[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
JENA 6 AND THE ROLE OF FEDERAL INTERVENTION IN HATE CRIMES AND RACE-
RELATED VIOLENCE IN PUBLIC SCHOOLS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 16, 2007
__________
Serial No. 110-162
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
C O N T E N T S
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OCTOBER 16, 2007
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 2
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Member, Committee on
the Judiciary.................................................. 3
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Member, Committee on the Judiciary 4
The Honorable Maxine Waters, a Representative in Congress from
the State of California, and Member, Committee on the Judiciary 5
WITNESSES
Mr. Donald Washington, U.S. Attorney for the Western District of
Louisiana, U.S. Department of Justice, accompanied by Lisa
Krigsten, Counsel to the Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice, and George
Henderson, General Counsel, Community Relations Service, U.S.
Department of Justice
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Mr. J. Richard Cohen, President and CEO, Southern Poverty Law
Center
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Reverend Brian L. Moran, Pastor of the Jena Antioch Baptist
Church and President of the NAACP Jena Chapter
Oral Testimony................................................. 24
Prepared Statement............................................. 25
Charles J. Ogletree, Jr., Director, The Charles Hamilton Houston
Institute for Race and Justice, Harvard Law School
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Reverend Al Sharpton, President, National Action Network
Oral Testimony................................................. 40
Prepared Statement............................................. 41
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 85
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Member, Committee
on the Judiciary............................................... 89
Prepared Statement of the Honorable Betty Sutton, a
Representative in Congress from the State of Ohio, and Member,
Committee on the Judiciary..................................... 89
Articles submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 91
Material submitted by Charles J. Ogletree, Jr., Director, The
Charles Hamilton Houston Institute for Race and Justice,
Harvard Law School............................................. 98
Prepared Statement of the Anti-Defamation League................. 137
Post-Hearing Questions submitted by the Honorable Lamar Smith, a
Representative in Congress from the State of Texas, and Ranking
Member, Committee on the Judiciary............................. 154
JENA 6 AND THE ROLE OF FEDERAL INTERVENTION IN HATE CRIMES AND RACE-
RELATED VIOLENCE IN PUBLIC SCHOOLS
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TUESDAY, OCTOBER 16, 2007
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:53 a.m., in
room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Berman, Nadler, Scott,
Watt, Jackson Lee, Waters, Sanchez, Cohen, Johnson, Sutton,
Baldwin, Weiner, Schiff, Wasserman Schultz, Ellison, Smith,
Sensenbrenner, Coble, Goodlatte, Lungren, Issa, King and
Jordan.
Staff Present: Lillian German, Majority Deputy Oversight
Counsel; Kanya Bennett, Majority Counsel; Paul Taylor, Minority
Counsel; and Renata Strause, Majority Staff Assistant.
Mr. Conyers. This is very disturbing because none of the
mikes are working.
This is an historic hearing in which the microphones are
working at the House Judiciary Committee. Good morning, again,
everyone. This is an important hearing, in my judgment, one of
the most important that I've had the honor of chairing, because
what this is about, is about democracy now and how do we
improve it.
We thank, first of all, all the Members that are able to
join the hearing on the Committee. And then we thank the
important and distinguished witnesses that we have before us.
And we also thank everyone here who is attending the hearings
in person as our guests.
The Jena 6 and the role of the Federal intervention in hate
crimes in race-related violence in public schools is a very
timely and important matter. I thank all of you who have come
from various parts of the country to help discuss and
illuminate this critical issue in terms of how we can resolve
and solve it. Today's hearing addresses a question that has
unfortunately been historically a stain on our Nation's history
of race relations, namely racial violence and hate crimes.
Also disturbing is the likelihood that what happened in
Jena, Louisiana, not might have garnered any public awareness
and would not have inspired one of the largest civil rights
protests in recent memory were it not for the activity of so
many citizens and even persons in the media who brought this to
public, national and international consideration.
Clearly, in Jena, there were numerous missed opportunities
to address some of these incidents in a fair manner. It could
have been treated as a disciplinary problem to be addressed by
the school principal, as to all the students involved of all
races, or in a more effective and efficient and fair manner.
As we all know, it is illegal under the guarantees of our
Constitution and our laws to have one standard of justice for
White citizens and another harsher one for African American
citizens. And so I met with the Department of Justice officials
about the matter, and to their credit, they are eager to
examine these problems presented in the case and committed to
sharing with this Committee their findings concerning other
incidents.
Racial discrimination in the criminal justice system is not
unique to any one place, but is found in cities and towns,
north and south, throughout our Nation. Our Committee, for
example, is examining similar incidents involving the
prosecution of African American juveniles in Georgia, Texas and
California.
And on that note, I point out that some school leaders at
Jena High School did attempt to treat this matter with equity
and justice; they were overruled. There are countless justice-
minded individuals in Jena and throughout this country who are
disturbed about this, and I quote Dr. Martin Luther King, Jr.,
a great influence in my political development who wrote,
``Injustice anywhere is a threat to justice everywhere.''
And so we come to this hearing inquiring as to how we can
correct this situation in the Nation, and I'm looking forward
to this discussion. And I want to particularly thank the
Members of this Committee, but especially Lamar Smith, the
Ranking Member from Texas with whom we have worked continually
in this matter. And it's not like this is the end of the line
or anything. This is--the development of democracy is a
continuing activity; it never stops. There will always be
problems.
The question in my mind today is whether from the
particular experience and incident that brings us here, we can
move forward, that we can build on it. And it's in that
confidence that I believe that the answer is absolutely yes,
that we're all invited to gather here today.
And so I'd now like to recognize the Ranking Member of
Judiciary Committee, Lamar Smith.
Mr. Smith. Thank you, Mr. Chairman, and thank you for those
always gracious and always generous words.
Jena, Louisiana has suffered through a tragic series of
racial incidents and subsequent racial strife. I sincerely hope
this hearing will focus on productive solutions.
And in that regard, Mr. Chairman, let me say that in
reading the testimony of our witnesses today, I was gratified
to see so many suggestions for how we might reach those healing
solutions.
The title of this hearing uses the term hate crimes, but
the proposed Federal hate crimes legislation would only
criminalize those incidents that are accompanied by acts of
violence. If current laws are insufficient to cover certain
crimes, then we need to consider changing them.
Mr. Chairman, more than anything, though, what we need is
an effort to reduce racial tension and discrimination; what we
do not need is stoking racial resentment. Race under the
criminal law cannot be allowed to act like the laws of
magnetism, inevitably pulling society's compass to point one
way or another based on the color of one's skin. If justice is
blind, she must be color blind as well.
Mr. Chairman, this is an historic hearing today as you've
already said, and I think much good can come out of it. And I
have great faith in our witnesses today, not only to testify as
to solutions they think are appropriate, but also to take steps
today to begin that healing process as we all work together
toward that goal.
And with that, Mr. Chairman, I yield back.
Mr. Conyers. I thank the gentleman very much, and I'd like
now to turn to the Chairman of the Subcommittee on Crime, Bobby
Scott of Virginia, and recognize him.
Mr. Scott. Thank you. Thank you, Mr. Chairman, thank you
for holding today's important hearing. I'm sure we're all
familiar with the alleged facts, the Black students at Jena
High School asked to sit under a tree that was understood by
everyone, including school administrators, to be for White
students only. Three White students hung nooses from the tree
and were ultimately punished with a brief suspension. Fights
subsequently occurred between Blacks and Whites, but only Black
students have been charged with serious crimes.
The facts in these cases will ultimately be determined in
court. But many of the allegations have not been credibly
contradicted. If they are true, I'd like the Department of
Justice to comment on the availability of Sections 1983 and
1985 as possible remedies for the injustices. Unfortunately,
whatever the facts of this case may be, we do know that this
cycle, the incarceration of African American males, is
something that we see over and over again in this country.
As unfortunate as the Jena 6 case may be, this is just an
example of the misfortune that African American males are
experiencing in the criminal justice system. Marcus Dixon in
Georgia, an 18-year-old African American male had consensual
sex with a 15-year-old, was convicted of statutory rape and
aggravated child molestation, served 14 months of a 10-year
sentence before the Georgia Supreme Court threw out his
conviction. Genarlow Wilson, a 17-year-old African American
male was convicted and sentenced to 10 years for having
consensual sex with a 15-year-old. Wilson is now 21, still in
prison and waiting for the Georgia Supreme Court to make a
decision in this case. Cases such as these are unfortunate, but
I personally do not know of any case in which a nonminority
child was sentenced to a long prison term for engaging in
consensual sex with a peer.
African American families live with grim realities facing
their children at the present rate. One-third of African
American males born today will end up in prison. African
American males are incarcerated at nearly 6 times the rate of
Whites, and there are racial disparities at every stage of the
criminal justice system, especially the juvenile justice
system, creating what the Children's Defense Fund called the
cradle-to-prison pipeline for African American males.
We have to ask the Department of Justice what can be done
from a Federal perspective to address local practices which
perpetuate the cradle-to-prison pipeline and ask why programs
which have been proven to reduce crime and are cost-effective
are not put into practice. We need to be assured that the
Department of Justice is working to close the disparities
between African Americans and Whites in our criminal justice
system. And we also need comments from the Department on
several pending anti-gang bills and the effect these bills may
have on racial disparity. It is important for the Department to
prove to future generations that the term justice for all is
not simple rhetoric.
I would like to thank our witnesses for being with us today
and look forward to their testimony. I thank you, Mr. Chairman,
and I yield back.
Mr. Conyers. Thank you, Chairman Scott.
By previous arrangement and agreement with the Ranking
Member--two of our Members of this Committee have been to Jena,
and I now recognize Sheila Jackson Lee of Texas for her
comments.
Ms. Jackson Lee. Mr. Chairman, first of all let me
acknowledge my appreciation for the Judiciary Committee and
your chairmanship. And let me as well acknowledge the
Congressional Black Caucus, Chairwoman Kilpatrick and, of
course, the main Member of Congress, or the Member of Congress
from Louisiana, which I know they will be acknowledged.
All of us as parents have aspirations and dreams for our
children. And I might imagine that the Jena, Louisiana,
students had parents, grandparents who loved them and had the
same dreams. We're reminded of the history of the civil rights
movement, at least from the '50's and '60's, and I would listen
to older African Americans who took great pain in thanking the
Federal Government for being their refuge. As Martin King
languished in jail, President John F. Kennedy called him;
whatever the politics of it, he called. As the Little Rock 9
was frustrated, President Eisenhower responded.
The tragedy of this case is that it called out for Federal
intervention and the protection of children whose parents had
enormous hopes and dreams. One young man was on his way to
achieving graduation and then going on to college with football
scholarships.
I hold in my hand the chronicling of the series of events.
The question becomes, when community, when civil rights leaders
like Reverend Al Sharpton, Reverend Jesse Jackson, Martin
Luther King, III, begged for Federal intervention, where was
it? When hanging nooses became a major incident, where was the
Federal Government? Where was the question being asked
regarding civil rights?
We do have a hate crimes initiative, not initiative but
law, in Louisiana. That could be what you hid behind, because
hanging nooses is not listed, obviously a weak law. Burning
crosses obviously represented intimidation, so do hanging
nooses. And so my questions today will be focused pointedly
about the failure of this government to protect.
Let me thank Michael Baisden, Tom Joyner, Steve Harvey, and
Joe Madison for their work. Let me thank Louis G. Scott, Carol
Powell Lexing for their work, struggling in the frustration of
the inertia of this failed Civil Rights Division of the Federal
Government of the United States. Shame on you. Because I
believe that we have always looked to the Federal Government
for the refuge and saving of those who have been discriminated
against. And this time, and times through the past couple of
years, there have been no response. I look forward to your
responses, and certainly I look forward to solutions to save
Mychal Bell and the Jena 6. I thank you, and I yield back.
Mr. Conyers. Thank you so much. I'd like now to turn to the
gentlelady from California and long-serving Member of this
Committee, Maxine Waters.
Ms. Waters. Thank you very much, Mr. Chairman. Let me first
thank you for holding this hearing. It is unusual that we can
get hearings calendared as quickly as this was done, and we
were only able do this because you are the Chair of this
Committee. And if we had to have a hearing at this time about
this issue, there could be no better person than you, whose
life has been dedicated to civil rights in this country, so I
am very pleased that you are at the helm and you are leading
this hearing today.
Yes, Mr. Chairman, I did travel to Jena, and I traveled to
Jena because this particular Jena 6 case triggered in me a sign
of danger. I had the same feeling when this became known, what
was going on there, that I had when we experienced the Rodney
King beating in Los Angeles; the same feeling when we watched
the people outside of the Convention Center in New Orleans
after Katrina; the same feeling as we witnessed what happened
in the Town of Tulia, Texas, when the whole town practically
was indicted on false charges.
There are certain cases that you know must be dealt with
because if you do not deal with them, not only is great harm
going to come to the individuals involved, but a message is
being sent that this is what can happen if the public policy
makers, the civil rights leaders and others are not paying
attention. If you don't move at the particular time that these
cases raise their ugly heads, then what you're going to see is
a proliferation, because prosecutors and DAs who abuse their
power will think that they can get away with doing that and
nothing will happen.
And so I went to Jena to join with all of the thousands,
maybe 50,000 other folks who went there, to send a message that
we are here, that something wrong has happened here; we are not
going to allow it to continue without addressing it. And so
today is part of the response to that issue.
I am concerned, Mr. Chairman, about several things related
to this case. Number 1, what is the responsibility of the
school and the school administrators in handling racial
incidents, not only in the south but anywhere in this country?
I am concerned about the equal punishment argument. I am
concerned about why it appears in this case young Black men
were treated more harshly than the Whites. I am concerned about
why many cases that occur in the schools are now ending up in
the criminal justice system, this is not the only one that we
are experiencing. More and more we are hearing about
kindergarten children in handcuffs being taken to jail. We are
hearing about teenagers being taken out of school and taken
into jail, and we really do have to figure out the
responsibility of the school system and why the criminal
justice system is getting involved.
We also have to be concerned about the unbridled power of
DAs and prosecutors. And in this case, we must very well be
concerned about DA Reed Walters when he addressed the Jena High
School students in an assembly last fall and the reported
statement that--that if the protests at the school do not stop,
with the stroke of my pen, I can make your lives disappear. And
he almost did that. And those lives of those six would have
disappeared had the Nation not gotten involved.
I am concerned about towns where you have total all White
power, where everybody in the town in a power position is
White. And you have the young Black folks, young Black males in
particular, who are going up against district attorneys, the
juries, all White without any Blacks being involved. And I am
concerned about the admission of hate crimes, and now not only
the nooses that were hung over the tree on the high school
campus, but now nooses that are showing up all over the country
in some kind of effort to send a message. We have a response
from the U.S. Department of Justice that we have contacted, and
they said they are investigating causes now in Maryland, New
York, North Carolina, Pennsylvania and other places that we are
hearing about. So I suspect----
Mr. Conyers. Okay.
Ms. Waters [continuing]. That despite the fact that we
thought we had addressed the civil rights issues, we have to
start all over again, Mr. Chairman, and I appreciate your
leadership. I yield back.
Mr. Conyers. I thank you very much. And I know other
Members would like to make opening statements, but we're going
to incorporate them into the record.
I wanted to make it clear to everyone that the prosecutor
of La Salle Parish, Louisiana, Mr. Reed Walters, was invited,
but he declined to be present, and I wanted the record to note
that.
And one the very important goals of the Committee is to
determine what is the current state of the law both in
Louisiana and in the Federal Government. Amazingly enough, this
is not a simple elementary consideration of existing law; it
gives us a large responsibility to determine what the law is.
And then, of course, what always follows up after you establish
what the law is, is how is it being enforced? And so it's in
that spirit that we begin today.
And our first witness--in a way the first two witnesses--is
the counsel to the Assistant Attorney General for Civil Rights
of the United States Department of Justice, Ms. Lisa Krigsten,
a former prosecutor, a former trial attorney in the criminal
section of the Civil Rights Division.
And we welcome you Ms. Krigsten.
Our second witness is the United States Attorney for the
Western District of Louisiana, Donald Washington, who has
served there for 7 years. In addition to his significant
experience as a practicing attorney, he is a former commission
officer in the United States Army.
And we welcome you, Mr. Washington.
We've met before in preparation for this day. And we're
going to include your statement and everybody else's in the
record. And I understand that you and Ms. Krigsten have a
single statement that you will bring forward, but she will be
available for questions.
Welcome and please begin.
TESTIMONY OF DONALD WASHINGTON, U.S. ATTORNEY FOR THE WESTERN
DISTRICT OF LOUISIANA, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED
BY LISA KRIGSTEN, COUNSEL TO THE ASSISTANT ATTORNEY GENERAL,
CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, AND GEORGE
HENDERSON, GENERAL COUNSEL, COMMUNITY RELATIONS SERVICE, U.S.
DEPARTMENT OF JUSTICE
Mr. Washington. Thank you. Thank you, Mr. Chairman. Mr.
Chairman, Mr. Ranking Member and Members of the Committee,
thank you for this opportunity to describe the Justice
Department's efforts in addressing recent events in Jena,
Louisiana. I am joined today by Ms. Lisa Krigsten, a prosecutor
from the Civil Rights Division, who is currently serving as
counsel to the Assistant Attorney General in the Civil Rights
Division.
We also have with us today Mr. George Henderson, who is
behind me here, who is serving as general counsel of the
Department of Justice's Community Relations Service. Mr.
Henderson is here to answer any questions that you might have
about the Community Relations Service.
Like many Members of this Committee, the Department is very
concerned about the recent racial tension in Jena. The
Department has been using and will continue to use all tools at
our disposal to attempt to ease racial tensions, to ensure
students can attend school free from a racially hostile
environment and to address violations of Federal criminal law
consistent with the principles of Federal prosecution.
This past Friday, I traveled to Jena, Louisiana, along with
Ondray Harris, the acting director of the Community Relations
Service, and Ms. Rena Comisac, the current acting Assistant
Attorney General for the Civil Rights Division. We met there
with several community and religious leaders, including
Reverend Brian Moran, who is on our panel today. He is a pastor
of the Jena Antioch Baptist Church and president of the local
NAACP chapter in Jena. We had a thoughtful and productive
dialogue, and we listened to their concerns raised by the
recent events in their city.
The community and church leaders described the tensions
that they were experiencing, and we described the efforts that
the Department of Justice is taking to ease those tensions and
to ensure that students can attend school free from a racially
hostile environment. We also sought to assure the community
leaders that the Department is fully, fully engaged in
examining the allegations and in addressing their concerns.
Prior to our meetings on Friday, I had met with many of
these community leaders at a public forum at which I spoke
earlier this summer, alongside representatives from the Federal
Bureau of Investigations and the Community Relations Service.
During that forum, we attempted to ease tensions in the
community by answering questions about the role of the
Department in responding to the situation in Jena.
I want to assure this Committee that the Department of
Justice and its many components are actively engaged and
responding to the situation in Jena. For example, the
Department's Community Relations Service has devoted
significant resources and time to restoring community stability
in Jena.
As a separate agency of the Department of Justice
established by the Civil Rights Act of 1964, the function of
CRS is to address community conflicts arising from issues of
race, color or national origin.
Much of the community has accepted and utilized CRS's
services in the past year. CRS's expertise in conciliation and
mediation has allowed the agency to address community wide
tensions. The work of CRS is a critical piece of leadership
that the Department of Justice will continue to provide to the
community. The Jena community itself has expended a great deal
of energy in coming together to develop ways to mend the wounds
of the past. Toward this same goal, the Community Relations
Service will continue to provide services as long as necessary
and as requested by the Jena community and the surrounding
region.
In addition to the work of CRS, the Civil Rights Division's
Educational Opportunity Section has been actively engaged in
addressing concerns regarding racial tension in the La Salle
Parish school district, including Jena High School. The school
district currently is under a Federal desegregation order,
department attorneys have interviewed officials at the high
school, have reviewed the discipline information for the school
district and have initiated the comprehensive review of the La
Salle school district with respect to its desegregation
obligations.
Moreover, the Civil Rights Division Criminal Section is
aggressively investigating numerous allegations of racially
motivated criminal activity related to Jena. Shortly after the
September 20 civil rights march, the FBI, the Civil Rights
Division and the United States Attorney's Office opened
investigations into allegations that threats have been directed
at individuals involved in the Jena 6 case along with their
families. If those threats continue--pardon me, if those
threats constitute prosecutable violations of Federal criminal
law, the department will take appropriate action.
A hanging noose is a powerful symbol of hate and racially
motivated violence, and it can in many circumstances constitute
the basis for a prosecution under Federal criminal civil rights
laws, including the hate crime statute. The department has
opened investigations into reports of noose hanging incidents
in Louisiana, Maryland, New York, North Carolina, Pennsylvania
and elsewhere.
Public concerns have been expressed about the situation in
Jena stemming from a number of different incidents, including a
noose hanging at the local high school last year. The FBI
investigated the matter in September 2006, and my office, along
with the Criminal Section of the Civil Rights Division,
reviewed the FBI's reports to determine whether Federal
criminal charges were appropriate.
Although the conduct is deeply disturbing and offensive, we
decline to pursue charges after learning that the nooses had
been hung by juveniles; by juveniles who had been promptly
sanctioned by the school. The school superintendent recently
announced publicly that the punishment of the responsible
students included a 9-day suspension, during which time they
attended an alternative school, an additional 2 weeks of in-
school suspension, several Saturday detentions in order to
attend a discipline court and a referral to a family counseling
program.
The decision to decline the case was in accordance with
long-standing policy and principles of Federal prosecution of
juveniles. As a general matter, Federal juvenile prosecutions
which are referred to as delinquency proceedings are pursued
very infrequently and only when the Attorney General certifies
that certain settlor conditions have been met.
When they are pursued, the law mandates that the
proceedings are nonpublic. A finding of delinquency in such a
juvenile proceeding does not result in a criminal conviction
and cannot be publicized. The United States Attorney's Office
and the Civil Rights Division have always been and remain
deeply committed to the vigorous enforcement of our Nation's
civil rights laws.
In recent years, the Department of Justice has brought a
number of high profile hate crime cases. As permitted by
Federal criminal law, we continue to aggressively prosecute
those within our society who attack others because of the
victim's race, color, national origin or religious beliefs.
While we are deeply concerned about the recent events in
Jena, we also are very proud of the response we have seen from
the dedicated Justice Department employees who worked
diligently on this matter. It is our sincere hope that through
the process of first responding to community concerns; second,
ensuring compliance with a Federal desegregation order; and
third, investigating criminal allegations, we will find ways
for the community to address the many important issues raised
by the issues in Jena, Louisiana.
