Hearing of the House Committee on the Judiciary- Jena 6 and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public School
Interview
Hearing of the House Committee on the Judiciary- Jena 6 and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public School
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REP. KEITH ELLISON (D-MN): Thank you, Mr. Chair.
Professor Ogletree, do you agree that federal delinquency proceedings against the noose hangers was legally impossible? Do you agree with that -- with that statement?
MR. OGLETREE: No. As I said earlier, they are -- there were both state and federal provisions available to pursue this, and they were -- the nice word is they were "declined."
REP. ELLISON: Right. They were declined.
And so it was essentially -- and Mr. Cohen, and I know now you feel about the question of prosecuting the noose hangers, but let me just ask you this question. I'm asking you this just from your legal analysis. Isn't it fundamentally a question of discretionary latitude?
MR. COHEN: That's correct. You could absolutely prosecute the noose-hangers both in juvenile -- as juveniles under 245 and as adults, because the hanging of the noose was a crime of violence under the United States Code. So as long as the noose -- as long as they were over 15, they could have been tried in adult court under Section 18, 5032.
REP. ELLISON: So, Mr. Washington, you used your discretionary latitude to decline the juvenile proceedings for the noose-hangers, isn't that true?
MR. WASHINGTON: Actually what our process is --
REP. ELLISON: I need a yes or no, sir.
MR. WASHINGTON: Well, I'm trying to answer your question the best --
REP. ELLISON: No, I'm not going to let you waste my time. I need you to answer my question.
MR. WASHINGTON: The -- my office works with, or actually the Civil Rights Division --
REP. ELLISON: Sir, I've got five minutes. I'm not going to tolerate you wasting my time. I need you to answer the question. You used your discretionary latitude to decline the charges on the noose- hangers, isn't that a yes?
MR. WASHINGTON: No, sir.
REP. ELLISON: Okay, well, we've got two learned counsel that says that's not true.
Now, in the course of this -- my time on this committee, we have dealt with eight U.S. attorneys who were fired because they did not slavishly obey the dictates of the Bush Justice Department. And we had some people who got promoted, benefits accrued to them because they did do what the Justice Department wanted them to do under Gonzales and Bush. You still have a job, don't you?
MR. WASHINGTON: Yes, sir.
REP. ELLISON: And I almost fell off my chair when you invoked the name of Martin Luther King to say that you were somehow the culmination of his work. Sir, I would expect you to quit in protest based on that -- based on your inability to use your discretionary latitude to charge these noose-hangers. That's what I would expect of somebody who was truly in fidelity with that great legacy of Martin Luther King.
Let me say that, you know, Jena Six is obviously the occasion that we're here, but, you know, for those folks who are not from Jena, you know and I know that we're outraged because we all have some Jena Sixes. We've got some Minnesota Jena Sixes. You know, the fact is that nationally, according to the testimony of Professor Ogletree, black students are 2.6 times more likely to be suspended than white students. Overall, the numbers of students being suspended each year increased due to tough, zero-tolerance policies. But that's just school discipline.
The fact is juvenile justice data mirror disparities in the school. 2003, African American youth were detained at a rate of four to five times higher than that of their white counterparts. Aside from the issue of civil rights decision and the hate crime stuff, what about black youth and Latino youth in the criminal justice system and the over-incarceration of black people? We live in a country that incarcerates more than 2 million people. Don't we have a system that is essentially using the legal -- the criminal justice system to do what the Jim Crow system did in the past? Isn't this just an extension?
Mr. -- Reverend Sharpton, could you elaborate on this --
REV. SHARPTON: No, I think that you hit it on the head. I think the challenge of the 21st century is exactly that, Congressman Ellison. You know, I said in my statement on September 20th in Jena with Martin III and Michael Baisden and others, we've gone from Jim Crow to James Crow, Jr., Esquire. He's a little more polished, he uses different techniques, but it's the same result.
At the end of the day -- and no one salutes the chairman more than we do for calling this -- if you start in August of '06 and go to December, the scorecard is, at the end of several incidents, six young blacks are standing as adults under indictment or in jail, and no whites are. After several incidents. That's the bottom line. You can't get around that. And a Justice Department that says, "We're looking at it, we'll study it, maybe," then what do we do?
So there are those of us that respond, even though we will be attacked -- Martin III, Father Michael Pfleger's here, on his way to Jena -- we are only responding because they won't respond.
REP. ELLISON: Well, you know, thank you for acknowledging the presence of Father Michael Pfleger, truly a hero and many years of service. Sir, thank you.
But I just wanted to just go back to this eight U.S. attorneys thing, because this has taken up a lot of time here. And one of the things that always concerned me is not just the eight who were fired because they wouldn't do -- because they wouldn't bring fake voting rights cases, but the people who stayed and kept their jobs, these people are the ones who I'm truly concerned about.
And I guess, you know, one of the things that I would like to know is, Mr. Washington, have you prosecuted other juveniles in the -- in your tenure as U.S. attorney, have you prosecuted other juveniles?
MR. WASHINGTON: No. We've had --
REP. ELLISON: You've never -- because let me tell you, I've defended juveniles in federal court.
MR. WASHINGTON: Yeah, well, I --
REP. ELLISON: No, let me tell you, sir. I've been -- I spent 16 years as a criminal defense attorney, and I've tried over 100 cases to a jury and I've defended juveniles in federal court. So you can't tell me that the federal government doesn't -- you prosecute them for having five grams of crack cocaine.
MR. WASHINGTON: Well --
REP. ELLISON: You throw them in -- no, you put them in jail for that.
