trust to treat all people in a fair way. That's what justice means to me.
Thank you. Judge Cooper? Judge Davis?
Well I could hardly improve on the Attorney General's response. But he's surely right. Justice takes its meaning from context and time and place, and circumstances, but at its core as he said, there's this notion of the inherent dignity of every human being who is deserving of fair and impartial and sensitive treatment, and people sometimes find it awkward to hear others talk about justice for the deceased, that, that someone passes away under, under circumstances that seem unfair and unlawful. And so sometimes people say, Well, what does that really mean? What it means as the Attorney General actually said, is a systemic response to the treatment that individuals receive from our government and its actors, as well as from private people. As a judge, one measure of justice for me was always the idea when I was a certainly a trial judge in both state and federal court what I was always concerned about is this: in the nature of litigation when people are in court, whether it's a criminal case or a civil matter a fight over money or property in the nature of things there's always someone who loses, almost always. There's a loser. The most happiest thing that happens in a courtroom is an adoption. And I guess the second happiest thing that happens in a courtroom is a naturalization ceremony right when someone becomes a citizen of the United States, but most of what happens in a courtroom is not happy stuff, at least for one of the litigants. And so for me it was always: Has the person who did not prevail—who left that courtroom either actually or having received my decision—did that person feel that they were heard? That they were treated fairly and that the system was responsive to their concerns and paid attention to their inherent dignity? If you can say that about a case or about a matter or about a decision, then I think you're getting close to the true meaning of justice.
Thank you. Judge Cooper anything you'd like to add there?
Yeah, I can't improve much on that, but I will tell you though that I got pulled aside by an older judge more senior judge when I first started, and he told me that a judge's job is not to do justice. It's simply to apply the facts to the law. And I've thought about that a lot. And at the end of the day, I think that there is plenty of room to reach just outcomes within the bounds of the law. I don't think it is as black and white as that, particularly in areas like sentencing for instance where judges have a fair amount of discretion to get the outcomes that are fair and just what justice really means in my professional capacity, it's very similar to what Judge David said, it's making sure that people know that they get a fair shake treating them with respect and dignity, taking every case, seriously, even if it looks very much like the last case, you know, putting in the effort in every case to make sure that I get it right and assigning cases in an expeditious manner, because it's true that justice delayed can be justice denied so that's how I would sum it up.
Thank you for those definitions so I want to turn now to the current state of our criminal justice system. But first I'd like to share a few statistics and as you can see I'm a big fan of working off of the same page. We often hear that the United States locks up more people than any other developed nation. It's estimated that as many as 100 million Americans have a criminal record, and at the start of the year 2.3 million Americans were held in prison or jail across the country. The vast majority are held in state prisons. Incarceration has had a disproportionate impact on Black people and other people of color. So although Black Americans make up just 13% of the population, they're vastly overrepresented in the nation's prisons. The impact of over incarceration is massive. Incarceration creates barriers to economic opportunity suppresses voter turnout and high incarceration neighborhoods cements generational poverty destroys the tax base in those neighborhoods, not to mention that is expensive costing taxpayers nearly $80 billion a year. And so my question, in a nutshell, first and foremost is, how did we get here? And do you believe that there's an equal system of justice for Black people? Judge Davis, why don't we start with you here?
