CELEBRATE FREEDOM IN OUR DEMOCRACY  BY CELEBRATING DIVERSITY The 2000 Law Day Address  by Ernie Lewis, Public Advocate

Mr. Chief Justice and members of the Court, distinguished guests, new members of the bar and their families. It is a great honor to be asked by the Chief Justice to deliver the turn of the century address celebrating Law Day. I am especially pleased to deliver the Law Day address on the topic of diversity in our democracy.

In many ways, my being here is evidence of the commitment of the Court of Justice in Kentucky to celebrate diversity. I am a public defender. Public defenders have in many ways been the forgotten members of the bar. Yet I have been selected by the chief justice to deliver the address on this day set aside to recognize the importance of living under law.

Thank you Mr. Chief Justice for your raising up public defenders, for recognizing the importance of diversity, and for your own commitment to diversity.

You are committed to diversity in our profession. You have spoken passionately of the need for more diversity in our justice system. In an address delivered last year before the annual public defender seminar, you noted that a 1997 National Center for State Courts survey had uncovered a sharp dividing line between minority and majority groups in this country in their opinions on our justice system. You stated that, "although I know that the judicial system aims at equal treatment both systematically and on a personal basis, the fact that there remains even the perception of unequal treatment before the law is disconcerting." You announced an initiative to work with the presidents of Kentucky's 8 public universities designed to identify qualified minority students and recruit them to law school. Thank you, Mr. Chief Justice, for your commitment to doing something both to celebrate and create diversity in our profession.

I have been asked to give a few thoughts about the role of citizens in a diverse democracy.

How to "extend the blessings of liberty to diverse people as our democracy under the rule of law changes and matures."

I am especially going to concentrate on the role of lawyers in a diverse democracy.

This discussion is especially appropriate for you on this day, the day that you are being sworn into our profession. On the threshold of your first job as a lawyer.

I have always thought that the first job of a lawyer is the most important, because in many ways it is during the early days of the practice of law that you put flesh to your values and vision.

You will learn what questions to ask. You will be tested by what you see and experience. The decisions you make will shape the lawyer and the person that you will become.

Lawyers who saw things as they were and decided to change things. Lawyers who saw things as they could be and asked why not. Lawyers who looked into the eyes of the poor, the oppressed, children, and did what they could to improve things.

Diversity is an essential part of our democracy.

• It is important because it adds content to the promise of the constitution and the declaration of independence.
• It is important because it adds richness and texture to our policy-making.
• It continues to challenge us, helping us to avoid smugness and the concentration of power in the upper class.
• It acts as a fuel for hope for all newcomers and all those who feel left out of our society.
• I will be discussing diversity in the context primarily of race. Diversity also applies to gender, class, physical and mental disabilities.
• While it is important to celebrate diversity, it is also important to acknowledge that ours is a democracy in mid-journey, and that while progress has been made, issues remain that are serious challenges to our vision of America as a land of equal opportunity under the law.
• These issues have been with us, in many instances, since the birth of our nation.
• We began our journey by bringing black Africans to work our soil.
• Unfortunately, we began with 17^th century version of racial profiling. Professor Terry Maclin points out at 51 Vanderbilt Law Review that "racial profiling" has an "ancient pedigree. Philadelphia in 1693 gave city officials power to stop and detain any black, free or slave, who was "gadding abroad" without a pass. South Carolina in 1696 required slave patrols to search slave’s homes weekly for concealed weapons. By 1738, Virginia authorized mandatory searches of the homes of all blacks.
• In our Declaration of Independence and our Constitution we jointly held out the promise of equality for all peoples while at the same time we were in practice working the men and women of Africa against their will in order to enrich our economy.
• The Dred Scott case dramatically show cased the fracture in our democracy, where the highest court in the land said that the Negro slave was not a person.
• In 1862, Frederick Douglas said in reflecting on the justice system of the time: "justice is often painted with bandaged eyes, she is described in forensic eloquence as utterly blind to wealth and poverty, high or low, white or black, but a mask of iron however thick could never blind American justice when a black man happens to be on trial…it is not so much the business of his enemies to prove him guilty, as it is the business of himself to prove his innocence. The reasonable doubt which is usually interposed to save the life and liberty of a white man charged with crime seldom has any force or effect when a colored man is accused of crime."
• The promise of our democracy continued to grow unevenly, with the problem of race impeding its progress.
• Reconstruction was replaced by Jim Crow.
• Our society attempted to progress separately, holding out the promise to former slaves that they would achieve equality thereby.
• Since the 1950’s, we have experienced integration of schools, voting rights legislation, the civil rights movement, affirmative action.
• Truly, our democracy is a work in progress, one which is in need of persistent reinventing and examination.
• Today, there are signs of distress in our democracy, signs that our progress toward diversity has not yet fully succeeded.
• Those signs of distress are apparent in the encounters between the police and citizens, they are apparent in some of our sentencing practices, they are apparent in the application of the death penalty, and they are apparent in our provision of indigent defense services.