Thank you, Mr. Chairman.
[The joint prepared statement of Mr. Washington and Ms.
Krigsten follows:]
Joint Prepared Statement of Donald Washington and Lisa M. Krigsten
Mr. Conyers. Thank you very much, Mr. Washington.
The Chair notes that the Department of Education has in the
room the Office of Legislation and Congressional Affairs
person, Mr. James Kuhl, and the attorney who is in the office
of the general counsel of the Department of Education Mr.
Brandon Sherman.
We now turn to the Southern Poverty Law Center and the
witness for them, Mr. Richard Cohen, who is no stranger to the
Judiciary Committee. Morris Dees and he have worked with this
Committee across the years, and we have had a great deal of
success in many of the projects that the Committee and the
Southern Poverty Law Center have engaged in together. Welcome
again to this hearing.
TESTIMONY OF J. RICHARD COHEN, PRESIDENT AND CEO, SOUTHERN
POVERTY LAW CENTER
Mr. Cohen. Thank you Mr. Conyers, thank you very, very much
for those kind remarks. I appreciate the opportunity to be here
and to speak to Members of the Committee.
I want to note at the start that we are deeply involved in
the affairs at Jena--in Jena. Because it appears to us that the
Jena 6 were overcharged and because we were quite concerned
about the adequacy of the legal representation that they were
receiving, we are providing legal counsel to some of the teens.
In doing so, let me quickly note that we don't excuse, condone
violence in any way. Our heart goes out to Justin Barker and
his family. We know he has suffered terribly.
Nevertheless, we think it is important that the scales be
balanced in this case. We are also monitoring the White
supremacist reaction to the events in Jena. Unfortunately White
supremacists around the country are trying to exploit the
situation. We had indications, for example, that White
supremacists were going to bring weapons to the rally that was
held in September 20 and immediately passed that information on
authorities.
We have also been advising schools about how they can avoid
situations like Jena in their own locales. We've published a
booklet, ``Six Lessons From Jena.'' I hope that all Members of
the Committee have it. We've made it available to 50,000
teachers so far and will make it available to 400,000 teachers
in January.
The Federal Government of course has a very, very strong
interest in promoting racial harmony in schools. A racially
hostile atmosphere violates the Constitution of the United
States in any public school, and it violates the Constitution--
it violates Title VI of the Civil Rights Act of 1964 in any
school that receives Federal financial assistance.
Unfortunately, the problem of racial violence continues to
plague our schools. FBI statistics reflect that schools and
colleges are the third most common venue for hate crimes. And
unfortunately, the number of hate crimes that the FBI reports
is really but a fraction of the hate crimes that occur. A study
by the Bureau of Justice statistics 2 years ago demonstrated
that hate crimes are probably--that the FBI figures probably
understate the nature of the problem by a factor of 20 or 30.
As Ms. Waters indicated in her opening remarks, the problem of
hate crime is not confined to the south; one sees it all over
the Nation in our schools in very, very unfortunate incidents.
Also, I want to say that it's not confined to disputes
between Black and White students. There have been a number of
unfortunate incidents, in California for example of, you know,
of terrific tensions between Black and Latino students that's
really quite unfortunate. Now there is no sure-fire formula for
dealing with the racial tensions at any school, but what's
happened in Jena is probably a textbook example of what
shouldn't occur.
As Mr. Scott indicated, a question was asked, May we sit
under a particular tree? And the principal said, Well, of
course, you can sit anywhere that you want. What the principal
didn't do is, of course, say, Why do you ask that question?
What makes you think you shouldn't be able to sit there? The
question itself revealed so much about the climate at the
school.
After the nooses were hung, the school system hesitated.
There as one penalty and then another, and I think that
confused the community. Understandably when the penalty was
reduced from expulsion to suspension, a number of children--a
number of Black children were quite upset, there was no public
apology. There was no component in the suspension that was
designed to promote empathy or understanding. Black students
staged a protest under the proverbial White tree. Instead of
opening a dialogue with the Black students, the administration
attempted to shut the dialogue down. Of course, Mr. Walters
added fuel to the fire, with his famous statement, with the
stroke of my pen, I can make your lives disappear. Not the kind
of thing a public official should say in this situation.
Unfortunately, things went from bad to worse. Black parents
went to the school board to try address it. At first, they were
completely rebuffed. They weren't allowed. They weren't on the
agenda. I know that this Committee and this body has its rules,
the Robert's Rules of Order are very important, but sometimes
common sense has to prevail. And when the community is hurting,
they ought to be heard, and a dialogue ought to be opened with
them.
The district attorney's decision to charge the Jena 6 with
attempted murder further exacerbated the situation. We can
trust the police in our country to usually bring the harshest
charge that they can think of, and in this case, they brought
aggravated battery charges, which themselves were quite harsh
and probably not called for by the facts. The district attorney
on his own initiative upped the ante, almost as if he was
trying to say, Look what I can do with the stroke of my pen.
What he did seemed to the community, and it seems pretty
obvious to most of the country, stands in stark contrast to
what he did in the case of the White students.
In an ideal world, we know that justice should be blind. In
the real world, it is not. Prosecutors see race. And in Jena,
it seems as if Black children were hammered, and White children
were given a pass or a slap on the wrist.
The noose hanging itself could have been prosecuted under
Louisiana law. It also could have been prosecuted under 18
U.S.C. Section 245. I think if you look at the face of the
statute section B, there are numerous sections that could have
been invoked there.
But we want to be real clear: We're not contending that the
noose hangers should have been prosecuted under the criminal
law. We point it out only to contrast it with the way the
prosecutor exercised his enormous prosecutorial discretion in
this case.
Although we believe that the Jena 6 were terrifically
overcharged, we don't think it is going to help matters by
prosecuting the noose hangers and sending them to jail. Two
wrongs don't make a right it seems to us. A far wiser course
than invoking the criminal law it seems to us would be to
devote Federal resources to efforts to smooth racial tensions
at the school.
Ms. Jackson Lee made a good point. The Department of
Education has regulations on its books that allow it to
investigate cases of racially hostile atmosphere outside the
context of school desegregation cases. And when those nooses
were hung and when there were news reports about it, the Office
For Civil Rights in Dallas should have been on the scene.
Unfortunately, despite the fact that these incidents are
very common, the resources devoted to them by the Federal
Government have shrunk in recent years; 15 years ago, the
Department--the Community Relations Service, a very, very fine
organization, had more than 100 authorized positions. Today,
their staff is below 50. There have also been a number of
Federal programs that provide grants to many good nonprofit
organizations--the Southern Poverty Law Center doesn't accept
Federal money, so I'm not talking about us--received grants
from many non profit organizations, and they did a lot of good
work. Unfortunately, that money has seemed to dry up. There
have also, of course, been technical problems with data
collection, and I don't think we really have a true picture of
what's going on in our Nation's schools.
Mr. Conyers. The gentleman's time is running out.
Mr. Cohen. If I could close by saying that we have been
critical of the public officials in Jena, but we are confident
that they are well-meaning professionals who simply weren't
prepared to deal with the problem at their schools. The Federal
Government working with experts can help them. I can think of
no better ending for the unfortunate events in Jena than a
renewed Federal effort toward that goal. Thank you for the
extra time, Mr. Chairman.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of J. Richard Cohen
My name is Richard Cohen. I'm the president of the Southern Poverty
Law Center (SPLC), a civil rights organization dedicated to fighting
hate and bigotry and to seeking justice for the most vulnerable members
of our society. I appreciate the opportunity, Mr. Chairman and members
of the Committee, to appear before you in these hearings on ``Jena 6
and the Role of Federal Intervention in Hate Crimes and Race-Related
Violence in Public Schools.''
In our view, the federal government has a strong interest in
promoting racial harmony in our nation's school. In some cases, this
interest may require federal officials to investigate and prosecute
hate crimes that occur at schools or to assist State and local law
enforcement agencies in their investigation or prosecution of such
crimes. But we believe that the bulk of the federal effort should be
aimed at preventing hate crimes from occurring in schools in the first
place and at helping State and local officials to respond to the
tensions that often occur in the aftermath of such crimes. Better data
on the incidence of hate crimes would surely be helpful in that effort.
I should note at the start that we are deeply involved in the
controversy surrounding the Jena 6, the six black teens charged with
serious crimes stemming from the beating of a white student, Justin
Barker, at the public high school in Jena, Louisiana, during a period
of racial tension in 2006. We do not excuse violence of any kind or
minimize Justin's injuries in any way. Our hearts go out to him and his
family. But it appears to us that the Jena 6 have been overcharged and
have been in danger of not being adequately represented. For these
reasons, we are providing legal assistance to some of the teens.
We also are monitoring the reaction of white supremacist
organizations to the Jena situation. When our investigative unit, which
tracks hate group activity and hate crime trends across the nation,
detected evidence that neo-Nazis were contemplating bringing weapons to
a rally organized by Jena 6 supporters, for example, we immediately
contacted Louisiana law enforcement officials. In addition, we have
been advising educators, through our Teaching Tolerance program, on how
they can avoid Jena-type situations. Our ``Six Lessons from Jena'' is
available on the Internet and has been sent to more than 50,000
educators. We've provided the shortened, print version to members of
this Committee.\1\
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\1\ Our Teaching Tolerance program provides free, anti-bias
materials, including documentary films on the civil rights movement, to
schools throughout the nation. After the Columbine tragedy, we
developed Responding to Hate at School and sent a free copy to every
public school in the nation. Available at http://www.tolerance.org/pdf/
rthas.pdf, the guide is designed to help educators respond promptly and
effectively when hate or bias incidents occur at their schools.
---------------------------------------------------------------------------
The federal government has a strong interest in promoting racial
harmony in our nation's public schools as well as in private schools
that receive federal financial assistance. If a racially hostile
atmosphere exists at a school, students are denied equal educational
opportunities, in violation of the Fourteenth Amendment to the
Constitution of the United States in the case of public schools and in
violation of Title VI of the Civil Rights Act of 1964 in the case of
any school that receives federal funds. More than 40 years ago,
Congress passed legislation establishing the Community Relations
Service to provide assistance to communities in situations where
``peaceful relations among the citizens of the community . . . are
threatened'' by racial difficulties.\2\ Over the years, the Community
Relations Service, other offices within the Department of Justice, and
the Department of Education have sponsored various initiatives to
prevent and respond to hate crimes and bias incidents in our nation's
schools.
---------------------------------------------------------------------------
\2\ 42 USC Sec. 2000g-1.
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Unfortunately, racial problems continue to plague many of our
schools. FBI hate crime data consistently demonstrate that ``schools
and colleges'' are the third most common venue for hate crimes in our
country.\3\ And without question, the FBI hate crime data significantly
understate the true dimensions of the problem. As a recent Bureau of
Justice Statistics study demonstrated, the total number of hate crimes
in the United States may be 20 to 30 times greater than the FBI
statistics reflect, and race is their most common motivation.\4\
Despite the requirement that colleges report hate crimes to the federal
government, they often fail to do so.\5\
---------------------------------------------------------------------------
\3\ See, e.g., U.S. Dep't of Justice, 2005 Hate Crime Statistics,
Location Type, http://www.fbi.gov/ucr/hc2005/locationtype.htm.
\4\ Caroline W. Harlow, U.S. Dep't of Justice, Hate Crime Reported
by Victims and Police (NCJ 209911 Nov. 2005).
\5\ U.S. Gen. Accounting Office, Campus Crime: Difficulties Meeting
Federal Reporting Requirements (GAO/HEHS-97-52 March 1997).
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The problem of hate crimes and racial unrest at schools is not
confined to the South--the recent noose hangings at Columbia University
in New York City and at the University of Maryland are examples of its
widespread nature--and is not confined to tensions between black and
white students. In California in recent years, for example, tensions
between black and Latino students have erupted in many schools. In one
high school in Rialto in 2004, over fifty students were injured in a
lunchroom racial brawl.\6\
---------------------------------------------------------------------------
\6\ Susy Buchanan, The Rift, 110 Intelligence Report 8, 10 (SPLC
2005)
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In Jena, racial tensions erupted when three white students hung
nooses from a schoolyard tree the day after black students sat under
it. (The tree had apparently been a traditional gathering place for
white students.) Local officials appear to have handled the incident
poorly. After the initial decision to expel the noose hangers was
reduced to some form of suspension that did not include a public
apology or an educational program designed to promote empathy and
understanding,\7\ black students staged a protest under the tree from
which the nooses were hung. Instead of providing the students with an
opportunity to express their concerns in a constructive way, the
principal called an assembly and told the students that it was time to
put the incident behind them. At the same assembly, the LaSalle Parish
District Attorney, flanked by police officers, ominously warned the
students to settle down. ``With a stroke of my pen, I can make your
lives disappear,'' he told them. There is a dispute over whether he was
looking at the black students when he uttered these words; however,
there is no dispute over the fact that the black students were the ones
who were protesting the decision not to expel the white noose hangers.
---------------------------------------------------------------------------
\7\ The Jena school superintendent later told the Chicago Tribune
that, ``Adolescents play pranks. I don't think it [the noose hanging]
was a threat against anybody.'' Howard Witt, Racial Demons Rear Heads,
Chicago Tribune, May 20, 2007.
---------------------------------------------------------------------------
After the assembly, a group of black parents came to a school board
meeting to express their disagreement with the decision not to expel
the noose hangers. Because they had not arranged to be on the agenda,
they were denied an opportunity to address the board. The following
week, they were given that opportunity. Unfortunately, the board was
largely silent and did not take the occasion to open a meaningful
community dialogue.
The District Attorney's decision to charge the Jena 6 with
attempted murder further exacerbated the racial tensions in the
community. The police originally charged the six with aggravated
battery, a harsh charge under the circumstances. But the District
Attorney, in an apparent effort to show what he could do with a stroke
of his pen, used his discretion to increase the charges even
further.\8\
---------------------------------------------------------------------------
\8\ Even after eventually dropping the attempted murder charges,
the District Attorney has continued to pursue the aggravated battery
charges on the theory that the boys' tennis shoes were dangerous
weapons.
---------------------------------------------------------------------------
The District Attorney's decision to increase the charges against
the Jena 6 stands, in the eyes of many in Jena and throughout the
country, in stark contrast to how he treated white youth involved in
criminal conduct in LaSalle Parish during the same period. In an ideal
world, justice would be blind. But in the real world, it is not;
prosecutors see race. In Jena, the District Attorney appears to have
thrown the book at black students while giving white youth a slap on
the wrist or an outright pass.
A few days before the Barker incident, for example, a black student
(one of the six who was later charged in the Barker incident) was
reportedly attacked by a group of white youths. The District Attorney
charged one white youth with a misdemeanor, and he served no jail time.
The other white youth were not charged.
Likewise, the noose hangers--the white youth whose actions sparked
the racial turmoil at the school--were never charged with a crime,
although they probably could have been. Louisiana Revised Statute
14:107.2, for example, creates a hate crime for any institutional
vandalism or criminal trespass motivated by race. Federal law prohibits
efforts to intimidate persons from ``enjoying the benefits of any
program or activity'' receiving federal dollars (public schools, of
course, get federal funds), from ``attending any public school,'' or
from ``enjoying any benefit, . . . privilege, [or] facility . . .
provided . . . by any State or subdivision thereof'' on the basis of
race. If the violation involves ``the use . . . or threatened use of a
dangerous weapon''--and a noose could certainly qualify--one could be
sent to prison for ten years.\9\
---------------------------------------------------------------------------
\9\ 42 U.S.C. Sec. 245(b). Although the noose hangers may have been
under eighteen, they could have been prosecuted in federal court and
charged as adults. See 18 U.S.C. Sec. 5032.
---------------------------------------------------------------------------
Of course, we would never contend that the noose hangers should
have been sent to prison, charged with a crime, or even expelled for
that matter. Although we believe that the Jena 6 were seriously
overcharged, sending white students to jail would be a poor way of
balancing the scales. The federal government should be prepared to
investigate and prosecute serious hate crimes that occur in our
nation's school when state and local authorities fail to take
appropriate action.\10\ But the criminal law is a blunt instrument, and
too many of our young people are already being pushed out of our
schools and into our prisons.
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\10\ The Local Law Enforcement Hate Crimes Prevention Act of 2007,
which we support, would allow the Department of Justice to assist and
to provide funds to State and local law enforcement agencies in the
investigation of hate crimes under State or local law. The Act would
give priority to rural jurisdictions like Jena facing extraordinary
expenses.
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A far wiser course than increasing federal prosecutions would be
increasing federal investment in services designed to soothe the racial
and ethnic tensions simmering in our nation's schools and to respond
promptly when hate crimes occur. Congress should consider mandating an
increase in the staff of the Community Relations Service. As our
nation's diversity has increased, the size of the Community Relations
Service has decreased. In addition, Congress should consider mandating
an expansion of programs to fund the activities of non-profit
organizations working to prevent hate crimes in our nation's
schools.\11\ In recent years, federal funding for such programs has
been severely curtailed despite the fact that the problems they address
have not diminished.\12\ Whether conducted by federal agencies or non-
profit organizations, hate crime trainings should include a component
for raising the awareness of prosecutors about how their public actions
and the exercise of their discretion can inflame or calm a volatile
situation.
---------------------------------------------------------------------------
\11\ The Southern Poverty Law Center provides free, anti-bias
materials to schools across the country, but does not seek or accept
federal monies.
\12\ An excellent program that no longer receives federal support
is Partners Against Hate. Created with support from the Department of
Justice and the Department of Education, Partners Against Hate
developed tools and training programs and provided technical assistance
to help schools create safe learning environments, prevent hate crimes
from occurring, and respond appropriately when bias incidents do occur.
The program, a collaborative one developed by the Anti-Defamation
League, the Leadership Conference on Civil Rights Education Fund, and
the Center for the Prevention of Hate Violence still maintains an
excellent website, www.partnersagainsthate.org.
---------------------------------------------------------------------------
Congress also should hold hearings on the federal effort to collect
hate crime data. The ``most thorough assessment'' of that effort--a
study conducted for the Bureau of Justice Statistics--concluded that
``the full picture of hate crime . . . has not yet been captured
through official data.'' \13\ Hate crimes, including those in our
schools, are vastly underreported for a variety of reasons.\14\ The
clearer our picture of the true dimensions of the hate crime problem,
the better our strategies to combat it are likely to be. Passage of the
Local Law Enforcement Hate Crime Prevention Act of 2007 would be a good
start because it would require the collection of data about hate crimes
committed by and against juveniles.
---------------------------------------------------------------------------
\13\ Michael Shively, Abt Assocs. Inc., Study of Literature and
Legislation on Hate Crime in America 57 (2005) (citing report prepared
for BJS in 2000); see also Discounting Hate, 104 Intelligence Report 6
(SPLC 2001)(describing some of the problems with the collection of hate
crime data).
\14\ See supra p. 3 and note 4.
---------------------------------------------------------------------------
We have been critical of the public officials in Jena. But we are
confident that they are well-meaning professionals who simply were not
prepared to deal with the racial tensions at their school. The federal
government, working with experts in the field, can help officials like
those in Jena work toward the goal of creating schools where all
students feel physically and emotionally safe. It is difficult to think
of a better ending for the unfortunate events in Jena than a renewed
federal effort toward this goal.
Thank you for allowing me to appear before you.
Mr. Conyers. Thank you so much.
We now turn to reverend Brian Moran, pastor of the Jena
Antioch Baptist Church, acting president of the NAACP Jena
Chapter, and we note that the Reverend has provided a great
deal of local leadership as well as spiritual guidance in the
wake of the events that bring us here today.
We welcome you here to the Committee.
TESTIMONY OF REVEREND BRIAN L. MORAN, PASTOR OF THE JENA
ANTIOCH BAPTIST CHURCH AND PRESIDENT OF THE NAACP JENA CHAPTER
Rev. Moran. Thank you. First, I want to express my
gratitude for this opportunity to serve as a witness to shed
light on the issues surrounding the Jena 6 controversy. I am
here to share my expressions of the tensions that existed in
our tiny community leading up to the unfortunate incidences,
which resulted in six Black students being arrested for one
school yard fight.
In Jena, every one knows everyone. Unfortunately, there is
great deal of racial indifference that seems to have festered
for many years. This indifference has caused a good many of our
citizens, both Black and White, to have harsh and mixed
emotions toward each other. The noose hangings did not help
things at all. But Jena has a strong sense to get past this
episode in our history. However, I believe as a minister and a
citizen that alone will not suffice. Injustice dealt by Judge
J.P. Mauffrey and District Attorney Reed Walters over the past
year must be atoned; justice must be done for our community to
heal.
Even our school board has a double standard for Blacks, and
this whirlwind of events merely touched the surface. I know the
facts of the Jena have been retold a thousand times over, and
there are those who question whether or not these things
actually happened. I am here to tell you they did. But there
are people in this room who probably don't know that before
sitting under the Whites-only tree, one of the Black students
actually went to the principal and asked whether he could sit
under the tree. He was told that he could. We all know that,
soon after, the nooses were hung from the tree as a sign of
threats and hate. More than that, many White students began
screaming ``nigger'' across the school yard whenever Black
students would pass. These students felt verbally abused but
did not know that they could do anything about it.
Most of you know that District Attorney Reed Walters said,
With the stroke of a pen, I can erase your lives. But what you
don't know is how helpless the families of these children felt
at that or how hurt they were that someone would use his job to
take away a child's life when all he was trying to do was get
an education.
Throughout Jena's history, there has always been two
systems of justice, one for Blacks and one for Whites. The
stories have been passed down in my family of individuals like
Bobby Ray Smith, who was killed and thrown into an oil pit by a
group of White men, but there were no investigations no matter
how loudly the Blacks in the community protested. And even
Billy Hunter, who was stomped to death by a White man who
received only 2 years in prison. Can you imagine the outrage,
the hurt, the shame our families felt when we think about these
six boys and the incidents that took place last year in Jena,
at Jena High School? These stories always will remain in the
back of our minds.
Lastly and most recently the incident where two White males
ran over the church signs shortly after an NAACP meeting at the
Antioch Baptist Church where I pastor, which was ruled out by
many not a hate crime. We know that justice can be done, but
the question is, why hasn't it been done? I am grateful for the
opportunity to tell my brief story which actually is a much
larger and longer story, but I am hoping you will get the point
today, that Jena can be a great town, but right now, it is a
town where two systems of justice exist, and that is simply un-
American. And we believe it is no longer acceptable. Thank you
for your time.