There simply is no question that there are structural systemic features of our criminal justice system today that draw on the origins of this country, namely slavery and involuntary servitude. And there are so many lessons to be learned about that connection, but more pointedly, some of what we see today is the result of the law of unintended consequences. So that, for example, what we now perceive to be mass incarceration, in my opinion, to a certain extent, is the product of genuine efforts by legislators and judges of goodwill, going back to the 1940s 50s and 60s into the 70s, and I have in mind here of course the Federal sentencing guidelines, which came into effect in 1987, were the product of really years and years and years of work by many people of goodwill: judges, legislators, federal legislators, who genuinely believed that by setting up the structure of so called determinant sentencing greater fairness, particularly to poor people, and therefore, particularly with people in the African American community because we're well educated now about the disparities in income and wealth and opportunities for employment and advancement, both public and private. So, these efforts were made to somehow equalize and remove discrimination from the criminal justice system, in terms of sentencing and the outcome turned out to be much longer sentences and very harsh sentences for offenders who were not deserving of such such sentences. So that's just one example of a panoply of features in our criminal justice system that one can point to, to explain how we got to this situation, you know, the great Bryan Stevenson frequently says, "the opposite of poverty is not wealth. It's justice." And he is so right about that. The economic oppression of the Black community for decades and decades and decades in this country accounts for much of the disparate involvement and the disparate punishments that members of the African American community receive. And then I have to close of course with a word about the war on drugs, more appropriately referred to in my opinion, as the ill-fated misguided war on drugs. Professor James Foreman wrote a phenomenal book called Locking Up Our Own, which tells the story about the District of Columbia and how as Black elected leaders in the District of Columbia were taking leadership positions in the District of Columbia, and the whole question of marijuana arrests and prosecutions was very much a topic of the day, this is back in the early 70s to the mid 70s, as it is today, and the impact from, and we know this from from judicial decisions and social studies by social scientists all over the country, the impact in terms of criminal justice impact of the war on drugs and in particular the criminalization of marijuana going all the way back to the 40s and the 50s through today has been enormous on the Black community. And my point is that even where Black leadership, such as in the District of Columbia, clearly working in good faith to bring a greater measure of justice to criminal justice outcomes, we're not informed, we're not educated, we're not in possession of the kind of knowledge that was needed. And frankly not in possession of the kind of foresight, that it would have been nice to have. Of course, nobody has foresight. So all of these reasons and many more I could mention really accounts for the state of criminal justice today. And I am hopeful that there are movements afoot, both legislative in the judicial realm, and more broadly throughout communities all over this country to decriminalize, so much of Americans' activity, and to look for other forms of restorative justice and rehabilitative approaches to particularly young offenders, so that we get ourselves out of this mass incarceration conundrum that we've we find ourselves in.
Attorney General Racine, Judge Davis gave us highlights from the federal system and the ways in which the federal system has impacted mass incarceration and so I'm curious, from a state and local perspective, what are the failures? How did we get here?
I think you're muted.
Mr. Attorney General, you're muted. There you go.
Got it. A lot of people would like to be able to really operate that mute machine on me. What I said was that Judge Davis really gave a comprehensive, I think really thorough and accurate recitation of how we got here, and as he indicated. The same is true, not only federally but also locally, is an example as to the James Foreman book Locking Up Our Own was Mr. Foreman's, you know, story about the DC local system and how an overwhelmingly educated and, you know, fairly well off Black community, nonetheless, almost doubled down on the federal sentencing guidelines. You know, we all want to keep our community and neighbors safe. But I think we didn't really have data, nor did we have the kind of, you know, luxury of looking back at data to gain the wisdom of what policy might be going forward. So I really would just, you know, associate myself with Judge Davis's remarks. I do have a book here that I'd like to highlight, and this really goes to what Judge Davis talked about with respect to the time period. Immediately after slavery, when you know, freed men and freed women you know were oftentimes locked up. Pursuant to laws that were established to do just that: lock them up so that the 13th amendment would not be applicable to them, as it did not apply to folks who were incarcerated and so they were giving free labor. To take your question just a little bit further and without speaking too much—and again, relying on Judge Davis—I would say that the data and the history does give us an opportunity now to innovate and embrace other concepts. And I hope we get a chance at some point to talk about restorative justice as a way for the victim and the offender to come together and really focus on the wrong that occurred to the victim, with the objective of having the offender become more empathetic about the harm that he or she caused, and then reach a result that finds itself in an agreement that the victim, and the offender draw up. So that justice can be done outside of the system, in a way that heals the harm that occurred between the victim, and the offender, and the community.
