I remember one day, I went out to visit a group of program participants with two of my special assistant attorneys general, Jeff Tsai and Daniel Suvor. When we arrived, we were told that the men had created a musical group and they wanted to perform a song they’d written for me. “That’s great! What do they call themselves?” I asked. The answer made me smile: ContraBand. They were a wonderful sight. There was an older man in a yarmulke; a skinny guy doing his best Michael Jackson imitation; a guitarist who was definitely influenced by Santana; and a keyboardist who was channeling the Eagles. It turned out the song was called “Back on Track.” The chorus was “I’m back on track and I’m not going back.” They were really getting into it, having so much fun, all of them looking so proud.
We all clapped and cheered. I was laughing, but I found myself tearing up, too. I was so touched by their sincerity, which I hoped others could see in them. There was such beauty in the supposed impossibility of it all.
Whenever we held a Back on Track graduation during my time as DA, we’d make sure that current program participants were there to see what their future could hold. And whenever I spoke at those ceremonies, I’d tell the graduates what I knew to be true: that the program depended a lot more on them than on us. This accomplishment was theirs, and I wanted to make sure they knew it. But I wanted them to know that it was also bigger than themselves.
“People are watching you,” I’d tell them. “They are watching you. And when they see your success, they’ll think, ‘Maybe we can duplicate that. Maybe we should try it back home.’ You should feel inspired by that, by knowing that your individual success here will someday create an opportunity for someone you’ve never met before in some other part of the country.”
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When I first started as DA and I took out that notepad and made a to-do list, there was a lot I wanted to get done, a lot that needed to get done. I wanted to make sure I accounted for all of it. I even included “Paint the walls.” I was serious, too. I’ve always believed there is no problem too small to fix. I know it may sound trivial, but people were working in offices that hadn’t been painted in years. Not only was it a metaphor for the atrophy that had spread across the department—it was just plain depressing. The staff was demoralized. They felt undervalued, disempowered, and beaten down. Painting the walls was a tangible way to signal that I noticed—and that things were going to change.
I sent the staff a survey asking what they needed most to make the job better. One of the most common requests was for new photocopiers. It turned out that lawyers were spending hours pleading with an ancient machine and trying in vain to clear troublesome paper jams. So I ordered new copiers right away, and we celebrated more than you might expect when they arrived.
These were simple things. But the larger goal was restoring professionalism as the highest value. I knew that there was a direct link between professionalizing the operation and making sure it delivered justice. People needed to be at the top of their game. I was leading a DA’s office with a former culture that pitted people against one another. I wanted to turn that on its head and make sure we worked as a team. Every Monday afternoon, I’d have all the felony trial lawyers come into the library and present their cases and the verdicts from the previous week to a roomful of their colleagues. When it was your turn, you’d stand up and talk about the legal issues of your case, how the defense was presented, how the judge had responded, any issues you’d had with witnesses, and so on. At the end, I always led the applause, no matter the outcome of the case. It wasn’t so much about winning or losing. It was about applauding the professionalism of the performance.
Professionalism, as I see it, is in part about what happens inside an office. But it’s also about how people carry themselves outside the office. When I trained younger lawyers, I’d say, “Let’s be clear. You represent the people. So I expect you to get to know exactly who the people are.” I’d tell my team to learn about the communities where they didn’t live, to follow neighborhood news, to go to local festivals and community forums. “For the people” means for them. All of them.
The San Francisco District Attorney’s Office was certainly not the only government agency that was operating poorly. And I certainly wasn’t the first person to take over a mismanaged organization and focus on managing it better. But the stakes of repairing the DA’s office were greater than making the trains (or, in San Francisco’s case, cable cars) run on time; greater than improving morale and efficiency; greater than budgets and backlogs and conviction rates. At stake was justice itself. In a DA’s office, dysfunction necessarily leads to injustice. Prosecutors are human beings; when they are not at their best, they do not perform their best—and that could mean people who should go to prison walk free and people who shouldn’t go to prison end up behind bars. Such is the individual power of prosecutorial discretion.
I had divided my to-do list into three categories: short-, medium-, and long-term. Short-term meant “a couple of weeks,” medium-term meant “a couple of years,” and long-term meant “as long as it takes.” It was that far side of the ledger where I wrote down the most intractable problems we were facing—the ones you can’t expect to solve on your own, over a term, perhaps even over a career. That’s where the most important work is. That’s where you take the bigger view—not of the political moment but of the historical one. The core problems of the criminal justice system are not new. There are thinkers and activists and leaders who have been fighting to change the system for generations. I got to meet many of them when I was a child. You don’t add the intractable problems to the list because they are new, but because they are big, because people have been fighting against them for dozens—maybe even hundreds—of years, and that duty is now yours. What matters is how well you run the portion of the race that is yours.