[The prepared statement of Rev. Moran follows:]
Prepared Statement of Rev. Brian L. Moran
First I must express my gratitude for this opportunity to serve as
a witness to shed light on the issues surrounding the Jena 6
controversy. I am here to share my impressions of the tensions that
existed in our tiny community leading up to the unfortunate incidences
which resulted in six young black students being arrested for a school
fight.
In Jena, everyone knows everyone. Unfortunately, there is a great
deal of racial indifference that seems to have festered for many years.
This indifference has caused a good many of our citizens, both black
and white, to have harsh and mixed emotions toward each other. The
noose hanging did not help things. But Jena has a strong sense to get
past this episode in our history. However, I believe, as a minister and
citizen, that ``will'' alone will not suffice. The injustice dealt by
Judge J. P. Mauffray and District Attorney Walters over the past year
must be atoned. Justice must be done, for our community to heal. Even
our school board has a double standard for blacks and this whirl wind
of events merely touched the surface.
I know the facts of Jena have been retold a thousand times over,
and there are those who question whether any of it actually happened.
I'm here to tell you, it did. But there are people in this room who
probably don't know that before sitting under the ``whites only'' tree,
one of the black students actually went to the principal and asked if
he could sit under the tree. He was told he could. We all know that
soon after that, nooses were hung from the tree as a sign of threats
and hate.
More than that, many white students began yelling Nigger across the
school yard whenever black students would pass. These students felt
verbally abused, but did not know they could do anything about it.
Most of you know that District Attorney Reed Walters said ``with
the stroke of a pen, I can erase your lives.'' But what you don't know
is how helpless the families of these children felt at that, or how
hurt they were that someone would use his job to take away a child's
life when all he was trying to do was get an education.
Throughout Jena's history, there has always been two systems of
justice, one for blacks and one for whites. The stories have been
passed down in my family of individuals like Bobbie Ray Smith, who was
killed and thrown into an oil pit by a group of young white men, but
there was no investigation, no matter how loudly the blacks in the
community protested. And Billy Hunter, who was stomped to death by a
white man, who received only two years in prison. Can you imagine the
outrage, the hurt, the shame that our families felt? When we think
about what happened to the 6 boys last year at Jena high, these stories
are always at the back of our minds. We know what can be done, and we
know what hasn't been done. Justice.
I am grateful for the opportunity to tell my brief story, which is
actually a much longer story, but I'm hoping you will get the point.
That Jena can be a great town, but right now it is a town where two
systems of justice exist, and that is simply unAmerican, and we believe
it is no longer acceptable. Thank you.
Mr. Conyers. Thank you very much, sir.
Now we turn to professor Charles Ogletree, director of the
Charles Hamilton Houston Institute for Race and Justice at
Harvard Law School and who has been most recently been before
this Committee in terms of hearings on the Tulsa race riots of
1921 and has participated with the Congressional Black Caucus's
criminal justice hearings across the years. He is a noted
author, lecturer and has been in the courts for many decades.
We are happy to have you here again, Professor Ogletree.
TESTIMONY OF CHARLES J. OGLETREE, JR., DIRECTOR, THE CHARLES
HAMILTON HOUSTON INSTITUTE FOR RACE AND JUSTICE, HARVARD LAW
SCHOOL
Mr. Ogletree. Thank you, Congressman Conyers and also the
Ranking Member, Congressman Smith. I am very happy to be here
before this Committee and other Members of Congress who are
here today. And I thank you for giving me the chance to speak
briefly. I have prepared an extensive report that I hope will
be made part of the record that has data as well as some
suggestions for future directions, as Congress Smith mentioned,
and I hope that that will be considered by this Congress.
In the short time that I have today, I want to say a few
things. There is a sign over the courthouse in Florida that has
a useful epithet; it says, The court is where the injured flock
for justice. And it reminds me of how the people in Jena today
are wondering, where do they go? Where can they find a sense of
justice? Where can they be treated not better, not differently,
but just fairly?
This incident that we have been talking about is a
microcosm of a larger set of incidents that have occurred in
Jena. And yet what occurred in Jena in 2006 is not isolated; it
is not different than what happened to Genarlow Wilson in
Georgia; than what happened in West Virginia; at the University
of Maryland; at Hempstead, New York; at Columbia University.
And the irony is that just a year ago, I wrote a book with
Professor Austin Sarat called, ``From the Lynch Mob to the
Killing State: Race and the Death Penalty in America,'' looking
back at the history of these incidents with the idea that,
thank God we're not there anymore.
It is ironic that 1 year after this book is published,
looking at the issues of lynchings and disparities in our
criminal justice system, we find them writ large, not just in
Louisiana but across the country. At that time, we talked about
the fact that while lynching seemed historic, we can't forget
what happened to James Byrd in Texas in 1998 or Emmett Till in
Mississippi in 1955.
As much as we want to put these incidences in the back of
our minds, it reminds us, what happened with that tree is
symbolic of the fact that we have yet to come to grips with the
fact that every citizen in America should be treated the same.
And it is not just about the young men who hung those nooses. I
think that while that is an important fact, the fact is that
there is a cancer in Jena, and we tried to treat it with
aspirin and good wishes and hope. But the reality is that it
requires a radical solution.
I hope the Committee will not just look at what we can do
in terms of the Federal law, which I'll talk about in the time
I have remaining, but what we can do locally right within the
community of Jena.
When any public official or parent tells a child, a
teenager that hanging a noose is a prank or a practical joke,
in America that has been created as a result of violence in the
Civil War and other issues of slavery and Jim Crow segregation,
they are not really addressing the underlying issue of the
tensions in our community. And the parents need that. What is
the legislative response? The number of ways that this Congress
can look into this issue is numerous. I adopt and embrace all
of the remarks you heard by Richard Cohen in terms of some
options, not only the Title VI of the 1964 Civil Rights Act,
but one important issue educationally is No Child Left Behind.
As this Congress is examining what it shall do going
forward, the one thing we need to understand is that this is a
failing school system. It's not just this incident, but who's
graduating? Who's been expelled? Or who is being suspended? The
data we have that is data for Jena, Louisiana, tells us that
there is a great disparity between Black and White children in
terms of suspensions and expulsions. That shouldn't happen in
Jena. It shouldn't happen anywhere else in America today.
Moreover, there is a report that was just released, by
Marian Wright Edelman called, ``America's Cradle-to-Prison
Pipeline,'' by the Children's Defense Fund. It is a reminder
that our children are being criminalized from the ages of 5, 6,
7, 8. Here is a child sitting on a crate because he can't stand
up to be fingerprinted for an alleged crime in his community.
This is what we're dealing with today in a very powerful and
graphic way.
The other point about Jena is this, and we'll talk about it
more in the questions in terms of remedies, one of the
important things is that, Mr. Washington mentioned, there is a
1971 school desegregation order, so we have a history in Jena,
Louisiana, and we need to examine not just legal issues in
terms of eduction but also the criminal justice system in a
very powerful and thorough way.
Finally, I would ask that this Committee think about what
Mr. Washington said about the punishment of the two young
people who were held responsible for the nooses; 9-day
suspension, 2 weeks in school suspension and family counseling.
But have these young men ever been told or understood that what
they did was not just a slight against the young people in
Jena, Louisiana, but a slight on America? When the world looks
here and sees nooses hung and understands that we are still, in
2007, dealing with a history that we thought we left a decade
ago and certainly a century ago.
I implore this Committee to use all of its authority to
look at Federal powers, look at the prosecuting judge, to look
at Federal powers to look at the educational system for No
Child Left Behind and also look at the Federal power to see,
what can we do on the ground to improve race relations in Jena,
Louisiana, to do it with dispatch. Thank you.
[The prepared statement of Mr. Ogletree follows:]
Prepared Statement of Charles J. Ogletree, Jr.
Dear Chairman John Conyers and Members of the House of
Representatives Judiciary Committee:
My name is Charles Ogletree. I am the Jesse Climenko Professor of
Law at Harvard Law School. I am also founder and Executive Director of
the Charles Hamilton Houston Institute for Race and Justice, also at
Harvard Law School.
Charles Hamilton Houston was a native of Washington, D.C., a
graduate of the M Street High School, now known as Dunbar High School
and valedictorian at Amherst College before he began his career at
Harvard Law School in 1919. Later, as vice-dean of Howard Law School,
Houston was instrumental in developing the strategy employed by
Thurgood Marshall, and many of Houston's other proteges, in Brown v.
Board of Education. Charles Hamilton Houston played a pivotal role in
ending Jim Crow segregation in America. He trained a generation of
lawyers who went on to have a profound impact on eradicating enforced
segregation and other racial injustices. As Executive Director of the
Charles Hamilton Houston Institute for Race and Justice, I, with a
staff of experts in the areas of education, housing, child development
and criminal justice are attempting to carry on Houston's legacy in
remedying racial inequalities in opportunity and related injustices in
connected systems of education and criminal justice.
The House Judiciary Committee's decision to conduct hearings to
examine recent incidents Jena, Louisiana, marks an important moment in
history. As you know, Jena, before 2006, was a quiet community of 3,000
people. In less than a year, the community became a lightning rod for
accusations about racism and injustice. Jena became a stage on which
our most stubborn social problems play out. These are long-standing
challenges that are so complex and difficult to deal with rationally
that we often take the more comfortable route and avoid engaging them.
I applaud the Committee's fortitude in confronting our contemporary
version of racial inequalities and unresolved race-related tensions
that do not look so different from the sort Charles Hamilton Houston,
his colleagues and students took on decades before.
My areas of expertise are civil rights and criminal justice. I have
been teaching at Harvard Law School for the last 32 years. For eight
years, I was a lawyer at the Public Defender Service here in
Washington, DC. During the course of my practice and teaching, I have
had the chance to not only represent clients, but to observe race and
class disparities in education and criminal justice from a wide range
of perspectives. As I look at what happened in Jena, Louisiana last
year, and the implications of those incidents for shaping public
policy, I see ample room for Congress to thoroughly investigate, better
understand and then address the racial disparities and disparate
treatment that are hallmarks of our educational and criminal justice
systems in every corner of the United States. Both systems seem to me
to require intervention on a variety of levels. Prior testimony at this
hearing, along with material already in the Congressional record
highlights some salient issues. I will point out a few of the most
urgent and significant matters I think require attention. Then I will
offer suggestions to help us move forward.
First, no public school in the United States should have a policy,
either written or implicit, that reserves sections of the grounds for
students of a certain race. It is unlikely that a modern-day school
official would write a restriction of that nature down on paper. It is
unlikely that any school board would be so ignorant as to pass such an
ordinance. Such ``official'' regulations certainly did not exist in
Jena. However, the mere fact that black students felt compelled to
inquire of the school principal whether or not they were allowed on an
particular area of public property is a clear signal that a more
explicit discussion about race and access is required. No child of any
race should be forced to encounter a school climate that is so hostile
that a he or she might think that her skin color or, say, her native
language or country of origin might limit where she could sit, stand,
play or learn.
Second, and related to this ``hostile environment'' the incidents
in Jena send out another alarm. We have failed at basic lessons of
history if an American can blithely characterize hanging nooses on a
tree as an innocent prank or practical joke, as some officials and
parents in Jena have done. This is not an act that should be minimized,
laughed off or chocked up to childhood shenanigans.
The history of lynching in the United States, most notably in the
south, is not ancient. It has an especially intense emotional meaning
to African Americans. With more than 3,000 people lynched from the late
1800's through the early 1900's--children often attended such events as
if they were carnivals \1\--a noose today is a powerful symbol of
American white supremacy and pure barbarism. Given the context, the
noose, particularly to an African-American who knows his history, is
nothing less than an expression of hatred. It is, too, a warning of
impending violence and likely death.\2\ Speaking as an African-
American, I can say that the image of a noose is as frightening as it
is enraging.
---------------------------------------------------------------------------
\1\ Brundage, W. Fitzhugh. Lynching in the New South. University of
Illinois Press. 1993.
\2\ See, generally, Ogletree, Charles Jr., and Austin Sarat. From
Lynch Mobs to the Killing State: Race and the Death Penalty in America.
New York University Press. 2006.
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Moreover, if the students responsible for hanging the now infamous
nooses in Jena are unable to appreciate the significant brutality of
such an act, that lack of understanding should be addressed for the
good of the collective community. If all that emerges from these
unfortunate events are educators' more systematically informing
community members and students about the shameful history of lynching
that will be a positive step. We might view my suggestion as a
community-level matter for local educators to address either by taking
honest stock of school racial climate, enacting policies to enhance
racial understanding, educating the community about racial history and
establishing clear rules that take a strong stance against
discrimination and racism and ``hostile environments'' in any form.
This also seems to be an example of where a ``restorative justice''
approach to school discipline would be both appropriate and productive.
In restorative justice approaches, the perpetrators of the crime must
make amends to their victims, and undertake activities that help them
more fully comprehend the impact of their actions on their
community.\3\
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\3\ See, for example, discussion of restorative models from Great
Britain in Wilcox, Aidan and Carolyn Hoyle. The National Evaluation of
the Youth Justice Board's Restorative Justice Projects. Centre for
Criminological Research. University of Oxford. Youth Justice Board.
2004.
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It may be far easier for local officials in politicized school
districts to take on these volatile issues and enact enlightened
``restorative justice'' approaches if national elected leaders
encourage them to do so and if, the federal government offered
incentives and endorsed examples of ``best practice'' programs and
policies that might improve cross-racial relations and foster a climate
of tolerance and a deeper understanding and appreciation between racial
groups.
Third, we must also carefully and honestly consider the question of
whether or not the black teens prosecuted in Jena were treated fairly,
without regard to race or class. It is in that vein that the House
Judiciary Committee can play a leading, important role in a variety of
ways.
It is important for us to understand that Jena is not an isolated
incident. Jena's most important role is in lending drama and immediacy
to a long-standing, worsening problem. National data on racial
disparities in our school discipline and juvenile justice systems point
to a link between harsh school discipline policies and entrance into
the criminal justice system.
The research into racial disparities that show up first in school
suspension and expulsion data and then continue unabated in the
juvenile justice system is not new. In fact, researchers have been
collecting data on disparities for three decades now.\4\ Across the
nation, black students, black males in particular, get disciplined at
rates that greatly exceed their representation in the general school
population.\5\
---------------------------------------------------------------------------
\4\ Osher, D., Woodruff, D., and Sims, A. (2002). Schools make a
difference: The relationship between education services for African
American children and youth and their overrepresentation in the
juvenile justice system. In D. Losen (Ed.), Minority issues in special
education (pp. 93-116) Cambridge, MA: Harvard University, Civil Rights
Project; Skiba, R.J., and Knesting K. (2001). Zero Tolerance, zero
evidence: An analysis of school disciplinary practice. In R.J. Skiba &
G.G. Noam (Eds.), Zero tolerance: Can suspension and expulsion keep
schools safe? (17-43). San Francisco: Jossy-Bass. Gottfredson, D.C.
(2001). Schools and delinquency. Cambridge University Press; Department
of Health and Suman Serivces. (2001).
\5\ Casella, Ronnie. Punishing dangerousness through preventive
detention: Illustrating the institutional link between school and
prison. In Wald, J and Losen, D (Eds.) New Direction for Youth
Development. Jossey-Bass: 2003. Balfanz, Robert and Kurt Spiridakis,
Ruth Curran Neild and Nettie Legters. High-poverty secondary schools
and the juvenile justice system: How neither helps the other and how
that could change In Wald, J. and Losen, D. (Eds). New Direction for
Youth Development, Jossey-Bass: 2003.
---------------------------------------------------------------------------
Nationally, black students are 2.6 times more likely to be
suspended as white students. As the overall numbers of students being
suspended each year increased due to tough zero tolerance policies that
became increasingly popular throughout the 1990's, so did racial
disparities. In 1973, 6 percent of blacks and 3 percent of whites were
suspended at least once. By 2003, those numbers increased to 13.9
percent for blacks and 4.9 percent for whites.\6\ In some states, black
suspension rates are as high as 25 percent.\7\ Black students with
disabilities are at even higher risk of both suspension and
incarceration. Black students with disabilities are more than three
times as likely as white students with disabilities to be removed from
school and four times as likely as white students with disabilities to
be placed in a correctional institution.
---------------------------------------------------------------------------
\6\ US Department of Justice. Office of Juvenile Justice and
Delinquency Prevention. 2004 Census of Juveniles. Also, U.S. Department
of Education, Office for Civil Rights.
\7\ Ibid.
---------------------------------------------------------------------------
Students who are suspended are three times more likely to drop out
by 10th grade than students who have never been suspended.\8\ Dropping
out triples the likelihood that a person will be incarcerated later in
life.\9\ Nationwide, in 1997, about 68 percent of state prison inmates
had not completed high school.\10\
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\8\ Goertz, M.E., Pollack, J.M & Rock, D.A. (196). Who drops out of
high school and why?: Findings from a national study. Teachers College
Record, 87, 357-73.
\9\ Coalition for Juvenile Justice. Abandoned in the Back Row: New
Lessons in Education and Delinquency Prevention. 2001 Annual Report.
\10\ U.S. Bureau of Justice Statistics.
---------------------------------------------------------------------------
Juvenile justice data mirror these disparities. In 2003, African
American youth were detained at a rate four and a half times higher
than their white counterparts. According to these figures, minority
youth represented 61 percent of all youth detained in 2003, despite
accounting for only about one-third of the nation's youth
population.\11\ Four out of five new juvenile detainees between 1983
and 1997 were youths of color. According to one studyblack youths with
no prior criminal records were six times more likely, and Latino youths
three times more likely, to be incarcerated than white youths for the
same offenses.\12\
---------------------------------------------------------------------------
\11\ Hayward Burns Institute. San Francisco, California.
\12\ Poe-Yamagata, Eileen, Michael A. Jones. National Council on
Crime and Delinquency And Justice for Some. Building Blocks for Youths,
Youth Law Center, Washington, D.C. 2000. http://
www.buildingblocksforyouth.org/justiceforsome/
---------------------------------------------------------------------------
One of the first steps in discerning the causes for these
disparities and the cures is obtaining reliable, consistent data on the
problem. For example, depending upon what data source one looks too,
Jena High School, in the year 2002, recorded anywhere from 65 out of
school suspensions \13\ to 0 out of school suspensions, as reported to
the Louisiana State Department of Education.\14\
---------------------------------------------------------------------------
\13\ U.S. Department of Education, Office for Civil Rights.
\14\ Louisiana Department of Education. District Composite Report.
2005-2006 LaSalle Parish. March 2007.
---------------------------------------------------------------------------
According to the OCR data, at Jena High School in the 2001-2002
school year, 10 out of 45 black females and 10 out of 50 black males
were suspended out of school at least once. But just 10 out of 205
white females and 35 out of 225 white males were suspended out of
school at least once. This translates into an out of school suspension
rate of 4.8 percent for white females and 22 percent for black females,
at least according to this data. In other words, black females were
more than 4 times more likely to be suspended than their white
counterparts. The rates for white versus black males in Jena were 15.5
percent and 20 percent respectively, according to the U.S. Department
of Education.\15\
---------------------------------------------------------------------------
\15\ U.S. Department of Education. Office for Civil Rights.
---------------------------------------------------------------------------
Simply because the numbers of students here are so small, it is
crucial that we not jump to conclusions about the source of the
apparent disparities. But what is clear, is that consistently reliable
data broken down by race are vital as we move forward. Most
immediately, the question we must ask is: Why do the two sets of data
differ so remarkably? Without clear, reliable information about
disparities, it is simply impossible to locate potential problems or
make sound decisions about potential solutions.
Under the Gun-Free Schools Act, districts are currently required
only to report the most serious offenses that triggered suspensions or
expulsions.\16\ At the least, school districts should be required by
the federal government to report suspensions from school, broken down
by race, no matter the alleged offense since research demonstrates a
clear link between suspension and lower achievement and between
suspension and dropping out of school and between dropping out of
school and incarceration.
---------------------------------------------------------------------------
\16\ Gray-Adams Westat, Karen. Report on the Implementation of the
Gun-Free Schools Act In the States and Outlying Areas. School Year
2003-04. U.S. Department of Education. Office of Safe and Drug-Free
Schools. April 2007.
---------------------------------------------------------------------------
Meanwhile, in Louisiana we do know that African American youth are
vastly overrepresented in juvenile detention facilities. In 2001, in
that state, African American youth represented 41 percent of the
overall youth population, but 68 percent of youth in detention.\17\
---------------------------------------------------------------------------
\17\ The Hayword Burns Institute. San Francisco, California. http:/
/www.burnsinstitute.org/dmc/la/
---------------------------------------------------------------------------
Experts in criminal justice and sociology offer a range of causes
for the disparities and it is undoubtedly difficult to untangle the
complex, interconnected sources of the problem. Plausible explanations
include inherent and often wholly unconscious racial bias on the part
of school officials and actors within the criminal justice system. One
research study conducted by Professor Russ Skiba of Indiana found that
black students are punished more severely than white students for
lesser offenses, such as ``disrespect,'' ``excessive noise,''
``threat,'' or ``loitering'' than their white peers.\18\ In addition,
Skiba's study on perspectives on school discipline of principals in the
state of Indiana found that a principal's attitudes toward school
discipline in general, and the effectiveness of the use of suspensions
specifically, played a far greater role in the numbers of students
suspended in a school than the actual behaviors of the students.\19\
---------------------------------------------------------------------------
\18\ Skiba, Russell, Robert S. Michael, Abra Carroll Nardo and
Reece Peterson. The Color of Discipline: Sources of Racial and Gender
Disproportionality in School Punishment. Indiana Education Policy
Center. 2000.
\19\ Skiba, Russell; Edl, Heather. The Disciplinary Practices
Survey: How Do Indiana's Principals Feel About Discipline. Children
Left Behind Policy Briefs. 2004.
---------------------------------------------------------------------------
Such bias, coupled with harsher ``zero tolerance'' policies in
schools, research strongly suggests, leads to black students,
particularly males, being suspended, expelled and eventually
incarcerated for behaviors and crimes for which their white peers, on
average, don't receive as harsh, opportunity limiting punishments.
Meanwhile, a third, related explanation is that the environments in
which significant numbers of African American children live encourage a
defensive, confrontational, hyper-aroused, but not necessarily
dangerous, posture. The most constructive response, especially for
younger children, the research suggests, is increased psychological
services, family support and sensitized educators--not automatic
suspension and/or expulsion, which research shows alienates children
from school and often marks a child's first step toward the criminal
justice system.\20\
---------------------------------------------------------------------------
\20\ See, for example, Massachusetts Advocates for Children.
