Bar Bulletin

Bar Bulletin

We Must Change

July 2020 Bar Bulletin

As Seattle Police cede the East Precinct to protestors, streets all over America fill daily with those newly aware of institutional racism, and with our black brothers and sisters who’s lives are daily testimonies to discrimination and suffering.

Our lives will never be the same. America will never be the same. The practice of law will never be the same.

As lawyers, we serve the common good, and as we sift through these events and deeply examine our own role, we must take responsibility for helping to maintain justice systems that are deeply rooted in racism. The murder of George Floyd by Minneapolis police officers, a horrific act in itself, now rests atop innumerable racist killings in a country founded on human slavery, lynchings, Jim Crow laws and the incarceration of black men in overwhelming numbers.

Yet, we need to be aware that policing is only part of a larger system of oppression felt so deeply by the black community. This is why we as lawyers must also commit to ending discrimination in housing, in our schools, in our neighborhoods, in health care systems and in how we practice law and administer justice in our courts.

As our Supreme Court unanimously recognized in its recent open letter, it is “our moral imperative” to seek racial justice. In almost forty years of law practice in Washington State, I never thought I would read the words of the Court, “As judges, we must recognize the role we have played in devaluing black lives.”

King County Presiding Judge Jim Rogers, writing for the entire Superior Court, similarly recognized that “judges have acted to reinforce racist acts,” and “have wrongfully deprived Black Americans of their liberty in criminal cases and have precluded them from fully engaging in civil society…”

While these words must be followed by actions, we lawyers can be heartened by their courage and forthrightness.

Just as our judges recognize the role they have played in devaluing black lives, we as lawyers must do the same.

We must examine and change a justice system in which lawyers criminally prosecute disproportionately more blacks than whites.

I know, I was one of those prosecutors.

We must examine and change the role played by unjust and inequitable sentencing guidelines in filling our prisons with black lives. We must address inadequate budgets for lawyers engaged in public defense and assure that caseloads and practices do not require acquiescence to government. Our Constitution requires that accused persons facing incarceration be provided counsel who can act as a check against the unlawful use of power - especially where it has targeted black and brown human beings.

We must fight to eliminate all forms of discrimination — not by paying lip service to diversity, but by judging all of our work through a race equity lens. A lens forcing questions about our allocation of resources and requiring us to measure our efforts by how they impact people of color, low income families, LGBTQ+ persons and those who are differently abled. We must humbly acknowledge that every day we live and work and play on lands taken from Native Americans by white settlers and grapple with our solemn duty to really see them and to honor their sovereignty and treaty rights.

We must dismantle our daily practices and innumerable aggressions that prevent our black and brown sisters and brothers from benefiting from true equality under the law, and which instead fills their lives with disparate and unfair treatment. We must listen to them, hear their stories and work to discard our own biases that prevent us from ever fully understanding their pain inflicted by police abuses and the murders of black men.

We must examine carefully why we practice law in non-diverse offices, how we fail to promote and retain diverse lawyers, where we fail to give opportunities to succeed, to be mentored, or to gain entrance to mostly white male, white privileged levers of power that mark most legal employers in our profession.

This is white privilege. My privilege.

Only by recognizing that today’s sea change of protest and public revulsion also applies to our own work can we truly examine roles in a failed justice system and re-cast the practice of law.

We can begin by humbly recognizing our role in failing to recognize that Black Lives Matter. We can educate ourselves to our own bias and role in racial inequity. We can contribute our funds to organizations that will help to bring racial justice to the justice system - not by working around the edges, but in some cases by dismantling and starting over. We can do what lawyers do best and volunteer our time to advocate for those who cannot afford our services, especially those who exercise their First Amendment right to protest the government and its tactics, those left homeless by COVID-19 and those who have borne the brunt of our racism.

The days ahead will not be easy for the law profession. They shouldn’t be easy. But we will try though we may suffer failures along the way. These should not deter us; rather, in failure we will find the grace and humility to persevere.

We can change. We must change. We will change. 

John McKay is President of the King County Bar Association and a partner at Davis Wright Tremaine. He can be reached at johnmckay@dwt.com.

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