Head of the Civil Rights Division Vanita Gupta Delivers Remarks at the University of Texas at Austin’s LBJ School of Public Affairs 2016 Barbara Jordan National Forum

Good afternoon.  Thank you, Michele [Deitch], for your kind words.  I also want to thank Dean [Angela] Evans – and all of the students, faculty, and staff at the LBJ School of Public Affairs – for organizing this inspiring and energizing forum.  And I want to thank Shirley Franklin, the former Mayor of Atlanta and now the Barbara Jordan Visiting Professor of Ethics and Political Values at the LBJ School, for joining us.  Today presents an opportunity to honor the legacy of Barbara Jordan.  But it also provides a chance to apply the lessons of her life to the defining civil rights challenges of our time.

In so many ways, the story of Barbara Jordan’s life mirrors the story of America itself.  Born into the era of Jim Crow, Barbara Jordan felt the profound pain of racial inequality.  But confronted with fierce opposition, she responded with firm optimism in our country’s capacity for progress.  Time and again, she chose faith over fear.  She merged courage with compassion.  And she preached unity over division.  From the Fifth Ward of Houston, to the United States Congress, Barbara Jordan taught us about the power of our democracy to balance the scales of justice.  And she viewed government as the engine for change, calling it “our appointed mediator, prosecutor, defender – our means of guaranteeing our freedoms and protecting our frailties.”

Given the historic heights Barbara Jordan reached in her life, we could spend an entire day simply reciting her accomplishments.  Yet I suspect she would prefer otherwise.  I believe Barbara Jordan would urge us, together, to confront injustice, to build unity, and to drive progress.  In communities across our country today, too many people – especially young people, and people of color – hear plenty about the promise of equal opportunity but see only the reality of inequality.  They live in the face of inequality that threatens to derail their dreams for a brighter future.  And each day, discrimination continues to stack the deck against them.

So as we discuss the challenges in our criminal justice system, we must also acknowledge the systemic inequalities that we see in other areas.  Because discrimination in so many places – from the classroom, to the workforce, to the marketplace – perpetuates some of the inequalities that exist in our criminal justice system.  And for those already living in poverty, a single incident – whether an arrest by the police or a fine by the court – can lead to a cycle of severe problems that ruin lives and tear apart families.

As someone who focuses on civil rights work, I see these problems every day.  But I also see a country on the cusp of change.  Across a wide range of political perspectives, policymakers and advocates have come together to bridge divides and bring criminal justice reform to the center stage.

At the Department of Justice, we firmly believe that our country needs, and deserves, a criminal justice system that more effectively protects our communities, more fairly treats our people, and more prudently spends our resources.  But we also know that driving improvements in criminal justice requires a holistic approach.  From our schools to our streets, too many vulnerable residents end up entering the criminal justice system, sometimes for no legitimate reason at all.  And once they do, ineffective policies – from our courts to our jails – can leave them trapped inside for years.  Throughout the Civil Rights Division – and across the entire Department of Justice – we continue to address these challenges with a multi-faceted approach.

At the front end, we can see these challenges with our school-to-prison pipeline.  Too many of our children end up in the juvenile justice system without the rights our Constitution guarantees and the opportunities they deserve.  They may suffer devastating consequences that stem from simply acting out in class.  And suddenly they find themselves sitting at a detention hearing rather than a graduation ceremony.

In Meridian, Mississippi, a Civil Rights Division investigation found students suspended from school – and some later incarcerated in a juvenile detention facility – for the most mundane behavior: dress code violations like wearing the wrong color socks; flatulence in class; yelling at teachers; and leaving class for the bathroom without permission.  These actions disproportionately harmed children of color and children with disabilities.  And they did little to advance public safety.  In response, the Justice Department reached several agreements to remedy discriminatory school discipline practices in and around Meridian.  The department also reached agreements to address due process violations in school-based policing and in juvenile probation.  Together, these agreements seek to ensure appropriate resolution – rather than escalation – of school incidents.           

Eroding and fragmented trust in community-police relations also contributes to some of the issues that we see in our criminal justice system.  And in communities across the country, the Civil Rights Division continues to advance constitutional policing that builds trust between law enforcement officers and the communities they serve.  A key part of our efforts involves working to reform local law enforcement agencies engaged in a pattern or practice of constitutional violations, such as excessive force or racial profiling.  The agreements that arise from these cases – court-enforceable, independently-monitored consent decrees – hold the potential to serve as models for reform around the country.  These consent decrees – combined with the detailed recommendations of the President’s Task Force on 21^st Century Policing – can help police departments initiate dialogue, self-review, and meaningful reform before a critical incident occurs and before the Justice Department intervenes.

Over the past year, our nation has engaged in an unprecedented and robust dialogue about the relationship between law enforcement and the communities they serve.  As head of the Civil Rights Division, I have met with parents who lost children in tragic, officer-involved shootings; with youth who have lost faith in our justice system; and with vulnerable residents who feel humiliated in their encounters with police.  And in the same cities, I have heard the frustration from courageous police officers who talk about how they’ve become first responders for a whole set of social problems, including mental illness; who speak about facing blame for policies they didn’t create; and who explain how the daily stress of their jobs takes a toll.

