Head of the Civil Rights Division Vanita Gupta Delivers Remarks at Southern Center for Human Rights Symposium on the Criminalization of Race and Poverty

Thank you, Sara [Totonchi], for that very kind introduction; and along with [President] Stephen Bright, for your bold leadership of this outstanding organization; and for your dedication, throughout your career, to tackling the toughest cases fearlessly.  It’s truly a privilege to join so many devoted public servants, engaged advocates and innovative policymakers for today’s symposium.  For four decades – through litigation, research and advocacy – the Southern Center for Human Rights has challenged discriminatory practices across the justice system: from jury selection, to correctional facilities, to capital cases.  You’ve fought to make the promise of the right to counsel a reality.  And you’ve addressed the indignities that result when private probation companies profit off the poor and deprive them of due process.  Throughout these efforts and so many others over the past 40 years, you’ve led the charge to make our criminal justice system more just.

The fitting title for this symposium – “Decriminalizing Race and Poverty: What’s Working and What You Can Do” – urges us to recognize the impact of our collective efforts and to address the unfinished work ahead.  That work is urgent and the facts are stark.  More than 2 million people are behind bars in America today – a figure that’s grown dramatically since the 1970s.  According to a recent report from The Sentencing Project, African Americans are incarcerated in state prisons at a rate more than five times that of whites.  And more than 60 percent of all inmates in county jails are defendants awaiting trial: many of them have committed non-violent offenses and are there simply because they cannot pay bail.

These facts translate into devastating consequences – for individuals, communities and society as a whole.  For people living paycheck-to-paycheck, a single incident – whether an arrest by the police or a fine by the court – can set off a downward spiral and lead to problems like losing your health care, your job, your children or your home.  When the criminal justice system ends up punishing people for the size of their bank account or the color of their skin rather than the severity of their crime, it raises serious constitutional concerns.  It traps the most vulnerable among us in perpetual cycles of poverty, debt and incarceration.  It undermines the legitimacy of our justice system.  It threatens the integrity of our democracy.

In the Civil Rights Division, with our efforts around the country and in partnerships with advocates and policymakers like you, we’re working to address these challenges and to advance an agenda for smart, fair and effective criminal justice reform.  We see a clear link between the criminalization of race or poverty and the erosion of public trust.  Through our investigation of the Baltimore City Police Department, 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 the damage they did 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.  One African-American man was stopped 30 times in less than four years – with none of the stops resulting in a citation or criminal charge.  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.  BPD 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.

Unconstitutional policing severely undermines community trust.  Blanket assumptions and stereotypes about certain neighborhoods and certain communities can lead residents to see the justice system as illegitimate and authorities as corrupt.  Those perceptions can drive resentment.  And resentment can prevent the type of effective policing needed to keep communities and officers safe.  In Baltimore, we found incident reports that documented how witnesses wouldn’t share basic information with officers.  And we read several reports where the person who originally called the police for help refused to cooperate after becoming upset by the police response.

We found a similar trend in Ferguson, Missouri, last year, where the criminalization of poverty – and intentional racial bias in police and court practices – eroded public trust.  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.  Officers and city officials also used racial slurs and stereotypes over email and on the job.

In Ferguson, we also found another troubling dynamic at play: the city’s undue focus on policing as a means to generate revenue.  This strategy resulted in a system where the police department and municipal court advanced policies that broke the law, criminalized poverty and destroyed trust.  We found emails explicitly referencing the use of enforcement strategies “to fill the revenue pipeline” – without due consideration for whether officers could better protect the city by focusing on neighborhood policing, rather than debt collection.  We found the city issuing 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.  And we found 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.

One man originally charged for driving with a revoked license in 2007 eventually owed the city more than $1,000 in fines and fees.  But without a job, he had no way to gather the money.  So he wrote to the city: “I want to pay you guys what I owe [and] … I have been trying to scrape up what I can [but] … with warrants it’s hard to get a job.”  The court clerk went ahead and issued a warrant for his arrest anyway.  We heard repeatedly from African-American women and men who said that all of these practices – from racial bias, to unlawful stops and searches – led them to lose trust in the integrity of their police and lose faith in the legitimacy of their public institutions.  Our Ferguson report resonated so widely because it gave voice to the sometimes subtle, but dangerous ways that the justice system can corrode a community’s belief that its government operates, and treats people, fairly – and with dignity, decency and humanity.

Earlier this year, we reached a comprehensive consent decree with the city to prevent discriminatory policing and reform abusive fine and fee practices.  The agreement requires community policing, civilian oversight, implicit bias training and accountability measures.  It also requires a comprehensive amnesty program to provide relief to those with open charges and pending debts imposed unfairly.  As of a month ago, the city had dismissed more than 32,000 court cases and canceled more than $1.5 million in fines.  The consent decree also requires the court to assess a defendant’s ability to pay and consider alternatives, like community service, before imposing financial penalties.  And the agreement ends the use of secured money bond completely. 

These problems aren’t limited to Ferguson; they extend throughout the country.  Earlier this year, we sent a dear colleague letter to state and local judges to help them reform unlawful fine, fee and bail practices that can result in an inescapable cycle of debt and incarceration.  Our letter also addresses private probation, ensuring that courts put safeguards in place to prevent unconstitutional practices by court staff and private contractors.  As we wrote in our letter, and as the Supreme Court ruled more than three decades ago, judges must preserve “both the appearance and reality of fairness, ‘generating the feeling, so important to a popular government, that justice has been done.’”  Doing justice requires ensuring no one is punished for living in poverty.

