Pursuing Justice Justly – Stern Social Action Speaker Justice Rebecca Dallet

This message on “If Not Now, When?,” the interactive blog of Anshe Chesed Fairmount Temple, is from 2018 Yom Kippur Stern Social Action speaker, Justice Rebecca Dallet.  We encourage you to comment below or to share the link on social media to continue the important conversation it engenders.

Introduction of Justice Dallet from Melissa Yasinow:

It is with great pleasure that I introduce today’s Stern Social Action Speaker, Wisconsin Supreme Court Justice Rebecca Frank Dallet.

Justice Dallet grew up here, at Fairmount Temple, and graduated just down the street at Shaker Heights High School.  While at Shaker, she  presided over her very first case, serving as the judge in the mock trial of her social studies teacher.  Following her first taste of the judiciary, Justice Dallet earned her BA in Economics from The Ohio State University, and then her JD from the Case Western Reserve University School of Law where she had graduated summa cum laude.

At Case, Justice Dallet met her husband Brad and together they moved to Wisconsin where Justice Dallet began her legal career as a Law Clerk for the U.S. Magistrate’s Office in the Eastern District of Wisconsin.  From this start, she rose through her legal community, serving as an Assistant U.S. Attorney in Wisconsin’s Eastern District, an Assistant District Attorney in Milwaukee County, as an Adjunct Law Professor at Marquette University, and as the first female presiding court commissioner in Milwaukee County history.

In 2008, Justice Dallet was elected to the Milwaukee County Circuit Court-the equivalent to our Court of Common Pleas—and was re-elected in 2014.  As reported to the Milwaukee Journal Sentinel, Justice Dallet’s proudest day as a judge took place in June 2014.  She was driving home from a family vacation when she learned that Wisconsin’s same-sex marriage ban had been struck down.  Justice Dallet stopped off at home, picked up her robes, and headed to the courthouse where she greeted committed, loving families and married them.

Now, these accomplishments alone would have been enough. Dayenu. A legacy of progress and opportunity for the next generation – including Justice Dallet’s three daughters: Rachel, Ellie and Abby – but she was not done.

In early 2018, then-Judge Dallet ran for the Wisconsin Supreme Court, a bellwether race not just for Wisconsin, but the entire country.  Pitted against a staunch conservative, pundits of all stripes looked at Justice Dallet’s race as a harbinger of this November’s midterms.

It is an understatement to say that Justice Dallet fought a hard and contentious battle. President Trump had won Wisconsin, and although Wisconsin Supreme Court races are nonpartisan, the last time a Democrat won an open seat was 23 years ago, in 1995.  By Election Day, on April 3, 2018, over $2.5 million had been spent on TV ads alone. And although Justice Dallet had earned endorsements from Vice President Joe Biden, Attorney General Eric Holder, and Senators Tammy Baldwin and Cory Booker, analysts predicted that Election Night would be a nail-biter.

They were wrong.  In the words of the Associated Press, Justice Dallet ‘trounced’ her opponent 56-44% and inspired the highest voter turnout in a Wisconsin spring election in nearly a decade.  When the smoke cleared, Justice Dallet had won 24 more counties than President Trump.

On August 6, 2018, Justice Dallet was sworn in as Wisconsin’s newest Supreme Court Justice, the start of her 10-year term.  It is my honor to present to you Justice Rebecca Frank Dallet.

From Justice Rebecca Dallet, Yom Kippur, 2018:

Thank you, Rabbi Nosanchuk, and to the entire Fairmount family, for your invitation and your hospitality on this day.

I am fourth generation at Fairmount Temple. My parents were married here.  I grew up in this temple and I was married here. My sister and her family are still members here. It is here on the fires of social justice that we have lit as Anshe Chesed, that my own burning passion and fire for justice was kindled. I was an active member of NELFTY, part of NFTY where we regularly set about repairing the world, Tikkun Olam.  I attended Hebrew High School where we learned about and engaged in discussion surrounding topics related to Jewish teens and Jewish life and how to find our place in the world.  Fairmount Temple was my foundation in seeking justice and repairing the world.

More than 20 years ago, after finishing law school at Case Western Reserve, I made my way with my husband Brad to his hometown. He was a good Jewish boy from Milwaukee, so I was traveling from one great lake to another.

At the time, Milwaukee’s motto was actually “A Great City on a Great Lake.”   Really.  Being from Cleveland, I was skeptical.  But, they hadn’t had any fires on their lake, so they at least had a running start towards the title.

