by Ady Barkan
These policy and legal disputes were happening in the shadow of an upcoming mayoral race. With Mayor Michael Bloomberg finally termed out of office, the September 2013 Democratic primary for mayor would be a major moment in the political life of the city. Would New Yorkers select Christine Quinn, the Speaker of the New York City Council, who had allied herself with Bloomberg in support of the NYPD and who was preventing the CPR reform agenda from passing? Or would they choose a critic of stop-and-frisk, perhaps the progressive public advocate from Brooklyn, Bill de Blasio?
The class-action decision that I was drafting would likely impact both the legislative fight inside City Hall and the race for mayor. It would be the most high-profile, rigorous, and detailed review of the NYPD’s actions to date. It would have the authority and force of the federal courts—which had, since the famous civil rights lawsuits of the mid-twentieth century, often forced local and state governments to respect the constitutional rights of their residents.
I also suspected that the decision would reverberate well beyond the borders of our city. This case was the most important and highest-profile dispute in a burgeoning national debate over the role of the police and the constitutional rights of black Americans. That spring, both Judge Scheindlin and I had studied the powerful new book by Michelle Alexander, The New Jim Crow, which laid out in potent detail the scope of the destruction resulting from mass incarceration in America.
Sitting behind my large wooden desk, I contemplated the mounds of evidence that were literally piled up all around me. They provided a graphic, detailed image of how the new Jim Crow operated—how the police imposed the threat of deadly force onto hundreds of thousands of black and brown New Yorkers every year, how it pushed tens of thousands of those people into jail and criminal justice proceedings, and how this reign of terror unlawfully and unfairly disrupted the lives not only of the victims but of so many of their wives and husbands, daughters and sons, parents, siblings, and friends.
All across the country, people who shared my values and vision for America were watching this case. After the opinion was published and the newspapers summarized its findings in dramatic headlines, I hoped it would become an important touchstone in the movement to reverse mass incarceration: civil rights lawyers would cite it in their court filings, law students might read about it in their courses, activists and community organizers would draw inspiration from their New York City counterparts’ success, judges would cite it as precedent, and elected officials might even change the way they legislated and oversaw their local police departments.
But beyond the city and its potential impact on the civil rights movement, this opinion had significance for me individually. It would be, I assumed, the most important decision of my clerkship year and the most important document I had ever helped to author—probably the most important I ever would. I had landed in this clerkship at an opportune moment, when my judge was responsible for adjudicating major political questions of national importance, and had been tasked with helping her issue the most rigorous and wisest decision possible. I knew I would remember my work on this case for the rest of my life.
This opinion was also an opportunity for me to prove myself worthy of the clerkship and to help me assuage my white guilt: if I was going to benefit from my privilege and the family connections that had helped me land the job, I hoped to do both what was right under the law and at the same time make a lasting change for the better in the lives of so many New Yorkers.
My clerkship was the envy of many of my classmates. I believe it was, with the exception of the elite Supreme Court clerkships, the most interesting and influential clerkship in America that year: no case heard by a trial court was as important as the stop-and-frisk case. And I had the privilege of working with a judge who was willing to protect civil liberties and pursue racial justice, regardless of what Rupert Murdoch’s minions said about her on Fox News and in the New York Post.
So I cherished every day working in her quiet, comfortable chambers high above New York City’s Chinatown and Financial District. On my walk from the bustling subway to the towering United States Courthouse in the morning, I passed beautiful blossoming trees and groups of old Chinese immigrants calmly practicing their tai chi or their synchronized dance routines set to blaring pop music. As I flashed my badge and passed the lawyers, jurors, and litigants who were waiting to go through security, I felt smug in my anonymity: You may not know who I am, I thought to myself, but you will soon read about my work.
On the morning of Wednesday, May 16, 2012, I got to the office early and printed out a copy of the final draft of the decision, which the judge had finalized the night before. I took it into her room for her signature. We were both proud of the work we had done in what we knew would become a landmark ruling. She had been adjudicating stop-and-frisk cases since 2003, when the predecessor to Floyd arrived in her courtroom. She knew that her name and photo would be plastered throughout the New York media, and that although many commentators and colleagues whom she respected would think highly of her for issuing this decision, many other powerful voices would disparage her. The New York Post and New York Daily News would echo the rhetoric of the police union and accuse her of putting New Yorkers’ lives in danger by handcuffing the police and empowering the criminals. The mayor and the top brass at the NYPD would question her intelligence and her impartiality. And although she didn’t know it at the time, a white supremacist running an insurgent law-and-order campaign for president a few years later would attack her for being a “very-against-police judge.”