Helping Traumatized Children Learn. A Report and Policy Agenda. 2005.
Also, Craig, S. The Educational Needs of Children Living with Violence.
Phi Delta Kappan. 74 67-71;68. Pynoon, R.S., Steinberg, A.M., and
Goenjian, A. (1996). ``Traumatic Stress in Childhood and Adolescence:
Recent developments and current controversies.'' In B.A. van der Kolk,
A. McFarlane and L. Weisaeth (Eds.), Traumatic Stress: The Effects of
Overwhelming Experience on Mind, Body, and Society. (pp. 331-358). New
York: Guilford Press; pp. 332, 349-350.
---------------------------------------------------------------------------
Of course, Congress has the responsibility to examine whether the
educational system in Jena, in particular, which is obligated to
provide equal protection of the laws for all children, has violated the
rights of students in terms of suspensions and expulsions. Similarly,
the same careful analysis and investigation should be applied to the
local system of justice there. It's not enough to assume that the
national problem of bias in the criminal justice system is what is at
play in Jena. In fact, we know very little about Jena in a larger
context. However, given the numerous anecdotal reports about racial
bias and the strong perception of injustice that seems to match the
experience of many African-Americans in our nation, it seems that alone
warrants an investigation. While the facts about what occurred in Jena
are predictably in dispute, clearly there is a widely held belief that
race played an enormous role in determining who was punished, to what
extent, and for what reasons.
One can never fully enter another human being's mind to assess
motive or prejudice. However, repeated patterns of disparate treatment,
astonishing disparities, and notably harsh, disparate punishments for
children of color, should, at the very least, raise a red flag. Racial
prejudice is far more difficult to discern these days, but that does
not mean it is not there, infecting what are supposed to be objective
decisions about whether a child can attend school, whether or not he
should be charged with a crime and whether or not he should go to jail.
The immediate lessons of Jena should be clear. A public educational
system should not be allowed to punish anyone in disparate ways where
it appears to have racial implications. Procedures should be
implemented to prevent that from happening. The federal government
should provide resources for states and localities to educate
professionals about racial disparities and the bias and prejudice that
likely plays a role in disparate treatment. Men and women who are
elected or appointed to administer the criminal justice system would
also benefit from enhanced understandings. The federal government
should collect and make publicly available rates of out of school
suspension and expulsion, no matter the offence, broken down by racial
group. Further, extraordinarily high suspension rates--for example
where more than 20 percent of any racial group of students are
suspended at least once--signal a school in need that is unlikely to be
serving students educational interests if significant numbers of
students are losing instructional time. Clearly, we should put in place
a system for flagging intervention in such schools and in the schools
shown to be suspending half or more of black males more than once. Such
schools are pushing children out more than encouraging them to stay in
and need support in changing their culture and outcomes.
In our modern times, so much bias lives undercover. For that reason
alone, we may never know the full extent of what happened in Jena,
Louisiana and exactly why. But we do know that a significant segment of
that community, consisting of African American adults and children,
strongly believe that the system is patently unfair, and the absence of
recourse outside the borders of Jena makes them wonder whether anyone
will really pay attention and address their valid concerns after the
protesters and media representatives leave their small community.
Coupled with the long-standing national data pointing to racial
disparities and strongly suggesting the role of bias and the long
legacy of racism in our nation, it seems that at the least, we must
take their concerns very seriously, as a closer, more careful,
consistent investigation that might lead to answers and, most
important, to healing and improvements, is clearly called for.
Thank you for this opportunity to testify on this most important
matter.
Mr. Conyers. Thank you so much. Let's look at a situation
like this: Schools don't exist in a vacuum. The tensions in
them are generally a reflection of the community that they are
in. How can we eliminate a racially hostile environment in the
Jena schools in light of concerns about a racially hostile
environment in the larger surroundings in which they exist? I
see a response from you, Professor Ogletree, in that regard.
Mr. Ogletree. Absolutely, Congressman Conyers. The first
thing is that CSR, to their credit, has been going to Jena.
That's an important step, but not enough. We have to be there
on the ground because people in Jena today think there isn't a
problem, that race isn't a factor, that these are all isolated
incidents that have no bearing, and that's part of the
unconscious bias that we have to address. So I think
congressional hearings there to hear how people may not even
understand the racial implications.
The second is a broader implication; most of these young
men, as Mr. Scott will tell you, are not in school. And in
fact, in order for them to continue their education, they are
going to have to travel outside of Jena to get an education
somewhere else.
Even if we solve the criminal justice problems, if these
young men don't get a high school diploma, if they are not on a
path toward education and college and professional pursuits, we
failed them in that respect. One final context, the data I have
in the report makes clear that those who don't finish high
school are more likely to end up in jail and prison; are less
likely to have a job and be employable. And so the problem has
to be at the root.
And the second part is this: We have to look at the fact
that a judge who is able to try a case as an adult case and get
reversed by the Third Court of Appeals of Louisiana, then tries
the same case, the juvenile case, at least it raises a conflict
of interest. A prosecutor who is the head lawyer for the school
board who talks about school policy and who should be punished
is the same prosecutor who decides the charges in a criminal
context. Those are areas where some Federal oversight is
important because the State has failed to address these issues
in a meaningful way.
U.S. Attorney Donald Washington, do you have a thought
about this?
Mr. Washington. Yes, Mr. Chairman. Generally, you know,
when we have conversations last week with the ministers in the
community and some other folks, we talked about the very
question that you raised. And what we have encouraged them to
do, A, is they have to act amongst themselves. This concept of
unconscious bias does exist I believe in the Jena community.
They have to establish relationships among themselves. So we
are assisting and encouraging them to engage in a number of
social interaction, the community relations services come up
with a plan of action which they have executed over the last
several months and which we are in the middle of, in fact, to
get to the very question that you asked, how do we move forward
from here.
Mr. Conyers. It is a difficult one. I don't throw this out
to get a pop response. I mean, this is the core of the problem,
really. What is reflected in the school isn't something
different that is reflected probably outside the school.
Richard Cohen, would you give a comment?
Mr. Cohen. I think the change is right, that the school
exists within the community, but oftentimes, tensions within a
school are much worse than in the community. What happens is
people in the community have a stylized way of dealing with one
another. But in a school, there is a much greater degree of
intimate contact--we are in gym class together, eat together,
there are raging hormones.
So I think that oftentimes, the situation in a school can
be much worse. But it also gives an opportunity to do something
that we can't often do with adults. You know, we have that
captive audience in school and we can bring people together and
educate them. That is kind of the whole idea behind it. I must
say that think in Jena, they missed many opportunities to open
a dialogue with the community. The way the Black parents were
treated at the school board really shut down dialogue rather
than opened it up. And the last thing I note, Mr. Chairman, is
I think it is going to be very difficult in Jena to resolve the
larger community problems until there is justice in these
cases, until these cases are resolved. I think they are now a
symbol of the larger injustices that are going on in Jena.
Mr. Conyers. Reverend Moran and Ms. Krigsten, do you have a
comment? My time is almost out.
Reverend Moran. Primarily, yes, I do agree with him. The
injustices that has taken place in the school systems must be
resolved before anything will take place in the community.
Because the eyes of the community are upon the rulings of those
citizens in the school system and until that is done, I don't
believe we'll be in a healing process.
Ms. Krigsten. Mr. Chairman, I want to take this opportunity
to echo the statements of my colleague, Mr. Washington and
indicate that the Department of Justice has committed its
resources to a holistic approach to what is occurring in Jena.
At this time, I do want to note that one of the steps the
Community Relations Service is taking is to start a particular
school program called the SPIRIT program inside the Jena school
to address these very issues that you and other Members of the
Committee are concerned about.
Mr. Conyers. Thank you very much. Ranking Member Lamar
Smith.
Mr. Smith. Thank you, Mr. Chairman. Mr. Washington and Ms.
Krigsten, thank you for your testimony, particularly the more
written extensive testimony you submitted. And I certainly hope
that any Member of Congress that questions how much the Federal
Government is doing will take advantage of reading your
testimony, and also, perhaps, talk, as I understand, to the
director of the community election service who is sitting
behind you.
I know much is being done on the ground and there is no
substitute, frankly, for the footsteps of those in the Federal
Government to reassure people. At the same time, while
everything you are doing, I think, is worthwhile and needed, we
need to remember to respond to some of the suggestions by
Professor Ogletree that it is not just enough to be there, some
policies have to change as well. Anyway, thank you for your
testimony. But what I wanted to ask you, do you think the
environment is changing? Do you think there is an improvement
in the way people see racial injustice in Jena now as a result
of your efforts?
Mr. Washington. I'll start to answer that question. My gut
tells me yes. And the reason I say that is because a number of
them have indicated that they never thought that their fair
city would be held up to the world as an example of a racist
city. And they never thought they'd have somewhere between
12,000 and 60,000 people show up in their city at one time.
Having said that, they are struggling with coming up with ideas
as to how to move forward. We are working with them as I said
before, the community relations service through my office and
through the civil rights division to help them come up ways to
move forward. We're considering, you know, how do we get, for
example, different types of funding perhaps, for programs that
they may come up with to assist with the kind of interactions
that simply need to occur in that city.
Mr. Smith. Thank you, Mr. Washington. Ms. Krigsten, do you
have anything to add to that?
Ms. Krigsten. I do want to add there is a healthy dialogue
taking place in Jena at this time. Mr. Washington was joined by
the Civil Rights Division and the Director of the Community
Relations Service in Jena last Friday, and they had a dialogue
with members of the clergy and other leaders in the community.
And based on reports of those meetings, the dialogue continues
and things are slowly getting better, much with the assistance
and guidance of the Community Relations Service, which
continues to provide active support in that community.
Mr. Smith. Thank you. Mr. Cohen, thank you for your
testimony. I really thought it was balanced and I thought you
had a couple of solutions I want to read in a minute because
you did not get to them I don't think in your oral testimony.
But I also appreciate your saying something today that frankly
maybe needs to be said a little bit more often. You said we do
not excuse violence of any kind or minimize Justin's injuries
in any way. Our hearts go out to him and his family. And the
point of fact that is often overlooked, a brutal and unprovoked
attack occurred and apparently it was perpetrated by an
individual with a long criminal history. I don't think we ought
to make light of that in looking at the bigger picture, but I
appreciate your mentioning that. I also appreciating your
making two suggestions on solutions. You said we should
increase Federal investment and services designed to soothe the
racial and ethnic tensions simmering in our Nation's school and
respond promptly when hate crimes occur. You also said the
Federal Government working with experts in the field can help
officials like those in Jena work toward the goal of creating
schools where all students feel physically and emotionally
safe. Those are wonderful goals. It is a challenge for Members
of Congress to implement policies for the American people
wherever they are located to achieve those. I don't have time
for Congress because I wanted to make a comment to Professor
Ogletree.
First of all, Professor, in your bio that we had before us
it says that you began your career at Harvard Law School in
1919. Now, I know----
Mr. Ogletree. That's Charles Hamilton Houston, not me.
That's the other Charles.
Mr. Smith. I know you're a wise man, but I didn't know you
were that experienced is my point. Professor, what I wanted to
say to you--I actually want to read something from your written
testimony that you did not, I don't think, mention in your oral
testimony. With more than 3,000 people lynched from the late
1800's to the early 1900's, children often attended such events
as if they were carnivals. A noose today is a powerful symbol
of American White supremacy and pure barbarism.
Given the context, a noose, particularly to an African
American who knows his history, is nothing less than an
expression of hatred. Moreover that the students responsible
for hanging the now infamous nooses in Jena are unable to
appreciate the significant brutality of such an act, that lack
of understanding should be addressed for the good of the
collective community.
Professor Ogletree, it is not easy for us to put ourselves
in the shoes of others, but I believe you have crystallized as
well as it can be written, not necessarily felt. And your
comments there, I think, need to be taught in the classrooms,
they need to be--views exchanged among parents and they need to
be remembered by the Members of Congress when we get to the
point of creating additional policy. So I wanted to thank you
for your testimony, and Mr. Chairman, my time is over.
Mr. Conyers. Thank you so much. The Chair recognizes a
senior Member of the Judiciary Committee, the gentleman from
California, Howard Berman.
Mr. Berman. Thank you, Mr. Chairman. I was wondering if--
there is a discordant two themes that sort of run against each
other in this, and I'm wondering if you could, Mr. Washington,
perhaps, or Professor Ogletree or Mr. Cohen or Reverend Moran,
resolve this for me. On the one hand, we hear about all the
efforts going on now for dialogue and reconciliation, the work
of the community relations service. And at the same time, we
hear that the people of Jena and the leadership of Jena thinks
of this as childish pranks, not something fundamentally
indicative of racist views and feelings. Professor Ogletree
talks about the benefit of people learning the symbol of this
noose or the history of lynches in the south, the full
implications of what that meant. Are these efforts at dialogue
dealing with that? And if these dialogues are taking place, why
is this view held that the people of Jena don't--and the
leadership of Jena don't fundamentally feel there is anything
wrong? I'd also like to hear from the people involved in
coordinating this effort.
Mr. Ogletree. I'll make a brief comment. It reminds me of
Harriet Tubman who was responsible for freeing so many slaves
from the south to the north and her famous statement was I
could have freed a lot more if they realized they were slaves.
And I think that tells us something about what is going on
here. There is the unconscious bias that people don't realize
there is a problem. And I think that what is going on is good,
but I would actually look forward with this Committee's support
to joining Mr. Washington in Jena and other places to have a
dialogue and talk about the history of lynchings. It is not the
children. It is the families, the community. If you don't
recognize you have a problem, you can't begin to address it,
which is one of the major aspects. And the second part is that
I agree that there is a victim in this case who was brutally
beaten, that the individuals who have been charged aren't
saints or martyrs. They are young kids who are involved in
conduct that needs to be addressed.
I think the fact that we've ignored the community's
problems is what created this opportunity for disagreement. And
I think what Richard Cohen and others are doing--I think that
we can do something that we have expertise in to teach people
how to think about race in ways they probably have never
thought was necessary. It is not just Mychal Bell scored the
touchdown on the football field which they'll all applaud, but
seeing him as a young man that is more than the sum of the
crime with which he has been charged.
Mr. Berman. Mr. Washington?
Mr. Washington. The conflict of which you speak is, of
course, not new. It exists all over the country in my humble
opinion. What we told the Jena folks in our first education
forum earlier this year was that in these kinds of things, good
people have to stand up and do the right thing and articulate
very clearly what is right and what is wrong. What didn't
happen in the Jena community when the nooses were hung was just
that. So now we move forward with this idea of how do we solve
this--how do we go back in time, which we can't, but how do
we--if this happens again, get people to say these kinds of
things are wrong.
I think Professor Ogletree is exactly right, that we have
to keep talking about it, keep pushing it. We can use the
criminal justice system to a degree, but at the end of the day,
as the blunt instrument which is really not appropriate for a
long-term resolution in communities like Jena. So this is going
to be a little bit of an experiment for us, at least in my
office and in the civil rights division, but not in CRS, I
don't think.
Mr. Berman. Let me just ask you. I only have another few
seconds. Put aside the issue of juveniles. In your view, is the
act--is this act of hanging the noose a hate crime?
Mr. Washington. Yes, It is a hate crime.
Mr. Berman. Under existing Federal law?
Mr. Washington. Under existing Federal law. We have--I
think we have stated that publicly. And we've not all been in
agreement as to how strong the evidence is to support the
elements and move forward. But, yes, hanging a noose under
these circumstances is a hate crime.
Mr. Berman. Thank you.
Mr. Conyers. The gentleman's time has expired. The Chair is
now pleased to recognize Howard Coble, who has been on the
Committee for quite a while, and he is from North Carolina, and
we welcome him for his questions.
Mr. Coble. Not as long as you've been on the Committee, Mr.
Chairman. Thank you, Chairman. Thank you all for being with us
as witnesses. Racial disharmony services no good purpose. Mr.
Chairman, I'm going to make a certain statement here. If I were
compiling a group of witnesses to encourage the diminishing of
racial disharmony, I don't think that Mr. Sharpton would have
made my cut. But that is a personal opinion, Mr. Conyers. Good
to have you all with us.
Mr. Conyers. He may be here shortly.
Mr. Coble. They may be looking for him. Americans of
goodwill prevail in both communities, the African American
community and the Caucasian community. Unfortunately, there are
troublemakers, enticers of tension, Americans of bad will in
both communities. But Mr. Chairman, I believe the latter group
does not constitute the majority.
Ms. Krigsten, are there any suggested potential regulations
that the Department of Education might issue to help address
some of the problems discussed today are to prevent future such
problems from occurring?
Ms. Krigsten. At this time, I'm not able to speak directly
to the Department of Education. My expertise is with the
Justice Department where I've been employed for the last 7
years. What I can tell you, Congressman, is that the Civil
Rights Division's Educational Opportunities Section is actively
involved in this case. There is a Federal desegregation order
in place in the LaSalle Parish and the Educational
Opportunities Section has taken it upon itself to initiate a
review of that desegregation order. That review will be
comprehensive. It will look at all parts of the school, and at
that time, it will determine whether appropriate relief is
needed.
Mr. Coble. I thank you for that. Mr. Washington, how many
students were involved in the hanging of the nooses?
Mr. Washington. There were two students who hung the nooses
and one assisted by driving there. So three.
Mr. Coble. Was the student who was the victim of the
battery or the schoolyard fight, was he one of the ones that
hung the noose?
Mr. Washington. No, sir.
Mr. Coble. Now, one of the--one of the members of the Jena
6 was tried initially as an adult, is that not correct?
Mr. Washington. That is correct.
Mr. Coble. That is ongoing now as a juvenile matter?
Mr. Washington. As far as I understand, that's correct.
Mr. Coble. Reverend Moran, let me ask you this. Has the
Federal Government helped local officials who are trying to,
for want of a better way, of keeping this thing from spinning
out of control?
Reverend Moran. From my understanding partially. But there
is a cry for peace, love and harmony, but there is not a cry
for justice. There is justice. We talk about getting dialogue,
we talk about us meeting one another, Black ministers and White
ministers, but we don't talk about the justice and the
injustice taking place now.
Mr. Coble. Mr. Cohen, do you want to add--you or the
professor want to add anything to this before my time expires?
Mr. Cohen. I think Reverend Moran is much closer to the
situation there and, you know, I'm sure he has an accurate view
of it.
Mr. Coble. Professor, I'll give you--professors always get
the last word.
Mr. Ogletree. I doubt it. But I will say that your question
raises an important issue and that is part of our suggestions
here is to simply not have dialogues but to use those dialogues
to think about some ways to modify our Federal law. One thing I
mentioned in my written testimony is look at the Gun Free
Schools Act which was designed to look at weapons used in
school data. The reality is that there are a lot of people that
were suspended for crimes not involving weapons and the
question is whether or not the laws that you have passed are
being used in ways that show unequal application to Blacks and
Whites.
So I would say look at the data. And I think even the idea
that you're going to change the law to look at who is being
suspended, I bet it will change. I bet there will be a
remarkable change when they realize that someone is paying
attention to why a child is removed from school rather than
dealt with inside the school. I think that is a very good thing
you could do and others could do on this Committee.
Mr. Coble. Thank you, Professor. Mr. Chairman, I want you
to take note that I'm yielding back prior to the illumination
of the red light.
Mr. Conyers. The Chair takes note. Without objection, the
testimony of Reverend Jesse Jackson of Rainbow Push will be
entered into the record.*
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*The information referred to was not received prior to the printing
of this hearing.
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And the Chair recognizes the Chairman of the Constitution
Subcommittee of the Judiciary Committee, Jerry Nadler of New
York.
Mr. Nadler. Thank you. My first question goes to Ms.
Krigsten. You've testified and we have plenty of reports that
Federal officials examined how Jena High School administrators
administered discipline. These officials did not find it
unusual that the students responsible for hanging the nooses
were disciplined only with suspensions. Punishments that were
awarded by the school superintendent to overrule the
principal's original expulsion recommendations. Did Federal
officials find that the decision to expel the Jena 6 for a
school fight was a proper and equitable punishment?
Ms. Krigsten. As you mentioned, there was immediate
discipline in this case after the students who hung the noose
were identified. One of the things that the Department is doing
is reviewing that discipline in light of other discipline that
has been meted out in other situations. So the first part of my
answer is that the Educational Opportunities Section in their
review of the Federal desegregation order will be looking at
this variation. The second thing that I want to point out is
that the Federal--the decision not to pursue charges in this
case was not based on a decision whether expulsion versus
suspension was the appropriate penalty. The judicial system did
not ever reach that particular issue.
Mr. Nadler. Thank you. Now title 4 of the Civil Rights Act
prohibits discrimination by public elementary and secondary
schools and public institutions of higher learning. In a
meeting with Members of Congress, several Jena parents
complained that the LaSalle Parish school board did not respond
to their complaints about the racial climate at the high
school. Has the Civil Rights Division opened a title 4
investigation to determine whether there is a statutory Federal
role in calming the racial climate at the school?
Ms. Krigsten. At this time, the Civil Rights Division is
using all of the tools at its disposal to address issues in
Jena. One of those tools, as I've mentioned, is a review of the
Federal desegregation order. At this time, that is the step
that the Department is taking to review all of the issues
surrounding the school. If it is discovered that are violations
of that order or additional violations of law, the Department
will take appropriate action.
Mr. Nadler. Thank you. Mr. Washington, in your testimony,
you stated that the Department declined to pursue charges in
the Jena High School noose incident after learning that the
nooses had been hung by juveniles. Earlier reports indicated
that the Department did not bring hate crimes charges because
the incident failed to meet the ``threat of violence
required.'' For the record, can you please state did the noose
incident meet the Federal hate crime requirements, and but for
the offenders being juveniles, might hate crimes charges have
been pursued?
Mr. Washington. Yeah, I think you might be reading an old
media report where some misunderstanding occurred there was
discussion about the elements of a hate crime given this
particular circumstance and we had disagreements over the
strength of the element, the evidence to support various
elements of the crime. To answer your question directly, if
these acts has been committed by others who were not juvenile,
this would have been a Federal hate crime. We would have moved
forward at the end of the day we still would have had to make a
disagreement over the strength of the evidence. But
nevertheless, it would have moved forward.
Mr. Nadler. Thank you. I have two other questions for you.
The Jena situation has spawned a series of other incidents, a
truck driven on the roads trailing nooses for instance was
reported. Are there other Federal statutes, other than 18 USCA
245 that we referred to a moment ago that could be used to
prosecute hate violence?
