Remarks as prepared for delivery
Good afternoon. Thank you, Urja [Mittal], for your kind introduction. And thank you to the American Constitution Society and Yale Law School for hosting this weekend’s conference. It’s a pleasure to join so many distinguished scholars, committed advocates, and passionate students for today’s critical conversation on law and inequality.
I have been at the helm of the Civil Rights Division for one year, and let’s just say it has been a rather intense and active year for us. Civil rights issues are once again at the center of our most pressing national debates, in part due to broad community mobilization and responses to recent tragedies.
One major catalyst has been the conversation around policing and criminal justice reform.
We’ve all heard the names. Eric Garner. John Crawford. Tamir Rice. We know the tragic stories. Rekia Boyd. Walter Scott. Freddie Gray. High-profile incidents across the country have thrust us into a national dialogue over the use of excessive force, racial profiling and stereotyping, officer and public safety, and a festering lack of trust between police departments and the communities they serve, particularly low-income communities of color.
But the unrest in Ferguson and Baltimore, for example, also highlighted underlying challenges of inequality and societal bias, built up over decades. We cannot overcome our biggest challenges in the criminal justice arena unless we understand the role that inequality plays in entrenching those challenges. Many of the problems in our criminal justice system reflect structural barriers to opportunity. And the truth is we ask more from our police officers than anyone reasonably can expect. Daily, they encounter people in crisis, mental illness, alcohol and drug addiction, and school discipline problems. We have thrown the criminal justice system at a host of social problems and too often given law enforcement one set of tools to address them: arrest and incarceration. The elevated conversation gives us an opportunity to connect these dots and address inequalities in criminal justice, housing, access to credit, schools, voting, and more. These issues are undeniably related.
As head of the Civil Rights Division at the Department of Justice, working alongside a team of dedicated colleagues, I have the privilege of enforcing the law in pursuit of equal justice and equal opportunity for all. Our work is grounded in the simple truth that all people deserve to be treated with dignity and respect. We strive to expand opportunity for all people to thrive – to learn, earn a living, and live in a safe and decent place. And we cannot rest until that vision becomes a reality for all.
I do this work for a living, but it’s also very personal for me. As the daughter of immigrants – and as the wife of a Vietnamese refugee whose family arrived in this country with no money but an abundance of hope and an unshakable belief in the American dream – I have seen firsthand what happens when people have the opportunity to succeed.
But I have also seen the tragedy that can result when that is not the case.
As a law student, like many of you today, I saw a criminal justice system entrenched with inequality and felt compelled to do something. Just a few months after graduation, I joined the NAACP Legal Defense Fund. Weeks in, I found myself in a small town called Tulia, Texas looking into a troubling series of cases.
I had heard about a drug sting that culminated in the arrests on a single day of 46 individuals, 40 of whom were African-American and six white or Latino people who were romantic partners of African-Americans. That morning, 12 percent of Tulia’s African-American population was jailed on low-level drug charges. A local newspaper ran the headline, “Tulia Streets Cleared of Garbage.” Despite little legal experience, I couldn’t ignore these simple facts.
So I got on a plane.
What I found in Tulia was deeply disturbing: an entire community torn apart, based on the word of a single officer who had himself been investigated for misconduct and racial bias during the so-called sting operation. His uncorroborated testimony had sent dozens of defendants to prison – for sentences ranging from 20 to 361 years – on charges they had sold small amounts of cocaine.
It took two long years to bring justice to our clients, but by 2003, we’d shown that this so-called victory in the “War on Drugs” had, in fact, been a grave injustice. As a result of our work, Governor Rick Perry pardoned the Tulia defendants. And four long years after their ordeal began, they were finally free.
Tulia is a story about race and official misconduct, but it’s also a study in how quickly things can spiral out of control for people of limited means. The vast majority of my clients were living in poverty or low-income. All had subpar legal representation.
As we at the Civil Rights Division work toward systemic reform of the criminal justice system, we are compelled to shine a light on an often hidden problem: the unjustifiable, frequently unconstitutional treatment of the poor.
At every step in the criminal justice process – from encounters with officers on the street to treatment by judges in our courts – people living in poverty or low income people are worse off than others. They are disproportionately arrested, jailed, and subjected to excessive fines and fees. As a consequence, they often find themselves trapped in a cycle of collateral consequences, such as the automatic loss of a driver’s license, the inability to get hired, and the inability to vote. And of course, the interaction of race and poverty is particularly pronounced in our criminal justice system.
Our report on the Ferguson Police Department, released in March, illustrates how law enforcement systems can unfairly harm the most vulnerable among us. The report made headlines for exposing a system pervaded by racial bias. We found that although African Americans made up 67 percent of the population, from 2012 to 2014 they were 85 percent of those subjected to a vehicle stop, 90 percent of those who received a citation, and 93 percent of those arrested. Discretionary police actions, use of force, and searches during vehicle stops were also overwhelmingly concentrated on the black population.
