Preet Bharara: Hey folks, Preet here. As some of you know, the CAFE Insider podcast I co-host with Anne Milgram was supposed to be on hiatus this week, but the news cycle knows no breaks. That’s why on Monday, we recorded an emergency Insider episode about the abrupt firing of my successor, now former U.S. Attorney for the Southern District of New York, Geoffrey Berman. If you haven’t already, you can sign up to listen to the episode for free at cafe.com/preet. You’ll also get access to a video recording of Tuesday’s live taping of the Insider podcast, where members joined Anne Milgram and me via Zoom to ask us questions. Again, that’s cafe.com/preet. For those of you interested in becoming members and supporting our work, you can do so at cafe.com/insider. That’s cafe.com/insider. You can find these links in the show notes to the episode. And now, on to the show.
From CAFE, welcome to Stay Tuned. I’m Preet Bharara. We’re doing something a bit different this week. As we all follow the developing news, from the concerning dismissal of my successor the now former U.S. Attorney for the Southern District of New York, Geoffrey Berman to the continuing protests calling for racial justice and an end to police brutality, I thought it would be the perfect time to revisit some of the episodes that have really resonated with our team here at CAFE and all of you. Today, we will be looking back at four brilliant guests I’ve hosted here on Stay Tuned. These excerpts from past episodes offer perspectives into the state of our country, justice, civil rights, and the rule of law, the themes that shaped my conversations on this podcast.
You’ll be hearing from Vanita Gupta, who led the Justice Department Civil Rights Division under President Obama. Cynthia Deitle, the Matthew Shepard Foundation’s Director of Civil Rights Reform. Sherrilyn Ifill, the President of the NAACP Legal Defense Fund. And Bryan Stevenson, the Founder and President of the Equal Justice Initiative. From kneeling as a form of protest in the NFL to the racist application of the death penalty, these conversations have, unfortunately, stood the test of time.
We begin with Vanita Gupta, my friend and our second ever Stay Tuned guest who join me back in September 2017. Vanita has dedicated her distinguished career to civil rights work. She served as the Assistant Attorney General for civil rights from 2014 until the end of the Obama presidency. Throughout her tenure, she fought for, among other things, LGBTQ rights and an end to police brutality. She’s currently the president and CEO of the Leadership Conference on Civil and Human Rights.
I want to ask a couple of questions about the NFL protest and various athletes taking a knee during the performance of the national anthem. If you were in the NFL, would you be taking a knee?
Vanita Gupta: Yes, I would be taking a knee. We’ve got a huge problem with police violence in the sense that there is no justice when there are police killings. And there are a lot of people in this country that are trying to grapple with where the solutions are going to come. There’s a lot of anger and pain. And you know this and I know this from cases that we’ve both been involved in. These are really serious issues for this country and you have athletes that have, just like many others in the country, have been exercising their right to protest this way. The bigger question is, is it appropriate for the president to insert himself through tweets and criticize these players and call them fireable offenses for the fact that they are exercising their First Amendment rights and calls them SOBs on a stage on Friday? I mean, he has created this and I think it is totally appropriate for these athletes, for the NFL, for the NBA to react in response. I mean, this is again, he created this whole issue by inserting himself into this debate. So we shouldn’t be surprised-
Preet Bharara: In fairness, the president didn’t create the issue of police shootings and bad policing.
Vanita Gupta: No, no. Yeah. I’m talking about creating the whole, the last weekend that prompted these athletes and the associations to speak out. I am proud there’s a long and storied history of athletes taking a knee and protesting, and it’s been part of the change and progress in this country. But I want to remind people that just four weeks ago, he pardoned Arpaio and now he’s criticizing black athletes for exercising their First Amendment rights.
Preet Bharara: Well, he said more negative things about popular black athletes in this country than he ever has about Vladimir Putin.
Vanita Gupta: Or the neo-Nazis that marched in Charlottesville. This is not a time that is normal and it is not a time when staying in one’s lane and kind of keeping your blinders on and moving straight and kind of keeping to your business as usual is feasible for a lot of folks. I mean, a lot of us who love this country deeply don’t feel like there’s any choice or this kind of ability to sit sidelines and just kind of keep in your swim lane. These folks have huge platforms and I appreciate that they’re using them to make important points.
Preet Bharara: There’s an interesting question, right? It has often been the case that people don’t like other people’s methods, and there are some people who say, “I’m with you, but we’ve got to go a little more slowly.” And some people say, “I’m with you, but we gotta go a lot more aggressively, and even maybe militaristically.” And I thought I’d just read to you a passage from what I think is one of the best pieces of writing in the history of the English language, and that’s Martin Luther King’s letter from Birmingham Jail, written from a jail in 1963.
Dr. King wrote, “I must confess that over the past few years, I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace, which is the absence of tension, to a positive peace, which is the presence of justice; who constantly says, ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action.’” That’s been a basic and fundamental question in the quest for justice and equality going back to the beginning of time, has it not?
Vanita Gupta: Yeah. I mean, I love that piece and think it’s so important, because this work and the progress in this country has always involved a level of disruption and a level of courage on the part of individuals who were willing to take the criticism and to take the heat, and to doing it strategically, of course. But this whole notion that we can kind of mythologize and have MLK Day once a year, and celebrate all of that while not recognizing actually what it took and how dirty that progress and how messy it was to be able to achieve it, is something that we’re seeing play itself out now.