This is not a good time for citizen/police encounters.

Earlier this year in a legislative hearing I heard Chief Larry Walsh of the Lexington Fayette County Police Department state that the last year had been the worst in his memory for police/citizen relations.

Haitian immigrant Amadou Diallo was gunned down by 4 white police officers as he pulled his wallet from his pants.

He was said by his uncle to have loved America more than Americans did.

He was confronted by New York City’s elite street crime unit consisting of 400 undercover officers whose motto was, "we own the night."

In 97 and 98, the S.C.U. stopped and searched 45,000 men, mostly African-Americans and Hispanics.

Yet officers Sean Carroll, Kenneth Boss, Richard Murphy and Edward McMillan were looking for a rapist but found Diallo at the front door of his apartment building.

4 blacks were on the jury that acquitted the four officers.

The ramparts scandal in Los Angeles has shaken the criminal justice system to its core.

• The rampart police station was in charge of an 8 square mile area with 30 different street gangs. It featured a unit called CRASH, or Community Resources against Street Hoodlums.
• They were effective. They reduced murders from 170 a year in the 1960s to only 33 in 1999.
• But there was a dark side to this success, a dark side that contradicted the ver rule of law they purported to uphold. Their reign of terror was not broken until officer Rafael Perez revealed that a police anti-gang unit in LA was regularly engaging in framing innocent people by planting drugs and guns, beating up citizens, and perjuring themselves to get convictions.
• Officer Perez revealed that in 1996 crash had shot a 19 year old gang member named Javier Francisco Ovando, and put a rifle at the crime scene in order to claim self defense. Ovando is now paralyzed.
• He further revealed a shooting of Juan Saldana, who bled to death while the police were comparing notes on the shooting.
• 40 convictions have already been reversed, and an additional 17,000 convictions are now at risk.
• 70 anti-gang officers are being investigated.
• 20 officers have been relieved of their duties.
• The first indictments have recently been returned.

• We all learned in law school that in the late 60s the supreme court approved of a Fourth Amendment encounter between police and citizen short of probable cause. Terry v. Ohio.
• Terry… has expanded in scope considerably since that time, further giving to the police the ability to seize citizens, particularly young, minority citizens, and invade their privacy in a variety of settings.
• 20 years later, in Whren v. United States the court said that it does not matter whether a stopping is a pretext so long as the stop can be classified as a Terry stop, that is so long as there is a reasonable and articulable suspicion of wrong-doing, including a minor traffic infraction.
• In Illinois v. Wardlow the court stated that the police may stop someone with no evidence of wrongdoing, in a high crime area who flees from them, so called "running while black."
• I would be remiss if I did not note the most recent word on this subject. The court recently in Florida v. JL outlawed the practice of "standing while black," that is they rejected an anonymous tip which was uncorroborated in any significant detail as being sufficient for a stop and frisk.
• A recent note in the Texas Law Review revealed that from 1989-1992, of 1000 motorists stopped by the Volusia county sheriff’s department in Florida, 70% were African-American or Hispanic. 80% of those stopped and subsequently searched were also African-American or Hispanic. Yet, only 9 of the 1084 were cited for breaking any traffic law.
• A Vanderbilt Law Review article by Professor Terry Maclin of Boston University recounted a Maryland study on I-95 finding that 93.3% of all drivers are violating the law at any 1 time, that 17% of drivers were black, but that 72% of those stopped were black, and that 80% of the searches were of blacks, Hispanics, or another minority.
• 73% of motorists stopped and searched in New Jersey in 1999 were African-Americans.

