What work or research have you done relating to racial bias in the criminal justice system?
I have done law review articles on racial issues within the criminal justice system, but the heart of my work is post-conviction representation of incarcerated individuals. Because in the United States our carceral state is disproportionately directed at Black people, people of color, and poor people, 95% over thirty years of my clients have been Black men. So I’ve written in the space, and I’ve also litigated in the space, represented clients in the space at the federal and state clemency level, at the parole level in Virginia, and I’ve litigated DNA cases. I have also done cooperative efforts, successfully before the Virginia General Assembly to improve the statutory landscape for post-conviction relief. I teach, and my clinic students and I represent our clients in the pursuit of relief–and this is not an appeal, it’s not trial level, it’s after they’ve been convicted at trial after they’ve exhausted their direct appeal–and we engage in what’s called collateral attacks, or post-conviction avenues, to try to get them some measure of justice.
I was reading a little bit about your work and I saw one case that you mentioned specifically where you got President Obama to commute a man’s death sentence.
We were super thrilled to have this happen…it was the commutation, in fact, of a life sentence, not a death sentence…
Oh, my bad.
That’s alright, but he was a nonviolent drug offender and he got life in prison for conspiracy to distribute, and the real tragedy of it–well, there were multiple tragedies–one is that that’s a grotesquely brutal sentence for a nonviolent drug offender. He was an African-American man, he was about thirty-three years old, and that kind of case epitomizes the racial injustice in our system. It is simply not the case that white men are subjected to the same severity of sentences. And this happened at the federal level, and we were incredibly lucky, he’s a wonderful, wonderful man, and he has been working and living and contributing to society and being the wonderful man he’s always been for the last three years since he was released, so that was the thrill of a lifetime. We’ve also represented a lot of people at the state level, and I got into this work thirty years ago with a death penalty case at the federal habeas level that Judge Marriage appointed me to, and Judge Marriage was a pretty famous federal district judge here in Virginia. So I came to Richmond because of a clerkship with him, and then when I left his chambers about two years thereafter, he appointed me to a federal habeas death penalty case, and that’s how I got involved in post-conviction work, and it’s really been the honor of a lifetime to be able to work with these men who are incarcerated, they have just been absolutely fantastic human beings who teach me so many things about life, and about meaning, and about bravery. Just incredible people.
What factors do you believe contribute to racial bias in the criminal justice system?
Well, I am not a historian, but I have lived in this society for fifty-five years and I’ve read a lot by historians, and I’ve experienced, as a lawyer, not as an incarcerated person but as a lawyer, firsthand the racial bias in our criminal justice system. I think at the deepest level it’s an extension of white supremacy that took root 400 years ago, and it’s the process of dehumanization, and it’s a process that, in terms of nuts and bolts, probably arose with the slave patrols during slavery when enslaved men and women would escape. I think that slave patrol structure animated our policing system over 400 years. I believe that white people in the United States have created a society that is meant to advantage white people, and one way to advantage white people is to direct the full force of the police state and the carceral state against a minority. And what that means is that you create a society that’s a racial caste system, and then the good things in society–be they housing, be they education, be they jobs–then are hoarded by white people. At root, it is a mechanism, a strategic mechanism, of white supremacy.
Many people argue that racism–this is sort of what you were saying, along the lines of it–many people argue that racism in the criminal justice system began with Jim Crow, do you agree? Why or why not?
I agree that it’s…well I think it precedes Jim Crow, in those slave patrols. Jim Crow can’t happen without slavery and white supremacy that predated Jim Crow by several centuries, but Jim Crow is our most flagrant modern example, and so people tend to, quite naturally, turn to it as the explanatory structure, but white supremacy and the brutality at the hands of police predates Jim Crow.
Do you believe that the decriminalization of recreational drugs would help to decrease racial disparities caused by the drug war?
Yes, I do. It is scandalous the way that…Okay, I was just talking about my client, this wonderful man whose sentence was commuted by Barack Obama…let’s just do a thought experiment. If he had been on the campus of Stanford, and he were a white man, and he had been arrested for conspiracy to distribute cocaine, the federal courts would not have given him a life sentence.
I mean, that’s unfathomable. The amount of drugs that occur on the campus of the University of Virginia, on the campus of the University of Michigan, on the campus of Dartmouth, on the campus of Harvard, all over, we as a society have looked the other way. We don’t police there. We make a conscious–and I would submit a conscious, not an unconscious–we make a conscious choice as a society to look the other way. Because our view is, those young people, we’re gonna give them the keys to the kingdom, they’re our “best and our brightest,” and we are not going to muck up the trajectory of their lives by policing these campuses. If we did, we’d be in a whole lot of hurt as a society that’s trying to privilege white people. So yes, I agree with the basic premise that decriminalizing recreational drugs…what it would do is it would eliminate a space in which law enforcement has been able to target minorities for things and activities and behaviors that are done broadly within the white community.
What are your thoughts on community policing? Is defunding police departments a logical next step?