After Charlottesville, there were a lot of civil rights leaders who were part of the leadership conference coalition were speaking out, not about white supremacy and the Klan as being something that we need to be mindful of, but actually going beyond that and saying, connect the dots, people. You can’t just issue statements. I mean, forget the fact that the president couldn’t even issue a statement. But with the others … A lot of others folks in elected office were issuing very profound, important statements condemning the violence and the racial hatred that was on display in Charlottesville, without recognizing that the very policies around voter suppression laws that they’ve been enforcing, where federal courts over and over again are finding that states have been engaging in intentional racial discrimination to prevent African Americans and Latinos from voting, that these policies are actually a part of a white supremacist agenda. And it makes people feel very uncomfortable.
It sounds like these civil rights lawyers that are connecting these dots are somehow being radical or fringe, when actually, we’ve got to understand how these things are actually connected to very real policies that are getting enacted today. Our criminal justice system in a lot of ways and the turn back of the clock on reform is a part of this too. And so, I know it’s uncomfortable for folks to have those dots connected, but at the end of the day, we’ve got to be about more than just words. We’ve got to be about action. And different people, there’s gonna be different lines that people feel like they’re crossing in order to speak those actions.
Preet Bharara: Let’s talk about policing and the unfortunate and all too frequent phenomenon of a police officer somewhere shooting an unarmed black kid. You and I have had a lot of conversations about this, and we’ve done a lot of work in this area, and it is incredibly frustrating. And people have been angry at me, and I know people have been angry at you. And you’re someone whose whole life has been dedicated to making sure that policing is done in a constitutional way and that everyone is treated equally. But what do you have to say to those folks?
Vanita Gupta: Those cases are the most painful. And when I look back at my time at the Justice Department, I would say that those cases above all really represent to me the failure of the law and of the courts to provide justice. Too many times during the course of my tenure, we had to decline charges in cases where a shooting absolutely should not have happened. But the law would not allow for there to be a prosecution. And you look at the Philando Castile case out of Minnesota involving an African American man who was seated in a car with his girlfriend next to him and a child behind, a four-year-old kid, and the girlfriend caught this all on video. Philando Castile was stopped at a traffic stop, did everything to comply. Had been stopped, I think, something like, I’m gonna get this wrong, but something like 47 times in the last three years. He knew what was at stake in being a black man at a traffic stop. He was trying to do everything he could to comply, and was reaching for his driver’s license, and got shot and killed. All of this caught on video.
And there was an acquittal in that case that I think was a deep reminder of how infused in our culture the criminalization of black men is, and how much of a role that that can play in jury outcomes. And prosecutors, federal prosecutors, like the federal prosecutors in the Civil Rights Division who do this work are some of the most mission-driven, impassioned prosecutors, who are trying to seek justice in these cases, but know through sheer experience of trying these cases and losing them over and over again that the bar is so much higher to obtain a conviction in a police shooting case than in many others because of the cultural assumptions that exist in everyday people, like you and me, and who are serving on juries. And so it isn’t just the limitation of the law. These prosecutors know what it’s like to actually bring cases where there’s incontrovertible evidence and to lose. And of course, they’re thinking when they can bring cases and get justice.
Right now, there is a real sense for very good reason that the shooting and killing of an unarmed black man at the hands of the police will bring no justice. I, though, do also know from the work that the Justice Department was able to do quite importantly on the pattern and practice systemic investigations of police departments, where training and accountability systems can be so abject or inept that they are not only, they’re failing communities and they’re failing officers, that we can’t lose sight of the focus on systemic reform, even as people are focused on the lack of individual accountability. Because in a lot of ways, we want there to never be these incidents to begin with. And you need training, you need accountability systems, you need hiring systems in place, you need police departments that are kind of set up and equipped to at least do everything they can to advocate and promote constitutional policing. And in the police departments where we ended up making very serious findings, those things had totally failed. And those are really important to any kind of prevention of these kinds of terrible incidents to begin with. And that’s where the Justice Department right now seems to be, have wiped its hands clean of any responsibility to really deal with those issues.
Preet Bharara: It’s interesting because there are other areas where there’s excessive use of force and bad conduct on the part of law enforcement that in my experience has been easier to address. And the example I’m thinking of is excessive violence in some of our jails. I think one of the worst places on Earth is a jail called Rikers Island, which is in the City of New York, where you and I got to work together to address an issue of unbelievable violence that was unnecessary on the part of corrections officers towards inmates and in particular, the cases that we bought, often juvenile inmates. And I wanted to thank you on air for being a fighter for those cases. And people may not appreciate this, but we tried to operate in a completely sovereign and independent way in the U.S. Attorney’s Office for the Southern District of New York. We were required, and you know I chafed at this. We were required to get the-
Vanita Gupta: Oh yes, I know.
Preet Bharara: We were required to get the approval before bringing a certain kind of civil rights case from the Justice Department and the Civil Rights Division that you led at the time when we were deciding what to do on the Rikers Island case. And I just wanted to thank you in front of everyone for cutting through a lot of bureaucracy, without going through the usual 53 cycles of bureaucracy. I want to thank you for that.
Vanita Gupta: That’s the part of me that apparently was too aggressive for Jeff Sessions. So there you go.
Preet Bharara: It’s time for a short break. Stay tuned.
Next, we revisit my conversation with Cynthia Deitle, who had a long career as an FBI special agent, focused on hate crimes before assuming her current role as Director of Civil Rights Reform at Matthew Shepard Foundation. We spoke in February of this year about her craft and the painful case of Abner Louima, the Haitian American man who was violently assaulted by the NYPD in 1997.
Was it difficult to break into civil rights work? Or did it just sort of, did you fall into it after like that was your intent?
Cynthia Deitle: I was very consistent in the academy about wanting to work civil rights. And a couple of days before I got to New York, the agent in the New York FBI who places all the agents on different squads, came to me and said, “You’re not going to the civil rights squad.” And I said, “Why not?” He said, “No, no, no, that’s not … No, no, no.” First he said that was for older agents, more seasoned agents and I got that. that I understood. So I got to New York and I bounced around like most new agents do, to get kind of a lay of the land, and then I was put on a securities fraud squad doing white collar work for a year and I begged to do civil rights.