These are occurrences that are undermining citizens’ faith in our police.

• A recent survey of Bronx residents revealed only 11% who thought the police treated them fairly.

• A nationwide survey revealed that 44% of African-Americans were less likely to believe the police as a result of recent scandals.

• In executive order 2000-475, on April 21, 2000, Governor Patton ordered that "no state law enforcement agency or official shall stop, detain, or search any person when such action is solely motivated by consideration of race, color, or ethnicity, and the action would constitute a violation of the civil rights of the person."

In 1972, 196,000 prisoners were incarcerated in America. 130,000 prisoners were in jail. 1 in 625 were incarcerated. By 1997, 196,000 had risen to 1,159,000 in prison. 130,000 had risen to 567,000 in jails. 1 of every 155 citizens is incarcerated.

American prisons hold more of our citizens than all the nations of the world other than Russia.

• This is a more recent phenomenon.
• In 1926, blacks were 21% of prison population.
• Blacks account for fewer than half of arrests for violent crimes, over half of the convictions, and 60% of the prison admissions.
• A 1995 report showed that blacks received prison sentences 10% longer than whites for the same crime in federal court, despite the sentencing guidelines.
• In 1998, 36% of the 3.9 million people who were disenfranchised temporarily or permanently as a result of their being convicted of a crime were African-American.
• 1 in 3 young black males in 1995 were under the control of the criminal justice system.
• 1 in 14 adult black males is locked up on any given day.

• A recent study by the National Council on Crime and Delinquency revealed that while minorities make up 1/3 of the juvenile population, 2/3rds of the 100,000 detained and committed youth in secure juvenile facilities are minorities.
• Blacks are 15% of the juvenile population from 10-17, but 26% of juveniles arrested, 45% of those detained.
• While 1/3^rd of adjudicated cases involve black youths, 40% of juveniles in secure residential placements are black.
• Kentucky is the 5^th worst state in the nation in this regard.
• In Kentucky, where minorities are 11% of the juvenile population, minorities are 40% of the children committed to public facilities. Black juveniles in Kentucky have a custody rate 5 times greater than white youth.
• In Kentucky, from 1997-2000, blacks were 56% of juveniles transferred, 5 times their proportion of the general population.

• 1990 study in New York state showed significant disparities between minorities and whites who commit misdemeanor and property offenses.
• 1990 Rand study concluded that offenders in California received generally comparable sentences when looking at severity of offense and record, with the exception of drug sentencing.
• Many states have implemented structured sentencing, which takes away judicial discretion in order to achieve a rough level of equity in sentencing.
• Many, including policy makers in Kentucky, have rejected that policy position, fearing the solution would outweigh or exacerbate the problem.

• Marc Mauer in Race to Incarcerate says, "since 1980, no policy has contributed more to the incarceration of African-Americans than the war on drugs. To say this is not to deny the reality of drug use and the toll it has taken on African-Americans and other communities; but as a national policy, the drug war has exacerbated racial disparities in incarceration while failing to have any sustained impact on the drug problem."
• Blacks represent 15% of drug users but 33% of drug possession arrests.
• Blacks represent 18% of cocaine use, but 47% of cocaine possession arrests.
• In 1994, 90% of those convicted of trafficking in cocaine were black. Yet, Africans-Americans are only 12% of the drug users in America, and 35% of the crack users.

• Minorities are victimized by crime more than any other segment of our population.
• We must understand what our system is doing to these communities.
• The effect it is having on their participation in our criminal justice system.
• The effect it is having on their families.
• The effect it is having on their participation in our democracy.

The ultimate sentence, the death penalty, also raises serious concerns in its present implementation. Historically, the death penalty was a tawdry and racist practice. 455 persons executed for rape during 1900-1950, 90% were black men. No whites were executed for raping a white woman. 2/3rds of the 288 children executed in this country have been black.
4/6ths of the children executed during Kentucky's history have been black.

All 40 children executed for rape were black.

The remnants of this racist past remain with us, hidden in some troubling statistics.

Death row is holds 42% African-American, while African-Americans constitute 13% of the population.