MR. WASHINGTON: You may misunderstand --
(Cross talk.)
REP. ELLISON: You know, we have incarcerated generations over your drug war -- and I say it's yours because you will not step away from an unfair system. And, you know, but what about the selective justice? You're telling me you have never prosecuted a juvenile. We're going to find out.
MR. WASHINGTON: No, what I'm telling you --
REP. ELLISON: Is that your statement under -- is that your statement before Congress?
MR. WASHINGTON: In my district, okay? And you're asking me, I guess, about the Department of Justice, and I cannot speak to whether or when or how we prosecuted juveniles --
REP. ELLISON: Right. Well, let me just say this, Mr. Washington. You know, you've been on record saying that you believe that the noose-hangers didn't commit a crime, and now you're saying today that they did. I'm glad to see that. I want to give you credit for that. Have you changed your mind? Is that the -- does that explain your change in testimony?
MR. WASHINGTON: I don't believe so, sir.
REP. ELLISON: Have you come to see the light? Is that why you're saying that it's a crime today?
MR. WASHINGTON: I don't think I've changed my testimony.
REP. ELLISON: Well, you changed your statement. Do you agree with that?
MR. WASHINGTON: I don't think so.
REP. ELLISON: Okay. Well, I guess -- the Reverend seems to have another viewpoint. Reverend Moran, do you have another thing you'd like to share on that?
REV. MORAN: Well, I think a gun on school property is a federal offense, is it not?
REP. ELLISON: I think that it certainly could be. What about that case about the guy having a gun pointed at him --
REV. MORAN: Justin Barker, the one that was accused of being jumped on at school.
REP. ELLISON: Had a gun at school?
MR. MORAN: Yeah. He had -- a loaded gun.
REP. ELLISON: Did he get prosecuted by our U.S. attorney? (No audible response.) Oh.
REV. SHARPTON: Or by the local district attorney.
REP. ELLISON: Nobody.
REV. MORAN: Nobody.
REP. ELLISON: You know, if you claim to be a beneficiary of the work of Martin Luther King, you've got to stand on that. You can't just -- it's not a matter of career advancement. Martin Luther King did not do his work so you could get a Lexus and a nice house. It's not just a matter of your own career advancement and buying consumer items. It is fidelity to a set of ideas.
Reverend Al, what do you expect of this new generation of African Americans who have benefited from the opportunities opened by the works of people like you, Reverend Jackson, and Martin Luther King? What do you expect of us?
REV. SHARPTON: I think that all that one could expect is that they would keep the door open that they walk through, and even make it more open for the generations behind. We, I think, have the right not to expect that they would become the apologists for the element that would have prevented their coming to existence. We're not asking them to show favor, we're asking them to do justice. Do what is fair.
Michael Bell is in jail today on an unequal situation. If he cannot look to federal officers who wouldn't have been there if it wasn't for people marching, who is he supposed to look to? So for people to give up their careers so you can have a career, and you do not use your career to make sure other careers are justly treated, is the height of ingratitude.
Yes, Dr. King had a dream, but he wasn't asleep to get the dream. He woke up to get the dream.
REP. ELLISON: Mr. Washington, I just have a last question.
REP. CONYERS: The gentleman's time is nearly expired.
REP. ELLISON: I just have one more question for you.
I mean, you know, the worst thing that could happen to a young person is not that they be prosecuted for hanging a noose. Even if they were prosecuted, wouldn't it perhaps prevent them from ever going into a life of racism and perhaps step away from that kind of lifestyle into the future? Wouldn't it drive home the point that what they did is deathly serious and can't be tolerated? And wouldn't it also signal to the community that we take your lives seriously and are serious about your health and your safety and your well being? Wouldn't -- couldn't that have been an outcome of a prosecution of these noose-hangers?
MR. WASHINGTON: Well, first of all, we could not prosecute these noose-hangers. At the end of the day, all we could do, if the facts were there, was to bring a juvenile delinquency proceeding, which we elected not to do.
There's been some talk here -- there's been a --
REP. ELLISON: Okay, so at least you admit you elected not to do it. What about a juvenile proceeding against them for the noose- hanging? Wouldn't that have achieved the goals of signaling to the community that we take their health and safety seriously and wouldn't it have simultaneously signaled to the noose-hangers that this is very serious behavior and will not be tolerated in civil society? And Mr. Washington, I'd like to hear from you.
REP. CONYERS: I'm going to have to cut my friend off. I know he's the clean-up hitter, but I'm going to have to stop him at this point.
Please respond -- whoever --
MS. KRIGSTEN: If I may respond for the Department of Justice on this, the idea of juvenile justice is not to send a message. The idea of juvenile justice is rehabilitation. Just as the prosecutor in Jena is being accused of using these youth to send a message, the Department of Justice wants to be very careful in its exercise of prosecutorial discretion. It does not use that discretion to send a message; moreover, that message could not have been sent, because the results of such a proceeding never would have reached the public.
REV. SHARPTON: Well, Mr. Chairman, could I say in response to that -- one, the prosecutor in Jena did not use the juvenile system to send a message, the 3rd Circuit forced him into the juvenile system. He tried to use the adult system. And everything that has happened in the juvenile system seems to be in national headlines with Michael Bell. So it's very, very, very strange to me that if the federal government had elected to go juvenile that it would not have been known to the community that you don't get away with racist imagery like hanging nooses on trees. I think in a community as small as Jena, that message would have gotten around, had they elected to enforce the law of hate crimes against juveniles or against those that were guilty of what was done on that day.
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