Preet Bharara: But can I ask you, do you credit the argument that there should be more senior folks on civil rights? What would be the reason for that?
Cynthia Deitle: I kept telling them, this is what I want to do, this is my background. I’ve studied this in law school, I’ve studied this in graduate school, please let me do this work. It took a year, and all of a sudden there was a spot open on the civil rights squad, and I was elated to be able to do the work. Just so excited.
Preet Bharara: You did a lot of work with SDNY.
Cynthia Deitle: I did, I did. Many, many fine lawyers.
Preet Bharara: Yes. I know a bunch of them.
Cynthia Deitle: One of whom, I’m sitting across from.
Preet Bharara: People don’t always appreciate that law enforcement has multiple tasks, and among the things that they do, if they’re doing it right, is to be the agency that deals with violations by local police officers, hate crimes, and all sorts of things of that nature. Did you find that that work was what it was cut out to be? Or were you sort of surprised by things?
Cynthia Deitle: I was very naïve. Does that shock you, Preet?
Preet Bharara: No.
Cynthia Deitle: I was extremely naive.
Preet Bharara: We all were. We all were once.
Cynthia Deitle: Yeah. Yeah. Very naive, I thought it was, and I still do, very noble and honorable work to be an FBI agent, working police brutality and hate crime. I didn’t know or appreciate the backlash I would get in the FBI office, or from NYPD officers. I just didn’t read realized that there would be others in law enforcement that wouldn’t like me too very much.
Preet Bharara: But it couldn’t have been all that way, you had to have some support.
Cynthia Deitle: Chiefs. Chiefs are who supported the work.
Preet Bharara: Prosecutors.
Cynthia Deitle: Prosecutors absolutely supported the work. But I think the difference between attorneys that you worked with and supervised in Southern District, was they didn’t sit next to an NYPD detective like I did every day coming into work. You were isolated in your office, I was sitting next to, and eating lunch with members of NYPD, and with Nassau and Suffolk County police departments and I didn’t realize how difficult that would be. It didn’t feel difficult for me, but I thought it felt difficult for them, I guess.
Preet Bharara: And did anybody ever try to stop a case that you were pursuing because they thought the FBI should leave the NYPD alone?
Cynthia Deitle: Never. That never happened. That never happened. There were some cases where the Department of Justice Civil Rights Division wasn’t crazy about some of my cases, but SDNY was or EDNY was and-
Preet Bharara: Why was Washington not crazy about the case? What cases? If you can say. I’m letting you off the hook.
Cynthia Deitle: Thank you for that one.
Preet Bharara: You paused, your brow furrowed-
Cynthia Deitle: I did.
Preet Bharara: I don’t want you to get in trouble, but you’re not in the FBI anymore. We can get to what you’re doing now, which is also amazing work. But, go ahead, spill your guts.
Cynthia Deitle: I think the one thing that we know is in the Civil Rights program, and even that you knew was, if you don’t think you’re going to win a trial, you might not want to bring that case. So there were some cases that the Civil Rights Division wasn’t crazy about, there was some cases that the Eastern District of New York wasn’t crazy about, or your predecessor at Southern District wasn’t crazy about. Sometimes there was a discrepancy on their view of, is this a righteous case? Should we bring this case? Should we let New York City Police Department bring it? What should we do? But I think overall, I think the right result occurred in these cases, I really do.
Preet Bharara: Is it harder in other ways, as a matter of not just support from your colleagues, but as a matter of proof and law, to bring a criminal case against a police officer who has exceeded their proper authority?
Cynthia Deitle: It’s exceedingly difficult to bring these cases, because most of our witnesses are law enforcement. So if the event happened in front of other law enforcement officers, it’s really difficult to convince them to do the right thing, and tell the truth about what they saw, or what they heard. That’s really, really hard to do. But I think with many of these cases, it was harder for them to lie, than it was for them to tell the truth. I think they knew if they were going to lie, that was the worst thing to do, versus telling the truth and maybe getting one of their colleagues in trouble.
Preet Bharara: We didn’t overlap. You were working civil rights cases in New York before I became United States attorney. But in my experience doing these cases, there were still lots of folks who were prepared to falsify documents, not tell the truth until they knew that you really had them. And then, depending on what their background was, what the personality was, and what they thought about the risk to themselves of prosecution, you pull the one thread, and then all of a sudden you got four guys who are willing to tell you what happened in the incident. Was that your experience?
Cynthia Deitle: It was. Especially when the FBI and my colleagues would accumulate enough probative evidence, and then hit them with the grand jury subpoena. That’s usually when the truth came out, was in the grand jury. That was an extremely powerful tool that FBI agents, and as you know, U.S. attorneys use all the time to get out the truth.
Preet Bharara: Remind folks who Abner Louima was.
Cynthia Deitle: Oh wow. Abner is a very sweet man, who was brutally attacked in the 70th precinct by a New York City Police Department officer in the late ‘90s. The officer who perpetrated the attack against him is serving a 30-year sentence. I believe he’s still in Minnesota.
Preet Bharara: I know it’s gruesome, but we have some younger listeners who may not be from New York. Anybody who’s from around here remembers that case very, very well. What was the nature of the attack?