Prof. David Baldus has published studies in the Cornell Law Review in 1998 revealing that race of victim and defendant continue to be significant factors in New Jersey and Philadelphia, similar to his previous studies in Georgia showing the same thing in the 70s and 80s.

Mcklesky v. Kemp ignored clear evidence of a pattern of race discrimination in the death penalty.

• The study presented in this case showed that a defendant’s odds of getting death were 4.3 times higher if the victim was white.
• Justice Powell ruled that statistical evidence of systemic discrimination was insufficient basis for relief absent direct evidence of discrimination by the prosecutor or jury.
• The majority stated that allowing such statistical proof would throw "into serious question the principles that underlie our entire criminal justice system." Justice Brennan in dissent wrote that the majority "seems to suggest a fear of too much justice."

Profs. Keil and Vito study of murder trials in Kentucky from 76-91 conducted at the request of the General Assembly found that "blacks accused of killing whites had a higher average probability of being charged with a capital crime (by the prosecutor) and sentenced to die (by the jury) than other homicide offenders.

A 1990 GAO study found "racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision."

• We represent the poor.
• We represent many minorities.
• Our lawyers have historically not been represented in the bar and on the judiciary.

• How the 6^th Amendment promised the right to counsel for citizens in federal courts.
• How states unevenly provided counsel to the poor.
• How it was not until the 1930s that counsel to poor people charged with capital crimes was guaranteed.
• How it was not until the 1960s in Gideon v. Wainwright that the right to counsel in all felonies was guaranteed for the indigent accused.
• How in Kentucky there had long been a history of lawyers providing pro bono services to the poor.
• How a group of Kentucky lawyers challenged the system of requiring lawyers to do these services without compensation, how Kentucky court of appeals agreed in Bradshaw v. Ball, all leading to the statutory creation of the Department of Public Advocacy.

• The indigent defense function has been historically underfunded, so that by 1998, it was the poorest funded public defender system in the United States.
• The cost per case was only $187 per case.
• The cost per capita was under $4.90 per case.
• The starting salary was $23,388.
• And while some full-time prosecutors suffer from similarly low salaries, the prosecution function receives 3 times the defense function, despite our providing representation in 85% of the cases in circuit court.

• Consisting of highly committed but poorly paid public defenders.
• Public defenders with caseloads averaging 475 new cases per year per lawyer in FY 99.
• Creating injustice every day in our court rooms across Kentucky.
• Threatening the reliability of the verdicts that our juries are reaching in over 100,000 cases each year.

We have lawyers who have committed themselves to working on these issues. Let us celebrate lawyers who have tackled these problems and by doing so have endorsed diversity.

Let us celebrate the life of Abraham Lincoln, a lawyer, as an old model for our profession.

• The dominant moral issue of his time was that of the continued slavery of millions of black Africans.
• He devoted his life as president to rejecting the system of slavery, and led the nation in our greatest moral struggle.
• He then set out to bring reconciliation between north and south, black and white, and gave his life for that.
• Let us celebrate the life of Abraham Lincoln.

• He went to law school as a young man.
• He began to fight against a system of racial apartheid.
• He said in his book "long walk to freedom" that "my career as a lawyer and activist removed the scales from my eyes…I went from having an idealistic view of the law as a sword of justice to a perception of the law as a tool used by the ruling class to shape society in a way favorable to itself. I never expected justice in court, however much I fought for it, and though I sometimes received it."
• He was jailed repeatedly for his activism.
• Eventually he was imprisoned for life.
• Again from his book, he says that "no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones—and South Africa treated its imprisoned African citizens like animals…there were many dark moments when my faith in humanity was sorely tested, but I would not and could not give myself up to despair. That way lay defeat and death…the campaign to improve conditions in prison was part of the apartheid struggle…we fought injustice where we found it, no matter how large, or how small, and we fought injustice to preserve our own humanity."
• He was in prison for 10,000 days until the bonds of oppression could hold no longer.
• His goal when he got out: "To make peace with an enemy one must work with that enemy, and that enemy becomes one’s partner."
• He became his nation’s president. He led his nation into an extraordinary movement of reconciliation between the oppressed and the oppressor, where the oppressors asked forgiveness from the oppressor.
• Looking back he reflects: "It was this desire for freedom of my people to live their lives with dignity and self respect that animated my life, that transformed a frightened young man into a bold one, that drove a law-abiding attorney to become a criminal…I found that I could not enjoy the poor and limited freedoms I was allowed when I knew my people were not free…the chains on any one of my people were the chains on all of them, the chains on all of my people were the chains on me. It was during those long and lonely years that my hunger for the freedom of my own people became a hunger for the freedom of all people, white and black.
• Let us celebrate the life of Nelson Mandela, a lawyer.