Jokes aside, the lake and lakefront here has become a real treasure, and it is always, always, good to be home.  I have a number of family here today including my father and stepmother, my sister, my brother-in-law, my niece and many cousins. Brad and I enjoy bringing our three daughters here when we can, and as always, we thank you for your gracious welcome — I always enjoy seeing familiar faces and sharing this home with my family.

Today, on this somber occasion, I’ve been asked to talk about “Pursuing Justice Justly,” and as a brand-new Justice of my adopted state’s Supreme Court, it is an apt topic.

I was elected to a ten-year term on our state’s highest court this past April, and took office in August. Prior to becoming a state supreme court justice, I spent 10 years as a county trial court judge, overseeing cases in felony and misdemeanor criminal courts, and in civil court. Milwaukee is a county of about one million people, smaller than Cleveland but honestly, very similar, in that we have a central core burdened by poverty, hurt by transitions in our economy over the last 50 years, and populated largely by people of color. The City of Milwaukee is a majority-minority city of 600,000, surrounded by suburbs that are overwhelmingly white.

The biggest issue in my campaign, in every campaign, it seems, for judge or justice in Wisconsin, is whether or not a judge is committed to the “rule of law.” A judge is supposed to be a neutral arbiter, a dispassionate referee, just an umpire calling balls and strikes.

Not an advocate for policy.

But the decisions we make as umpires, as referees, are necessarily drawn from our own experience. Umpires have a defined strike zone. The official baseball rules establish the upper limit as the midpoint between the top of the shoulders and the top of the uniform pants and the lower limit the hollow beneath the knees. In practice, it’s the knees to just above the belt, for most. Think about that space between the top of the shoulders and the top of the uniform pants, where most umpires don’t really call a strike, as the uncertainty zone.

But in today’s criminal justice system, that strike zone is bigger, the risk of having a strike called against you much greater, if you are African-American.

Imagine, if you were watching a baseball game, if the strike zone were noticeably different for black hitters and white hitters. One small zone for those with lighter skin, maybe a slightly larger and tougher zone for Latino players, and an impossibly wide and tall strike zone for African-Americans.

That is today’s criminal justice system — separate, and not really anywhere close to equal.

But the policy debate, the policy implications — well, those are tough for a judge. We don’t pass laws, we don’t really even enforce them — (that’s for the police and prosecutors). What we do is ensure they are enforced fairly. That everyone is treated fairly under the rules.

The reality, though, is that by the time cases get to a judge in a trial court, or even much more rarely, to a state appellate court or the Supreme Court, most of the subjective decisions have already been made. The decision to enforce the law or not in a particular case. To make an arrest. To charge a crime. To prosecute.

Most cases get addressed through a plea bargain, giving judges very little opportunity to ensure justice is done. Once a case is to trial, a judge must ensure the rules are followed, but our opinion that a case shouldn’t be brought isn’t relevant. If the law is being enforced, it’s being enforced.

Of course, if the police or prosecutors have broken the rules, or have violated someone’s constitutional rights, we are required to act, but we can’t simply “right a wrong” because we want to. We have to follow the law.

And operating case-by-case, the reality is that the most systemic issues, which result in the aggregate where African-Americans bear the brunt of enforcement and incarceration, are very, very difficult to to address.

So we must think about justice more broadly if we want to have an impact.

Personally, I’m inspired by the first woman to serve on the U.S. Supreme Court, Justice Sandra Day O’Connor, who said, “We don’t accomplish anything in this world alone… and whatever happens is the result of the whole tapestry of one’s life and all the weavings of individual threads from one to another that creates something.”

We have to do our part. And one benefit of being elected by the people is that we do have the chance to decide together how we want to be governed. Our job is to interpret and apply the law when there are disputes, without fear or favor, but we can do so with an eye towards justice.

Sitting on the Supreme Court lets me cast at least one eye towards justice. On the circuit court bench, in almost every single case, the implications of our decisions really were for one victim or offender, for just one litigant in a civil case.

Now, on the Supreme Court, there is at least a chance are that our decisions will impact not only the litigants in that one case before us, but potentially every resident of Wisconsin.

It is a heady responsibility and I have a deep respect for the six other justices who were already there when I was sworn in in August. But as a trial court judge for a decade in a large urban county, I bring a very different perspective and set of life experiences, a different set of experiences with the law, than my colleagues. Only one of my colleagues was a Milwaukee judge before being elected to the high court, and she only served at the trial level for a short time.

I must also note that in Wisconsin, with my election, the Supreme Court is now six women justices, and just one male justice.