So undoubtedly, race was a factor. But we also found another powerful dynamic at work: the City’s undue focus on generating revenue through policing.
We uncovered emails explicitly stating that enforcement strategies had been undertaken “to fill the revenue pipeline.” Officers were instructed to take ticketing “to the next level” or risk “disciplinary action.” The amount collected in fines and fees exploded, nearly tripling from $1.38 million in 2010 to a projected $3.09 million in 2015. There were 50 percent more tickets issued in 2014 than in 2010 – even though Ferguson’s population did not change.
Even minor code violations sometimes resulted in multiple arrests, jail time and payments that exceed the cost of the original ticket many times over.
Here’s a prime example: in 2007, one woman received two parking tickets that – together – totaled $152. As of March, she had paid $550 in fines and fees to the city of Ferguson. She had been arrested twice for having unpaid tickets and had spent six days in jail. Yet she still – inexplicably – owed Ferguson $541. Sadly, her story is one of dozens.
Based on work around the country, we know there are similar police and court practices in many places. In the months subsequent to the issuance of our report, cities around the country are beginning to reexamine their policing and municipal court practices, though we know there is much more work to do.
It is simply unacceptable – and indeed, unconstitutional – that thousands of people are penalized merely because they are poor. As a result, before Ferguson and since, we have taken on other practices that unfairly disadvantage low-income individuals. In August, for example, we argued in an Idaho case that punishing homeless people for “camping” or sleeping in public, when there is insufficient shelter space in the city, criminalizes people for their status of being homeless, in violation of the Eighth Amendment. And, in an Alabama case this year, we argued that a system of prefixed bail amounts that imprisons people without regard to their ability to pay violates the Fourteenth Amendment.
We have also drawn attention to the failure to provide indigent defendants counsel in criminal cases. In several states, we have taken the position in court filings that indigent defendants are denied their Sixth Amendment right to counsel when their public defenders are so overworked and under-resourced that they serve as counsel “in name only.”
It’s worth talking about a couple of these cases. In July, we released the findings of our investigation into the juvenile justice system in St. Louis County. We found that chronic underfunding of the indigent defense system and significant delays in the appointment of attorneys resulted in the deprivation of counsel writ large. The county family court had just a single public defender and 400 new cases in 2014. Only three cases out of 280 closed that year actually went to trial, the vast majority of the rest ending with guilty pleas. And not a single appeal was filed in 2014. We are currently in negotiations with St. Louis County to reform this troubled system.
Our involvement in a Georgia case is another good example. There, a class of defendants in 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 named plaintiffs was a 16-year-old boy charged with stealing Halloween fangs worth $2.97 from Wal-Mart. 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 restitution, plus $50 in court fees.
We filed a brief asserting the Sixth Amendment rights of defendants and the special protections that must be provided to children. Less than six weeks later, the parties settled the case consistent with the principles we articulated, including enhanced resources for defenders and protections against uniformed waiver of counsel.
The bottom line is this: No one should be arrested, jailed, or denied a fair defense because they are poor. And, we cannot expect people to have confidence in our justice system until we build a system that provides basic fairness – that meets constitutional standards and provides access to justice, regardless of the size of one’s wallet or the color of one’s skin.
As I said when I began, we cannot have a conversation about policing and criminal justice in isolation of broader systemic inequality. Structural barriers to opportunity – in housing, in access to credit, in our schools, and at the ballot box – can foster disaffection, alienation, and isolation, and unquestionably have an impact on our criminal justice system . That’s why the division works in each of these areas – and many others – enforcing the law to ensure people have the opportunity to invest in their own future, free from discrimination.
I want to share just a bit of this work with you today.
First, we fight for fairness in housing. Too often in this country, where you live determines what opportunities you have in life. Housing is not only about shelter. It can affect where you get a job, the kind of school you go to, how you get to work, and whether you live in a safe community. While there are no guaranteed equal outcomes, we do strive as a nation to ensure an equal shot at opportunity.
That is why we’ve successfully enforced the Fair Housing Act, a critical civil rights law passed in the wake of Dr. King’s death. Last fall, we settled a major Fair Housing Act case that involved the owners of several apartment complexes turning down African-American applicants, but then signing leases with similarly qualified white applicants. And this summer, the Supreme Court affirmed our position that policies and practices with unjustified discriminatory effects are inconsistent with the Fair Housing Act.
We’ve also sued housing authorities in Georgia and Louisiana that continued to segregate residents by race well into the 21st century. And, targeting residency requirements used to perpetuate segregation, we recently sued the Town of Oyster Bay on Long Island, an overwhelmingly white community, because it decided to give preference to existing residents when deciding who would be eligible for affordable housing programs.
