Deputy Attorney General Eric H. Holder, Jr.

Remarks to the Coalition of Bar Associations of Color

McDermott, Will & Emery

600 13th Street, NW

Washington, DC

May 21, 1999

Good morning. It is my privilege, both as Deputy Attorney General and as a member of the bar, to be here. I thought I would talk about two themes of very strong personal interest to me. The first concerns the Department of Justice's projects regarding police integrity; the second concerns a plan to help increase the contribution lawyers can make to promoting racial justice.

As many of you know, America's communities have been trying to review the ways in which police officers do their jobs, how they handle deadly confrontations, and how they protect and respect the people they serve. There are nearly 700,000 law enforcement officers nationwide, and the overwhelming majority of them are hard-working public servants who do a dangerous job justly, fairly, with excellence and with honor. They put their lives on the line every day in the pursuit of justice and public safety, and they do that because they care about the people they are committed to serving.

Professional and dedicated police officers have done so much across this country to make their community a far better place to live. And the crime rate has fallen every year for the past six years in virtually every category. The thousands of community-oriented police officers who are on the streets have made a difference.

But some citizens, especially those in minority communities, are wondering whether our success in reducing crime has been due in part to improperly aggressive police officers who ignore the civil liberties of Americans. That concern has escalated and shown a more public face following the tragic shooting death of Amadou Diallo in New York two months ago.

And yet the issue is not what occurs in any one city -- be it New York or Washington. The issue is national and touches people everywhere. For too many people, especially in minority communities, the trust that is so essential to effective policing does not exist because residents believe that police have used excessive force, that law enforcement is too aggressive, that law enforcement is biased, rude, and unfair.

When minority communities, in the wake of a shooting, immediately assume the police officer, not the suspect, is at fault, we all suffer. The tensions that arise between the police and minority residents have serious consequences both in terms of effective policing and community unrest. When citizens do not trust their local police officer, they are less willing to report crime and less willing to be witnesses in criminal cases. When there is a breach of trust, it means people are more distrustful of the police, more tense when there is an encounter, and less likely to cooperate. As a result, police officers are more tense, and are more likely to react with more force than necessary. Suddenly, a routine encounter can become a deadly clash.

Over the past several months, the Attorney General and I have met with police chiefs, union representatives, community leaders, and young people at risk, listening as they have described the problem and made many suggestions that would generate trust and build solid relationships. There is probably no item more important to safe neighborhoods and civil rights than this task of improving relationships and building greater trust between minority communities and law enforcement.

Police chiefs and rank and file officers alike agree. They believe that if we want to maintain the trust and confidence of the community, we must take decisive action against those few officers who violate their oaths and deny citizens their constitutional rights by the use of excessive force or harassment. Police organizations, such as the International Association of Chiefs of Police, and the Police Executive Research Forum, have stated very clearly that police activity that is race or ethnic-based is neither legal, consistent with democratic ideals and principles of American policing, nor in any way legitimate and defensible as a strategy for public protection.

As a result of what police and community groups have both expressed, the Justice Department has announced a five-point plan. The first step is to expand and to promote the kind of partnership and dialogue that develops the mutual trust and confidence between police and the people they serve. The Justice Department is going to hold a series of meetings between police and community organizations, and try to focus on ways in which these two groups can work together. In this respect, the concepts of community policing and community prosecution can teach us a great deal, for they seek to improve public safety by involving the community and its residents in establishing police and prosecutorial priorities and involving police officers and prosecutors in the communities they serve. By breaking down suspicions, building up the trust, the community-oriented police officer becomes the peacemaker and the problem-solver without relinquishing his or her enforcement duties.

Our second task is to insist on police accountability. And I begin with the Department of Justice. We are conducting a self-assessment of our own use of force and civil rights processes, coordinated by the Inspector General, to ensure that we have procedures in place which hold us accountable to the American people, to all of the American people.