Make no mistake.  The overwhelming majority of America’s police officers perform their jobs with honor, courage and distinction.  They enter the police academy because of a genuine desire to serve their communities.  And they deserve immense praise for keeping our streets and our families safe from harm.  But when police officers do not follow the law or when police departments use unconstitutional policies or practices, it can profoundly harm community trust and public safety.

Last year, our report on the Ferguson, Missouri, Police Department made headlines for exposing a system pervaded by racial bias.  At nearly every stage of the system – from traffic stops, to searches, to arrests, to the use of force – we found that Ferguson’s law enforcement practices disproportionately harmed African-American residents.  We found this disparate impact driven, in part, by racial bias.  Some city officials attributed the disparity to their belief that African Americans lack “personal responsibility.”  Other city officials routinely distinguished African Americans in Ferguson from the city’s “normal” residents or “regular” people.                                                                                                              

Beyond racial bias, we also found another powerful and troubling dynamic at work: the city’s undue focus on policing as a means to generate revenue.  We uncovered 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.  The amount of money coming from court fines and fees exploded, rising from almost $1.4 million in 2010, to a projected more than $3 million last year.  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 the inability of poor people to pay these fines and fees leading to multiple arrests, jail time, and payments that far exceeded the cost of the original ticket.  These practices left a devastating impact on poor residents.  In addition to residents, Ferguson police officers also expressed concern about the undue focus on law enforcement as a vehicle for revenue generation.  One officer questioned why the police department didn’t allow residents to use their limited means to fix broken headlights – and actually benefit public safety – rather than pay fines to fill the city’s coffers.

As we demonstrated with our lawsuit earlier this month, the Justice Department will continue its vigorous efforts to ensure that Ferguson’s law enforcement practices comply with the Constitution, while serving the entire community and supporting public safety.  Ferguson residents and police officers deserve nothing less.

But we know that this problem of excessive fines and fees extends well beyond Ferguson.  In fact, the problem exists in many of the country’s 6,500 municipal courts.  At a conference organized by the Justice Department and the White House last December, we heard court leaders express surprise, and even outrage, that such practices had become routine.  Many jurisdictions have already changed their practices of imposing excessive fines and fees on their residents.  And in the coming months, the department will continue its efforts to help other communities implement critical reforms in this area.

The Civil Rights Division engages in a wide range of efforts to combat unlawful policies that result in punishing people for their poverty.  Our involvement in an Idaho case last year provides a key example.  According to media reports, Boise resident Janet Bell became homeless more than a decade ago.  She lost part of her left arm from an infection she caught living on the streets, an infection that nearly killed her.  When the city began issuing her multiple citations simply for camping on the street, she had no money to pay them and no other place to go.  The police arrested Janet, along with several other homeless individuals, for violating Boise ordinances that criminalize sleeping or camping in public.

Last summer, the Justice Department filed a statement of interest in the case.  We made a simple argument.  Because every human being must sleep at some time and in some place, punishing a person for sleeping in public – when they have nowhere else to go – criminalizes homelessness.  It violates the Eighth Amendment.  Beyond the constitutional issues, criminalizing homelessness also constitutes poor public policy.  It fails to give homeless people the resources they need to get on their feet and find stable housing.  And it does nothing to break the cycle of poverty.

The disproportionate harm that policy choices visit on people in poverty also extends to our courts.  When poor people lack adequate legal representation, too often it leads to a chain of events that traps them in the criminal justice system.  Because even more than half a century after the Supreme Court ruled that a fair trial requires the right to counsel, too many poor defendants still face barriers to justice.  And in too many communities, insufficient funding for indigent defense can lead to situations where even well-intentioned and capable public defenders serve, in effect, as attorneys in name only. 

Take the story of Syracuse resident, James Adams, one of the plaintiffs in a case called Hurrell-Harring v. State of New York.  After he allegedly stole sticks of deodorant from a Rite Aid drugstore, police arrested him on charges of felony robbery and burglary.  He faced up to 14 years in prison.  With bail set at $2,500, which he couldn’t afford, James sat in jail for more than three months.  According to the New York Civil Liberties Union (NYCLU), he never saw his attorney outside of open court.  And at one of his court appearances, the attorney didn’t even bother to attend. 

The Justice Department filed a statement of interest to argue that denial of one’s Sixth Amendment right to counsel can result from a range of factors, including a lack of resources, high workloads, and under-staffed public defenders’ offices.  Just weeks after our filing, New York reached a comprehensive settlement agreement with the plaintiffs to implement transformative reforms to its public defense system across five counties in the state.

In another critical area, in certain pretrial detention systems around the country, bail practices end up penalizing defendants simply because they cannot afford to pay for their release.  Of course, sometimes we must use pretrial detention to protect the safety of our communities.  But bail or bond systems that fail to account for indigence can result in detention based on wealth, not on valid concerns such as public safety or securing defendants’ appearance in court. 