But she was filled with the steely confidence that comes from doing justice in the face of power. The confidence that comes from stepping back and seeing how your life’s work fits into a longer arc of history. From knowing that you are giving voice to the people who are too often silenced, defending the rights of people who are too often oppressed, standing in solidarity with the people whose struggles are too often lonely. “What good is the life tenure of a Federal judge if you’re not willing to do what you think is right?” she asked me.
I took the opinion into the front room, marked it with a satisfying whomp of the handheld date stamp, scanned it, and uploaded it into the court’s official filing system.
Within the hour the New York Times had a bold headline at the top of its website: “Judge Grants Class-Action Status to Stop-and-Frisk Suit.” In his opening line, the reporter zeroed in on some of the most powerful language from the opinion, highlighting the judge’s conclusion that she was “disturbed by the city’s ‘deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights.’ ”
A year later Communities United for Police Reform scored a major victory, passing through the city council its legislation establishing an inspector general to oversee the NYPD and strengthening the prohibition on bias-based policing. Mayor Michael Bloomberg was fiercely opposed to the reforms, and so it was momentous indeed when, at three a.m., the council passed the bills with precisely the number of votes needed to override his veto. It was a historic achievement for council member Jumaane Williams, who gave a memorable speech from the floor of the council; his lead co-sponsor, Brad Lander, regularly highlighted the effort as a model of how “inside/outside” collaboration between elected officials and movement allies can yield transformative change.
Over the ensuing years, the Floyd case took various turns, and the battles in City Hall remained intense, but eventually the reformers won and were vindicated: constrained by new municipal law and supervised by the federal court, the NYPD was forced to curtail the number of stops-and-frisks by over 90 percent. And crime in the city continued to drop, refuting the fearmongering from the likes of Donald Trump and Michael Bloomberg.
As the late summer humidity of New York City turned commuters and playgrounds sticky with sweat, I was happy to take refuge in our cool, pristine chambers high above the streets—particularly since the pace of work had slowed. I had time to read the newspaper and enjoy a delicious lunc
h from a Chinatown dumpling shop before turning to work. One afternoon the judge called me into her office and handed me a draft opinion.
“Take a look at this,” she said, “and let me know if you think it’s right.”
It was a short decision granting the government’s motion to dismiss the complaint of a man who was imprisoned upstate. Leroy Peoples had filed a thirty-page handwritten lawsuit pro se, meaning that he had no lawyer, alleging that New York was violating his constitutional rights by imprisoning him in solitary confinement.
Judges in federal court receive many pro se complaints from prisoners, and most of them are thrown out quite quickly. It’s not always easy to read the handwriting, the arguments often aren’t well structured, the evidence isn’t laid out clearly, and the government lawyers opposing them have lots of practice explaining why such filings are frivolous. And of course there’s also the law: in 1996 the Republican Congress and President Bill Clinton agreed to enact procedural reforms making it much harder for prisoners to receive a fair hearing in federal court. Clerks and judges are busy, so the odds are stacked heavily against any prisoner hoping to challenge the conditions of his or her confinement.
But Judge Scheindlin sensed something special in the complaint of Leroy Peoples. For twenty years she had seen up close how the criminal justice system ignored or dismissed the rights of defendants—how excessive sentences and harsh punishments could dehumanize a person. The draft opinion dismissing Peoples’s complaint that she had handed me had been written by one of the junior law clerks. She asked me to review the decision because she knew that I shared her objections to America’s system of mass incarceration.
Leroy Peoples had been sentenced to three years in solitary confinement for filing liens against property belonging to prison officials—an action that the officials viewed as illegal and menacing. They had retaliated by seizing his legal papers and other belongings, taking away his prison privileges, and sending him into the euphemistically named “special housing unit,” more commonly known as solitary confinement. His lawsuit alleged a wide array of constitutional violations, but one claim in particular stood out: the notion that his incarceration in solitary might violate the Eighth Amendment to the Constitution, which prohibited the use of cruel and unusual punishment. Could solitary confinement ever be considered unconstitutional? In what circumstances? As I searched for a precedent that might help us evaluate his claim, I was dismayed to discover that few courts had even addressed the question. One or two federal trial courts. A state court here or there. But there were no significant opinions to suggest that solitary confinement was anything other than one more tool at the disposal of American jailers.
So I turned my attention to the social science literature. What was solitary confinement? Why was it used? And what impact did it have on the prisoners, on people like Mr. Peoples? The answers that I found were voluminous, disturbing, and unambiguous: solitary confinement was torture.
The opening battle in a civil lawsuit often takes place at the motion-to-dismiss stage. It is at that point, after a plaintiff has filed the lawsuit, that the defendants try to get it thrown out. They argue that even if all of the plaintiff’s factual allegations are true, she still has no legal right to be in court or receive the remedies she seeks. That is to say, at this stage in the proceedings, the judge’s job was to accept all of Leroy Peoples’s allegations as true and then ask the question: Does the Eighth Amendment prohibit this kind of treatment?