It was my mother who had instilled that in me. I grew up surrounded by people who were battling for civil rights and equal justice. But I had also seen it in her work. My mother was a breast cancer researcher. Like her colleagues, she dreamed of the day we’d find a cure. But she wasn’t fixated on that distant dream; she focused on the work right in front of her. The work that would move us closer, day by day, year by year, until we crossed the finish line. “Focus on what’s in front of you and the rest will follow,” she would say.
That is the spirit we need to bring to building a more perfect union: recognition that we are part of a longer story, and we are responsible for how our chapter gets written. In the battle to build a smarter, fairer, more effective criminal justice system, there is an enormous amount of work to do. We know what the problems are. So let’s roll up our sleeves and start fixing them.
One of the key issues I focused on during my first year in the Senate was the country’s bail system—the process by which you can be released from jail while you await trial. It’s an issue that has only begun to get the attention it deserves, given the scope and scale of the injustice it exacts on people’s lives.
In this country, you are innocent until proven guilty and—unless you are a danger to others or highly likely to flee the jurisdiction—you shouldn’t have to sit in jail waiting for your court date. This is the basic premise of due process: you get to hold on to your liberty unless and until a jury convicts you and a judge sentences you. It’s why the Bill of Rights explicitly prohibits excessive bail. That’s what justice is supposed to look like.
What it should not look like is the system we have in America today. The median bail in the United States is $10,000. But in American households with an income of $45,000, the median savings account balance is $2,530. The disparity is so high that at any given time, roughly nine out of ten people who are detained can’t afford to pay to get out.
By its very design, the cash bail system favors the wealthy and penalizes the poor. If you can pay cash up front, you can leave, and when your trial is over, you’ll get all of your money back. I
f you can’t afford it, you either languish in jail or have to pay a bail bondsman, which costs a steep fee you will never get back.
When I was district attorney, I knew that every day, families were leaving the Hall of Justice, crossing the street, walking into those bail bonds offices, having done whatever it took to get the cash to pay the bondsmen—pawning their possessions, securing predatory payday loans, asking for help from their friends or at church. I also knew that people with defensible cases were taking guilty pleas just so they could get out of jail and back to their job or home to their kids.
The New York Times Magazine told the story of a struggling single mother who spent two weeks on Rikers Island, arrested and charged with endangering the welfare of a child, because she’d left her baby with a friend at a shelter while she bought diapers at Target. This young woman could not afford her $1,500 bail, and by the time she was released, her child was in foster care. In another case, sixteen-year-old Kalief Browder was arrested in New York on charges that he had stolen a backpack. When his family couldn’t scrape together the $3,000 bail, Kalief went to jail while he awaited his trial. He would end up spending the next three years waiting, endlessly waiting, much of it in solitary confinement, not having ever been tried or convicted of anything. It was a tragic story from beginning to end: in 2015, soon after he was finally released from Rikers, Kalief committed suicide.
The criminal justice system punishes people for their poverty. Where is the justice in that? And where is the sense? How does that advance public safety? Between 2000 and 2014, 95 percent of the growth in the jail population came from people awaiting trial. This is a group of largely nonviolent defendants who haven’t been proven guilty, and we’re spending $38 million a day to imprison them while they await their day in court. Whether or not someone can get bailed out of jail shouldn’t be based on how much money he has in the bank. Or the color of his skin: black men pay 35 percent higher bail than white men for the same charge. Latino men pay nearly 20 percent more. This isn’t the stuff of coincidences. It is systemic. And we have to change it.
In 2017, I introduced a bill in the Senate to encourage states to replace their bail systems, moving away from arbitrarily assigning cash bail and toward systems where a person’s actual risk of danger or flight is evaluated. If someone poses a threat to the public, we should detain them. If someone is likely to flee, we should detain them. But if not, we shouldn’t be in the business of charging money in exchange for liberty. My lead co-sponsor in this effort is Rand Paul, a Republican senator from Kentucky with whom I vehemently disagree on most things. But this is one of those issues that he and I agree on—that all of us should agree on. It’s an issue that can—and does—transcend politics, and, one way or another, we’re going to get it done.
Something else it’s past time we get done is dismantling the failed war on drugs—starting with legalizing marijuana. According to the FBI, more people were arrested for marijuana possession than for all violent crimes in 2016. Between 2001 and 2010, more than seven million people were arrested for simple possession of marijuana. They are disproportionately black and brown. One stark example: during the first three months of 2018, 93 percent of the people the NYPD arrested for marijuana possession were people of color. These racial disparities are staggering and unconscionable. We need to legalize marijuana and regulate it. And we need to expunge nonviolent marijuana-related offenses from the records of the millions of people who have been arrested and incarcerated so they can get on with their lives.