Community policing is not a new concept. Community policing as a concept, and even as a phrase, has existed for some decades. Defunding the police…you could ask me that as a political matter, you could ask me that as a policy matter, or you could ask me that as a practical matter. On a political level, I personally do not believe that the phrase “defund the police” is helpful. It’s alarming to a lot of people, including some minority populations and Black folks don’t like the phrase. On a policy level, what does that look like? That’s really complicated. And then, on a practical level, the implementation of it is super complex. What I would say is that we need to reimagine entirely policing. It needs to be fundamentally transformed. Am I an expert in how to achieve that transformation? No, but I do have thirty years of experience of seeing that our currently configured policing system in the United States is utterly broken and morally compromised. What you’re hearing from me is I am 100% behind a total reimagining and fundamental transformation of policing.
Why do you think issues of Black Lives Matter and police brutality have become so politicized?
What do you mean by politicized, could you be a little more specific?
Sure, I think a lot of people see Black Lives Matter as sort of a “radical leftist” movement when I would argue that it isn’t that at all.
We’re just trying to say, “stop killing these people.” How did it become such a left-versus-right issue?
I believe that…I don’t know if you’re familiar with…Richard Nixon used ‘law and order’ as a code phrase for accessing many white Americans’ anxiety about black people in the late 1960s to early 1970s, demanding more from society. So this is a tool from a very old toolbox, which is that if you look at American history when black people organize to demand full citizenship, and full citizenship includes not having a police officer’s knee on your neck for eight minutes and forty-five seconds, resulting in your death…when black people do that, the white power structure is incredibly swift and effective at maligning those individuals and making them falsely appear as dangerous. This technique has been used again and again and again. Have you ever heard of Birth of a Nation?
Yes, I believe we watched it in my history class last year.
Birth of a Nation was about making especially black men look and appear dangerous. So it is in the cellular DNA of our white supremacist society to very quickly be able to turn on white people’s fear of black people mobilizing and demanding full citizenship because they are not seen as full citizens, they are seen as potentially dangerous people, so that’s how it gets politicized, and it serves the political interests of the people doing it. And the political interests are real. They are financial, they are caste-based, they are housing-based, they are job-based, they are educationally based, so politicizing it is deemed as a way to protect being at the top of the racial caste system.
A follow-up question on that, how do you think the media perpetuates these racist stereotypes, like Birth of a Nation?
Well, I think that…so local news, throughout my whole growing up, and I don’t watch much local news anymore, but plastering mugshots of African American men on the local news every night when people are eating dinner, that does that kind of racist work, for white supremacy. Pop culture, overpolicing, images that abound in advertising, the way that we talk in politics, even the Democratic party, Hillary Clinton and Biden referred to young black men as predators. The Democratic party has been guilty of this too. The Democratic party is not free of the ravages–I’m sure you’re aware of this, I’m not telling you anything you don’t know–of white supremacy, because it’s a powerful institution, and all of our institutions–banking, higher ed, the criminal justice system, and when I say the criminal justice system I mean the courts, I mean the police, prisons, congress–white supremacy flows through all of it.
Do you think that the government is doing a good job dealing with issues of police brutality?
No. Not at all. Not in the least. The Trump administration hasn’t used any of the real levers available to it to reach down into different jurisdictions, because there’s a federal basis upon which that can be done, if the federal government believes that civil rights are being trampled upon by a police department they can do an investigation and put it under a consent decree. They’ve done none of that. I would give Barack Obama only middling marks on it. We’re a society…our pace of change is incredibly slow. That pace of change is so slow and incremental that it exhausts people, and that’s what it’s meant to do. You can beat people down by just exhausting them. Our pace of change is very very slow. So no, I do not give good marks.
What do you think are some important cases to study when researching police brutality?
Trayvon Martin, Breonna Taylor, George Floyd, Ahmnaud Arbery, Emmett Till…you know?
Yes, I’m familiar with Emmett Till.
So, when I think of “police brutality” I think of police, and the vigilante lynching system. They were informally designated “policemen,” the lynching mobs. Tragically, you have an endless number to choose from. And it is 2020 and this is still happening. It’s…horrifying.
I’ve felt kind of like I don’t know what I personally should do to make a change. Do you have any advice for me and my peers as to what we should do next?
Vote. Vote. Please never come to the conclusion that voting doesn’t matter. That’s the intention of power structures…to exhaust people, to discourage people, to get people to disengage, that’s what immoral power structures want people to do. If the people that are perpetuating the racist structures–and by the way, we all perpetuate them, because we live in them, and so I’m guilty of it–but I’m guilty of it, and trying to find where I can dismantle it. But…vote, vote, vote vote. And then the other thing that I think that white people can do is to, without emotionally burdening black people, center their experiences, and allow them to tell us what their experience is. Because so often in American history, well-meaning white liberals have told black people what they’re thinking, or how to get something done, and we don’t have the lived experience. We don’t move in the world with that skin color. So I would say vote, center black people’s voices, and then choose some subset problem where you can donate your time and talent, and there are all sorts of things you could do that might interest you, it might be housing justice, it might be climate justice, it might be working to dismantle the carceral state, it might be mental health access…
Thank you. Lastly, is there anything else that you would like to add?
No, I don’t think so, except for that I’m really proud of you for picking this topic and being engaged….I mean, it’s tough subject matter but I hope you’re gaining a lot from it.
Definitely, it’s definitely been really interesting.
Reeves, Eva M, and Mary K Tate. “Interview with Mary Tate.” 24 Oct. 2020.