Cynthia Deitle: Abner and some of his friends were coming out of a Haitian nightclub in Brooklyn in Flatbush. It was about 3:00-4:00 in the morning. New York City Police Department officers were there, just to traffic control and make sure everyone got out of the club, everyone gets in their cars and goes home, everyone’s safe. A scuffle breaks out and Officer Justin Volpe is hit across the face. He goes down, he comes back up, he looks around, he points at Mr. Louima and says, “You hit me.” And Mr. Louima correctly says, “No, I didn’t.” And he didn’t hit him. But officer Volpe gets his partner Charles Schwarz, they arrest Mr. Louima for attacking Officer Volpe. They drive him to the 70th precinct. They put Mr. Louima in a holding cell for a brief moment after they book him.
These two officers bring him back out of his holding cell, they handcuff him behind his back, they take him to the precinct bathroom, they pull his pants down and they sodomize him with an object, rupturing his rectum, his bladder. It was a horrific, horrific, brutal assault. They pull his pants back up, they throw him back in the cell, and they basically tell him, “That’s what you get for hitting a police officer.” Within a few hours, Mr. Louima’s picture in his hospital bed is on the front page of every single New York City newspaper.
Preet Bharara: And what were you doing at the time?
Cynthia Deitle: I was working on the civil rights squad. we were in Brooklyn, Queens at the time. I can still see that picture, I can still see that picture of him that was all over the newspapers. And-
Preet Bharara: And so you see the picture and given your placement in the FBI, what did you think was going to happen?
Cynthia Deitle: Well, first of all I thought, there’s no way that’s true. That is too brutal, and too horrific of a story to be … That can’t be true.
Preet Bharara: And you thought that-
Cynthia Deitle: There’s no way that’s true.
Preet Bharara: And at that point, you had spent some time investigating and helping to prosecute police brutality cases, so you’re not naive in the same way then.
Cynthia Deitle: No.
Preet Bharara: And even you thought, this can’t be true.
Cynthia Deitle: This can’t be true. And very quickly realized within the span of days, that it was a very true, and it was very real. I had the good fortune to spend years with Mr. Louima after the assault. And as you know, the time leading up to the trials and grand jury preparation. I spent a lot of time with him and his family and he is a very quiet and humble man who was extremely exceptionally brave in handling What happened to him.
Preet Bharara: It’s interesting that the FBI took care in those cases, not only to help build the criminal prosecution and a successful one, which we can get into in a moment, but also made sure that there were people like you, who spent a lot of time on, I guess what people in the field called, victim assistance.
Cynthia Deitle: Victim assistance, yes.
Preet Bharara: Victim assistance. What’s that about and how important is that?
Cynthia Deitle: Let’s see, probably about a year after I joined the Bureau, I just joined the civil rights squad and one of my supervisors came to me and just said, “Oh, by the way, you have a new tag, you are now going to be one of the two New York City FBI division victim assistants.” And I had no idea what that was. And I said, “I don’t understand what that is.” And he said, “It’s fine, you’ll learn, you’re fine.” Well, I didn’t want to just have a label and not know what I was doing, so I went to one of the FBI’s first victim assistants’ conferences, where they gathered all the victim assistants in the FBI to learn. I wanted to know what I was supposed to be doing.
And basically what the Victim Assistance Program is, is there’s at least one, if not more, victims’ advocates in every FBI office in the country. And these folks who are amazing, are there to make sure the victims of crime have their needs met, whatever those needs are. Whether it’s psychological services, medical services, lost wages, and to keep them informed of the criminal case as it works its way through the system. They are tremendous human beings. These are folks that respond to Sandy Hook and Connecticut, they respond to terrorist incidents, they respond to bank robberies, they’re just amazing human beings who are with the victims on the worst day of their lives.
Preet Bharara: They’re very much unsung. Just because you mentioned it, give a shout out to somebody who for years and years in SDNY, and maybe you know her, Wendy Olsen.
Cynthia Deitle: Of course, yes.
Preet Bharara: Who was the person whose name was never in a newspaper article, but she makes sure that if someone needs to get moved, they get moved. If they need clothing, they get clothing, if they need assistance from shelters or anyone, she gets it to them. And she did it in small cases that you never heard of, and she did it also with respect to the worst case you can imagine like 9/11. So good to give a shout out to those folks.
Cynthia Deitle: They are quite the unsung heroes, yes.
Preet Bharara: And what did Abner Louima want and need?
Cynthia Deitle: Justice.
Preet Bharara: And what was justice for him?
Cynthia Deitle: That’s a great question. I asked him that numerous times, what do you want to see happen? And he wanted someone to be brought to account for what happened to him. He didn’t seem very vengeful, he didn’t seem like he was out for retribution, he just wanted the officers who perpetrated this vicious attack against him to be held accountable and to make sure that what happened to him never happened to anyone else again.
Preet Bharara: So after you learned that it was true, having thought it wasn’t, and having been in the business, how did that change you and your perspective on what people are capable of, and especially people in law enforcement?
Cynthia Deitle: The biggest lesson I learned from that case without question was, to pay attention to the victims. Having spent as much time with him as I did, he was vilified by the New York City Police Department. He was called all sorts of ugly, disparaging names. His reputation was dragged through the mud, he was accused of perpetrating the attack against himself, which that rumor was out there for a while to draw attention from what the officer had done to him. So he was just destroyed in the media, and he stayed strong through it all. But, I think like you, you investigate just horrible crimes that are committed by government actors, state actors, law enforcement officials, and you realize, well, they’re people, they’re humans.
There are going to be human beings that join law enforcement agencies that will do bad things to people, and they need to be held to account. They’re no different than a bank robber, or anyone else who commits a crime. they have to be held to account for what they did.
Preet Bharara: You could argue that it’s more important to hold them to account because they took an oath, and they have responsibility, and they have a lot of power, and they have weapons, et cetera, et cetera.
Cynthia Deitle: It’s what I learned when I was 13. If the government turns against its own people, it’s the worst thing that could happen.