All law enforcement agencies -- federal, state and local -- from the director, chief or sheriff on down, must send a clear message that misconduct will not be tolerated and unfair treatment will not be countenanced. But this is not a responsibility of management alone. Rank and file officers must join together to promote a climate of integrity, civility, accountability and responsibility. Every law-enforcement agency should have a complaint process so people can file complaints without fear. If individuals fear retaliation, then they won't file complaints, and the agency will never learn of the problem. And every police department should make sure that it has in place a vigorous system for investigating allegations of misconduct thoroughly and fairly.

Third, we need to ensure that police departments recruit officers who reflect the communities they serve, who have high standards and who are then properly trained to deal with the stresses and the dangers of police work. In years past, too many departments had few, if any, minority officers. That has improved significantly. We now have, not just men in blue, but women in blue; not just whites, but people of all colors. When someone who grows up in the neighborhood becomes an officer there, they understand the people, they understand their concerns, and they know the languages spoken. They are men and women our youth can look up to as role models. Old stereotypes and prejudices are not as likely to be passed on to the next generation of police departments if those departments represent a diverse mix of society.

Fourth, we must increase our civil rights enforcement. The steps I have outlined so far are things we can do to prevent incidents of police misconduct in the first place. But when they do occur, we must take swift, sure action, and that means prosecution when appropriate.

Most cases of police excessive use of force are prosecuted by state and local authorities. But the Justice Department plays an important role. At any given time, the Civil Rights Division and the FBI are investigating several hundred allegations of criminal police misconduct around the country. During the past five years the Justice Department has criminally prosecuted over 200 law enforcement officers for excessive force. We pursue these cases vigorously. But we recognize that the law sets a very high standard of proof. To prove a federal crime, we must prove beyond a reasonable doubt that the officers had the specific intent to use more force than was reasonably necessary under the circumstances, given their training, experience and perceptions.

In addition to prosecuting individual officers, we also have the authority to sue police departments when we believe there is a pattern of misconduct. Under this authority, known as our "pattern and practice" authority, we can go to a court to force a police department to change the way it does business. Using this authority, we are currently investigating several law enforcement agencies across the country. In two instances, we have negotiated agreements with police departments to implement good practices. But as we pursue our pattern and practice investigations, we also will be working with departments on preventative measures so that we can address police integrity issues without litigation, where possible.

Fifth and last, we must take steps to gather the data that will help define the scope of the problem and measure our efforts to solve it. Right now we have only anecdotes and allegations. We need more. For the past several years, pursuant to the requirements of the 1994 Crime Control Act, the Department of Justice has tried to develop ways of measuring the level of excessive force incidents. Because police departments often don't keep such records, and because they are not required to report to the federal government statistics on the use of force by officers, we have had only limited success in developing the information.

That's why we're trying a new approach. Every year we conduct a survey of households across the country, asking whether residents have been victims of a crime. The Crime Victimization Survey is perhaps one of the most accurate reflections of law enforcement trends. This year we're going to update the survey to include questions on police misconduct -- questions like,"During the last year, have you had an encounter with the police in which physical force was used?" By doing this, we can get a better sense of the relationship people have with law enforcement and we will know whether the efforts police departments make are succeeding.

I believe data collection in the area of police stops is also very important. By keeping track, by race, of who is pulled over, why they were stopped, which motorists are subjected to searches and the outcomes of the stops, we can see where the problems exist and how extensive they are. If the numbers show that there is not a problem, then minority communities will have a better outlook on law enforcement and if the numbers are, in fact, disproportionate, then police departments will be able to study the issue and set out ways to reduce the discrepancy. I have been working with the White House to devise a system to collect this data across the entire law enforcement community.

In sum, I think we have begun to address the issue of police integrity in various ways - from trying to create a dialogue between community leaders and the police to the difficult task of trying to collect data on police abuse. I am hopeful that we can create a system that will prevent horrible abuses from occurring - and prevent the poisoning of the relationship between residents of communities and law enforcement on what I hope are, at the very most, the extremely rare occasions in which incidents do occur.

I now want to turn to my second topic, lawyers and racial justice. I've been thinking about this issue for some time now. When I was growing up, I watched as a young Thurgood Marshall won battle after battle in our courts - battles to fight for equality. Watching all of this, I was struck by the power of the law to change society for the better. And, ultimately, I went into the legal profession to try and make society a better place.