• An African-American lawyer from Lexington.
• A teacher at KSU.
• A legislator who guided the Racial Justice Act through the house in 1998.
• A legislator who in the 2000 General Assembly sponsored a bill that would have stream-lined the process of restoration of voting rights for persons released from prison, knowing that this disproportionately disenfranchises Africans-Americans.
• Let us celebrate the life of Jessie Crenshaw, Kentucky lawyer.

• An African-American lawyer from Louisville.
• In 1992, 94, 96, and 98, he was the primary sponsor of the racial justice act.
• He successfully guided this bill through the senate to its final passage.
• Kentucky now stands as the only state in the nation to have a law prohibiting racial discrimination in the charging process for capital crimes, and allowing for the use of statistical evidence as proof of racial discrimination.
• Gerald Neal introduced SJR 86 which would have directed DJJ, JJAC, and SEJAY to study disproportionate minority confinement.
• Let us celebrate the life of Senator Gerald Neal.

• They gathered as a group and looked at the problems with the funding of indigent defense in Kentucky.
• They made an extraordinary recommendation: that Kentucky needed to fund indigent defense at a rate of $11.7 million each year in new general fund dollars.
• They went to Governor Patton to urge him to endorse this recommendation.
• Governor Patton agreed to fund the BRG recommendations over 4 years, and put $10 over the biennium into his budget.
• This was funded by the 2000 General Assembly.
• Let us celebrate the lives of these Kentucky lawyers.

• Danville native
• UK student body president in the early 80s
• A public defender in Washington, D.C.
• Established the Southern Center for Human Rights.
• Teacher at Yale, Harvard, and Emory law schools.
• Argued Amada v. Zant in 1988 before the US Supreme Court.
• Presented with the 1998 Thurgood Marshall award at the ABA Annual Meeting.
• Takes a small salary ($23,000) out of the money raised and recruits the best and brightest to represent death-row inmates in the south.
• From Proximity to Death, by William Mcfeely: Steve Bright has made a difference. "but the personal price is high. Although Bright affects an all-in-a-day’s work approach, there can be no doubt that experiencing two executions in one week is wrenching. After a final appeal in the Joseph Carl Shaw case in South Carolina, Steve spent the last day with J.C., walking with him to the execution chamber, and was there as Shaw was strapped into the electric chair and killed. Immediately afterward, with almost no sleeping, Bright was on a plane to Florida, after another appeal had failed, to repeat the draining experience of staying with James David Raulerson until his death.

• Louisville lawyer with Woodward, Hobson, and Fulton.
• KBA president in 1998-1999.
• Member of the Blue Ribbon Group.
• Worked during his term as KBA President to fully fund civil legal services.
• In a speech before DPA’s 1998 Annual Seminar he promised to devote his term as KBA President to looking at the issue of racial injustice in the Kentucky Criminal Justice System.
• He said, "we must not ignore the fact that out of 12,500 members of the KBA roughly 150-200 are black. This is a terrible statistic. It is not my fault. It is not yours." It is the result of a nation where education has been undervalued for both black and white children, and where there has not been a long tradition of large numbers of black lawyers…this must change. It will only happen—but it must happen—over time. There must be intensive efforts by the Bar and the Judiciary to identify promising African-American students at the elementary, junior and high school levels and, quite simply, to indoctrinate them with the drive to become great lawyers."

Ours is a big, raucous, wonderful democracy.

Our profession is one which has played and continues to play a major role in the journey of our democracy.

Lawyers have:

• Kept nations together during civil war.
• Brought reconciliation between races.
• Raised up issues that were being ignored by the majority
• Simply put, they have looked at the problems in our society and tried to solve them.

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