Yeah, but let me just add briefly I think that the short answer to how we got here it's not that we as Americans commit more crimes or even though we are arrested at greater rates we got here because if you're charged with a crime you're more likely to go to jail and our sentences are much longer than virtually any country in the world. But, and I you know completely agree with everything that's been said, and I am painfully aware of the statistics that you cited. Whenever I have to sentence, an offender to either to probation or supervised release or incarceration. Right? And, and I do that every week, but sentencing someone it's not a societal exercise, it's very much of a personal individualized exercise. There's a real live person in front of you, and you have a prosecutor who's representing in good faith, what the position of the United States is on how long that person should be incarcerated. You may have a crime victim, you may have a community that's been victimized. You have a probation officer, telling me, you know, advising me whether that person would benefit from some deferral or alternative sentence or not some do some may not right, and reconciling the broader numbers that you cite it with the person and all of the parts of the system that are in front of you can be a really difficult thing, particularly for an African American judge and it's probably the one, it's if you talk to judges, most will tell you that sentencing is the hardest thing we do for those reasons.
Absolutely. And that actually brings me to one of my other questions about the federal system directly. So much has been made about the impact of mandatory minimums in the federal prison system and beyond and experts argue that mandatory minimums may have forced judges to hand out unjustly long sentences, which led to a ballooning prison system, but others argue that mandatory minimums were partially an attempt to standardize punishments across the countries really take into consideration that everyone was getting, you know, equalized sentencing equalized shot. And so I'm just curious here because we're on this topic has the standardization of sentences resulted in more or less, justice, in your opinion? Or for whom? Is the antidote to mandatory minimums increased judicial discretion, being able to do as you said to take the person in front of you into full consideration agenda? Judge Cooper, why don't we start with you.
Well mandatory minimums are one issue, but the sentencing guidelines that Judge Davis spoke to is really the predominant issue and 15 years ago the sentencing guidelines, you know, essentially, there's a matrix and on one axis, there's the defendants criminal history on the other side there's a score based on his the conduct and the offense conviction and you go to the box and it tells you how many months that person should serve and you know that applies in every federal case where it's mandatory minimums these days are, thankfully, less frequent. When Judge Davis was a trial judge those guidelines were mandatory and they resulted in some incredibly harsh sentences and judges did not have the discretion. I can't imagine sentencing under that regime. And if there's, you know, there's one thing that has led federal judges to retire early, it's having to apply the mandatory guidelines and so, You know, from my perspective, discretion is key to many areas including the statistics that you cited. But at the same time the guidelines do provide a helpful framework that we all start with, and, and they do, I think, bring the sentences towards the mean so that a defendant doesn't walk into my courtroom and get one sentence, walks down the hall to another judge's courtroom and gets another, let alone a judge on the other side of the country. And there's an important I think societal value in uniformity, and generally, a lack of disparity.
Okay. Judge Davis? Anything you'd like to add?
Judge Cooper is exactly right. And this decision by the Supreme Court that Judge Cooper alludes to 14 years ago, that restored discretion to the sentencing process in federal court was really a very important decision that was welcomed by really all the participants in the criminal justice system. And it kind of leads into a related question of. Was it really a bad idea for judges to have discretion? In the first place, and to be sure, there was a problem as the judge alluded to, of similarly situated offenders committing similar offenses, with similar backgrounds, getting disparate sentences. And there was a ratio determinant, to the longer sentences. And so the idea was, the problem is, judicial discretion. Well, the problem was not judicial discretion. The real problem was, who the judges were. What's important today is that we have a diverse judiciary, so that you know in every federal courthouse, frankly, every courthouse in America, where more than three or four judges preside over over trials that courthouse ought to aspire and the appointing authorities, whether its elected judges on the state side which we have mostly elected judges, but certainly in the federal system. It seems to me that the President whoever he or she is. And whoever the senators are have an obligation to make sure that in every federal courthouse in this country, when you have as many as three or four or five judges in that courthouse, that that courthouse aspires to look like America, because the importance is that we all bring our individual experiences and backgrounds to the work. And I believe that almost without exception, every judge every federal judge aspires to be the best judge he or she can be, but the truth of the matter is, judges have limited experience. No matter how hard they work to know their communities and to be a part of their broader communities. And so it's important to have judges like Judge Cooper at the table with those seven or eight or nine or, in some of our larger districts there as many as 15 or 16 or 17 judges in one courthouse. And so it's important that when those judges have their weekly lunches, or bi-weekly lunches and they talk about the work and they talk about their shared experiences that there be people in the room who bring a perspective that other judges may not be able to bring into that room. So that's as important in this in the context of a sentencing and understanding offenders and where they come from and what their motivations are really as anything else.