Mr. Washington. Yes. There is a series of statutes under
the United States code, among them include 18 USC 241, 242,
245, 247 for church property and things of that sort. So, yes,
there are, sir.
Mr. Nadler. And finally, do you think that there is
anything that we can do in strengthening those? In light of
your investigation of everything, should Congress amend or
strengthen these existing statutes?
Mr. Washington. I think two things have to occur first.
First, what is occurring inside the civil rights division is
that we're asking ourselves those same kinds of questions. I'm
sure the Department of Justice will bring those ideas to
Congress as they blossom. And secondly, of course, any ideas
that this Committee might have, we'd certainly entertain them
or take them back and review and discuss them for----
Mr. Nadler. Thank you, Mr. Chairman. Just before my time
expire, I simply want to note that we've been joined from
someone from my city, a very distinguished citizen and witness,
the Reverend Al Sharpton.
Mr. Conyers. Thank you very much, Mr. Nadler. We do have
Reverend Sharpton here. I suppose you have an excuse for your
tardiness and that you are present because you do wish to make
a statement. And because of that and because of your work and
the fact that you have been to Jena and have been working not
only with the Federal Government, but the State and local
government, but more importantly the people of Jena and the
children at the school, we're delighted to have you here today
and we'd ask that at this point you give us your statement.
TESTIMONY OF REVEREND AL SHARPTON, PRESIDENT, NATIONAL ACTION
NETWORK
Reverend Sharpton. Thank you, Mr. Chairman. First let me
apologize. I've been on the tarmac in New York for the last 2
hours. So it was the airlines, not me that is responsible. But
I realize that this Committee doesn't have oversight over the
airlines, so I won't belabor the point. First let me say that I
wanted to come today, along with Martin Luther King, III, and
the lawyers for Mychal Bell because we are--among other groups,
asked this Committee to hear because we think this is a serious
problem that goes beyond demagoguery and profiling. I was
called in the summer by the parents of Mychal Bell who asked me
to come to Jena because they felt their son had been treated
unjustly. And we responded to that call.
They felt that the government in Jena, the State government
in Louisiana, as well as the national government did not hear
their cry. Any time we are in a situation where young people of
the same age face different levels of justice, then we are
experiencing in our opinion the undermining of the constitution
and certainly the drawback of the dream that many of us fought
for and continue to fight for. It seemed inconceivable to us
that young people could be charged as adults but other young
people could not be charged at all. When you have a system set
up where you are too young to be charged with a bias crime, but
you're the same page and can be charged as an adult for
attempted murder, that speaks to some level of the justice
system having to address that. And when they were given a court
appointed attorney that did not raise that, they were later
able to get Attorney Scott, who sits behind me and Attorney
Lexing-Powell, who sits behind me and able to successfully
bring that into the third circuit and overturn the adult
conviction of Mychal Bell after serving 10 months in jail.
But I would beseech this Committee to look into the fact
that there are Jenas all over the country. It's the hangman
nooses at Columbia University in New York. There is even a
hangman noose at the site of 9/11. It's in North Carolina. It's
in California. All kinds of reports. And what has been most
troubling is the silence of the Federal Government in the face
of this.
Now, this is bipartisan. In the Republican administration
of Dwight Eisenhower, Dwight Eisenhower sent the government
into Little Rock. John Kennedy sent in the Federal Government
and the justice system was involved. So did Lyndon Johnson.
What has happened in Jena and what has happened all over this
country, we've not heard one Federal response. It is almost
like the national government is not in the country while we're
watching nooses on the news every night, while we're watching
hate crimes. And if we can't appeal to the Federal Government,
where can we go? It has been rationalized by those in Jena some
that these nooses was a prank, a prank to who? Grandchildren of
people who saw their grandparents hanging on nooses? If there
is a pranks, if there is a joke, the joke is if we could
represent to the world that we're the land of the free and home
of the brave, but we can't protect youngsters in Jena,
Louisiana, and we can't stop people from hanging nooses and our
Federal Government after 50 years of bipartisan tradition of
protecting people from States rights has now decided it can no
longer protect people from States that decide they can
prosecute some 16 year olds if they're Black as adults but
can't prosecute other 16 year olds if they're White, same age,
but they qualify as juveniles, do we want harmony? Absolutely.
Do we want the races to come together? Absolutely. But you
cannot achieve racial justice by getting a premature racial
quiet.
There is a difference between peace and quiet, Mr.
Chairman. Quiet means shut up and allow a two-tier justice
system to continue to exist. Justice means we must have an even
playing field and the Justice Department at the behest of this
Committee needs to step into Jena and the Jenas of this country
and establish that the Federal Government is still in charge
and the States did not win the Civil War. Thank you.
[The prepared statement of Reverend Sharpton follows:]
Prepared Statement of Reverend Al Sharpton
Good morning Mr. Chairman and members of the Judiciary Committee.
On behalf of the National Action Network and its Chairman Reverend Dr.
Franklyn W. Richardson, Jr., and individuals throughout this great
nation of ours who face the awful prospect of pursuing the American
dream while confronting the nightmare of bigotry and racism, I thank
you for conducting this hearing today.
Joining me are Martin Luther King III, a respected civil rights
leader in his own right and the son of Dr. Martin Luther King, Jr., and
Charlie King, former candidate for New York State Attorney General and
Acting National Director of National Action Network. It is because of
the seeming continued miscarriage of justice in Jena that I and other
civil rights leaders requested these congressional hearings and federal
government intervention in this very troubling case.
At the outset of my testimony, it is important to note that for the
last fifty years, federal protection of civil rights over parochial
states' rights has been a bipartisan effort that has improved and
united our country. When the ``Little Rock 9'' schoolchildren needed
the federal government to ensure that they could go to an integrated
public school, it was Republican President Dwight Eisenhower who
protected their civil rights, and our national education system
improved. When Blacks in the South in the '60s sought to exercise their
civil rights in the voting booths, at lunch counters and in interstate
transit, Democratic Presidents John F. Kennedy and Lyndon Johnson
ensured those rights were
exercised and protected, and we began to grow together as a
society.
And now, just as when Dr. King and other civil rights leaders in
Dr. King's time urged the federal government to step in when local
governments either could not or would not halt an onslaught of racism
and bigotry, we are here today to urge the federal government to
intervene in Jena and in all the other towns like Jena throughout our
country. We are here today to ask the federal government to help us put
an end to the dramatic increase in hate and bigotry taking place
throughout the nation.
Hate crimes are on the rise throughout the land. A noose was hung
on the Ivy League door of a Columbia University professor last week,
another noose was left in the bag of a Black Coast Guard cadet, and yet
another noose was found on the office floor of the officer who was
investigating the situation. Last month, nooses were hung on a tree on
a Maryland college campus, in the Long Island police department, in
several places in North Carolina, and on a utility pole at the Anniston
Army Depot in Alabama. In Ft. Pierce, Florida and Palmdale, California
youth faced racially charged instance of excessive force by security
guards and the police. In Florida a young African American girl was
violently punched and sprayed by a police officer and in California a
three students were overzealously arrested with force and called
``nappy headed.'' There are also the Martin Lee Anderson and Genarlow
Wilson cases, and just last Sunday, a Black high school football team
from Harlem, NY went to play an all white team in Staten Island to find
the ``N'' word scrawled on their team bench.
For those who think these assaults do not affect them because they
either do not live there or they are not a person of color, they are
mistaken. When Dr. King was alive he said over and over again that
injustice anywhere is a threat to justice everywhere, and he was so
correct in preaching this that he lost in life in this cause. When the
civil rights of one person are violated, that violation affects the
moral fiber of our country and raises the possibility that the civil
rights of any one of us could be violated as well.
Civil rights violations unchecked and not responded to also damage
our country's standing throughout the world. I have just returned from
an international conference of Caribbean leaders and heads of state
where we all watched on television images and discussion of nooses and
the tragic obvious increase in hate crimes in America.
Nooses, the ``N'' word, a Klansman's hood, and the burning cross
are the clearest symbols of hate for Black America.
Some down in Jena have called the hanging of nooses from a
schoolyard tree a ``harmless prank.'' But if the Jena noose hanging is
a prank, then this cruel joke is on our entire nation, because our
federal government and we have been unable or unwilling to protect
civil rights in the tradition of Presidents Eisenhower, Kennedy and
Johnson.
As the President of National Action Network, one of the leading
civil rights organizations in the nation and as a former candidate for
President of the United States, I have seen firsthand grave injustices
throughout this country. I have worked with victims of police
misconduct and brutality and with other individuals who have been
subjected to other civil rights abuses. In all of those cases, whether
I agreed or disagreed with the ultimate outcome, I never once believed
that our government, our laws or our judicial system were being used as
instruments of bigotry or racism, or that they were incapable of
correcting civil rights abuses.
But that has changed with the events in Jena, in Georgia with the
Genarlow Wilson case and in Palmdale, California. These cases cry out
for the need for federal jurisdiction and enforcement because local
efforts have either failed or been purposely obstructed.
In the interest of time I will devote my testimony today to the
ongoing tragedy and abuse in Jena, Louisiana.
In Jena, I believe that we have witnessed, and are continuing to
witness, a state judicial system that has not protected the civil
rights of six African American boys, the ``Jena 6'', and this breakdown
has had a chilling effect on the civil rights of all Jena residents
and, by extension, on the civil rights of all of us. For those who are
properly outraged by the acts of the prosecutor in the Duke case, the
prosecutorial actions in Jena should invoke a similar response. Jena
has a renegade prosecutor who has: overcharged the Jena 6 with
attempted murder for their involvement in a school fight without
weapons where the injured person went to a school event just hours
after the fight; caused Mychal Bell to serve ten months in an adult
prison due to his wrongful prosecution of Mychal as an adult; and kept
Mychal in an adult jail without the possibility of bail even after
Mychal's conviction was overturned.
There also seems to be an abuse of judicial discretion in Jena. The
court there has permitted the overcharging of the Jena 6 with attempted
murder, allowed their prosecution as adults rather than as juveniles,
and then refused bail requests of any amount for Mychal after the
appeals court had overturned his conviction. The court subsequently re-
arrested Mychal because of an alleged violation of his parole and
sentenced him to 18 months. Mychal is incarcerated again today as we
have this hearing.
But the breakdown of the state system in Jena goes beyond the
horrible specifics of this case. The prosecutor and judge are the same
for both the adult and juvenile courts, which means that if there
indeed was prosecutorial misconduct and abuse of judicial discretion in
the adult Jena 6 cases, then that very same misconduct and abuse will
follow the Jena 6 in their juvenile cases. Although I am not a lawyer,
I believe this is a classic and unacceptable conflict of interest.
Another conflict of interest is that the prosecutor also was counsel to
Jena high school and thus played a role in the modest punishment meted
out to the white students who hung the nooses and who precipitated this
entire travesty.
Further, assuming that there are violations of civil rights
occurring in the juvenile court system of Jena beyond the Jena 6 case,
we will never know about it, because these proceedings took place
behind closed doors and in secrecy. I am not advocating that such
proceedings transpire in public, but if the state juvenile system is
fraught with civil rights abuses, then it is hard to identify those
abuses without federal safeguards and protections.
Not every case receives national attention, and not every family
has Al Sharpton or Martin King on their side in a civil rights dispute.
In 2004, law enforcement agencies reported nearly 5,000 incidents that
were motivated by racial animus, and nearly 70% of those were directed
at African Americans. In addition, 12% of all children claimed to have
been victims of hate crimes. But, as the Southern Poverty Law Center in
Montgomery, Alabama states, even these dramatic numbers are likely
grossly underreported.
I believe the time is now for federal intervention to protect these
civil rights. And the focus of this intervention should be in three
areas: expanded jurisdiction over hate crimes; better federal
protection against prosecutorial misconduct and abuse of judicial
discretion; and quicker legal federal intervention mechanism in civil
rights cases where local courts are not protecting or cannot protect
the civil rights of the parties involved.
Even though three white Jena high school students indisputably hung
nooses from a school tree, the United States Attorney who is testifying
today has been on record stating that he could not prosecute those
students under current federal hate crime statutes. Putting aside for
the moment what other statutes he could have utilized had he chosen to,
it is clear that, if our criminal justice system can--and does--
prosecute 16 and 17 year olds for certain crimes, then those crimes
should include hate crimes.
When it comes to prosecutorial misconduct, it does not make sense
to me that a prosecutor like the one in Jena can overcharge Black
students in a schoolyard fight, never even charge the white students
who engaged in the hateful conduct that caused all of these problems,
and then have his conduct escape any scrutiny for prosecutorial
misconduct. There has to be a way to deter local prosecutors from
engaging in the blatant disparate treatment of people who come before
them based on race.
Abuse of judicial discretion must also be examined. A court system
that believes it is impervious to scrutiny opens the door for the type
of abuse that is taking place in Jena. It is my opinion that there is
absolutely no way that the Jena 6 can enjoy a fair trial before this
local judge who has even gone so far as to hold a juvenile in an adult
prison without bail on charges that were overturned by a higher court
while the prosecutor took an unreasonable amount of time deciding
whether to appeal. Again, this type of abuse, unchecked, sends the
message to everyone in Jena and throughout our nation that the court
system in Jena is there to thwart justice, not protect it.
Finally, there must be a way for the federal government to
intervene when civil rights are being violated but the conduct of the
local prosecutor or judge does not fully rise to the level of
misconduct or abuse.
Since I am not a lawyer, I leave it to Professor Ogletree and
others to fashion the appropriate statutory remedies, but I do know in
my heart and in my mind that federal intervention in Jena and many of
these other cases is warranted.
Mr. Chairman, at this time of urgency in the field of civil rights,
I hope your Committee hearing today will prompt Congress and the
President to make their marks in civil rights alongside those of
Presidents Eisenhower, Kennedy and Johnson. With respect, we do not
need any more silent witnesses to civil rights infringements and
abuses.
Thank you for this privilege.
Mr. Conyers. Well, I thank the gentleman. And I remind him
that he is in the Federal Government right now before the
Judiciary Committee, who, I think, has responded in quite a
timely manner and it is toward the end that the gentleman seeks
to have happen is what we are here today to develop.
Reverend Sharpton. Well, I thank you for that timely
response and I know this is the first response of the Federal
Government, and I think all of us are appreciative for the
entire Committee, and I note Mr. Coble's welcoming of my
presence.
Mr. Conyers. And let us begin to re-examine, and I'm not
sure if you had the benefit of what I thought was some
excellent discussion, but let us begin to re-examine what
precisely it is, and I'm sure this will come out in further
questioning and discussion with you. What is it that the
Federal Government is supposed to and is going to do? And now
going back into the regular order, let me just ask a question.
Could I seek the indulgence of my colleagues here, Mel Watt is
going to be replacing me on the floor because we have Judiciary
legislation, but I wondered if my colleagues would agree to go
next?
Mr. Lungren. I'm not sure he can replace you, but I'll be
standing in your stead.
Mr. Conyers. Okay. All right. Very good. The Chair
recognizes the gentleman from North Carolina, Mr. Mel Watt.
Mr. Watt. I thank my colleagues on the other side, and I
thank the Chair, I guess the lesson to be learned from that is
that no good deed goes either unpunished or unrewarded. So I'm
going to go shortly and substitute for the Chair on the floor
in connection with another bill. It seems to me that we have
danced around a question of--quite a lot this morning that
Reverend Moran seems to put his finger directly on. And that is
the fact that there has been a lot of discussion about
reconciliation and very little discussion about justice. And
until this pending dispute is resolved in some way, it is going
to be difficult, hard, if not impossible, for the Jena
community to move forward in any kind of constructive way.
So I guess the question I want to focus on is what, if
anything, can we do, given the recognition that everybody on
this panel seems to have that there were two standards being
applied. There still seems to be two standards being applied.
The prosecutor is still out there charging on a different
standard. The Black kids, not having charged anything against
the White kids. Is there anything in the current posture of the
case that the justice department can do or do we have to just
wait on an irresponsible insensitive prosecutor to continue to
play this out for his own political benefit, I'm told, while
the Nation is trying to reconcile, he is trying to be a hero.
Is there anything that we can do in this context in this
case to get this prosecution resolved so that we can start to
try to reconcile? And I would address that question first to
the representatives from the Department of Justice and then to
the learned counsel on the panel.
Ms. Krigsten. One of the things I want to make sure our
testimony does here today----
Mr. Watt. I want to make sure that we answer the question.
Ms. Krigsten. Yes.
Mr. Watt. I've got your testimony. I don't see an answer to
this question in your testimony. So----
Ms. Krigsten. The answer to the question is this. The
Department of Justice has been active in the Jena community.
There has been an immediate response by the Department of
Justice and continued response to address all of the issues in
the community. When looking at the issue that you bring to the
table at this time, the Department of Justice is aware that
there are requests to investigate the judicial system in Jena.
Just last Friday, Mr. Washington was joined by the head of the
Civil Rights Division in discussions with community leaders,
and that is one of the topics that was brought to our
attention.
At this time, the Justice Department is gathering
information and reviewing that information and is taking that
request about whether there needs to be an investigation into
the justice system very seriously. At this time, there is an
ongoing criminal prosecution, and it would be premature for the
Justice Department to say at this time whether there will be an
investigation.
Mr. Watt. Mr. Cohen, Mr. Ogletree, in our criminal context,
in our justice system, are we just stopped at this moment until
some irresponsible ``prosecutor'' plays out his own political
agenda?
Mr. Watt. Would you put your mike on, please?
Mr. Cohen. I think it is on. We hope at some point that
cooler heads do prevail. Unfortunately we live in a Federal
system and it is very difficult to bring a selective
prosecution case and stop a prosecution in its tracks. I know
that Mr. Scott, Mr. Bell's lawyer, and many of the other
lawyers are trying to file motions to recuse the district
attorney. They've been unsuccessful so far. I think there will
be motions filed to change the venue and get the case out of
Jena.
I can't imagine that those won't be granted. You know,
ultimately, the wheels of justice grind slowly unfortunately.
They're going to go through the Louisiana appellate courts. And
if there is not justice there, there will be Federal habeas
actions brought. I just hope that the kids, in the meantime,
can bear up. But I think it is not an obvious thing that we can
short-circuit that by some sort of Federal intervention
unfortunately.
Mr. Watt. Thank you, Mr. Chairman. I thank the gentleman on
the other side for allowing me to go out of order and I'll go
handle the Chairman's business now.
Mr. Conyers. And I thank the gentleman from North Carolina.
The Chair now recognizes Dan Lungren, I'm sorry, Bob Goodlatte
of Virginia, a distinguished Member of the Judiciary Committee.
Mr. Goodlatte. Thank you, Mr. Chairman. I'll be following
Mr. Watt to the floor momentarily on the same issue which you
well know. And I also want to thank you for holding this
hearing. And I also want to say, and I think I can say this on
behalf of everybody on this Committee on both sides of the
aisle, that we all stand for equal justice under the law. And I
think this is an appropriate hearing to determine the facts
behind what occurred in Jena and what can be done to avoid
similar circumstances in the future.
So in that regard, I'd like to follow up on the questions
that were addressed by Mr. Watt and to Ms. Krigsten and Mr.
Washington, perhaps get you to be a little more precise with us
if you can. And that is to ask each of you, in your opinion,
what do you think were the appropriate charges to be brought
against the Jena 6 members with regard to the assault on Justin
Barker?
Mr. Washington. Congressman, we have done what we can as
hard as we can not to come up with opinions regarding
prosecutorial discretion and things of that sort in this
particular case. What we can say----
Mr. Goodlatte. I'll give the other members of the panel an
opportunity to answer too. So I want you as the representative
of the Justice Department to have first crack.
Mr. Washington. I understand. What we can say there is an
loud outcry in the community that these charges are overboard,
and we've taken that into consideration and we'll continue to
take that into consideration as we move forward with our
processes.
Mr. Goodlatte. Ms. Krigsten.
Ms. Krigsten. At this time, I can simply echo what Mr.
Washington has said. There has been an outcry. We have received
the message from the Members of this Committee and from the
American public that people are not pleased with the charging
decisions. At this time, the Justice Department is not going to
express an opinion whether or not those charges were
appropriate or not appropriate because it is an ongoing
prosecution; and because we are considering the request of
whether to investigate the district attorney.
Mr. Goodlatte. Let me ask you a second question, and then
I'm going to give the other members of the panel an
opportunity. Based on your knowledge of the facts and
circumstances surrounding the racial tensions and actions that
occurred in the Jena community, do you believe that any
additional charges could have and should have been brought
against any other parties in Jena?
Mr. Washington. We've taken the same kind of decision so
far, Congressman. We are in the process of evaluating all of
the rumors and innuendo and information. We continue to collect
information to answer that--those kinds of questions as we move
forward. As has already been indicated by Mr. Cohen here, when
you start talking about selective prosecution and things of
those sort, we have to be very precise in the kinds of evidence
that we need to collect and we have to do it in a very
deliberate, careful fashion.
Mr. Goodlatte. All right. Bearing in mind the circumstances
you find yourselves in, with an incomplete process, let me then
ask you maybe an easier question. That what should we be doing
to ensure that our criminal statutes are more uniformly
enforced?
Ms. Krigsten. One of the things that I think is important
for us to note at this time is that in talking about these
incidents in Jena, we're talking about two independent judicial
systems. We're talking about the State system and the Federal
system. As a Federal prosecutor for the past 7 years, in fact,
a prosecutor for my entire career of 12 years, I am very
familiar with the idea that there needs to be uniformity in the
application of law. But the uniformity of which Mr. Washington
and I are concerned is the uniformity in applying Federal law.
And in this case, we believe that we are operating under the
correct principles of Federal prosecution. There is a concern
about how the State system is making their decisions. And it is
important for us to draw this distinction because it is not our
concern as Federal prosecutors that there is uniformity between
the Federal system and the State system.
Mr. Goodlatte. Let me pass those questions on down the
line. Mr. Cohen.
Mr. Cohen. Probably simple battery would have been more
than sufficient. My microphone seems to be having a problem. I
have--I think simple battery would have been more than
sufficient. Aggravated battery, of course, requires both
serious injury and a dangerous weapon. I don't want to minimize
any injuries here. Everyone knows Mr. Barker left the hospital
under his own power with no broken bones and no stitches. Also
that the dangerous weapon here was tennis shoes. One can always
claim that anything can be used in a dangerous fashion. But I
think that simple battery would have been more than sufficient
under the circumstances here.