When Justice Ruth Bader Ginsburg was asked when will there be enough women on the court, she replied “when all of them are. After all, for 200 years it was all men, and nobody thought there was anything unusual about that.”

And I join this court at what I think we all can acknowledge is an … unusual … time in our state and our country’s history. Many feel that our country is as divided as it ever has been, perhaps since the Civil War. We have massive political divisions.

In fact, it seems more Americans are perhaps moving into enclaves where we almost always only interact with those who are most similar to us.

But Justice Louis Brandeis said, “America has believed that in differentiation, not in uniformity, lies the path of progress. It acted on this belief; it has advanced human happiness, and it has prospered.”

I must associate myself with these words. Our future lies not in division, but also not in uniformity. It lies in accepting and honoring our differences. It lies in welcoming immigrants and building diverse communities. It lies in actively seeking justice whenever and wherever we can.

I know that with some renewed effort, our justice system can live up to the expectations our people have of us. I know that we can find common ground between those who disagree politically to do better in policy-making. When we identify and recognize that policies have disparate racial impact, the courts can step in and demand a change. But let’s try to get there before the Supreme Court of a state has to step in.

There’s something else that Justice Brandeis said:  “Democracy rests upon two pillars: one, the principle that all are equally entitled to life, liberty and the pursuit of happiness; and the other, the conviction that such equal opportunity will most advance civilization.”

So what does it mean, in practical terms, to stand for equality, and to stand for justice?

For me, there are a few things we can do.

First, our Supreme Court, and every court, must lean towards more transparency. Long past are the days when only elites could know, and discuss, and engage in the issues confronted in our courts. This isn’t a discussion just for lawyers, how our criminal justice system works is now a discussion for all of the people of a state and a country. The more we can learn about how the judicial branch of government is working, and can work, and the more we as judges and justices show the world about how we function, the better.

In the last decade, our Court has gone back and forth on how much of our proceedings can be visible to the public. Our administrative discussions were opened to the public, and then taken behind closed doors again. I think it is important to conduct as much of our deliberation in public as possible.

And we must also strive to give confidence that we are not being influenced by special interests or those with business before the courts. Campaigns for the court have become multi-million dollar affairs, and our recusal rule basically leaves it to each of us to decide whether or not we can be fair. What that means in practice is that someone can spend massive amounts of money to help us get elected, and then we can sit on cases that affect those donor’s interests. That’s wrong, and I’m fighting for a stronger recusal rule so there’s not even the perception that justice can be bought.

And, we must also engage in real study about the real-world impact of our decisions. Yes, we must follow the law, and we must interpret it without favor or bias. But I noted in my inauguration speech that we must also recognize that our state is rightly criticized for the data that show clearly how people of color, especially African-Americans, are being left behind. That’s what I want to spend most of my time talking about today.

In Wisconsin, as I’m sure is true in Ohio, we incarcerate a much higher percentage of our black neighbors than our white neighbors. We can no longer blithely accept that reality.  In the wake of the horrific legacy of slavery, and then the horrific legacy of Jim Crow, our nation made a new promise. We said we would atone. We passed civil rights acts  and a Voting Rights Act.

But we have not lived up to that promise.  Our criminal justice system is not living up to the promise of America – where ALL are entitled to life, liberty, and the pursuit of happiness.

The National Urban League puts out an annual report on inequality, and last year’s report shows that economic inequalities “exist in all parts of the country, but the income and unemployment gap is wider in certain cities.”

I’ll start with my adopted home of Milwaukee, so no one can say I was picking on Ohio. For the second year running, the Urban League reports that “Milwaukee was the least equal metropolitan area for African Americans, with a black unemployment rate of 14 percent compared with three percent for whites.”

But Ohio isn’t off the hook. The report says “Other Midwestern cities such as … Cleveland… also fared poorly in terms of racial disparities in unemployment.”  Nationally, the report found the standard of living for White Americans is, on average, one-third higher than for African Americans.

But the statistics for urban metro areas are much more shocking. If you look at household income by race across urban metro areas, the report says “African Americans in Toledo fared the worst, with a median household income of (under $24,000). That figure is about half of the lowest median household income for whites, at ($46,000) in Daytona Beach, Florida.”

In Cleveland, specifically, “median household income for black families is ($29,000 a year),” according to the report. For white families here, median household income is double that.

The average white family here has double the income of the average black family.

The head of the National Urban League, who put out the report, is former New Orleans mayor Marc Morial. He notes that these inequalities sit alongside the corrosive nature of our nation’s discourse. It is inarguable that our politics have normalized racist talk and behavior in a way unimaginable just a few years ago.  After all, we now do live in a country where the President has a hard time condemning white supremacy.