Nicole, can I jump in on this for a sec?
Because I think the points, being made by both Judge Cooper, as well as Judge Davis are powerful here. The notion that the people who are the decision makers are incredibly important to the system that they're applying. All you need to do is bring it back to state legislators, the makeup of Congress. Look in my world and the Attorney General space. When I entered the room in January 2015, there was one other African American Attorney General in the room. That happened to be the current senator, a vice presidential candidate from California Kamala Harris. And I remember talking with Kamala—with Senator Harris at the time—and she was in a celebratory mood and so was I because we determined that we're going to start a coalition. Just she and me. And our goal was to literally quadruple the size of the room in terms of having people of color in the AG space. And so in different ways we work together and I'm happy to report there are eight African American state attorneys general now in just a matter of five years, you know with intentional concerted efforts. And how does that redound to the benefit of fairness and justice? Well, in Minnesota, the Attorney General, Keith Ellison is now in charge, right, of the most significant, you know case that you know spurred the Black Lives Movement March. I have no doubt that Keith Ellison, given his life experience growing up in Detroit, one of five all young men growing up there— happens to be a Muslim—I know that Keith Ellison's life experience is going to be brought to bear, and the case studies overseeing. The same with the Attorney General Tish James in New York, who is now in charge of reviewing police misconduct cases including alleged misconduct with respect to protesters and now also the awful killing of the citizen in Rochester, New York, who was suffocated to death. And so, who's in the room—Hamilton got it right—really matters.
There's so many questions so many more questions, I'd like to ask but we are short on time and I want to make sure that we're able to get in some questions from the audience. We've been compiling a list of wonderful questions that folks have raised. And so perhaps, let's start with a question from a student, Hayden Martz. Over the past 20 years, what were the biggest policy failures that have been made in the criminal justice system and how should they be changed? This is for any panelists. [long pause]
We're all respectful and deferential to each other. I'll jump in, I'll say, you know, I think others might talk about other things including the sentencing guidelines and whatnot. You know, I think that we've not really focused well on understanding that prisoners, people who are sentenced to jail, are overwhelmingly going to be released one day. And so it's incredibly important for us to have a world-class system of rehabilitative and educational and job skill attainment services. It was a horrific thing that occurred when Attorney General Jeff Sessions, literally within two weeks of taking office, fired the chancellor of the Bureau of Prisons. A person who was focused on education and job skills training. It's as if we want folks to not improve themselves and to cause even more harm to communities when they are released, so that they can come on back and spend another decade or so in jail. We really need to have, you know, much better rehabilitative services. I would add that we need to look further than across the pond in Europe and other countries to see what real rehabilitation looks like. And it's cheaper, and it's more successful.
Judge Cooper or Judge Davis.
Hayden, thanks for the question, and I would love to have an hour long conversation with you about it at some point. And, you know, one of the constraints of being a sitting judge is I can't comment too much on sort of policy issues and legislative issues but one of the things that I struggle with, but I think we really need to address, are mental health issues and substance abuse issues. How to disentangle those public health issues from the criminal justice system. I see so many defendants who are there, if not solely at least mainly because of those issues, and I feel completely ill equipped. But I'm forced to deal with them in a criminal justice context and if we could somehow come up with a way to, you know, divorce or intercede before you know folks with issues like that are just swept into the criminal justice system. I think we'll be much better off for.
I totally agree with what's been said by each of my fellow panelists.
This question comes from a seventh grader who is currently studying restorative justice and since Attorney General Racine you you brought up the term. She's asking how can a school embrace restorative justice and can I add—Could you give us a good definition so that we're all working with the same understanding how could restorative justice be applied in a school context?
