October 2015 Bar Bulletin
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'Zero Detention' - Principle over Compromise


As I swore in the latest batch of new lawyers at KCBA ceremonies last month, in my mind I replayed my own swearing-in more than 20 years ago. I asked the judge for whom I had clerked, Shirley Abrahamson of the Wisconsin Supreme Court, to administer the oath.

Looking back on it, I must have been a very frustrating clerk, always urging her to stand on principle rather than work the back hallway diplomacy. I was very vocal about my views of some of her colleagues and what my younger self perceived as either cowardice or political calculation.

And so, when she got to the part of the Washington Oath of Attorney where one promises to "maintain the respect due to the courts of justice and judicial officers," she paused, looked over her glasses, and regarded me sternly. I smiled, but got the message. I would now be appearing before judges and my approach needed to change - at least publicly.

There is no doubt I waited much longer than most people to accept the virtues of compromise over pure principle. I was in my early 30s, well into my career as a public defender, when I first began to appreciate the role of moderation, compromise and ambiguity in the law as well as in human relations.

It is a hard thing to accept that our Fourth Amendment jurisprudence, for example, enshrines the white lie as a central element of evaluating the reasonableness of searches and seizures. I am still enough of a radical to come out and say that, but as a judge I realize that over the years appellate judges moved in this direction to moderate the effect of a purely principled stand and by doing so, made their decisions practical and acceptable to the public.

A classic example of a phrase borrowed from Fourth Amendment law is "furtive gestures."" Police officers frequently justify stops and searches on the basis of "furtive gestures"" that make them concerned for their safety because a suspect might be reaching for a weapon. Sometimes it can be a white lie because there is usually no way to challenge their testimony and we know, in hindsight, that they found drugs or arrested the right guy.

That compromise with principle allows the system to function and does not lead to the release of a lot of guilty people. I think one can tell that I, for one, am not convinced. But I do understand why this is the way it is.

Seattle is the home of many people who are at least as committed to principle as I was and probably more so. Even some politicians here cling to principle when old-fashioned political considerations should have pushed them in the opposite direction. I am thinking, of course, of the advocates who managed to convince a unanimous City Council to adopt a vision of "zero detention" in a resolution passed in September.

It's easy to dismiss this resolution as one of those silly things politicians do when an election approaches. But for some councilmembers and the advocates they listen to, the principle that no youth should ever be incarcerated is so important that they are unable to accept any compromise, including working first on alternatives and a transition to the point that our society finally no longer experiences violent crimes committed by youth.

At one point during one of the public hearings on the measure, a councilmember asked whether any distinction was drawn between nonviolent and violent offenders. The audience responded with hisses and the cry, "They are children!"

At a later point in the deliberations, it was suggested that public safety should be one of the metrics the City should use to measure the success of its adoption of alternatives to detention. I can only conclude that the advocates driving the resolution vetoed the idea, because it did not appear in the final version that was adopted.

Looking back on my own youth - hell, 'til I was about 35 - I was equally hostile to compromise about principles I believed in. Those principles have been vindicated by the publication of The New Jim Crow and subsequent public discussion.

I saw the justice system as stacked against poor people and people of color, and this was leading to completely unfair imprisonment of both. I wanted to make prosecutors and judges acknowledge this fact. Here in King County, I have heard some of those same prosecutors (now judges) acknowledge that as lawyers and now as judges we are cogs in a machine that leads to mass incarceration of people of color.

Maybe one day the Zero Detention advocates will feel the same, quiet vindication. But I am not so sure. The difference is this: All we public defenders wanted was fairness - we were not pushing to unlock the prison gates. Rather, we wanted the laws and the criminal justice process to ensure that society's decision about who wound up inside those gates was fair and not motivated by racism.

What these advocates want is an end to incarceration of youth, no matter how serious the crimes of which they are accused. When I ask people like Councilmember Mike O'Brien, "How do I protect the public from a 14-year-old with a gun?" I hear no answer. The advocates have found something to oppose and they are doing so brilliantly, but they have not done the hard, mature work of proposing a realistic alternative for young people charged with violent offenses - like shooting someone multiple times, robbery at gunpoint or rape.

The County is trying hard to do the work to make the situation better. As I write, we are preparing for the inaugural meeting of the Juvenile Justice Equity Steering Committee - the group charged with trying to identify upstream causes of disproportionality and propose possible solutions we could test. Maybe we would place case managers in elementary schools to catch the students beginning to struggle. Maybe we work with schools to end exclusionary discipline. Maybe we expand public health nurse visits. If we knew what worked, we would have done it already, so the County is all about trying something different.

Superior Court hired its first equity and justice advocate, Theresa Wea. Her job will be to keep us laser-focused on the issue of racial disproportionality long after the national media lens has moved away. And we hope she will help us hear from the community (all of the community) about what they think might help, and strategize with them about how to find a way to make it happen.

This is what mature leadership looks like. Embracing the opportunity to be critiqued - loudly. Having the discipline to think about solutions rather than just problems. Showing a willingness to test ideas and to reject or change those that don't work. Demonstrating the courage to make a paradigm shift.

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