Housing provides a platform for future growth, and outlawing discrimination in this space is essential to creating tangible opportunity for all.
Second, fighting inequality means protecting the rights of people to borrow money without bias or discrimination. Equal access to credit is a fundamental part of our work. Credit provides an essential pathway to education, entrepreneurship, and homeownership. It allows us to increase our earnings and accumulate wealth. And it helps ensure a level playing field for all people to build a better life and a brighter future.
The Civil Rights Division focuses on the kind of abusive and discriminatory financial practices that leave Americans fighting day to day to escape a crushing debt burden. And we’ve been hard at work to deliver results.
In the last five years, we’ve obtained more than $1.3 billion in relief for individual borrowers and impacted communities through lending and similar types of settlements. In fact, just this summer, we announced a $25 million settlement with Honda over allegations of race and national origin discrimination in auto lending.
In addition, the ability to secure mortgages on equal terms is essential in housing opportunities and building integrated communities. As a result, since 2010, the division has settled more than 20 suits alleging discrimination in mortgage lending, including pricing discrimination, steering, and redlining.
Just last month, we worked with the Consumer Financial Protection Bureau to reach a $27 million settlement with Hudson City Savings Bank to resolve allegations that the Bank engaged in a pattern or practice of “redlining” predominantly Black and Hispanic neighborhoods in its residential mortgage lending practices. This resolution marked the Justice Department’s largest residential mortgage redlining settlement in its history.
Third, education remains the single most important ticket to new opportunity in America. Unfortunately, our most vulnerable communities often struggle with the worst schools. In response, we continue to address situations of separate and unequal schooling through our desegregation cases, seeking to obtain resources for under-resourced and predominantly minority schools. In April, we entered into a settlement with the Huntsville, Alabama, Public Schools to redesign school attendance zones, improve access to quality courses, and address student discipline procedures influenced by racial discrimination.
Even after the monumental progress our nation has seen in the decades after Brown v. Board of Education, we have found that in many cases today, excessive use of school discipline has become a new tool and form of segregation. Schools should not respond to minor, nonviolent misbehavior with suspension, expulsion, and school-based arrests. These actions can have devastating consequences on whether students succeed, not just academically but throughout their lives. We aim to ensure that school discipline is not overly punitive and disproportionately enforced against students of color and those with disabilities.
Just this month, we filed a statement of interest in federal court in the Eastern District of Kentucky in a case where a third and fourth-grader allege that a school resource officer used excessive force to handcuff them after behavior caused by their disabilities.
Fourth, addressing the root causes of inequality demands that we protect the ability to participate in our democracy. No right is more fundamental than the right to vote: it is the bedrock of our democracy – the right from which we derive our ability to protect and vindicate all other rights. Unfortunately though, as well all know, there are still too many Americans who are hindered or prevented in registering to vote, in voting, and in electing the candidates of their choice because of their race, color, language ability, disability, military service, or living abroad.
The Civil Rights Division works to ensure that every eligible American has meaningful access to the ballot. We have fought to enforce the Voting Rights Act, winning a major victory against Texas’s voter ID law last fall. A federal judge held that the law, which required new forms of ID that more than 600,000 registered voters lacked, violated the Voting Rights Act. That decision was upheld by the Fifth Circuit Court of Appeals the day before the Act’s 50th anniversary. We also challenged a new voting law enacted in North Carolina, which comprises a number of troubling restrictions, including the elimination of same-day registration and a significant reduction in early voting days. And we have filed statements of interest and amicus briefs in cases ranging from Wisconsin and Ohio to tribal nations in Montana and South Dakota, where plaintiffs are challenging voting restrictions.
The problems associated with inequality, unequal opportunity, and unequal justice in our country are vast. And the challenges they create are complex.
We understand that the progress we seek will not come about overnight. And the attention of the public and the media may shift tomorrow.
These challenges demand sustained and bold leadership from all of you in this room. And they urge each of us, whether we are students or professors, government officials or legal advocates, to participate in thoughtful, candid, and open dialogue about systemic causes and results.
At the Department of Justice, I continue to be driven by the simple belief I learned as the daughter of immigrants and as an aspiring young lawyer motivated by the ideals of justice and love of my country.
It’s the belief that every individual has the power to make a profound difference in the lives of others. The power to make change – and to bring hope – to people desperately in need. The power to advance the pursuit of justice woven into the founding fabric of our democracy. And the power to bend the arc of history itself.
No matter how complex the problems may appear, no matter how deep the divides of inequality may seem, and no matter how many new obstacles we may discover, let us never lose sight of that guiding mission. Let us never forget that together, we can achieve dramatic and innovative change that creates ripples of hope across our country. And let us signal to the world that today in America, the pursuit of a more perfect, more equal, and more just union lives on.