Judge Scheindlin, marshaling all of the powerful social science evidence, found that it could. After she issued her ruling, the state filed a motion asking her to reconsider her decision—a polite way of saying that they thought she had made a serious mistake and were giving her a chance to correct it before appealing. At the same time, the decision attracted the attention of the lawyers at the New York Civil Liberties Union, who were involved in a long-term project to reduce mass incarceration in the state. One of their attorneys reached out to the court and requested permission to see whether Leroy Peoples would like them to represent him (for free). If Peoples was going to successfully challenge New York State’s system of solitary confinement, he would need first-class attorneys. So the judge put the case on hold while the NYCLU began discussions with Peoples.
That was the last I heard of the case until I read the news headlines in 2014: Leroy Peoples and his lawyers had turned his case into a class action. The parties then reached a settlement in which New York State agreed to overhaul its solitary confinement system. The state agreed to dramatically reduce the number of prisoners sent to solitary confinement and to narrow the list of eligible reasons for that punishment. Specifically, nonviolent offenses would be far less likely to end with the punishment of solitary. What had begun as a handwritten pro se complaint had turned into one of the biggest victories in the fight against mass incarceration.
One warm evening in September, after twelve hours of reading briefs and case law, I was finally ready to call it quits. I flipped off the lights, restocked the mini-fridge with Diet Coke for Her Honor’s morning refreshment, and headed down past the security guards and into Manhattan’s fall air. I crossed Foley Square, surrounded by towering courthouses and federal office buildings, turned left past City Hall sitting at the foot of the massive Brooklyn Bridge, and walked south on Broadway for eight blocks.
There, in a tree-lined, concrete plaza a few hundred feet from Wall Street, tents and camping stoves and displays of revolutionary art stood jarringly out of place. Dozens of people mingled about, talking in small groups. “Mic check!” a solitary voice rang out. “Mic check!” many voices called back. In one corner of the park, fifty or seventy-five people stood listening to a speaker and echoing her every word. The mic was checked two or three more times and then the speaker began her remarks. Every few words she stopped and let the crowd repeat back what she had just said so that even people across the plaza could hear. This “people’s mic” had arisen in response to the fact that artificial amplification was banned on the plaza.
Two weeks earlier a group of protesters had retreated, under police pursuit, to Zuccotti Park. They still had not left, and their encampment, which they called Occupy Wall Street, had grown by the day. It was now attracting international attention and that highest form of flattery, imitation by other activists and protesters, in cities across America. This nascent occupation of Wall Street felt novel, provocative, and confusing. What was its aim? Who was in charge? What could it accomplish? I stood and listened as speaker after speaker decried American capitalism, which left millions of people homeless, hungry, and indebted in the richest country in the history of the world. Wall Street banks and the corporations they controlled had co-opted American democracy, the speakers alleged, depriving us of a political voice, economic security, and even our humanity. Three years had passed since Wall Street had brought down the global economy by leveraging risky bet upon risky bet, and the widespread human suffering that the collapse had caused was engendering a new, radical politics. The problems with America’s political economy were fundamental; moderate policy reforms could not disassemble the deep structures that allowed the Wall Street bankers to enrich themselves at the country’s expense and get away scot-free while millions of families lost their jobs, homes, and life savings.
I had grown up in a mainstream Democratic household. My parents and stepparents were all professors of history. They were very well informed but not politically active; liberal, not radical. They had confidence in rationality, the rule of law, and technocratic expertise. America had real problems, but those would be best addressed by smart elected officials enacting smart reforms. I became fluent in that language, winning local and California-wide speech and debate championships in high school on the basis of well-reasoned, impassioned defenses of liberal public policy.
But as I left Zuccotti Park, taking the subway up the East Side and over the river to our apartment in Astoria, Queens, the protesters’ revolutionary message forced me to reconsider th
e mainstream left political world that I inhabited.
In the ensuing days, my co-clerks and I had wide-ranging debates about Occupy Wall Street: about whether the city should evict the protesters or whether their First Amendment rights should permit them to stay in the park; about whether Wall Street’s banks should have been nationalized in 2008 rather than bailed out at taxpayer expense; about whether a random assortment of unwashed protesters without a platform or any organization could really light the way forward for the nation.
I was also having important debates with myself about what kind of a career I wanted to craft. In law school, at the Worker and Immigrant Rights Advocacy Clinic, I had been able to do it all: litigate, engage in legislative advocacy at the Connecticut statehouse and New Haven City Hall, and partner with local community-based organizations to help them build their memberships and power. But there weren’t many jobs that permitted that kind of jack-of-all-trades diversity; organizations wanted specialists who could excel at their craft. So it was time for me to choose what kind of a lawyer I wanted to be.