Sure. So just definitionally. I think I'll deal with the following restorative justice is a concept that appreciates that there may be a remedy to a criminal offense that is better reserved outside of the system with the full agreement and consent of the victim, which is to say we don't do restorative justice unless the victim wants to go forward with that. And at any time during a restorative justice process that a victim changes her or his mind, we stop it. With respect to R.J. in schools. I gotta say you needn't listen to anyone other than young people. And what they'll tell you is not unlike what our seventh grader is telling us, which is we need more counselors in schools. I'm sure there may be a need for some level of security. But counseling services more than, you know, police officers in school. And I can tell you that restorative justice has been successful in schools that ordinarily call the police when there's a problem at school. And it's the concept of getting people together with trained professionals to understand why there was a problem in the first place, and how that harm can be remedied to the satisfaction of the victim. I would encourage the seventh grader to go to the [Office of the Attorney General] OAG website. We got a nice little page on there on restorative justice, and then send me an email we can talk about that more.
That's a tremendous explanation. Thank you very much, Mr. Attorney General. Let me just say if I might, very quickly. I'm here in Baltimore, and of course, our local school system here in Baltimore is regrettably underfunded and just meeting so many challenges as best they can, particularly in this time of the pandemic. But, one of the shining lights and in our local school system here in Baltimore is the use, on a limited basis and a number of schools, of what we call restorative practices. And it's a very exciting expansion of the idea of just restorative justice. But the idea is that within the learning environment in a classroom with teacher and aide and students from as youngest second and third grade through high school restorative practices are being used to improve the learning environment, to lift the esteem of students, and to grow community. So it's a very exciting prospect going forward for our community.
Thank you, and I'm being asked to check in and see if we could take just a few more minutes. We are about four minutes away from eight o'clock, but there are so many wonderful questions from our audience. So if that's okay with all of our panelists, we may just go a little bit slightly longer. Okay, wonderful, thank you all for that and so while we're on the topic of education and restorative justice, I think I'd be remiss if I didn't ask you all about how an institution like Georgetown Day School which has a mission of justice really embedded into its founding can embrace a justice-oriented curriculum. What does it mean to be educating students with a lens with an eye towards the places in which they can make a difference, bring about justice in our communities? Judge Davis, because since you're on my screen, we'll start with you.
I'm sorry was judge Cooper gonna take that one first?
I'm happy, I'm happy to take that one. Obviously, you know GDS has you know the students are have identified the issue, and are trying to find solutions for them. Okay. But don't just stop at the numbers, this is not an academic problem, right. You have to experience the system on the ground as it operates. Come down and see some trials, some criminal proceedings. You're welcome in my courtroom anytime and I'm sure every other judge will tell you the same thing. Talk to police officers, talk to prosecutors talk to defense lawyers talk to folks in the neighborhoods that are affected the most. There are so many facets to this problem, that it's not just a it's not just reading books, and that that would be my basic advice for for students interested in these areas.
Judge Davis or Attorney General Racine.
I agree completely with Judge Cooper and folks can take advantage of their local attorney general's office here in the District of Columbia. We regularly have visitors in turns folks who spend the summer with us and get a real sense as to, you know what's going on in your city. I think what you'll find, you know, sadly, is that the state of young people in the District of Columbia, is quite troubling. You know, there really are instances of grave unfairness based on zip code still. And so we need students from GDS to, you know, engage deeply in all of the District of Columbia, and you're welcome to come to the office of Attorney General, any day to see what we do.
Fantastic. And so this next question comes from a teacher at GDS, Emily Landau. As judges, you can only confront the crime in front of you, but not the long history of injustice that created the conditions that perhaps lead to such crime being committed. What can we, or you, in this case, do to fairly prosecute crimes and sentence the convicted while also recognizing the injustice and inequity that leads to crime? And Attorney General Racine if you'd like to start.
You know I would kick that over and I don't want to be assigning hard questions or anything of that sort. But I think one of the judges might really respond better to that.