Mr. Goodlatte. Thank you. Reverend Sharpton.
Reverend Sharpton. I would--as not being one of the learned
counsels at the table, I wouldn't even venture to guess what
would be appropriate. I think it would be appropriate that
there should have been some kind of penalty on a juvenile level
if, in fact, it occurred. I think that what I would like to
address is the second part of the question. I think that the
Federal Government and the Justice Department should review the
laws that protect juveniles from hate crimes. I've seen where
people that have been involved in drug trafficking has gotten
around those laws by using kids.
Are we now going to have a society where if you want to
hang up a noose or paint a swastika, you use somebody underage
to do it and therefore we can permeate society with hate by
just playing around this juvenile law? Does the Federal
Government have the same requirement that you have to be grown
to commit a hate crime? If it does, we need visit or revisit
whether that law protects us. If it does not, then does the
State of Louisiana law supercede Federal law? I think they can
immediately do this.
These nooses were hung over a year ago, sir. So I know that
the wheels of justice may turn slow, but it seems that it is at
a standstill because to deal with those nooses does not require
interfering in any of the prosecutions of the local district
attorney, does not take away any of the power of the
prosecutor. It is to say that it happened over a year ago, is
State law constitutional and is Federal law outdated where you
now have to be grown to commit a hate crime in America, I think
that that is a threat to all of us that are in groups that have
been targets of hate.
Mr. Goodlatte. Thank you. Mr. Chairman, I believe my time
has expired Unfortunately. I'd like to continue this on down
the line.
Mr. Conyers. Could we--let me allow you enough time to get
to the two other witnesses.
Mr. Goodlatte. If they'd care----
Mr. Conyers. If you have a response.
Mr. Goodlatte. Either of those questions.
Mr. Ogletree. To both questions. In the first case, it
seems to me, along with Richard Cohen, battery seems to be the
appropriate charge. These were dramatically overcharged on the
Jena 6. On the other hand, the second question, Robert Bailey,
Jr., was assaulted with a bottle, had a gun put on him and
those individuals received little or no punishment at all. So
race has been a factor in the way punishment has been meted
out. That is why there is no justice. There is no justice when
anybody can look at these individuals and see that the amount
of the punishment they are exposed to is a direct correlation
to the race of the person who is the victim and the race of the
person who is accused of the defense. And that is the problem
at Jena that we keep ignoring.
Reverend Moran. I think that the punishment that was given
to the White children who hung the nooses, it was dealt out by
the school system by suspension and whatever other means of
punishment that was given to them. I think that the Black
students should be treated the same. There should have been
some type of educational status--educational punishment given
to them. I don't believe that the law should have been part of
what took place inside of the school when it was, in fact, a
schoolyard fight. Also--we must also look at the fact that the
third circuit court of appeals has already ruled out that
Mychal Bell was illegally charged, but nothing has been done
about that as of this point. Things are steadily rolling and
the D.A. is steadily putting out punishment for even Mychal
Bell. That is very unjust.
Mr. Conyers. Thank you, Mr. Goodlatte, for your question.
And that is why I wanted the entire panel to respond to it. The
Chair recognizes the Chairman of the Crime Committee, Bobby
Scott of Virginia.
Mr. Scott. Thank you, Mr. Chairman. I thank all the
witnesses for their testimony. I guess I had a fairly specific
question. That is, if you can show that the charging decisions
were done in a racially discriminatory way, would sections 1983
and 1985 be available as a remedy? I'll ask Mr. Ogletree and
the Department of Justice.
Mr. Ogletree. In my view, the answer is yes. It would take
a lot of effort to get that done, but that is a part of the
basis of all of this testimony, that there are Federal statutes
that have not been used and can be used to look at specific
civil rights violations that could have been and should have
been considered and still can be considered in what occurred.
Mr. Scott. And how would 1983 and 1985 be used?
Mr. Ogletree. Well, there is a separate civil rights issue
here in terms of how these individuals lost their basic rights
as citizens. I think if you look at the statute and look at the
conduct here, it would require the Department to take a look at
what occurred and do a thorough investigation or something. I
am not sure they've done an 83 or 85. And then see what sort of
remedies would be available for those who have been
inappropriately punished and for those who have not been
punished.
Mr. Scott. We know that--this is a hypothetical question. I
know the case is being tried in court. If it could be shown
that the charging decisions were made in a racially
discriminatory way, I'd ask the Justice Department to comment
on sections 1983 and 1985.
Ms. Krigsten. I hesitate to speculate at this point whether
someone could be charged either civilly or an entity can be
charged criminally under the Federal Code in this specific
incident. What I can say----
Mr. Scott. If it could be shown. That has to be shown in
court whether or not it is true.
Ms. Krigsten. Yes. One of the concerns in my providing an
answer directly on this issue is that any decision about
whether the statutes can be used would depend on the
individuals who are found to have participated in these
decisions. And there is an entire juvenile and adult criminal
justice system that people have indicated may be troubling in
Jena and because I don't want to be in a position where I'm
specifying precisely who may be responsible----
Mr. Scott. I'm not asking for that. I'm asking whether or
not you can show that a prosecutor has charged people in a
racial discriminatory way, whether or not 1983 and 1985 would
be available as remedies.
Ms. Krigsten. I think there are civil remedies available
for situations.
Mr. Scott. And what would have to be shown?
Mr. Washington. First of all, I'm no expert here, but I'll
tell you what we've discussed so far. Yes, the answer to your
question is yes. If we can prove that charging decisions are
made in a racially discriminatory manner, then that leads to
the strong possibility that we could move forward either under
the statutes you cite or some other statutes in the United
States Code. You've asked the second question, what would we
have to--what evidence, I presume, that is your question, what
evidence do we have to come up with? The law seems to indicate
to us that we'd have to prove that the actor, whoever that
would be, and I'm assuming you're talking about a district
attorney, set about to charge one group of persons in a
different way than another group of persons.
So for example, if the district attorney said I'm going to
charge African Americans more rigorously than White Americans,
then, yes, that would be a violation of law.
Mr. Scott. And what would be the sanction?
Mr. Washington. Again, I'm not the expert here for that. In
some cases, there could be potentially a criminal sanction. In
other cases it would be probably some order to supervise or
remove the district attorney. I'm just not sure about how we'd
go about doing that.
Mr. Scott. My colleague from New York asked about the
education system. If you can show that people were denied equal
opportunity at education because of the hostile environment,
what sanctions would be available to the Department of Justice?
Ms. Krigsten. At this time, the review of the educational
system in LaSalle Parish is being conducted under the view of
the Federal desegregation order. So there will be specific
relief available depending on what the outcome of that
investigation shows. The attorneys who are working on this case
will have the range of options for going into court for
specific relief on a particular issue all the way through
perhaps the contempt of court motion.
Mr. Ogletree. Mr. Scott, if I could have just one quick
response to that as well. Mr. Scott, representing Mychal Bell,
reminded me that, in fact, that the third circuit court of
appeal concluded that this prosecutor violated the law in
charging the Mychal Bell as an adult in the first instance,
number one. But even more importantly, it would be interesting
to see whether this prosecutor in the record has ever, ever
prosecuted any White person with an attempted murder case for
what was, in effect, a fight on a schoolyard premise.
So the foundation is there to look at this. The United
States versus Armstrong, a case from the Supreme Court a decade
ago, talked about the 1983 actions and what is the threshold
here. It seems to me this record needs, as I said earlier, at
least a foundation to make that claim.
Mr. Scott. And what would be the remedies under 1983 or
1985?
Mr. Ogletree. Well, I think the remedy is beyond 1983 and
83 in terms of violation of civil rights. One of the things
that we haven't even discussed today is that in virtually every
State in this country, any person, not just lawyers and judges,
can file a complaint that could lead to disbarment and other
penalties. Michael Nifong in North Carolina, as you know, was
disbarred and punished for his involvement in the Duke lacrosse
case. And that happened before anybody was taken to trial or
convicted.
So the idea of waiting until after it is over is one
strategy, but the reality is that there are things that can and
should be done for judicial misconduct. The third court of
appeals is all rude about the judge's error, et cetera. So this
is a record that is replete with judgments already made showing
disparities based on race. People should not have been charged,
which is only one side of it. But also we do know the other
side, that people have been charged and not charged for similar
conduct and race is a factor. So there is a cumulation of
material here that would at least say that the civil and
certainly at least consideration of some criminal prospects are
appropriate as well.
Mr. Conyers. Thank you very much. The Chair recognizes Dan
Lungren, a Member of Congress, then a State attorney general
for California, and then a Member of Congress back on Judiciary
Committee again.
Mr. Lungren. Thank you very much, Mr. Chairman. I missed
you so much I had to come back. I appreciate it. This is a very
difficult issue any time you have race interjected in the
criminal justice system. I can recall amidst one of the biggest
racially charged issues we had in California, the Rodney King
case, I had two cases turned over to me, and we had to make a
charging decision on whether Rodney King got to be charged with
further crimes in unrelated circumstances and we made the
judgment there was not sufficient evidence.
And I remember getting a lot of mail on that. Another high
profile case in our State was the O.J. Simpson, we were asked
to take over the question of whether at that point in time a
decorated detective of the Los Angeles police department had
committed perjury on the stand. And we did and we got a
conviction on that. I probably got more hate mail on that than
anything else. And in both cases, the mail was really racially
tinged. But we made our decision irrespective of the race of
the individuals involved and tried to look at the evidence. I'm
troubled by the atmosphere that existed in this high school
because it evidently led to a terrible situation with respect
to racial relations and there were a number of victims here and
one of the victims is Justin Barker, as I can see it.
Unless I'm wrong, he didn't have anything to do with the
nooses. Unless I'm wrong, the evidence suggests that he walked
out of the gymnasium door and was as someone said blind sided
and knocked unconscious to a blow to his head and it was then
that he was on the ground and that he was kicked and some
people say he was kicked with people who had tennis shoes and
therefore shouldn't lead to the level of charges. But it sounds
to me more than a simple assault or at least you could
potentially charge someone with more than simple assault in
that particular circumstance. Whether or not attempted murder
is appropriate under the laws of that jurisdiction, I don't
know, because I never prosecuted under that jurisdiction.
But I think it has been too easily stated here that this
was just a simple assault. At least I would look at it as a
prosecutor to see whether it was more than that. But my point
is here you have, as far as I can tell, a student who never was
involved in the incident of alleged hate crime, unless I'm
mistaken, who is set upon by others and one of the defenses is
they were upset because of the atmosphere that has been created
and that just goes to show you when you don't have order in a
situation, when you don't have respect from a racial
standpoint, you have a lot of unintended victims that end up
there. And we need to talk about justice being done to all of
them, it seems to me.
The problem of the Justice Department is an interesting
one, because I had a similar situation. As Attorney General in
California, I could intervene on any District Attorney in the
State who did not bring forward criminal charges, but I
couldn't act to stop him from bringing charges. And the
argument was that if the D.A. Wasn't doing his job in bringing
charges where they ought to be brought, there was no
alternative except the Attorney General to come in and do it,
number one. But if someone overcharged or didn't do an
appropriate job of prosecuting, you had the jury that could
look at it or the trial judge to look at it or the appellate
that could look at it on a State level and then Federal level.
So there's sort of a system whereby we try and regulate
ourselves here, and I'm not sure there's a simple answer to
this question.
I would like to ask Professor Ogletree, someone I consider
a friend. This is kinda fun. I get to ask you questions,
instead of you asking me questions.
Mr. Ogletree. This is true.
Mr. Lungren. Because you have gone from the specific to the
general and you've talked about, across the Nation, Black
students, Black males being charged more harshly or being dealt
with more harshly than White counterparts. I'm going to ask you
a question that's kind of a difficult question to ask, because
it invites a lot of interpretation, but when we were looking at
this issue across the board of juvenile crime in California,
one of the things that we looked at was the breakdown of the
family structure, irrespective of race, the breakdown of the
family structure and that young people who----
First of all, let's put on the table there's a lot of great
single parents out there, doing a great job and a lot of kids
are doing well in a single-parent household, but if you just
look at the figures you will see that children from single-
parent families have a larger percentage of drug use,
alcoholism, interaction with the criminal justice system.
Have you ever looked at that issue as--take race out of it
and looking at how young people in schools come up against
the--either the enforcement system within the schools or the
criminal justice system, depending upon whether or not we have
a family structure behind them that is a complete family
structure?
Mr. Ogletree. It is a very good question, Congressman
Lungren. Let me just tell you what is missing from it, and we
have looked at this. It is interesting that in many two-parent
families, where both parents were educated and working, there
is the same sort of drug use, same sort of violation of laws,
but many are in private schools or other institutions where the
laws aren't applied equally. So it's not the structure of the
family. It's the structure of a system that considers something
a prank or practical joke. In another context, when that
student doesn't have a parent to come and support them, it is
considered a felony or attempted murder.
So I think it is too easy to gloss over saying family
structure is the cause and consequence of the problem. It is
bigger than that. And you look at the disparity in the
punishment, it is a large factor of where----
Let me give you an example of assault with a dangerous
weapon in a school. That sounds like somebody pulled a gun or a
knife on somebody and assaulted someone else. It could be as
simple as a kid taking a straw, putting a piece of paper in it
and spitting it at someone else and almost hitting that person.
That is considered an assault with a dangerous weapon.
In fact, a lot of the cases we have looked at at the
Charles Hamilton Houston Institute for Race and Justice of the
kids being expelled and suspended, it does not involve guns, it
does not knives, they are the exception rather than the rule. I
think the fact of the matter is that so much behavior that
should be addressed within the context of the rules of the
public school system are now being addressed in the criminal
justice system. There are police on the campuses of the high
schools and junior high schools. There's a direct process for
people getting prosecuted.
And so you raise a good question, and we can look at that
more about how much family structure matters, but I can tell
you the disparities in the individual cases are based more on
the race and class of the person involved than they are on the
nature of the offense that's been committed.
Mr. Lungren. Thanks very much.
Reverend Sharpton. May I address the Congressman on that
one, Mr. Chairman, just quickly?
Mr. Conyers. Yes.
Reverend Sharpton. The National Action Network, the group I
have, Congressman, whose Acting National Director sits behind
me, attorney Charlie King, we have done studies on that, and we
will make available to you the results, but we are finding that
there may be a difference in juveniles coming from broken homes
as opposed to full homes in the criminal justice system. But
when you further break it down with White home and non-White
homes, you find the same disparity that you find when you deal
with children that are with their parents and children that are
not, and we don't have final results.
So the question should also be in your looking into this is
whether race is also carried over when you get to the broken-
home status, when you look at the family mix-up, because I am
beginning to see the trend doesn't change, and I think that's
important.
I might also say for the record none of us don't see Justin
Barker as a victim. The question is whether or not there's
equal prosecution. No one justified what happened to Justin
Barker.
Martin Luther King, III, has just joined us.
We said going in Justin Barker should not have beaten. It
had nothing to do with whether he was connected to the nooses
or not. It is about how you have one prosecutor that seems to
overprosecute in some cases and not in others. We are not
trying to make a link in that. The link is the same prosecutor
seeing different situations much differently.
Congressman Conyers. Thank you very much.
The Chair recognizes, Sheila Jackson Lee, the gentlelady
from Texas.
Ms. Jackson Lee. Mr. Chairman, let me thank you very much
again, for this hearing.
I respect Reverend Sharpton, and I know that in the second
sentence of his remarks he was respecting this Committee since
he made the inquiry early on and he recognizes that there are
three branches of government and because of this Chairman we
now have vigorous oversight.
Let me acknowledge Martin Luther King, III. Having worked
for the Southern Christian Leadership Conference, I have a
special affinity for your family and Dick Gregory, who is here
as well.
Judge Leon Higginbotham said that said race matters. And I
respect my good friend, who I will share a hearing this
afternoon. He is the Ranking Member to the Committee that I
chair, Mr. Lungren. All of us are looking at societal issues.
We know Dr. Poussaint and Bill Cosby have just come out with a
provocative book.
I don't know if I can get through the questioning because,
as a parent, I'm on the verge of tears. Mychal Bell is now in
jail. Marcus Dixon is now in jail.
My good friend, Congressman Scott, has laid the legal
precedent; and I am not going to review that. I will say that I
am writing legislation that deals with racial theme parties on
college campuses. I revised it to include high schools, primary
and secondary schools, dealing with the question of hanging
nooses, which to date had failed to make the mark at burning
crosses. But we recognize that nooses have now proliferated
across America. They are in the workplace.
And these questions will be for U.S. Attorney Washington,
the U.S. Attorney from the Western District, and Ms. Krigsten,
Reverend Sharpton, and he might yield to the attorneys and
Professor Ogletree.
Reverend Moran, let me thank you for declaring two systems
of government, two systems of justice. Let me thank you for
your prayerfulness, and let me thank Dr. Ogletree for using the
word ``cancer''. Let me thank the NAACP for burying the N word,
``nigger'', but Reverend Moran said that the children were
called niggers.
So let me begin my questioning by just a procedural
question. Ms. Krigsten, when did the community relations team
come in for the first time?
Ms. Krigsten. The community relations team has been working
with----
Ms. Jackson Lee. When did it come in for the first time,
please? What is the date that it came in?
Ms. Krigsten. I'm going to defer to the legal counsel of
the Community Relations Service.
Ms. Jackson Lee. Thank you.
Quickly, can you give an answer, please? My time is short.
What is the date that it came in?
Mr. Henderson. The first date it was activated was on June
12th of this year.
Ms. Jackson Lee. Is that 2007?
Mr. Henderson. Actual on the ground, but we were----
Ms. Jackson Lee. 2007, June, thank you very much.
Ms. Krigsten, can you provide me with a detailed response
to the calls that I made repeatedly to the Civil Rights
Division speaking to the Assistant Attorney General for Civil
Rights and to the FBI? Would you provide a chronicling in
writing of your responses that you gave to my office and
whether or not the FBI is on the ground looking into the
treatment of Mychal Bell at this time. I don't need it in
public statement. Just give it to me in writing.*
---------------------------------------------------------------------------
*The information referred to was not received prior to the printing
of this hearing.
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Let me go forward to U.S. Attorney Washington.
September 2006, three nooses were found hanging. The
principal said, let's expel them. The students were suspended.
Then, in the fall, we had a series of fights between Black and
White students. In late November, arsonists set fire to the
school building. A White student beats up a Black student who
shows up at an all-White party. My understanding is that a
shotgun was pulled by a White man on three Black students at a
convenience store.
Let me ask the Chairman to put into the record, U.S.
Attorney: Nooses, beating at Jena High, not related; noose
incidents evoke segregation.
Right now, I am going to ask you and I would like the
people that I call to answer this question.
Mr. Conyers. Without objection, it will be entered into the
record.
Ms. Jackson Lee. I thank you.
[The information referred to is available in the Appendix.]
Ms. Jackson Lee. You stated on the record that nooses equal
hate crimes. I'm asking you now, first of all, to go back to
Jena, Louisiana, in the symbolic position that you hold, one
because you merited appointment, but you are the first Black
Western District U.S. Attorney. And I'm asking you to go back
and I'm asking you to find a way to release Mychal Bell and the
Jena 6.
My question, that goes down the road, I want to know why in
the course of meetings of local district attorneys, why you
didn't engage with Mr. Reed Walters, who may be subject to
prosecutorial abuse, and confer with him and say, Mr. Walters,
this is not the way to handle this case. I can see disparate
treatment by White students being suspended back in school and
by Mr. Bell being still in jail on an offense that he served 10
months for, 10 months; and, therefore, the juvenile judge could
have said, time served, and he could have been released.
I want you to tell me why you didn't engage with the D.A.,
and I want to know what you are going to do now.
Reverend, I would like you to tell me how they treated us
when they came there; and, Dr. Ogletree, please tell me what
Federal action, legally and legislatively, we can have.
Mr. Washington, tell me why you did not intervene, not by
way of the legal system but the consultation that the U.S.
Attorneys have with the local district attorneys. Why didn't
you intervene? Broken lives could have been prevented if you
had taken the symbolic responsibility that you have being the
first African American appointed to the Western District. I
don't know what else to say. I am outraged, and that's why my
voice is going up like this, literally outraged.
Mr. Conyers. The Committee will stay in order, and the
gentlelady's time has expired. But we do seek a response from
the persons that she indicated.
Ms. Jackson Lee. I thank you, Mr. Chairman; and I thank you
for indulging the increased spirit of my questioning. And I
thank Mr. Washington for respecting the emotion that I am
showing here today because of the pain I feel. Thank you very
much.
Mr. Washington. Thank you, Congresswoman.
I don't know where to start. You asked a lot, so I will
start from the beginning, I suppose.
First of all, I did intervene. I did engage the District
Attorney. We had conversations about his charging decisions and
things of that sort. At the end of the day, there are only
certain things that a United States Attorney can do, that a
Federal representative can do with respect to a State and how
it handles its criminal justice system.
What I will tell you however is that, just like you were
offended when you first heard about this matter, I was also
offended. I, too, am an American, an African American. I was
very offended about what I heard.
I took steps to see what we could do within the ambit of
the kind of powers and responsibilities that I have. I am a
child of the '60's, of the desegregation era. My mother
marched--I'm sure like your parents did--in the 1960's when
Martin Luther King was urging African Americans to get out and
march for our rights.
Ms. Jackson Lee. That gives us an extra burden.
Mr. Conyers. Just a moment. I'm going to ask that the
witnesses be able to finish their statements without any
further interruption.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Washington. Thank you, sir.
So I am, I think, what Dr. King was trying to get us to do,
trying to get us to be, trying to get us to become many, many
years ago.
Now, having said that, we still have a system of justice
that we have to comply with. We still have rules and
responsibilities. We still have a concept called due process.
We have a Federal scheme of laws that I am, unfortunately,
constrained to.
At the end of the day, I hope I've answered your question.
I did have that discussion that I think you were most concerned
about.
Mr. Conyers. Are there any other responses? Reverend
Sharpton?
Reverend Sharpton. Yes. I think that Mr. Washington's
statement, Congresswoman, is most disturbing to us; and that is
when he said that the Federal Government through he as U.S.
Attorney got involved and there was nothing they could do. That
is why I said in my opening statement, did the Federal
Government or the United States or the Union win the Civil War
or not? Because are we saying that the Federal Government
cannot protect us against State laws that are set up unfair and
unequal?
It is unconstitutional to say you have to be grown to
commit a hate crime. And what they are saying, beyond Mychal
Bell's case, beyond Jena 6, that if you are under a certain
age, we will allow you to operate hate with full immunity; and
that is something I don't think the Federal Government can
tolerate, when we are seeing nooses hung all over this country.