Here’s what Morial says: “The social cancer of hate continues to metastasize, thriving in a climate conducive to hostility towards religious and racial minorities, permeating even at the highest levels of national discourse and threatening to further crack our fractured nation.”

So how does this racial injustice play out in today’s criminal justice system?

Well, there are a plethora of statistics that should deeply upset all of us, that should shake us to our core, but let me start with one simple one.

Across the country, according to The Sentencing Project:

  • African Americans are incarcerated in state prisons at five times the rate of whites.
  • In five states, including Wisconsin, the rate is ten times.
  • A black person in Ohio is 5.6 times more likely to be sent to prison than a white person.

In a free nation, this simply cannot stand.

The Sentencing Project looked at dozens of studies that have examined the cause of racial and ethnic disparities in our criminal justice system, and identified three main contributors:

First, policies and practices in our criminal justice system. Second, implicit bias and stereotyping. And third, structural disadvantages such as poverty, that result in higher rates of offending and arrest.

I want to read some excerpts from this report which I believe highlight the formal and informal policies that have contributed most, and which our political and justice system must address:

“At multiple points in the system, race may play a role. Disparities mount as individuals progress through the system, from the initial point of arrest to the final point of imprisonment. Harsh punishment policies adopted in recent decades, some of which were put into effect even after the crime decline began, are the main cause of the historic rise in imprisonment that has occurred over the past 40 years.”

The report notes that between 1973 and 1986, sentences were made harsher for a variety of felonies, “all of which had a disparate impact on people of color, especially African Americans.” Then, “the focus moved to greater levels of imprisonment for drug and sex offenses,” with “a particularly sharp growth in state imprisonment for drug offenses” in the late 1980s. New policies after the Clinton crime bill was passed in 1994 resulted in again increasing the likelihood that crimes would result in a prison sentence and longer prison sentences.

The report continues: “Harsh drug laws are clearly an important factor in the persistent racial and ethnic disparities observed in state prisons. For drug crimes, disparities are especially severe, due largely to the fact that blacks are nearly four times as likely as whites to be arrested for drug offenses and 2.5 times as likely to be arrested for drug possession. This is despite the evidence that whites and blacks use drugs at roughly the same rate.

“From 1995 – 2005, African Americans comprised approximately 13 percent of drug users, but 36% of drug arrests and 46% of those convicted for drug offenses.”

I can tell you from experience, that racial disparity also starts with the simple factors around how police initiate interactions with the public, and how, where, and when they choose to do so. The data show that policies such as “stop, question, and frisk,” which gained notoriety in New York City, but became the norm in a number of places all over the country, are a significant example of how policies designed to fight crime actually end up just targeting people based on the wrong factors. Law enforcement has broad discretion in choosing when, how, and with whom to enforce the law, and that can significantly aggravate disparities, while not actually making us safer.

And this happens subtly, over time. “Though police stops alone are unlikely to result in a conviction that would lead to a prison sentence, the presence of a criminal record is associated with the decision to incarcerate for subsequent offenses, a sequence of events that disadvantages African Americans.”

One study “found that police officers’ selection of who to stop in New York City’s high-profile policing program was dictated more by racial composition of the neighborhood than by actual crime in the area. The process of stopping, questioning and frisking individuals based on little more than suspicion (or on nebulous terms such as ‘furtive behavior,’ which were the justification for many stops) has led to unnecessary criminal records for thousands.”

Thankfully, New York’s policy was ruled unconstitutional in 2013 with a court ruling in Floyd v. City of New York.

“Other stages of the system contribute to the racial composition of state prisons as well. Factors such as pre-trial detention—more likely to be imposed on black defendants because of income inequality—contributes to disparities because those who are detained pre-trial are more likely to be convicted and sentenced to longer prison terms.”

An “analysis of 40 states … finds that … the non-legal factors of race and ethnicity also influence sentencing decisions. … ‘black and Hispanic offenders—particularly those who are young, male, and unemployed—are more likely than their white counterparts to be sentenced to prison than similarly situated white offenders. Other categories of racial minorities—those convicted of drug offenses, those who victimize whites, those who accumulate more serious prior criminal records, or those who refuse to plead guilty or are unable to secure pretrial release—also may be singled out for more punitive treatment.’”