Yeah, so, Emily, thanks, thanks for the question. It's a terrific one. You know I said before that sentencing is the hardest thing I do. And it's not because of some, you know, moral weight associated with sending someone to jail. You know, that's part of the job. I willingly accept that. But it's more that, you know, unlike a substantive legal problem, where if you have good lawyers and I have law clerks, I'm 95% sure that I'm getting the right answer. The sentencing—the reason it's hard. That's because there is no right answer. My job is to sentence someone just long enough, but not a day longer than is necessary to achieve all of the purposes of sentence, and there's no way to know exactly what that amount of time is so you have to take, you know all of the facts that are before you, and certainly against the backdrop of, you know, history of racial injustice in the criminal justice system, and you just, you know, apply reason and passion and empathy and try to come up with the right answer. And I think just David said it. That's why it's important to have, you know, people of good faith, sitting in these positions.
Nicole I would simply add I think I understand the question. What Judge Cooper is doing right now as a part of this panel is an important part of the answer to that question. Judges, of course, have a very significant ethical constraints on what they can do and what they can say, and no political activity of course and all of that is appropriate. But what judges can do is judges can get out into the community. PTAs and community groups, and other kinds of groups and speak to people and answer people's questions and help educate the community at large, including young people by visiting classes and that kind of thing, to make sure that people are fully informed about the operation of our justice system. The late Justice Stevens who died just a couple of years ago, after just an incredibly distinguished career on the Supreme Court, together with, actually Justice O'Connor as well—one of their posts judicial concerns was about civic education, and the importance that the role that judges can play retired judges as well as sitting judges can play in helping people understand better how the justice system works. The very important part of the work of judges.
Nicole, can I chime in?
So at the office of Attorney General, we have exclusive jurisdiction to prosecute juveniles in the District of Columbia. We have partial jurisdiction to prosecute adults only in regards to a category of misdemeanors. In addition to those two responsibilities, my office also defends the District of Columbia agencies in court, kind of what you did over in Baltimore as a city solicitor, Judge Davis. We had a case that involved a civil lawsuit that was brought by the family of an individual who was killed as a result of an interaction with the Metropolitan Police Department in DC. That case was tried before Judge Cooper. The jury in that case, a very tough case, found for the District of Columbia. The judge, in one of his opinions, went out of his way some might argue I thought, every word was appropriate, to point out that part of the reason why we're here—not withstanding the jury's verdict—was because of the police tactic that was being utilized colloquially called "jump outs," where Metropolitan Police Department the time had a whole bunch of folks on "jump out" teams, literally, would jump out of a van unmarked van, not in uniform, and the practice was to essentially engage with groups of usually men who were congregating at different places. And invariably, what would happen when a jump out occurred is that folks would run. Some for what they would argue is good reason. Others maybe because they were engaged in illegality. Well, the court wrote about that process, the tactic of "jump outs." It was a direct result of Judge Cooper's writings that caused the Metropolitan Police Department to rethink its grand "jump out" policy. I'm here to say that they're no longer doing it in the same broad systematic way that they had before because of the judges writings. And so, you sometimes we ask, how does justice occur? You know justice occurs by getting the right people in the right seat, who aren't afraid to go on and comment rather authoritatively about tactics that may just—what—accelerate or enhance community mistrust and may lead to the death of residents of the District of Columbia. Who you have in the right chair at the right time is incredibly important. And I'll just go a little bit further and say that where Judge Davis, most recently sat as a judge, the Fourth Circuit Court of Appeals was not a place where you wanted to necessarily have your case reviewed 10 years ago, 20 years ago 30 years ago 40 years ago 50 years ago, that fourth Circuit Court of Appeals, is a different four circuit now, because President Obama, you know, named a lot of those judges. And so I can be political, I'm telling you your vote matters, your engagement in the voting process matters. Even if you're a seventh grader. You can volunteer. Because what we need to do is have the smartest, the best, the judges with the broadest level of life experience, who aren't satisfied was saying well there goes the case, there was a verdict for the city and we move on. But instead, we'll take pen to paper and point out where else the city needs to change its practices. So get involved in the elections.
Thank you. And so our time is coming to a close and before I turn it back over to Russell, we want to give each of you an opportunity to offer some closing thoughts, words of wisdom, any guidance you have for us tonight. And so, Judge Cooper, why don't we start with you?
