The killing of George Floyd by a Minneapolis police officer has inspired critiques of the U.S. criminal justice system from all corners, including members of the judiciary. On June 17, Fordham Law School’s Leitner Center for International Law and Justice, the Center on Race, Law and Justice, and Black Law Students Association invited Judge Theodore A. McKee, the fourth African American to sit on the Third Circuit’s U.S. Court of Appeals, Judge Ann Claire Williams, the first woman of color to serve on any district court in the Seventh Circuit and the third African American woman to serve on any federal circuit court, and the Honorable Justice Dr. Willy Mutunga, former chief justice and president of the Supreme Court of Kenya for a lively virtual discussion entitled “Black Lives Matter and the Criminal (In)Justice System: A Conversation with the Bench.” More than 300 people registered to hear the judges’ views on the protest movement, the impact of implicit bias on impartiality, and problems of race and justice in the U.S. and globally. Clinical Associate Professor of Law Gemma Solimene moderated the discussion, which was the second event in the Leitner Center’s series of webinars focused on issues related to the Black Lives Matter movement.
“I was angry and sad that those eight minutes, 46 seconds played out in front of us and in front of the world. But what was stunning to me was the uniform condemnation of what had happened to George Floyd, how we now have had protests in more than 2,000 American cities, and how some of these protests have been engaged by white people and young people,” said Judge Williams, the first woman of color to serve on any district court in the Seventh Circuit and the third African American woman to serve on any federal circuit court. “The blinders have been taken off. I think it calls for a reexamination of all of our institutions because these eight minutes, 46 seconds have opened the door—along with COVID-19—to the condition of Black, brown, and poor folk in America.”
Counteracting Implicit Biases and Sentencing Disparities
Judge McKee noted at the beginning of the conversation that, although judges are tasked to be impartial, implicit biases can still influence administration of justice. He shared a story from a case he presided over two decades ago in which the defendant had a drug habit but was helping an elderly neighbor purchase her groceries for an extended period of time. The moral, Judge McKee said, was that he placed the defendant into a drug rehabilitation program instead of issuing a severe sentence that had been called for, given the defendant’s background. He proposed that sensitizing people to the fact that bias exists might theoretically counteract the effect of implicit biases.
“You have to be open to the humanity of the people in front of you and not just see them as defendants or criminals, but as individuals caught up in hellacious circumstances,” Judge McKee continued. “I was able to look beyond mathematics and the person’s skin color. Any judge could have done that. A good judge, I think, can find a way to build the record, then close the sentence that he or she wants. It’s not easy and it takes a lot of work, but it can be done.”
Judge Williams, who has worked in eight different countries on the issue of sentencing disparities, provided examples of how such disparities existed across the United States prior to fair sentencing guidelines being enacted in the late 1980s. One instance she spoke of stemmed back to her days as an assistant U.S. attorney, when she couldn’t understand why people would travel to Chicago to plead guilty for certain cases. She said there was variation on whether a particular crime was committed in a small town or a big city—five postal checks that totaled $2,000, for example, would result in a five-year sentence in a small town, but a probation in Chicago. After the guidelines were put into effect, she said, judges had to use a formula to sentence people based on their criminal history and the crime itself. “It didn’t give judges a lot of leeway in terms of a sentence and judges were boxed into a guideline range. After some time, there was this movement by the defense counsel and bar and judges associations, which recognized that judges’ discretions were being hampered. Ultimately, the Supreme Court ruled that the guidelines were not mandatory, and that was very helpful.”
Judge Williams also said there are woke judges across the country who are speaking out about the criminal justice system. However, she believes more training institutes like the Federal Judicial Center should implement mandatory bias training.
Africa’s Point of View
Judge Mutunga noted that Kenyans are paying attention to how U.S. citizens of color are treated by the government. “Since the Black Lives Matter movement and even beyond that to the times of Angela Davis and Malcolm X, there has been the notion of pan-Africanism. In Africa, that is now being called the ‘resurrection of radical pan-Africanism,’ in which we are talking about those who are part of the African diaspora. I think we’re seeing this great movement of global solidarity, where people realize that the global system has to act as one in order to have a just and equitable planet,” he explained.
However, like in the U.S., justice is a fundamental political issue in Africa, according to Judge Mutunga. “Once you trace the trajectory of resistance that Judge Williams talks about, you see a trajectory of struggle,” he reflected. “In the case of Kenya, for example, we realize that judges are biased under the new constitution. In the Judiciary Training Institute, we’ve come together to say, ‘How will the justice system reject the judiciary?’ which is at a crossroads. How is the justice system going to deal with this issue when it becomes an appendage for the oppressors, government, and the ruling elite? That is actually the cause of our problem.”
To circle back to the earlier conversation about bias, Judge Mutunga added that Kenyan judicial issues lie in political leadership. “Every judge in Kenya swears to administer justice without bias in all manner of things. But every way I look at it, the judiciary will always be a problem when there is no political leadership that’s actually interested in the national interest,” he elaborated. “The leadership is interested in the rich, the ones who are stealing, the ones who are oppressing others.”
The Keys to Effective Change
All of the panelists emphasized the importance of education, self-awareness, and involvement. Judge Mutunga noted that young people should learn more about and understand global issues, including those in Palestine, Africa, and Asia. Judge McKee also highlighted the importance of voting and exercising pressure at the local level. “That’s where the problem really is,” he said. “Citizens need to exercise that franchise and demand from local officials that they put in place policies, regulations and laws that will eliminate, or at least stop, the system where those who are abusing their powers will be held accountable, and that the incidence of abuse will be reduced.”
In the same vein, Judge Williams mentioned the domino effect that has occurred because of the Black Lives Matter movement. “The NFL reversed their policy [on player protests], statues are coming down, and Governor Andrew Cuomo signed a bill banning police chokeholds,” she said. “Some of these things are immediate changes, but that didn’t happen in a vacuum. That happened because people realize they have power and the power of joining together.”
Additionally, Judge Williams suggested to attendees that participating in other on-the-ground initiatives that seek justice in areas like homelessness, education, and food insecurity could be effective too. “To me, the movement is bigger than just protesting. You want to do things that are going to move it forward and you want to build alliances. If you’re not a part of an organization, start your own organization,” she continued. “You must dream big, work hard, stand up, and not give up because you are our hope. If you don’t do this, who’s going to help us? Think about the next generations of your children and grandchildren. Do you want them to be in the same world that you were raised in? Will you be able to say, ‘I made a difference?’ I think that’s the kind of person you want to be.”
“As a black financial professional, it’s rare that I hear the perspectives of black law professors and judges, domestic and international, on issues such as these in such a candid, open environment,” said Gennette Darty, senior associate at The Siegfried Group, who attended the first two series events. “This series has broken up the monotony of hearing from the same type of activist groups in the Black Lives Matter movement. Their perspectives of what’s going on in the U.S. and the rest of the world are enlightening and necessary for what’s going on during this time; we honestly need to hear more from people in these professions.”