I am tremendously excited to publicly announce a project with which I have been involved. Last Fall, President Clinton asked me to organize a group of lawyers who could generate a plan on what lawyers could do to further the goals of racial justice. Many of the people in the initial meetings I have held on this topic are in this room today. Similar professional groups, such as those in higher education and the faith communities, have also been meeting to discuss what they can do to promote racial justice. But it occurred to me that lawyers have a special role to play in this. Not only because so much of our nation's progress on race has occurred through law - from the Fourteenth Amendment's guarantee of "equal protection of the laws" to the Civil Rights struggles in the 1950s and 1960s - but also because law has historically been a tool that has created racial injustice. From the original Constitution's protection of slavery to Jim Crow statutes, law has often been used as a mechanism to oppress racial minorities. It is a tribute to our country that the very tool that has kept us down has been used over the past fifty years to keep us strong.

But there is much more to be done. We need to not only continue our practice of using litigation and the courts to promote racial justice, we also need to develop new models for ways in which lawyers can help in this struggle. The litigation model of pro bono work has dominated our efforts up to this point. It is time now to move into a new phase of civil rights work for lawyers - a phase that capitalizes on all the other things lawyers do with their time when they are not in court.

After all, you and I both know that even the hardiest of litigators does not spend much of her or his day in the courtroom. Lawyers bring a host of other skills besides courtroom advocacy to their clients. Consider a few examples: A transactional lawyer might arrange financing for a deal his client is putting together. A litigator might facilitate a dialogue between adversaries with the hopes of settling a dispute. An in-house corporate attorney may give advice to the Board of Trustees on how to structure Articles of Incorporation to avoid disputes down the road - disputes that may have an adverse impact on share prices. An attorney working for the State of Illinois might counsel the Governor on ways to structure a program to insulate it from legal - and political - attack. And, perhaps one more familiar to me than many of you: a lawyer might develop insight about a company's problem with a proposed piece of legislation and might seek to bring those problems to the attention of legislators - a practice all of us refer to as lobbying.

A phrase that I think captures this diverse group of talents is "lawyers as problem solvers." What I hope to do is create a mechanism by which lawyers - all lawyers - can contribute to the task of furthering racial justice. The transactional lawyer who puts deals together might set up financing for an inner-city revitalization project -- such as in Northeast Washington, DC. A litigator's experience with settlement negotiations might provide her with the insight necessary to begin a dialogue between community leaders and law enforcement representatives on issues such as racial profiling and excessive use of force. An in-house corporate attorney might put her talents to use in helping a minority-owned business succeed. A lobbyist might use his connections to develop ways to improve financing of local schools. And so on. My goal is to try to get you thinking about all of the projects that we have neglected over the past years because we have thought about the contribution lawyers make to civil rights as largely a courtroom struggle.

The Attorney General and I have asked President Clinton to kick-off this campaign by challenging the bar to take a more active role in this process. Our hope is that the President will issue a Call to the Bar that will focus on the theme of racial justice, and stress ways in which lawyers can contribute to it. He has been deeply influenced by President Kennedy's call to lawyers in 1963 in which Kennedy challenged the bar to come up with ways to further race relations. That call eventually led to the formation of the Lawyers' Committee for Civil Rights Under Law, a Committee that has done so much for America. The Lawyers' Committee now has a national office in Washington, and affiliates in eight other cities. Over the past years, the Committee has provided legal assistance to individuals and civil rights causes by drawing upon the insight and resources of private law firms. The President's hope, and mine as well, is that his renewed call to action - thirty six years after President Kennedy made his - will encourage lawyers to develop the kind of innovative projects I have been speaking about.

Now let me be frank: To accomplish this, I need your help. I need your ideas, and I need your participation. If you have projects that you think are worthy of emulating on a national scale, please send them to me. And if you are willing to contribute some of your time to help organize the bar in your own city to create a structure for implementing the projects you all identify as important, that will help us along tremendously. I do not want this to be something that comes out of Washington, out of touch to what people in individual cities need, or what lawyers in individual cities might see as their unique contribution. And so, I need you, and I ask that you join with me. If we can work together to this task, I am confident that this country can be even greater than it is now.

Thank you.