Yeah, first of all thank you again for having me and you know we've talked a lot about you know some depressing. You know statistics and societal phenomenon tonight. I'd like to leave on a note of optimism. You know, I see folks who I've sentenced to prison come back into the community and I always have reentry hearings, and I always meet with folks when they come back, and I've had offenders, discuss books that they've read in prison and discuss jobs that they have and the families that they are starting. And so it's not all bleak and whether this, this is a moment or a movement right now in the wake of, you know, all of the incidents that we all are all too familiar with. I'm heartened by the fact that it seems to be multi generational. It seems to be national, it seems to be, you know, diverse, and I'm hopeful that, that, and the fact that we now have cell phone cameras and body cams filming everything, that you know we may not be talking about this as much in 20 years. Let's hope so.
Judge Davis closing thoughts.
I just want to say briefly again how much I've enjoyed this conversation, how much I appreciate the invitation. Thank you, Danny—I love yo—for bringing me into this. It's been a just a great hour plus, but like the judge I too am optimistic. There's so much work going on in so many spheres multidisciplinary studies. The work that some tremendous people are doing in, in the area of neuroscience and the law and examining what we can do with young people and help them through those very very difficult ages from 16 through 24, to help them stand up and be productive contributing citizens. I'm very hopeful about that, and a number of other things. So congratulations to GDS. You should be proud. I know you are and continue for another 75 years of tremendous work, producing tremendous citizens
And Attorney General Racine, final thoughts.
I'll be really brief. Hard to follow those two exceptional judges and human beings. I would just say, you know, look to innovation, I think it was said early on, perhaps in response to your first question that the United States, you know has always been harsh when it comes to prosecution and punishment. It doesn't have to be that way because clearly it's not as if that way, has been working. Crime is still up, and there are other innovative approaches that may come from other cultures, or other areas in the United States that are at least as effective, frankly, far more effective than our current criminal justice system. And I would refer the students to a terrific not-for-profit organization, I happen to be a part of it, called Fair and Just Prosecution, FJP, an extraordinary organization, it's all about evidence-based, innovation, you'll get a whole bunch of ideas as to how we might go about justice in a different way, tomorrow.
Attorney General Racine, Judge Cooper, Judge Davis, thank you so much for being here with us tonight. Feel free to hop off if you need to. But at this point, I am going to turn it back over to Russell for some final words.
Great, thank you, Nicole. And I want to just say what I imagine all of us viewers are feeling, which is extraordinary gratitude. I mean this was a privilege to bear witness to this conversation. Dr. King famously said the arc of the moral universe is long but it bends towards justice and yet what we know is the arc doesn't bend by itself, right? It takes people to bend it and Judge Cooper, Judge Davis, Attorney General Racine, you are three citizens who have been bending the arc. And for that, we can be collectively grateful. I cannot think of a better way to honor the start of Georgetown Day School's 75th year then with this conversation, which is so at the heart of who we are and who we aspire to be as an institution. I want to say—Nicole, thank you. We could not have asked for a better moderator, and we are proud to have one of GDS's own moderating the discussion. I also want to say, I was moved and I am grateful to have seen so many Georgetown Day School students who were in the audience tonight. Mr. Attorney General, you said, "students you need to engage and I loved that charge and I want you to know our kids are engaging. I saw one of the students is on the Zoom tonight Junior Maddy Feldman, is part of a group of GDS high school students who are organizing students all over the DMV to volunteer as poll workers. They are not old enough to vote, but they want to make sure that other people can. They're also lobbying for voting rights. And to the students—it's your work now—and it will be your work. You will be the judges, you will be the attorneys general, you will be the changemakers that our world needs. You are our hope. This was the first in our 75th Anniversary Speaker Series, our next event, which will be totally different, but also wonderful, takes place on October 28, it will focus on entertainment, it will feature actors Kelly Aucoin and Ethan Slater, along with entertainment writer, Gina Gionfriddo and television producer Terence Carter—all alumni of GDS. And it will be moderated by the inimitable High School Performing Arts chair, Laura Rosberg. So please join us on October 28. We look forward to another terrific evening. Thank you for joining us tonight. Thank you for being part of this community. We'll see you soon.
Thank you all. Thank you.