Consider the story of Clanton, Alabama, resident, Christy Dawn Varden – a 41-year-old mother of two who relied on food stamps and struggled with mental and physical health issues.  After police arrested her in a Walmart parking lot on shoplifting and other misdemeanor charges last year, she couldn’t afford to pay $2,000 in bail to get released.  The court said she had to wait in jail for one week before seeing a judge.  Shortly after she sued the City of Clanton, the Justice Department filed a statement of interest in the case.  We argued that using money bail to incarcerate someone solely because he or she cannot afford to pay violates the equal protection clause of the 14^th Amendment.  Earlier this year, the City of Clanton agreed to release most misdemeanor defendants without forcing them to pay bail.

Beyond the constitutional issues at stake, these troubling bail practices also constitute poor public policy.  Research demonstrates a compelling case regarding the impact of pretrial incarceration, without regard for one’s ability to pay, on public safety.  In addition, pretrial incarceration that results solely from one’s inability to pay can have a devastating impact on other areas of one’s life.  It can leave ripple effects throughout struggling communities.  And it can cause defendants to lose their jobs or their health benefits as they struggle to provide for their families.            

The division also works to protect the civil rights of inmates in our prisons and jails.  We continue to focus on the particular harms that solitary confinement and other forms of restrictive housing can cause for vulnerable populations, including prisoners with serious mental illness and juveniles.  In 2014, a Justice Department investigation found Pennsylvania prisoners with serious mental illness enduring prolonged solitary confinement under harsh conditions that caused serious harm, including severe mental deterioration, psychosis and acts of self-harm.  More than 70 percent of documented suicide attempts over a 17-month period occurred in the system’s solitary confinement units.                                     

Imagine the scene we discovered in Pennsylvania for prisoners with serious mental illness held in solitary confinement.  They spent nearly their entire day in a cell about the size of the average American bathroom.  It contained a thin plastic mattress on top of a metal bed frame.  A metal sink, metal toilet, metal desk and metal seat also filled the cell.  Some cells included a small exterior-facing window, but many did not.  Prisoners got limited out-of-cell time.  Five times per week, they spent one hour in an empty and caged outdoor pen.  Three times per week they took a 15-minute shower.  Before they could leave their cells, the prisoners had to first submit to a strip search.  And when prisoners did go to their out-of-cell activity, correctional officers transported them by shackling their arms and legs together.  These conditions had disastrous effects.

Just last year, the state reached a comprehensive settlement in another case to implement a wide range of reforms.  These reforms include extended periods of out of cell time for prisoners with mental illness and improved mental health training for corrections staff.                                  

Last month, President Obama announced that he would adopt a series of Justice Department recommendations to reform the use of restrictive housing – including solitary confinement – in our federal prison system.  This marked a critical, and indeed historic, step of progress.  The department’s report concluded that corrections officials should limit their use of solitary confinement by employing it rarely, fairly and reasonably.  The president directed the federal prison system – among other measures – to end solitary confinement for juveniles; divert inmates with serious mental illness to secure mental health units; scale back the use of restrictive housing for disciplinary purposes; and discourage the placement of inmates in any form of restrictive housing during the final six months of their prison terms.  The department’s report also set forth more than 50 guiding principles, or best practices, designed to serve as a roadmap for reform for state and local systems around the country. 

Of course, corrections officials face dangerous and complex challenges.  In some cases, restrictive housing is important to protect the safety of inmates, corrections staff and the public.  But we must change our approach.  We must view solitary confinement as a last resort to ensure staff and inmate safety rather than a first response to inflict punishment.

The stories I highlighted today share a troubling trend.  On those occasions when the criminal justice system ends up discriminating against people because of the size of their wallet, the color of their skin, or the condition of their mental health, it not only raises serious constitutional concerns.  It also traps the most vulnerable among us in a cycle of perpetual inequality.  It fails to advance public safety.  And it undermines the legitimacy of our justice system.

We cannot fix these problems by working in silos.  Real reform requires a holistic approach.  It demands collaboration.  And it urges us to bridge divides in pursuit of our common goal: equality, justice, and fairness for all people – regardless of your money, or your race, or your disability status.

Barbara Jordan spoke passionately about the “national community,” and “spirit of harmony,” that bind us together.  Yet as she reminded us, and as this forum highlights, “a spirit of harmony will survive in America only if each of us remembers… when self-interest and bitterness seem to prevail, that we share a common destiny.”

At the Texas State Cemetery in Austin, on the back of Barbara Jordan’s headstone we find these simple words: “Teacher Jordan.”  From public office to private life, Barbara Jordan continued to teach.  She taught us about the power of our democracy to level the playing field.  And she taught us that no matter the magnitude of the task, our country can rise to the challenge – so long as we remain aware of our past, optimistic about the present, and confident in our future.

Today, let us not only remember the life of Barbara Jordan.  Let us draw inspiration from her legacy to tackle the civil rights challenges of our time.  And let us, together, seize the promise of this moment to shape our country into a land filled with freedom, anchored in fairness, and governed by justice for all.                                                          

Thank you.