Preet Bharara: This next bit comes from a conversation I had in May 2018 with NAACP Legal Defense Fund President, Sherrilyn Ifill, who leads the historic civil rights legal institution. As the calls for police reforms gain steam and as we enter closer to the general election in November, it’s the perfect time to revisit her insights about implicit bias training and voter suppression.
Can we talk about what that training looks like? People who watch the news and get fleeting bits of information, you hear that there’s an incident somewhere, and people say, well, the answer to that is training, whether it’s sexual harassment training, or bias training, or anger management, or whatever the case may be, not to equate all of those things. But I don’t know that people have an understanding of, what does that mean? Is it people sitting around having a discussion? Do they get a lecture? Do they do simulations? Do they watch videos? What does it look like, and what’s effective?
Sherrilyn Ifill: First, let me talk about the purpose of training. The purpose of training is to help us see what we don’t see, help us to see our biases, and we all have them. Then help us to understand the effect of those biases, and then to give us the tools to manage our biases and prejudices. And that’s an affirmative thing that people have to do. And this is what I think is so important. People think that because they’re nice people or good people, or because they believe in racial equality, or because they don’t feel that they are prejudiced against anyone, that they are not biased. And that is simply not true, because biases, particularly racial bias in this country, is the product not just of personal feelings, but it’s the product of practices and structures and messages and policies that have been part of our country for hundreds of years, and that are still delivered to us every day, and that we all take in.
Preet Bharara: How do you prove to people that truth, that they have bias? Do you administer tests?
Sherrilyn Ifill: And so, you show them. Yeah, and so you … There are a lot of ways to do it, right? So there are electronic ways to do it. People can take online test that show them bias. There are scenarios that you can walk people through in which bias is revealed. There are story circles in which people can talk candidly about situations and circumstances of bias that may not have been recognized by others. There are lots of ways that you expose it. But then when you expose it, the question is, what do you do with it? How do you recognize it yourself, and how do you manage it?
Well, we’ve learned some things. You said, you know, what works? One of the things that’s most important is having a set of policies and practices that employees adhere to, because at the end of the day, a work culture is the product of the policies of that work culture. And if the policies of that work culture ignore the reality of these biases I just talked about, then they go unchecked, and they’re almost like air, that people don’t recognize that they exist. And the people who then complain about bias are seen as disturbing the environment or disturbing the atmosphere rather than responding to the unspoken that is in the culture.
Preet Bharara: Would it be a part of the training or practice or policy to make sure employees at Starbucks ask themselves the question, if you’re gonna call the cops on people who haven’t yet bought something, would you have done that if they were two white patrons as opposed to two African American patrons, and stop for a moment and ask yourself that question? If the answer is no, then don’t do it? Or is that a silly way of looking at it?
Sherrilyn Ifill: It’s not silly, it’s just that I don’t think that many people are prepared to honestly answer that question.
Preet Bharara: Yeah.
Sherrilyn Ifill: You know? So going back to the policies, the question is, what is the policy about calling the police? Because the place where bias flourishes, you know, we say discretion is the fertile soil of bias, right?
Preet Bharara: Right.
Sherrilyn Ifill: Every place that you have discretion. Every place you as an individual can decide whether to call the police or not is a place where bias can seep in. Now, we’re not trying to turn everybody into robots, of course. Discretion exists in any job. But to the extent you can have policies that direct people about what to do in certain circumstances, you are lessening the opportunity for individual biases to drive decision-making. But it comes with the recognition that being a supervisor or a manager, having the power to call the police, to close the shop, to decide not to serve someone, all the things that people who are in a supervisory role get to do comes with the responsibility to recognize this reality of bias, particularly in the public space and in customer service in this country. You have to understand the history of it, you have to understand that it exists, you have to understand that is exists in you, and you have to be prepared to be trained to manage it, and then to recognize that as part of the skillset that you have to have as a supervisor.
Preet Bharara: We’ve been talking about bias in systems and in practices in places like Starbucks, but there’s this new phenomenon that some people are greeting excitedly and some people are greeting with trepidation because they don’t know where it will lead. And that’s something called AI, artificial intelligence, which opens up a whole host of new problems and issues with respect to bias and discrimination. And you have focused on this a little bit. Tell folks what your concern is, separate and apart from lots of other concerns that people have raised about AI. What’s your concern?
Sherrilyn Ifill: Well, the concern is that it begins with what we think AI is. We treat AI, artificial intelligence, as though it is not at all touched or tainted by human flaw, right? It is regarded as quintessentially neutral.
Preet Bharara: And scientific.
Sherrilyn Ifill: And scientific, impartial, and therefore untouched by things like the kind of conversation we’ve just been having. Untouched by things like bias, untouched by history, right? Except that the people who program and create and code and manage artificial intelligence are human beings who themselves are touched by all of those things. And our presumption that we are not embedding into AI the very prejudices that come from human beings, and then dipping them in the imprimatur of neutrality and impartiality that comes with AI is the dangerous spot for me. And so, we just make presumptions that once it’s in the technology, it’s now been purged of issues like bias. And yet, if you look at some of the recent articles, for example, about the way in which face recognition technology has difficulty recognizing the difference between African American or Asian American faces, right?
Preet Bharara: And that’s a product of lack of diversity in the people who are designing that software?
Sherrilyn Ifill: That’s right.
Preet Bharara: Yeah.