That is first.
Secondly, when they can stand by and watch this young man
do 10 months in jail, and then the Third Circuit overturns
that, and the same judge that was the adult judge becomes the
juvenile judge and turns around and gives them 18 months in
revenge because the same judge and the same prosecutor runs the
same--the whole town. And we say we have to wait and see, while
they are doing interviews over at CNN and others, creating the
climate that this is fair and this is just. I think that this
is nothing tantamount to aiding and abetting people that Dr.
King fought against.
And we don't have to experiment. Dr. King's son is marching
now. We are not talking about our mamas. We are marching now.
We marched in Jena now. We don't have to go back to back in the
day. We're still in the day. And we need some people today to
do what Eisenhower did, Johnson did and Kennedy did. That's
intervene. Not just sit down and have some casual conversations
with the D.A. And say, explain to me were you are so biased.
Ms. Jackson Lee. Dr. Ogletree.
Mr. Conyers. Just a moment. I've asked--Ms. Lee, your time
has long expired, but I have to keep the control of the
hearing.
Ms. Jackson Lee. I agree, but Dr. Ogletree was one of the
ones that I asked to answer.
Mr. Conyers. I'm going to recognize Dr. Ogletree.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Ogletree. Thank you, and I will respond very briefly.
There are laws, both State and Federal, that could have
been used and should have been used and can be used in the
prosecution, particularly the young individuals involved with
the nooses who were not charged.
There is a Louisiana statute, revised statute 14, section
107.2, which talks about institutions receiving Federal funds,
protecting individuals against racial violence and threats that
could have been used.
There is also a Federal statute, title XVIII, that Richard
Cohen mentioned in his report, title XVIII, section 5032, that
also could be used to make this a 10-year felony; and even
though they are juveniles that would not prevent them from
being charged.
So there are laws on the books that could have been used. I
don't think that they are prevented from being considered now.
That's why the Federal law exists, and I think there's a way to
examine that, and I'm glad you raised that question.
Mr. Conyers. The Chair wishes to announce that he
recognizes the presence of Dick Gregory in the hearing room and
am very pleased that he could attend.
And the Chair also recognizes the presence of Martin Luther
King, III, who has graciously considered to submit testimony in
connection with this hearing.
Welcome, Reverend King, to this hearing.
The Chair now turns to Steve King, the Ranking Member of
the Subcommittee on Immigration, from Utah for his comments or
questions.
Mr. King. Iowa in this case, Mr. Chairman.
I thank the Chairman for recognizing me, and I also welcome
the living examples of civil rights that are in this room. It's
something that I have watched and followed throughout my
development years, and it takes us into this current era.
I've often worked and spoken and prayed for the time that
we can put these racial divisions behind us, and I actually
believe that we will know when we arrive there when we can get
to the point where we can make light of this, rather than
serious of this. And, of course, this is no time in this
meeting room today. We've got much more of this to get behind
us before we can get to the point where we deal with each other
with the kind of relationship that Chairman Conyers and I do,
man to man, person to person, human to human, people that are
created in God's image. We should be treating each other with
that same level of respect and dignity.
I have to, though, ask you to look at this from a bit
different perspective. Because it is our job to look at this
without regard to race, if we can, and then with regard to who
did what and when and what crimes are available for
prosecution.
Of all the testimony that's flowed out here today, the one
that I would take us back to is Mr. Washington's in response to
the question, was this a hate crime, the hanging of the nooses?
And your response, Mr. Washington, as I have it, is, yes,
hanging a noose under these circumstances is a hate crime.
Could you clarify whether you're referring to Federal law or
State law?
Mr. Washington. I'm referring to Federal law and not State
law.
Mr. King. I thank you, Mr. Washington.
And then I just turn to Reverend Moran. Would you agree
with that statement, that the hanging of the nooses was a hate
crime?
Reverend Moran. Yes, I would.
Mr. King. And is there anyone on the panel who would
disagree with that statement?
And, if not, then let the record show that there was no
disagreement and that the panel is unanimous in concurring with
the opinion of Mr. Washington that hanging of the nooses was a
hate crime.
Maybe I need to make a statement first. The tone that I
pick up here from listening to this testimony is that the
hanging of the nooses seems to be more egregious than the
beating that took place. I think that's got to be put back in a
perspective. The nooses were hung, by my records, on September
1st; and the beating took place on December 4th. That's 3
months for cool off, but we know also that there were other
incidents in between that accelerated this.
And I know, Reverend Moran, you testified that the
punishment that was meted out to the White students who hung
the nooses was done by the school and also that that would have
been an appropriate response for the school to discipline those
who perpetuated the beating. Would it be your position that
that's where the issue should have stopped?
Reverend Moran. I would think so, yes.
Mr. King. But then I would ask, Mr. Washington, if the
hanging of the nooses are a hate crime, as all the panel
agrees, was the beating itself a hate crime?
Mr. Washington. We've had discussions about that; and, in
fact, I've had discussions with members of this panel about
that and members in the audience; and there's some
disagreement. I have stated in the public I think fairly
vigorously that there were no statements made in the police
reports that are actually taken that would get me to the
element that the beating of December 4th was undertaken because
of race. That's not to say we won't go back and relook at this,
but, from our perspective, no, we did not get to the conclusion
that the December 4th incident was a hate crime.
Mr. King. Mr. Washington, I raise that question because it
strikes me that an act of violence, in my view, is more
egregious than a more passive act of the hanging of the noise.
And I know I come from a part of the country that doesn't have
that same sense of sensitivity.
But I turn to Reverend Sharpton. The jury that sat in
judgment of Mychal Bell was an all-White jury. Is that an
issue, from your perspective?
Reverend Sharpton. Yes, I think that the selection of the
jury is certainly an issue, but I also think that you've tapped
the core of my testimony, Congressman King. You have gotten the
U.S. Attorney to agree this is a hate crime and you've talked
about the crime of the young man being assaulted. But, let's be
clear, it was never prosecuted as a crime. A school does not
prosecute crimes. A school deals with discipline. The only
crimes that were prosecuted was for the beating. So even if you
or I would say it was more egregious, we're not talking about
two crimes treated the same. We're talking about one crime
being excused. The criminal justice system, Federal or State,
never prosecuted for the hanging of the nooses. A school cannot
take the U.S. Attorney's job.
Mr. King. For the record here, and I'd close this because
my time has expired, I want to make sure that those that are
viewing and witnessing this hearing understand that the jury
that sat in judgment of Mychal Bell, although it was an all-
White jury, was selected from a pool that was an all-White pool
in a community that's about 90 percent White, about 10 percent
Black, and that the Black jurors who were called to be part of
that pool that day did not show up.
Reverend Sharpton. There were conflicts on how they were
called. Some said they were not noticed, and some said that
they were relatives of Mychal Bell. His attorney is here, if
you want to get----
Mr. King. But the selection process, though, did not have
the opportunity to choose a single Black on the jury. I think
it is important to clarify that on the record, and I thank the
witnesses all for their responses and their testimony.
I yield back, Chairman.
Mr. Conyers. Thank you very much, Mr. King.
The Chair now recognizes one of the two Members of the
Judiciary Committee that traveled to Jena, Maxine Waters of
California.
Ms. Waters. Thank you very much, Mr. Chairman. I have to
thank you again for calling this hearing so quickly.
And while I know that you are a very thoughtful, careful
and deliberate Chair, taking all things into consideration, I
am disappointed that District Attorney Reed Walters is not
before us today. That's who I wanted.
Also----
Mr. Conyers. As you know, he was invited.
Ms. Waters. I'm sorry, you did indicate that; and I don't
know, Mr. Chairman, whether or not there will be more hearings,
and perhaps you will determine that some time later, but of
course we do know you do have the power of the subpoena, so
perhaps that's something we could look toward for the future.
Let me just, if I may, go back to Mr. Washington. Mr.
Washington, I first met you when you appeared on television
speaking about the Jena 6. If I recall what you said at that
time was that it had been determined that no hate crime had
been committed, is that true? Is that what you said on
television?
Mr. Washington. At which stage? The December the 4th
incident or some other stage of the time line?
Ms. Waters. Do you remember when you were on television?
What were you referring to?
Mr. Washington. It depends on what the question was. If
you're talking about the December 4th incident, I have been I
think very--fairly clear that I did not believe that that was a
hate crime because of the statements that I had read and the
information in those statements.
With respect to August 31, the hanging of the nooses, the
September 1st incident, I think we've been fairly clear that
that had all the elements of a hate crime.
What we're missing there, of course, if we were to proceed
forward, would be evidence and an adult to move forward with.
It's not that at the end of the day that is not--whether or not
it is a hate crime, the noose hangings----
Ms. Waters. Well, that's really what I'm referring to; and
that's what I thought you were speaking to on television where
you had determined that it was not a hate crime.
Mr. Washington. No, ma'am.
Ms. Waters. That's not what you said on TV?
Mr. Washington. No, ma'am.
Ms. Waters. All right, that's good. That's fine.
To Ms. Lisa Krigsten, counsel to the Assistant Attorney
General, in your investigation, have you taken into
consideration what has been alluded to several times here? Reed
Walters attempted to try Mychal Bell as an adult. There was no
law in the State of Louisiana that would have allowed him to
try him as an adult, as I understand it. Was he attempting to
try him as an adult for attempted murder or for aggravated
battery? Which was it?
Ms. Krigsten. I can't speak for what Mr. Walters was
attempting to do.
Ms. Waters. Well, yes, you can. That's on the record. He
attempted to try him as adult. What was the charge at the time?
Ms. Krigsten. I believe the charge was attempted murder.
Ms. Waters. Does the State of Louisiana allow for the
trying of juveniles for attempted murder?
Ms. Krigsten. It is my understanding--and, again, I am not
a lawyer who----
Ms. Waters. You should know by now. What is it?
Ms. Krigsten. I'm not a lawyer who has ever practiced. It
is my understanding, based on Louisiana law, that a juvenile
can be transferred into the adult criminal justice system with
a charge such as attempted murder.
Ms. Waters. So you do not see that the charge of Mychal
Bell as an adult was something, as it has been described here,
as something that was being done for the first time, that it
was unusual and that this should be considered in the
investigation of how the District Attorney has used or abused
his power?
Ms. Krigsten. Obviously, we are considering everything we
know about this. I am not aware of the allegation that this was
the first time that it had been done. Obviously, we're still
gathering information; and we are going to take everything we
learn about this incident into consideration of how we proceed.
Ms. Waters. Thank you.
Have you started to look at the reported threats to all of
the Jena 6 and some reference to them and their addresses on
the Internet and a charge to pull them out of their houses?
Ms. Krigsten. We have heard about these threats. The FBI
takes these threats very seriously. There's an open
investigation into many incidents surrounding Jena, including
some of the threats that we have learned about. The FBI is
aggressively investigating all of those allegations. The U.S.
Attorney's Office is working with the Civil Rights Division.
And, again, I cannot emphasize enough how seriously we take
these incidents; and if we find that there's a prosecutable
violation of Federal law, we certainly will seek to do the
appropriate action.
Ms. Waters. Mr. Ogletree, could you illuminate the
discussion on the trying of Mychal Bell as an adult and the
history of that as you know it and understand it?
Mr. Ogletree. Yes. With the permission of the Chair of the
Committee, I would like to have entered into the record the
decision of the State of Louisiana Court of Appeal, Third
Circuit, on September 14th, 2007, where it concluded----
Mr. Conyers. Without objection, so ordered.
Mr. Ogletree [continuing]. That Mychal Bell should not have
been charged with aggravated battery as an adult and reversed
that conviction.
[The information referred to is available in the Appendix.]
Mr. Ogletree. So that the record is clear, the Louisiana
Court of Appeals from the Third Circuit made that
determination; and it was clear that he was overcharged, that
the lawyer who represented him didn't try to prevent that from
happening as his original charge, that the court didn't grant a
dismissal of charges as the lawyers requested, and only when it
went to the appeals court was it finally rectified. So the
error occurred from the time Mychal Bell was charged and wasn't
corrected until, gosh, a year after the charges and that the
record on that is absolutely clear; and I would hope that we
submit the rest of the materials as well.
Ms. Waters. Thank you very much.
Mr. Chairman, as I close, let me say for those of you that
are here today, you must recognize that the problem that we are
dealing with is not simply in Jena. If you take a look at what
has happened on this Committee today, first of all, the
opposite side of the aisle is missing for the must part; and
those who came in, Mr. Lungren and Mr. King, were concerned
about Justin Barker. They came in asking questions about Justin
Barker and even saying that perhaps we should take the hanging
of the nooses lightly and someday we will be able to maybe kind
of look back at this and not take it so serious.
So I want you to understand that because just as, we're
talking about what is wrong in this country, the
institutionalized racism that leads us to this point, it is not
only institutionalized racism that causes the disparate
treatment such as in this case, but it is the kind of thinking
that goes on in this country by public policymakers. We see
things differently.
We're here talking about a case of six young Black men, who
obviously have been treated differently. We're talking about a
District Attorney, a prosecuting attorney who appears to have
abused his power. We're talking about nooses that have been
hung over trees. And we have those who come in today who are
talking about single-parent families and the fact that perhaps
more criminality comes out of single-parent families and
talking about perhaps Justin Barker's civil rights were
violated. That's how they see it. We see it differently.
Thank you, Mr. Chairman.
Mr. Conyers. Well, I thank the gentlelady.
And the Chair would observe that if everybody agreed with
us, we wouldn't be here today. That's what the problem is, is
that we're addressing we do have this grave disparity that has
been developed as a result of this incident in which tens of
thousands of people have alerted the Nation to the significance
of Jena, Louisiana. And it is not to blame or pinpoint Jena,
because there are Jenas all over this country.
And it is to this end that this hearing to me becomes
extremely significant in terms of how we deal with this here
today. But what is it that we do about the tremendous legal
analysis at the State and Federal level as to where we go from
here and how we beef up the Department of Justice, which has
gone through a recent trauma all of its own? I mean, we've got
a part of the Federal Government that is in a very disabled
circumstance. And so I appreciate the fact that there would be
logically different and opposing views put forward, but it is
what we do with this information that will be the test of time
that we will all be judged by.
The Chair's pleased now to recognize Steve Cohen, the
gentleman from Tennessee.
Mr. Cohen. Thank you, Mr. Chairman.
And I just want to emphasize Congresswoman Waters said
something about ``this side of the aisle.'' I don't know if
she's referring to Congressman King, but I'm only on this side
of the aisle because we have a majority.
I want to ask the attorneys, Mr. Washington first, about
the hate crimes. My staff and I have been looking at this for a
couple of weeks. Pastor Derrick Hughes of Springdale Baptist in
Memphis called me and asked, can we make this a crime, to hang
a noose? I know that there are laws about swastikas, but don't
they have to some specific intent not just the display of an
object but the object with a particular intent?
Mr. Washington. Yes, that is among the things that have to
occur.
Mr. Cohen. And in this situation is it because it was on
school property that makes it a hate crime?
Mr. Washington. What makes it a hate crime is the idea that
there was a threatened use of force, that it was to intimidate
and to interfere with some folks because of their race while
they were exercising a constitutional right and that is going
to school.
Now, what was sort of confusing here and there is agreement
amongst the panel, except for the fact that we don't agree as
to whether these particular folks could have been prosecuted.
These particular folks not would not have been prosecuted, but
they could not have been prosecuted. It was impossible under
Federal law as written today for us to go after these
particular juveniles.
Mr. Cohen. Why?
Mr. Washington. Because they are under the age of 18.
Mr. Cohen. Because of their age. Did these individuals make
a threat of violence?
Mr. Washington. Well, that is among the kind of things that
we would have to prove in court. And we have to go in and make
our best case, of course, and if the----
Mr. Cohen. So the simple display of a noose is not a hate
crime?
Mr. Washington. That's correct.
Mr. Cohen. Right. And so it has to be with some intent and
something else to it.
Mr. Washington. There are elements in the statute that we
have to prove in court.
Mr. Cohen. What if it was not on a school ground or in a
Federal building? What if it was simply a noose at somebody's
home? Would it be sufficient of their constitutional right of
pursuit of happiness or whatever? I don't know. That's not a
constitutional right. But would there be places that are not
covered because of the locale of the placing of the noose.
Mr. Washington. That's possible, but there are other
statutes, possibly, that we'd look at if there was racial
animus involved.
Mr. Cohen. Well, you say there would be the ones you might
look at. Is there maybe a void somewhere that needs to be
filled where exhibiting of a noose, the burning of a cross, the
painting of a swastika with the intent to deprive a person of
their constitutional rights needs to be passed either with that
language, which I just mentioned, or some other language to
fill any void.
Mr. Washington. Actually, I think you just quoted the
elements of a Federal statute today. 18 USC 241 or 242 already
exists to cover the situation that you just indicated.
Mr. Cohen. So you think it is pretty filled?
Mr. Washington. Well, it is pretty filled. Where we get
into significant discussions is where it is the limit between
speech versus criminal law.
Mr. Cohen. So you have to have some element of violence
alleged to have occurred to make this a hate crime; is that
right?
Mr. Washington. We would like to see that.
Mr. Cohen. You say you like to see it. It has always been
my thought, maybe it is just conventional wisdom, that the hate
crime is violence and not speech; and a noose, while it is as
objectionable as a swastika or burning a cross, is speech. What
do you have to have added to that speech? Don't you have to
have something besides speech to make it a hate crime?
Mr. Washington. Yes. Just as an example, 18 USC 245, when
you get to the punishment section, if there is no injury, it is
a misdemeanor. So that is one. When you back up into the
elements of the crime itself, you do need some use of force or
threatened use of force.
Mr. Cohen. Great.
Let me ask a different subject. Maybe Mr. Ogletree would be
best to respond. I'm not sure.
Do you know if there's anything that we should look into
putting in the No Child Left Behind law, if there is anything
there now, maybe to mandate education that requires courses on
tolerance or some courses on civil rights history, Holocaust
history or things like that to teach all children of the United
States about such episodes of racial and ethnic intolerance?
Mr. Ogletree. Congressman Cohen, as I said earlier in my
remarks, I think No Child Left Behind is a huge opportunity for
this Congress to address a number of these issues that are
slipping and sliding away from both State and Federal
prosecution. It is the right to an education, and we leave No
Child Left Behind when we have a real law that treats all
children fairly in terms of the quality of their education. I
would, with my institute, be more than happy to work with
Congress and think of ways to specifically amend and reform the
No Child Left Behind to address some of the underlying issues
here that aren't being addressed in other ways.
I want to make a quick comment to your earlier query to Mr.
Washington. I really can't think of a circumstance where a
noose is a household item or an article. It's offensive, it has
a deep history, and you can't trivialize it because it is in
someone's house or they don't say words.
It is designed for one purpose. Nooses were used for one
thing and one thing only. In the history of this country, it
was used, by and large, to lynch Black women and men. And we
can't ignore the 3,000 people who died and no one was
prosecuted. We can't ignore that this Congress, this Senate
just last year didn't stand up and talk about an anti-lynching
law. They had a voice vote, because there still are questions
about that.
I hope we don't bury the history with what this symbolizes.
This is one of the most destructive, mean-spirited, racist
examples of individual behavior; and it doesn't just hurt the
three, five or seven Black children under the tree. It hurts
all of us, every single one of us.
I don't have to be in Jena to be deeply offended whenever
any person for any reason on a truck, in a car, in a tree, in a
house has a noose. It is not a neutral term. It is a term that
connotes threats, violence, death and destruction. And I think
we should not try to homogenize or anesthetize what is one of
the great symbols of racial hatred that's so pervasively marked
this country's history, that influenced a world war and that is
still a symbol that groups like the Ku Klux Klan applaud and
celebrate.
It is another way to dig it in. It is not a neutral item or
instrument. It is an instrument of hate and the most vile form
of hate. And Congress in no uncertain terms should ever
tolerate a noose as anything as a household article or garment
that can be used as a term of endearment. It is a term of hate,
and we should never move from that.
Mr. Cohen. I certainly agree, and that's why we have been
looking to make any amendments in the law that might be
necessary, any void concerning a noose; and I appreciate each
of the members of the panel and particularly the Chairman for
holding this hearing. If you could get us some suggestions on
No Child Left Behind, I think we would like to put that in and
offer it as an amendment. But Tennessee has a good course where
we teach people about the Holocaust and teach about civil
rights and that's required, but a lot of States don't have it.
Mr. Ogletree. I would be happy to submit that.
Mr. Cohen. Thank you, Mr. Chairman. Thank you, panel
members.
Mr. Conyers. Judge Hank Johnson of Atlanta.
Mr. Johnson. Thank you, Mr. Chairman. I must say that I am
very happy that you called this hearing so quickly in response
to the escalating developments in Jena, Louisiana, which
continue to this day an injustice that pains the hearts of so
many, including myself; and I would first want to kind of set
the record straight about what actually happened here.
Back on August 31st of '06, a student who had asked for
permission to sit under a tree, indicating a problem in Jena,
Louisiana--anytime you have to ask for permission to sit under
a tree, there's a problem. And so the student sat under that
so-called ``white tree'' August 31 of '06, and that's when all
Hades broke lose. The noose incident, nooses hung from trees,
we know what that means. A noose is not a symbol of endearment.
It's a symbol of terrorism, and terrorism was commenced.
The students who engaged in the terrorist act were
suspended. And when the Blacks protested, when they exercised
their constitutional right to protest the slap on the hand
given for the terrorist incident, then the LaSalle Parish
District Attorney, Reed Walters, flanked by police officers,
came to the school and issued a threat to the students. He
said, with the stroke of my pen, I can make your lives
disappear, so you'd better be quiet. But the situation
continued to escalate.
He's also, by the way, Reed Walters, the attorney for the
LaSalle Parish School District, which means that he has access
to all of the privileged information that these students have,
all of their school records, all about their parents and all
about their families. He has access to that.
And so the situation continued to escalate. The building,
the school building, was burned back in November of '06.
Thereafter, physical attacks against Black students ensued.
One of the Jena 6 students, Robert Bailey, was attacked
physically; and then the next day a White boy pulled a gun on
him and they charged Robert Bailey with stealing the gun after
he took the gun away from the guy. Egregious conduct. Then
taunts, calling folks niggers out in the schoolyard. And then,
finally, there was this fight, a schoolyard brawl which
resulted in, you know, a small degree of physical injury to the
White student who attended a party later on that night.