Another study found “that prosecutorial charging decisions play out unequally when viewed by race, placing blacks at a disadvantage to whites. Prosecutors are more likely to charge black defendants under state habitual offender laws than similarly situated white defendants. Researchers … also observed that the relationship between race and use of the state habitual offender law was stronger for less serious crimes than it was for more serious crimes.” And  “California’s three strikes law has been accused of widening disparities because of the greater likelihood of prior convictions for African Americans.”

Our own bias, our own internalized racism, has a tremendous impact. “For example, scholars have found that people of color are frequently given harsher sanctions because they are perceived as imposing a greater threat to public safety and are therefore deserving of greater social control and punishment.

“Media portrayals about crime have a tendency to distort crime by disproportionately focusing on news stories to those involving serious crimes and those committed by people of color, especially black-on-white violent crime. Since three-quarters of the public say that they form their opinions about crime from the news, this misrepresentation feeds directly into” racial inequality in our system.

If the media “more carefully and accurately represent(ed)” how often certain crimes occurred, and who committed those crimes, and who the victims were, that “would change perceptions about crime.”

But it’s sad to note, that knowing more about racial disparity actually makes us, makes the public, more likely to support harsher punishment for African Americans.

We make the mistake of reversing cause and effect.  Concentrated poverty and inequality is the cause of crime and violence, not the result.

African Americans are victimized by this system, and we can do better.  Now, again, I’m a Supreme Court Justice, not a policy maker. So all I can do is suggest the things we can look at. Let me offer a bit of hope.

New Jersey continues to rank fairly high in disparity. But after seeing rising prison populations for decades, New Jersey has been pursuing reforms to change direction. Since 2000, they have seen their prison population decline by 28%. Black incarceration declined by an even higher rate. Reform can make a huge difference.

There are a few ideas that can have a real impact.

Most simply, we can change laws that have disparate racial impact. For example, it used to be that we treated crack different than powder cocaine under federal sentencing laws at a 100-1 ratio. So someone would get the same sentence for having 5 grams of crack that another person would get for having 500 grams of powder cocaine.  Let’s keep this really simple. One was used more widely in the black community, the other more widely among whites. Again, as I said earlier, drug use is actually pretty equal across racial lines.

But in order to get sent to federal prison under a mandatory minimum, you only needed to have enough crack for yourself… while you needed half a kilo of powder cocaine to trigger the same treatment.  That was crazy, and simply racist.

The law has been reformed a bit, and now operates at an 18-1 ratio instead of 100-1.

Another example is simply restoring more judicial discretion and ending mandatory minimums and three-strikes laws. These harsh laws in practice had a tremendous effect on black communities and contributed greatly to mass incarceration. A state can also restore and reform its parole system, to reduce backlogs and make more offenders eligible for parole.

In addition, we must recognize and train every actor in the criminal justice system on the role of implicit bias. Although openly expressing racist thoughts is socially unacceptable — well, for most of us — and overt discrimination is still looked upon unfavorably by the law, it is the unstated implicit bias that has a big impact and results in “similar disparate results.

“Evidence suggests that when professionals are faced with a need to triage cases—a regular occurrence for law enforcement and defense counsel, for instance—implicit bias likely comes into play in deciding which cases to take as a sort of mental shorthand used to draw quick conclusions about people and their criminal tendencies.

“To offset this, implicit bias trainings can make people aware of these temptations, and this awareness can minimize racially-influenced trigger responses in the future.”

More than anything, we as practitioners in the law must decide that we believe that bias can have an impact, and that we have a duty to be fair and impartial.

“Finally, several states are pursuing racial impact legislation, an idea that first became law in the state of Iowa in 2008. To date, Connecticut and Oregon have also passed racial impact laws and several additional states have introduced similar legislation. The idea behind racial impact laws is to consider the outcome of changes in the criminal code before passing laws in order to provide an opportunity for policymakers to consider alternative approaches that do not exacerbate disparities. Similar to fiscal impact statements or environmental impact statements, racial impact statements forecast the effect of bills on people of different races and ethnicities. There is a cost, both financial and moral, to maintaining racial and ethnic disparities.”

This congregation, and our faith, are about justice. We do believe that a society that treats people differently because of their ethnicity, beliefs, or color of their skin, is a society that is failing to live up to its promise.

Our people know as well as any the cost of allowing injustice and biased treatment. Anne Frank wrote in her diary, “I keep my ideals, because in spite of everything I still believe that people are really good at heart.”

We must believe we can do better, for all of us. Not just for ourselves, but for all of us.

Eleanor Roosevelt said, “It isn’t enough to talk about peace. One must believe in it. And it isn’t enough to believe in it. One must work at it.”

Let’s get to work.