Sherrilyn Ifill: That’s right. What is the phrase? Garbage in, garbage out. We should just recognize that the people who are creating these systems are people, and the systems will reflect what people created. And these are profound ethical issues. And so, that’s why 40 civil rights organizations sent a letter to the ethics board of Axon, which creates a whole tranche of products that they sell to law enforcement, that law enforcement then uses to do surveillance and investigation and arrest. And our argument has been that there has to be, within the AI community, an ethical engagement with the issues that you and I have just described. And it’s important, Preet, because this is a societal issue that we’re grappling with. And you don’t get to offload your responsibility for addressing issues of race and bias simply by coding it and then passing it along and selling the product.
Look, we’ve been very engaged at LDF around issues of police violence and police misconduct, and that is a real and very present problem. But it also is true that the introduction of these products may be allowing manufacturers to offload their own biases onto law enforcement.
Preet Bharara: Right. And it becomes dangerous because it’s hard to then unpack.
Sherrilyn Ifill: Yeah. And who iss responsible? Look, I mean, we have difficulty getting people to understand implicit bias. We don’t even yet have legal standards for how in a court of law, we present issues of implicit bias and the recognition of implicit bias. But that at least suggests that it’s implicit bias that lives within human beings. How would we then unpack the bias that lives within a program, right? It’s almost creating a framework for bias in which no one is responsible.
Preet Bharara: So, who is responsible ultimately then for making sure that this is done right? Is it the companies or government?
Sherrilyn Ifill: It begins at the beginning, and it’s a shared responsibility. Government, because the government has the power to regulate and should regulate. And to the extent any of these companies are receiving government benefits, which many of them are, they should be bound by Title VI of the Civil Rights Act of 1964, which says that the federal government should not provide funds to any program that engages in discrimination. Then there’s the companies themselves that can, as a matter of civic responsibility and perhaps good business, as we were discussing earlier when we talked about Starbucks, decide to take some of this on. But we also think as a matter of ethics. You and I are in a profession that is governed by ethics. And some of those ethics tell us what we can and what we can’t do. I’m sure you, like me, Preet, you have reactions to things that happen in our country. You have reactions to things that are said.
Preet Bharara: I do. I do indeed.
Sherrilyn Ifill: Yes, said, but that are said by our leaders, or you have reactions to decisions that are issued by judges. I do too. But you and I know that we can’t say anything we want. We can say some things, and we do say some things. But we also have ethical rules that bind us in terms of what we can say and how we can say it, and that’s a good thing.
Preet Bharara: Right.
Sherrilyn Ifill: Because we’re upholding a professional standard. And what we’re suggesting is that there are also ethics that have to govern the manufacture, creation, and dissemination of artificial intelligence. And they have to also be bound by a code, just as judges are bound by a code, as lawyers are bound by a code, they should be bound by codes that confront these issues. These are issues that are endemic to this country. We fought a civil war over these issues. We endured the blood, sweat, and tears that were shed in a civil rights movement over these issues. And they resulted in civil rights statutes like the Civil Rights Act of 1964. And I think that companies have to understand that they are responsible for the network that undergirds us being true to the spirit of those statutes, and we should not presume that simply because you operate in the tech space that you’re somehow divorced from the obligation to engage this critical question.
Preet Bharara: Let’s talk about democracy for a minute.
Sherrilyn Ifill: Okay.
Preet Bharara: You know, for a minute or so. How unfair is voting in America?
Sherrilyn Ifill: Embarrassingly unfair, in that the effort that it takes to vote, the navigation that it takes to vote, the ways in which people who are poor, who are a minority are burdened, and the way in which states have been engaged in the practice of deliberately seeking to suppress the votes of racial minorities. I mean, when you look at the last five years and you look at these cases coming from these federal circuit courts and coming from federal trial courts in Texas and North Carolina, and you have federal judges, some of them not from conservative courts, recognizing that voter ID laws, that Texas’ original voter ID law, SB 14 that we challenged, violated the Voting Rights Act. And the trial court finding that it was intentionally created to discriminate against African American and Latino voters, or the Fourth Circuit finding that North Carolina’s Omnibus Voting Bill, ending soles to the polls and ending 16 and 17-year-olds preregistering and so forth, was enacted and created and written with surgical precision to suppress African American voting strength. That is a shame and a stain on our democracy. Those laws, the passage of those laws, I want to be clear, predated the election of President Trump.
Preet Bharara: Right. What about the disenfranchisement of convicted felons?
Sherrilyn Ifill: Well, this is one of the most important voting issues in this country, I think, and citizenship issues in this country. That people who have committed crimes or been convicted of committing crimes have served their time, and come out of jail, and prepare to reenter society, and we have the expectation that they are going to behave and comport themselves as good citizens. We expect them to work, we expect them to have a place to live.
Preet Bharara: Pay taxes.
Sherrilyn Ifill: We expect them to pay taxes, we expect them to obey the laws. And yet in states all over this country, we strip them forever of the right to vote. The Supreme Court in the 1880s in Yick Wo versus Hopkins said that the right to vote is preservative. It’s fundamental and preservative of all rights. So, if the right to vote, if that ability to cast that ballot lies at the heart of citizenship, we have essentially branded those who have served their time as literally second class citizens for life. The racial consequences of this are extraordinary, and result in things like 13% of the black voting population in Alabama being disenfranchised. So, it’s a huge issue, it’s an embarrassment. And it is yet again, particularly when understood in the context of race, yet another way in which African Americans continue to be burdened by laws that keep them from full participation in the political process.
Preet Bharara: Stay tuned, there’s more coming up right after this.
We can conclude with my conversation with Bryan Stevenson, a renowned civil right’s attorney who represents death row prisoners. His non-profit firm, Equal Justice Initiative or EJI is committed to ending mass incarceration and excessive punishment in America. We spoke in February of last year about his heart-wrenching work in EJI’s incredible memorial that documents the terror of lynchings in the American South and the legacy of slavery and segregation. As we continue to grapple with racism and police brutality, the wisdom Stevenson offers on the history of racial injustice in America is tragically evergreen.