But let’s do it with eyes wide open, understanding that there is unfinished business when it comes to legalization. There is no widely used equivalent to a breathalyzer that law enforcement officials agree is consistently reliable. We need to invest in a solution. We also need to acknowledge what we don’t know about the effects of marijuana. Because marijuana has been deemed a Schedule 1 drug, doctors and scientists have been able to do only limited research on its effects. We need to understand any risks. And that means committing ourselves to doing the research, listening to what the science tells us, and acting on that information in our approach.
We also need to stop treating drug addiction like a public safety crisis instead of what it is: a public health crisis. When people suffering from drug addiction end up involved in the criminal justice system, our ambition has to be to get them help. It’s time that we all accept that addiction is a disease, that it wreaks havoc on people’s lives in ways they don’t want and never intended. It’s time we recognize that addiction does not discriminate, and that our laws shouldn’t either. When someone is suffering from addiction, their situation is made worse, not better, by involvement in the criminal justice system. What they need is treatment, and we should fight for a system that provides it.
And even when people have committed offenses that require jail time, we should reject the notion that they are irredeemable or that they don’t deserve a second chance. We still have mandatory minimums on the books, many of which have a disproportionate impact across racial lines. And we have to unravel the decadeslong effort to make sentencing guidelines excessively harsh to the point of being inhumane.
Thankfully, we have started to see progress: In the decade after we introduced Back on Track, some thirty-three states have adopted new sentencing and corrections policies aimed at promoting alternatives to incarceration and reducing recidivism. And since 2010, twenty-three states have reduced their prison populations. But there is still much more work to do to ensure that punishments are proportionate to the offense.
We also need to address what happens behind the prison gates. Women now represent the fastest-growing segment of our incarcerated population. Most of them are mothers, and the vast majority are survivors of violent trauma that usually goes undiagnosed and untreated. Many are imprisoned in facilities that don’t support basic hygiene or reproductive health. As you read this, there are women being shackled while they’re pregnant. In some states, they are shackled while giving birth. I have visited women in prison, heard stories of the ways they face the risk of sexual violence when supervised by male guards in the bathroom or shower. In 2017, I was proud to co-sponsor a bill to deal with some of these issues. This is a conversation we rarely have in this country—and we need to.
In the near term, one of the most urgent challenges is the fight against those who are ripping apart the critical progress we’ve made in recent years. The current administration has reescalated the war on drugs, reemphasized incarceration over rehabilitation, and rolled back investigations into civil rights violations at police departments that began during the Obama administration. They are even trying to tear up agreements made between the Obama Justice Department and certain police departments that are meant to end policies and practices that violate people’s constitutional rights. We can’t go backward on these issues when we have only begun to scratch the surface of progress. We have to act with fierce urgency. Justice demands it.
One thing we must do is take on, head-on, the racial bias that operates throughout our criminal justice system. And that effort starts with our stating clearly and unequivocally that black lives matter—and speaking truth about what that means. The facts are clear: Nearly four years after Ferguson, Missouri, became the flashpoint for the Black Lives Matter movement, the state attorney general reported that black drivers there are 85 percent more likely to be pulled over than their white neighbors. Across the nation, when a police officer stops a black driver, he is three times more likely to search the car than when the driver is white. Black men use drugs at the same rate as white men, but they are arrested twice as often for it. And then they pay more than a third more than their counterparts, on average, in bail. Black men are six times as likely as white men to be incarcerated. And when they are convicted, black men get sentences nearly 20 percent longer than those given to their white counterparts. Latino men don’t fare much better. It is truly appalling.
It’s one thing to say that
black lives matter. But awareness and solidarity aren’t enough. We need to accept hard truths about the systemic racism that has allowed this to happen. And we need to turn that understanding into policies and practices that can actually change it.
When I was attorney general, I brought the senior leadership of our investigative bureau together, led by Larry Wallace, the director of my office’s Bureau of Law Enforcement, and told them that I wanted to institute an implicit bias and procedural justice training program for our agents. Implicit bias lives in split seconds. It is the unconscious shorthand that our brains use to help us make a quick judgment about a stranger. Frontline officers, more than most, have to make split-second judgments all the time, where implicit bias can have a deadly outcome.
The presentation of the subject matter made for a difficult conversation—and understandably so. These senior leaders had dedicated their lives and taken an oath to law enforcement. It wasn’t easy to have to reckon with the idea that the men and women of their bureau carry bias with them, that it affects the community, and that they need to be trained to deal with it. But it was an honest conversation, and in the end, the leadership not only agreed it was important, but they also agreed to help create, shape, and lead the training while advocating for its necessity up and down the chain.
Larry and my special assistant attorney general, Suzy Loftus, then worked to develop a curriculum that could be adopted by police academies and offered to law enforcement agencies statewide. We partnered with the Oakland and Stockton police departments and the California Partnership for Safe Communities to create the training program, and brought in Professor Jennifer Eberhardt from Stanford University to evaluate its effectiveness. It became the first statewide implicit bias and procedural justice course offered anywhere in the country.
The Truths We Hold Page 7