We’ve advanced similar arguments in our court filings on bail.  We’ve argued that when bail practices result in people being jailed simply because of their poverty, those practices violate the Constitution.  I want to share one of those stories with you, from the Southern Center’s own case led by Sarah Geraghty, Walker v. City of Calhoun.  The lead plaintiff in the case, Maurice Walker, is a 54-year-old man with a serious mental health disability who lives on $530 per month of Social Security disability benefits.  He was initially arrested on a misdemeanor charge of walking while intoxicated.  But he couldn’t afford the $160 in bail, so he stayed in jail for six nights.  Last month, the Justice Department filed a brief in the 11^th  U.S. Circuit Court of Appeals, arguing that bail practices that fail to consider a defendant’s ability to pay and alternatives to incarceration, resulting in the unnecessary jailing of people because of their poverty, violate the Constitution.  Such practices impede the fair and impartial administration of justice.  And they are simply bad public policy.

The Justice Department continues to address this concept of access to justice at every stage of the system.  We filed a brief in an Idaho case last year arguing that punishing a person for sleeping in public – when she has nowhere else to go – criminalizes homelessness and violates the Eighth Amendment.  As one of the plaintiffs in that case, Janet Bell, said in a news interview last year, “Of course, everybody wants to move the homeless, but they got to be somewhere, don’t they?”  The bottom line is that every human being must sleep at some time and in some place.  Being homeless is a serious hardship – not a criminal offense.

Combating the criminalization of poverty and safeguarding the integrity of our justice system also requires defending the right to counsel.  Because even more than half a century after the Supreme Court affirmed in Gideon v. Wainwright the “obvious truth” that a fair trial requires the right to counsel, too many barriers still exist.  And in too many places, the promise of Gideon is unfulfilled.          The Justice Department has addressed the constructive denial of counsel in cases around the country.  We’ve argued repeatedly that if public defenders cannot adequately provide traditional markers of representation – including time to talk confidentially with their client, investigate the issue and test the prosecution’s case – that can violate the Sixth Amendment.

Our involvement in the Southern Center’s case, N.P. v. Georgia, is a prime example.  With the help of Stephen [Bright], Sarah [Geraghty], Atteeyah Hollie and others, a class of defendants in the Cordele Circuit challenged the frequent absence of public defenders in juvenile court, the “meet ’em and plead ’em” processing of adults in superior court and the utter inability of the circuit’s three public defenders to provide adequate representation in their 1,400 cases.  One of the plaintiffs was a 16-year-old boy charged with stealing Halloween fangs worth $2.97 from Walmart.  The suit alleged that when he appeared in court, there was no public defender to assist him.  But the judge allowed him to admit to the crime.  He was sentenced to nine months of probation, 40 hours of community service and was required to pay $50 in court fees and $2.97 in restitution.  Along with the U.S. Attorney’s Office of the Middle District of Georgia, we filed a statement of interest asserting that due process requires every child facing a loss of liberty to be represented – from their first appearance through, at least, the disposition of their case – by an attorney with the training, resources and time to effectively advocate for their client.  Shortly after our filing, the local court reached a settlement that included enhanced resources for defenders and a specialization requirement for attorneys representing children in juvenile court.

The Department of Justice’s commitment to reforming our criminal justice system goes far beyond the Civil Rights Division.  Three years ago, when Attorney General [Eric] Holder announced the Smart on Crime Initiative, he said the Department of Justice was ready “to address persistent needs and unwarranted disparities by considering a fundamentally new approach.”  I remember vividly, as an advocate, when I first heard Attorney General Holder’s speech before the American Bar Association announcing this news.  It was a defining moment – not only in the cause of criminal justice reform, but also in the course of our nation’s history.  President Obama, Attorney General [Loretta E.] Lynch and Deputy Attorney General [Sally Q.] Yates have all worked tirelessly to put the approach of smart and fair reform into action.  The President has commuted 673 sentences so far – more than the past 10 presidents combined.  The Justice Department is advocating for bipartisan and much-needed sentencing reform legislation.  We’re phasing out our use of private prisons – due in part to growing concerns about safety, services and cost savings.  We’re shifting the paradigm for restrictive housing by using solitary confinement rarely, not by default, and by banning its use on juveniles.  And we’re working hard to ensure that the 600,000 women and men leaving state and federal prisons each year – people who served their time and paid their debt to society – get the support they need to restart their lives.

The ideals that govern our agenda for reform – fundamental fairness, equal protection and due process – are defining rights of our justice system and inherent values of American democracy.  These ideals are timeless.  They say to all people that while our country does not promise equal outcomes, we promise equal treatment.  We promise equal justice.  And we promise equal opportunity.  Thanks to the work of the Southern Center and others, we have made monumental progress in this space, progress once viewed as unthinkable and unimaginable, but our journey is far from finished.  None of us can rest until every person in this country – regardless of color or creed, race or religion, wealth or poverty – can live their lives with the dignity they deserve, with the rights our Constitution guarantees and with the respect our common humanity demands.  Thank you.