When you talk about the death penalty to people who are either mixed about it or in favor of it in certain circumstances, what is it that you emphasize about it? Do you emphasize the inhumanity of it? Do you emphasize the unfairness of it, the disparities, and do you choose arguments that are emotional or that are logical?
Bryan Stevenson: Well, I think it does depend on the audience, but my first threshold argument is that the death penalty isn’t a question about whether people deserve to die for the crimes they’ve committed. The threshold question in the American criminal justice system is, do we deserve to kill? Because even if people deserve to die, you have to have a sufficient integrity, you have to have a sufficient reliability before you can get to that. And I don’t think in this country, when we have a criminal justice system that treats you better in too many places if you’re rich and guilty than if you’re poor and innocent, where wealth is determinative of outcomes, that we should be killing people in that kind of system.
I think when you have a system that presumes black and brown people, dangerous and guilty, because of their color, that we’re gonna be able to get to the kind of reliable outcomes that a just system requires. I don’t think that when we politicize the application of the death penalty, which is what’s happened in so many places in my state, our elected trial judges have had the authority to override jury verdicts of life. So, when we get a verdict, 12-0 for life, the elected judge can override it because he or she fears the next election. When you politicize punishment in that way, I just don’t think you deserve to kill.
Yes, I can talk about the morality of it. I can talk about the cost of it. We spend hundreds of millions of dollars. California has got nearly 800 people on death row. They’re spending hundreds of millions of dollars. It’s not likely that they’re going to execute a lot of people any time soon. They could use all of that money and invest in public safety and provide better services to victims of violent crime and do all kinds of things. But ultimately, for me, it’s about needing a perfect system to impose a perfect punishment. When you execute someone wrongly, you have no ability to recover from that, and we don’t have a perfect system.
My own view is that if we had a perfect system, if we evolved to the point where we value the needs of the poor and we value the needs of people of color, and we dealt with mental illness appropriately, and we eliminated the political factors, if we got to that point, we wouldn’t want the death penalty. We’d understand something about ourselves.
Preet Bharara: Problem solved. You mentioned that it is unfair and unjust that the color of the skin of the alleged perpetrator might be determinative of what the outcome is, but you have emphasized also that there’s another factor that maybe even weighs more heavily, and that is the race of the victim. Explain that.
Bryan Stevenson: Well, we have a long history in this county of devaluing the victimization of people of color. We just don’t care as much structurally, systemically about the victimization of black and brown people, and that’s certainly true at the death penalty level, but it’s also true throughout the system. So, the major challenge to the death penalty based on race took place in 1987. It was a case called McCleskey versus Kemp. It was the third case in a trilogy of cases. The Supreme Court struck down the death penalty, of course, in 1972, firm in holding that the American death penalty was biased. It was discriminatory. It was like being struck by lightning. It was applied in an arbitrary and capricious way.So, the court declared it unconstitutional.
They didn’t say it’s cruel and unusual punishment in all circumstances. And many people thought we would never have the death penalty again, but states, particularly in the South, were quick to take advantage of the fact that the court hadn’t categorically banned it, and so they created a new death penalty, and that new death penalty was upheld by the court in 1976 in a case called Gregg versus Georgia. Now, the NAACP lawyers argued that we hadn’t eliminated bias and discrimination in four years, and we should expect the same disparities. But the court in 1976 said, “No, we’re not going to presume bias and discrimination.”
That’s what gave rise to this third case, McCleskey versus Kemp. And in McCleskey, a very sophisticated study of Georgia’s death penalty was commissioned. They looked at homicides over an eight-year time period and came up with powerful data that pointed mostly to the race of the victim. You’re 11 times more likely to get the death penalty if the victim is white than if the victim is black. If the defendant is black and the victim is white, you’re 22 times more likely to get the death penalty. No matter what combination of variables that the state of Georgia proposed, race of the victim was the greatest predictor of who got the death penalty.
So, armed with these data, the lawyers went back to the Supreme Court. They presented that data. The court accepted the data, but nonetheless concluded that Georgia’s death penalty was constitutional, which for me was devastating because I never thought I’d see the court that has equal justice under law engraved on the building say something like they say in McCleskey, which is essentially, if we deal with racial disparities in the administration of the death penalty, it’s going to be just a matter of time before lawyers are going to complain about these same racial disparities for other kinds of felonies, for property crimes, for misdemeanors, for drugs crimes. Justice Brennan in his descent ridiculed the court’s analysis as, “a fear of too much justice.” And he was right. The court was saying this problem is too big for us. But, it was the second thing the court said that really got me.
The second thing the court said was a certain quantum of discrimination in the administration of the death penalty is inevitable. And that inevitability doctrine still keeps me up at night because I don’t understand how we can be committed to equal justice under law when we concede to bias and discrimination when we say because it’s inevitable, it’s not correctable. I don’t think if we understood this problem as a problem that effected everyone the same, that we would come to that conclusion. That’s where that history of not valuing the victimization of people who are black and brown plays into this. The court just said, “You’re just going to have to accept this.” Of course, that’s very challenging.
Preet Bharara: Can we talk about history a little bit?
Bryan Stevenson: Sure.
Preet Bharara: You have made the point that you can’t forget about the past, and you have to remember bad things that happened and you have to come to grips with it. In a lot of ways, America has not come to grips with its past, including the history of slavery and history of lynchings. You got to do something outside of the law, although related to the law, that’s incredibly impressive. You were at the forefront of establishing a museum in your home state of Alabama. Tell us about that.
Bryan Stevenson: Yeah, well, I am persuaded that we’re not really free in America, that we’re burdened by a history of racial inequality that we haven’t addressed, and I think it’s created a kind of smog that’s in the air, and it doesn’t matter where you go. In the northeast, in the south, in the west, in the northwest. There is this history of racial inequality that’s created a narrative of racial difference that keeps us from being free.
What I’m interested in doing is talking about that narrative, because I don’t think we can change it if we stay silent about it. I want to talk about the fact that we live in a post-genocide society. I think what happened to native people when Europeans came to this continent was a genocide. We killed millions of native people, and we kept their words, which is why half the states in this country are native words, but we made the people leave.
We didn’t call it a genocide because we said those native people are savages. And That narrative of racial difference that we created to justify that is what allowed us to have two and a half centuries of enslavement. And I don’t think the great evil of American slavery was the involuntary servitude or the forced labor. I think it was this narrative of racial difference, this ideology of white supremacy that we created to justify enslavement. We said that black people aren’t as good as white people. They’re not as smart, they’re not this, they’re not that.
Preet Bharara: Because then even once slavery ends …
Bryan Stevenson: Even when slavery ends …
Preet Bharara: … that ideology remains.
Bryan Stevenson: … that ideology remains. If you read the 13th Amendment, it talks about ending involuntary servitude or ending forced labor, but it doesn’t say anything about ending this ideology of white supremacy, which is why I don’t think slavery ends in 1865. I think it just evolves. It turns into decades where we have violence and terrorism and lynching that most people have no real awareness of. We lynched thousands of black people. We pulled them out of their homes, we burned them, we beat them, we drowned them, sometimes literally on the courthouse square.
Preet Bharara: Now you’re pointing out the limits of the law, right?
Bryan Stevenson: Yes, exactly.
Preet Bharara: Because the law can declare a certain kind of bondage verboten, but can’t legislate people’s minds.
Bryan Stevenson: That’s exactly right. What’s interesting about that is congress saw the problem of reconstruction collapsing and emancipated black people being vulnerable. So, they passed a Ku Klux Klan Act. They passed civil rights laws in the 1870s, but the United States Supreme Court struck down those laws and said, “No, states have rights, and this is up to the states.” And that state’s rights narrative is what allowed local officials including law enforcement officials to look the other way when these black and brown bodies were dangling from trees and from bridges and from poles. Again, that history has gone on, and so that narrative of racial difference is something we haven’t talked about, and I think we need to.
When I moved to Montgomery, there were 59 markers and monuments to the confederacy, but you couldn’t find the word slave or slavery or enslavement anywhere in that city. I think that has to change. In South Africa, you can’t go there without seeing lots of conversation about apartheid. Their constitutional court is surrounded by monuments and emblems and memorials that are designed to make sure people don’t forget about the injustice of apartheid. In Berlin, you can’t go 200 meters without seeing a marker or a stone that’s been placed next to the home of a Jewish family. The Germans want you to go to the holocaust memorial because they don’t want to be thought of as Nazis and fascists forever. They’re trying to change the narrative. There are no Adolf Hitler statues in Germany.
Preet Bharara: As each year goes by, does it become more or less difficult to do this kind of reconciliation and facing of history?
Bryan Stevenson: Yeah. I don’t think the time makes it harder or easier because these narratives are so widely embraced, this kind of lost cause narrative. I mean, in my state, Confederate Memorial Day is a state holiday. Jefferson Davis’ birthday is a state holiday. We don’t have Martin Luther King Day. We have Martin Luther King/Robert E. Lee Day. The two largest high schools in Montgomery are Jefferson Davis High and Robert E. Lee High.
Our relationship to this narrative that’s so destructive hasn’t changed very much over the last 30 or 40 years. What I think plays more of a role is our willingness to speak to this problem, to commit to truth and reconciliation. Now, we have a museum in Montgomery called the Legacy Museum: From Enslavement to Mass Incarceration. Now, we have a memorial that honors thousands of lynching victims. I’d like to think it’s created an environment where it’s now possible to talk about enslavement and lynching and segregation in new ways. I think that’s what we have to do all over this country. I think there should be a marker at every lynching site in America. I think we should create a new relationship to this history.
I think, in America, we have this fiction in our head that if you do something wrong, the last thing you should do is say, I’m sorry. Because, if you say I’m sorry, the perception is that you’re weak. I think the opposite. I think if you want to be strong, if you want to be a good leader, the first thing you have to say is, I’m sorry, when you make a mistake. And it creates a new relationship to how we grow. You show me two people who have been in love for 50 years, I’ll show you two people who have learned how to apologize to one another when there are offenses, when something is not well understood.
Preet Bharara: Yeah, apology is a very important part of the vocabulary.
Bryan Stevenson: It is, in healthy relationship, but in our relationship to this history of racial inequality, there’s this resistance, and it breaks my heart. We just had, this past week, we had a newspaper editor in Alabama write an editorial where he is calling for the return of the Ku Klux Klan, and he wants them to go to D.C. and use lynching to clean up the city. When he was asked about it, he doubled down on it. And here’s my problem, we have two democrats elected to congress from Alabama, Doug Jones, the senator, Terri Sewell, a representative. They immediately said, “That’s outrageous. That’s wrong.” I haven’t heard anybody else say anything. And if we don’t feel like we can condemn that, then we have so much work to do in this country.
Preet Bharara: If this is your first time hearing from any of these guests, I invite you to listen to our conversations in full. To listen to the full version of any of these episodes, see the show notes below this episode.
Well, that’s it for today’s special of Stay Tuned. Thanks again to Vanita Gupta, Cynthia Deitle, Sherrilyn Ifill, and Bryan Stevenson.
If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag, AskPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to [email protected]
Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore, and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noah Azulai, and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara. Stay tuned.