And then the Black students, the Jena 6, were charged with
attempted murder, and that's what was done to try to diffuse
this situation, was to treat it harshly, treat it with the long
arm of the law, to treat it under the color of State law in a
terrorist way.
At some point, the Federal Government became aware of this
situation, and I'll ask about that in a second, but I do know
that at some point the parents, calling out for some kind of
justice, none being forthcoming from the Federal Government or
the State government, they contacted someone who they knew was
about justice, and that was Reverend Al Sharpton. And Reverend
Al Sharpton responded, and I want to thank you for your
response.
There are people who will criticize you, Reverend, and say
you only go where the cameras are, but I will say that wherever
you go, the cameras go. And it sheds light on this gross
injustice that was happening and it continues to happen.
Marty King, Jesse Jackson, all of the other stalwarts of
the civil rights movement came out and responded to this with
20,000 or so young people who arrived at the scene. I know, Mr.
Washington, that it upset the locals. You indicated that they
were not expecting that kind of a response, and so they--they
were undeterred, however, after the appellate court released or
after the appellate court threw out the charges against Mychal
Bell, the adult charges, and he was released on bond. But now
he has been locked up again for probation violation, and it
smacks of vindictive prosecution. I wonder if----
Mr. Conyers. The gentleman's time has expired, and we're
under the pressure of bells summoning us to the floor.
Mr. Johnson. Thank you, if I might ask one question, has
the D.A.'s office been investigated for depriving the students
of Jena, Louisiana, of their rights to protest by threatening
them with taking away their--making their lives disappear? Is
that a civil rights violation that has been investigated by
your office?
Mr. Washington. Let me just say that your recitation of the
facts----
Mr. Johnson. If you would answer my question.
Mr. Washington [continuing]. It varies greatly from the
facts that in the Parish appears to exist.
Mr. Johnson. Has your office investigated the District
Attorney for violating the civil rights of the students by
issuing that threat to them to try to stop them from legally
protesting?
Mr. Washington. That situation did not occur, as best I
know. That's what I'm trying to get at here.
Mr. Johnson. The D.A. Did not say that at an assembly?
Mr. Washington. Yes, the D.A. Did say those words.
Mr. Johnson. Surrounded by uniformed police officers?
Mr. Washington. No, sir. Not as best I can tell from review
of the situation.
Mr. Johnson. Well, has it been investigated by your office?
Mr. King. Mr. Chairman, that's the seventh question asked
after he ran out of time. I'd ask that we move along.
Mr. Johnson. But he still has not answered.
Mr. Conyers. Um----
Mr. Johnson. He still has not answered.
Mr. Conyers. Let's see if he is going to answer, and then I
would like to try to get in Betty Sue Sutton before the bells
ring.
Mr. Johnson. Yes or no, sir?
Mr. Washington. My answer is the Congressman's statement of
the facts didn't occur in that fashion. If it had occurred in
that fashion, perhaps there would be an investigation, but they
did not occur in that fashion.
Mr. Conyers. I thank you very much.
The Chair is happy to announce the newest Member to the
Committee, the gentlelady from Ohio, Betty Sue Sutton.
Ms. Sutton. I thank the Chairman. I think the sum of answer
to that question was, no, that didn't happen, that
investigation.
There are so many things that I could talk about, and I
have a statement that I'm going to submit to the record, and
everybody who is interested certainly you will have access to
that, and it parallels much of, frankly, what my colleague just
recited about this situation.
I want to thank the Chairman for this hearing. Because
while we're talking about the events of Jena today, make no
mistake about it, this is a national issue. And I would just
like to take this moment to pull together some of the things
that we've heard here today.
We've heard some discussion down the lines of what we can
do, you know, in our schools. We talked about the opportunity
that exists with No Child Left Behind, and I think absolutely
we need to pursue that. And to the Southern Poverty Law Center
and this program that you provided for us, wonderful, wonderful
program to implement.
But, as I think Mr. Ogletree also pointed out and Reverend
Moran, I have to tell you you said something here today that I
think is really important and bears repeating, and that was
that there is a cry for peace, love and harmony, but there is
no cry for justice.
So while we're pursuing these other elements that we have
to pursue to make ourselves into the nation that is worthy, we
also have to have our legal system. And one is not a substitute
for the other, but they must work in tandem. And I'm really,
really concerned when I hear it acknowledged that this was--the
hanging of the nooses under these circumstances--and I want to
get this right--was a hate crime. Because the threatened use of
intimidation, force, injury because of race or exercising a
constitutional right of going to school qualifies this as a
hate crime.
Now, we all agreed that was a hate crime; and yet there was
no response from our legal system of what we acknowledge as a
hate crime. So why do we say it is a hate crime? If we don't
act on it like a hate crime, then I don't really believe it. I
don't believe that we really believe it is a hate crime if
we're not acting on it.
So what if there had been a legal response and we heard
there were actions that could have been taken? What if there
had been a legal response that said not just for those students
but said for the United States of America that this is
unacceptable to all of us. It harms us all as a country. What
if that response had been taken?
Now, I know it's a hypothetical and we can't get a complete
answer, but explain to me how the people out there in this
country can accept that our justice system could do no better
than to go in on June 12th, 2007, to start to address this
issue?
Ms. Krigsten. I want to make clear that immediately after
the incident that happened in August, 2006, the Department of
Justice had two responses. Immediately, the Education
Opportunities Section sent a representative to go talk to
school officials. More importantly, the Federal Bureau of
Investigation sent an agent in that area to investigate the
allegation that there had been this noose hanging.
Now it is undeniable that a noose hanging is a symbol of
hate and racial violence. In this situation, it was not
appropriate to pursue Federal charges for reasons that have
already been discussed.
What I want to make sure the Committee is aware of and that
the American people are aware of is that the Criminal Section
of the Civil Rights Division is taking all of the allegations
of noose hangings around this country extraordinarily
seriously. There are open investigations in numerous cities
that are going on right now.
The Criminal Section has formed a task force to coordinate
the Division's response to these noose hangings, and we are
working very closely with the FBI and local U.S. Attorneys
offices.
Ms. Sutton. With all due respect, and my light is about to
turn red, too, but there was no legal consequence. As you said,
you sent them in; and there was an educational response, which
is good.
I'm sorry--and perhaps we should shift over to the
gentleman.
Mr. Cohen. There was no educational response. That's the
problem, and there's some dispute about the nature of the
suspension or whatnot. But there was no public apology, there
was no educational component to it; and, had there been,
perhaps that would have been sufficient. Who knows?
Right now, people call for the prosecution of the noose
hangers to balance the scales because of what happened to the
Jena 6 in being overcharged. I think that's a wrong-headed
response. I just think that in the beginning it was dealt with
very, very poorly. And, you know, I don't fault the U.S.
Attorney for not filing charges, but I do think that the way
the school handled it was a recipe for disaster, and that's
what happened.
Ms. Sutton. I appreciate the gentleman's remarks. Thank
you.
Mr. Conyers. Reverend Sharpton, did you want----
Reverend Sharpton. Yes, I just wanted to say I think
Congresswoman Sutton hit the nail on the head in terms of we
keep trying to, in my opinion, mistakenly place the school as
the response of the criminal justice system. I think the reason
why we are seeing what some call copycat nooses, and I would
call just racists that feel empowered, is why wouldn't they?
Nothing happened when a noose was hanged. And when people get
the message they can do this and nothing will happen, they will
continue to do it.
Yes, beating a kid is egregious but was a response. There
was an overresponse. There was no response by the criminal
justice system at all. A school having a seminar or suspension
is not a criminal justice response that would tell me anywhere
in the country that I'm going to pay for that if I do it, and
that's why we see nooses all over America.
Mr. Conyers. And we thank the Congresswoman from Ohio for
her very lucid questioning. The Chair wants to welcome Faye
Williams, Esquire, the national chair of the national Congress
of Black women. And we appreciate her being here. And I
recognize the gentlelady from Texas for a unanimous consent
request.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I'd ask
unanimous consent--I'm not sure if it has already been done--to
put into the record two items, 6 lessons from Jena, teaching
tolerance, that is the southern poverty law center. I'd ask
unanimous consent. And I'd ask unanimous consent that answers
most of the questions to put this graph from the Department of
Justice that shows----
Mr. Conyers. Without objection, so ordered.
Ms. Jackson Lee. 50 cases were prosecuted. That is all
under racial violence and hate crimes.
Mr. Conyers. We stand in recess, but we'll come back
immediately after the vote. And I thank the panel for its
endurance.
[Recess.]
Mr. Conyers. The Chair has been slow in reconvening the
hearing because the interaction has been so important between
many of the parties that are interested in what is going on
here today, and I think it is a very healthy interaction
indeed. The Chair recognizes Artur Davis of Alabama, himself a
former assistant U.S. attorney.
Mr. Davis. Thank you, Mr. Chairman. Let me thank the panel,
Reverend Sharpton, good to see you. Let me thank the panel
today. The downside of Mr. Ellison and I being fairly junior
Members of the Committee is every brilliant insight and every
passionate insight that could have been offered has, no doubt,
been offered already. But there are some points I do want to
make, and I'll try not to cover old ground. Mr. Washington, let
me begin with you. And this is not an admonition in any way,
but I think since you're one of the two people on this panel
that is on the ground literally in dealing with the issues in
the community, I do want to make one observation.
It strikes me as someone following this case from a
distance as someone following this case through television,
from the news media that there were a lot of missed
opportunities to prevent this situation from ending up in the
very tragic place it ended, because everyone in this room
thinks it ended in a tragic place, tragic place for the six
young men and their families, tragic place for the young White
man, tragic place for the community. This is what is notable to
me, though. How in the world do you have a school in the modern
era that has a principal that has administrators and that isn't
moved to action by a White folks tree or by there being some
ambiance at this school or some sense at this school that,
well, there is a place where the White kids hang out but Black
kids don't hang out there. Even before you get to nooses, I
don't understand how that kind of physical symbolism, that
there is a place that is off limit to certain kids because of
their race, I don't understand why that didn't have people up
in arms.
And frankly, Reverend Al, the sense that I get is there was
a whole lot of a sense of this is kind of the way things happen
in Jena. And we don't like it, but this is kind of the way it
is. And if that mentality and that spirit had prevailed in my
State and the State where your mom lives, Alabama, God knows
where we would be. If we had settled into this attitude of,
well, there are just certain customs and traditions, I don't
understand why the good people in Jena, why the school
administrator was not troubled by the very fact that there was
a physical kind of segregation at the school was the first
point.
The second point, I want to say something responsive to one
of my colleagues on the other side of the aisle, Mr. King. He
was making the observation that the noose is a speech act, So
we shouldn't be so troubled by that. And I was surprised to
hear him say that, frankly, because I thought that the
conservatives told us over and over that our moral standards in
society aren't defined simply by what we can send people to
jail for and what we can sue them for. Our moral standards are
also defined by what draws our outrage. And I don't care
whether or not you can prosecute somebody just for hanging a
noose. I'm sure good lawyers can argue both sides of that.
We know the DA here could be creative when he wanted to.
And I'm sure we can argue both sides of that. I'm sure we could
probably argue both sides in terms of a civil liability theory.
But that is not always the standard, whether or not you can sue
somebody or put them in jail. The question is what outrages us.
The next point I want to make, all of the copycat business with
nooses in the last several weeks in this country, for anyone
who wants to know why an is speech dangerous, well, that is an
answer because speech can be provocative, and we use the word
``provocative'' sometimes as a synonym for that which
titillates. ``provocative'' can also mean literally what it
says, to provoke, to instigate others to action.
The final point that I want to make--and this is frankly
the most important one. We are talking first and foremost about
children attacking children on both sides. We're talking about
Black children attacking White children and Black children
attacking Black children and that is enormously troubling to me
because we used to have this belief in society that racism lost
traction as it moved down the generational lines. We used to
have this belief in this society that, well, as younger people
came along, they were some how purer, they were less diluted,
they were not likely to be as contaminated by racial bigotry. I
am bothered by seeing a resurgence of racism among young
people. And that is the question I would ask someone on the
panel to address. What do we do with this regeneration of
racism among children who ought to be the people most naturally
coming together in this society?
Mr. Conyers. I thank the gentleman. We're pleased now to
call from New York Mr. Anthony Weiner, who has served with
great distinction for the time that he has been on Judiciary
Committee.
Mr. Weiner. Thank you, Mr. Chairman. Let me just ask, you
know, I would observe that it seems to me that the panel is
divided between two groups of people, one group that argues
that government is powerful and can have an influence over the
outcome here and over leading us in prosecuting hate crimes,
who can lead us to a place where we understand there is a
national imperative that transcends what a local politician
might want to see happen.
And another group that is saying they are basically
powerless to act until a certain series of things happens and a
certain set of dominos falls and perhaps even long after
someone sits in jail for a race driven prosecution. And rather
than have the forces of government arguing for government power
and government authority and people in the outside arguing that
government is too powerful or doing too much, it seems to be
inverted. And it strikes me that as I read the testimony of my
good friends from the Department of Justice, there is mention
of the Department's Community Relations Service, there is
mention of the Civil Rights Division's Educational
Opportunities Section. Good people who do good work no doubt.
But it isn't until far into the testimony that we talk about
the FBI, talk about the power for the U.S. attorney's office to
prosecute crimes. This could have been a conversation we had in
the 1950's about the government saying, you know, what this is
the problem of localities, it is not the Federal Government.
And we had a whole civil rights--we had broad chapters of civil
rights legislation written to empower the Federal Government to
go into communities where rights were being violated and say,
you know what, there is a higher imperative here. Just because
you're elected by a locality who may want you to have a racial
prosecution doesn't mean that it is right.
And it sounds like Professor Ogletree has articulated on
several occasions and Reverend Sharpton, although not from a
legal perspective, but basically the same thing, is that you
simply have seemed to have kept in your quiver the most
powerful arrows that you have to deal with this problem. And to
communities outside Jena, where I assume these types of things
are going on frequently, what is the message that is sent to a
local prosecutor or a local sheriff or someone looking to make
points? They would look at this case and say you know what,
that is not a bad way to get re-elected in some towns. They
probably look at this and say look at the attention I'm
getting, look at me on the side of prosecuting these Black kids
and defending the White community and the like and the Justice
Department is actually saying let's see how it works out, let's
see what happens next, you know, let's see where it goes, let's
see how long they sit in jail.
It seems to me that the tenor of the Justice Department in
the United States Government should be that we learn what
happens when you sit back and watch and say let's see what
local authorities come up with. This is not dissimilar, I think
my friends at the Justice Department would realize this is not
dissimilar from a debate that went on in this country when
those who defended the violations of people's civil rights and
said it is really not the Federal Government's role to be going
in, these are local laws, this is a local prosecution and the
like.
Is Professor Ogletree wrong that we have empowered you all
to act more aggressively than you have and if not, tell us.
This is the Committee of Congress that makes laws and now it is
back in the hands of people who really care about civil rights.
So we're prepared to act. If we need the Jena civil rights
amendments of 2007 in order to make sure that things like this
don't happen again, tell us. But I have to tell you, I don't
really see that. I see what this comes down to is an
excessively timid interpretation of the rights of the tools
that we already granted to the Justice Department.
And if this was an Administration that had been out there
saying, you know, going out and seeking these types of things
in the past, maybe I'd say, all right, this one just kind of
slipped through, you're caught up now and you're really going
to get on it. If I read the testimony in response to questions
today, it is more or less saying just wait, we're going to let
things play out for a couple more years because this has now
been a couple of years.
So I guess the question I would ask is is the Justice
Department testifying today that if they had additional powers,
they might have been able to or could today deal with this
situation in a more forceful way that not only makes it clear
that what is going on there is immoral or troubling or
unethical, that it is illegal in the eyes of the Federal
prosecution and is going to be stopped?
How far does it have to go before you say, ah, we've
reached the point now where we can take the arrow out of our
quiver that was given to us by Congress in the 1960's that
people died for and start to use them. Do you need additional
laws to be passed?
Ms. Krigsten. I'm grateful to have the opportunity to
assure you, Congressman and the Committee, of the leadership
that the Department has shown throughout this Nation. The
number of important and high profile hate crime prosecutions
that have taken place in the last few years is remarkable. We
can talk about the prosecution in California, the United States
versus Saldana case in which a gang, a Latino gang was
targeting African Americans. And the individuals who were
responsible for those acts actually received life imprisonment
for their commission of Federal crimes. We can talk about----
Mr. Weiner. That part is in your testimony. I read your
testimony cover to cover. Could you respond to my question now?
Ms. Krigsten. Yes.
Mr. Weiner. Thank you.
Ms. Krigsten. One of the questions that you asked was the
leadership of the Department of the Justice.
Mr. Weiner. No, no, no. Let me refresh. I did not ask that
question. I asked are there additional laws that--I made an
observation about the leadership department being lacking. And
I think you should stipulate to that at this point. But if you
choose not to, that is your decision. My question was a
succinct one. Are there additional laws that you think you
require had Congress and the American people not spoken
forcefully enough for the civil rights legislation that exists
that says the Federal Government will no longer, like it did in
the 1950's, sit back and say it is up to the local sheriff and
his dogs to decide what the laws are.
Do you need the Jena civil rights amendments of 2007 to
make it so you can go ahead and prosecute things like, or are
you saying you've got all the laws you need and you just can't
figure out a way to use them?
Ms. Krigsten. The question wraps in several different
concepts, and what I want to do is make sure I understand what
you're asking for. If you're asking whether the Department has
shown leadership in the prosecution of civil rights cases
across the country, I'm happy to address that. We, last year in
the Criminal Section of the Civil Rights Division, convicted
the largest number of civil rights--have the largest number of
civil rights convictions in the entire history of the Criminal
Section. The activity in that criminal section of Federal
prosecution is unprecedented and remarkable.
So if you're asking whether there is leadership, I believe
that our record in the last few years speaks for itself. If
you're asking whether there are additional laws that are needed
to address, for example, some of the activity that has happened
in Jena and you've made it very vague. So what I want to do is
address each of the points you've raised. If you're asking
whether there are additional laws that are needed to address
the noose hanging in August of 2006, what I will tell you is
the reason that that prosecution was not initiated by the
United States attorney and the Department of Justice was not
because the law was lacking, it was because these individuals
were under 18 years old, which makes them children in the eyes
of the law. And it is important that the Committee understand
and the American people understand that once we're talking
about juveniles and a juvenile----
Mr. Weiner. Aren't you defining a shortcoming in the law,
Madam? Are you defining a shortcoming in the law that if it
were changed would allow you to prosecute this with more
fervor? That was exactly the question.
Ms. Krigsten. The concern that I've heard raised by this
Committee is the prosecution of juveniles in an adult court.
And so it is up to this Committee, of course, to decide whether
it wants to propose an amendment to allow juveniles to be
prosecuted as adults in the Federal judicial system. But what I
will say is that at this point, because these individuals were
juveniles, that puts them in the juvenile justice realm, which
means that their proceedings are secret. They are juvenile
delinquency proceedings instead of court proceedings. Anything
that would have happened to these individuals in a juvenile
delinquency proceeding would have been private, not available
to the public, not available to the press and would not have
been available to be the deterrent effect that the Committee
seems to believe is needed.
When the Committee talks about deterrence and the
leadership of the Department, I want to make sure the Committee
understands the Department of Justice relies on its
prosecutions throughout the country as leadership in the area
that it is showing in its hate crime prosecutions in addressing
the racial violence.
Mr. Weiner. Thank you, Mr. Chairman.
Mr. Conyers. Thank you very much, Mr. Weiner. This has led
us in a very important direction. I'm grateful to you for it.
The Chair recognizes the gentlelady from Wisconsin, Tammy
Baldwin, whose contributions to civil rights and justice are
well-known by this Committee.
Ms. Baldwin. Thank you, Mr. Chairman. And thank you,
especially for holding this incredibly important and timely
hearing on the Jena 6 case. I think it would be difficult to
overstate my own gratitude to you not only for your leadership
generally on civil rights, but for your championship earlier
this year of the local law enforcement hate crimes prevention
act which I'm going return to in a moment. And I also know that
my own constituents in the important State of Wisconsin are
very grateful about this opportunity to continue what has
become not only a national dialogue, but frankly, an
international dialogue about the Jena 6 case, hate crimes,
racial inequality and race related violence.
I also want to extend my thanks to the witnesses who have
been here today, and I apologize for my belated arrival at this
hearing. Sometimes you pinch yourself about what you get to do
in this job, and I've been shuttling between a markup on mental
health parody of enormous importance and negotiations and
discussions on employment nondiscrimination. So some very
weighty matters that are being discussed.
Thank you all for being here. Now, I was privileged to help
work on the passage of HR 1592, the Local Law Enforcement Hate
Crimes Prevention Act. And I had the opportunity to become
intimately familiar with the Federal prohibition against hate
crimes enacted as part of the Civil Rights Act of 1968. And as
I stated in this Committee during our markup of 1592 earlier
this year, I believe that hate crimes legislation is important
for both substantive and symbolic reasons.
The legal protections are essential to our system of order
justice. But on a symbolic basis, it is just important for
Congress to annunciate clearly that hate-based violence will
not be tolerated, it is just plain wrong. We have certainly
made great strides as a Nation since 1968 and our hate crimes
laws serve as a cornerstone for eliminating violence based on
irrational fears and hatred. Hate crimes are also among our
Nation's--hate crimes laws are among our nation's strongest
statement that racially motivated violence is unacceptable and
wrong. Yet these legal protections can truly only be as
effective as their implementation.
And what troubles me so deeply about the Jena 6 case is
that our efforts to extend legal protections against violence
motivated by hate is an empty effort both substantively and
symbolically unless the implementation of these laws are swift
and effective.
So I'm incredibly disappointed in the collective law
enforcement reaction to the August 2006 schoolyard noose
hanging incidents that served as a catalyst for the episodes of
racially charged violence in Jena. And I am still unclear as to
why two government agencies, the U.S. attorney's office and the
FBI that investigated the noose incident, determined that hate
crime prosecutions could not be pursued.
And I'm also unclear why LaSalle Parish district attorney
Reed Walters did not pursue hate crime charges under the
Louisiana statute. District Attorney Walters wrote in The New
York Times in a piece last month that the nooses broke no law,
a statement which directly contradicts Mr. Cohen's written
testimony that the Louisiana statute creates a hate crime for
any institutional vandalism and criminal trespass motivated by
race.
And also unclear about how to understand Mr. Walter's
decision to pursue second degree attempted murder charges
against Mychal Bell. One of the six teenagers charged in the
case in light of his finding that the noose incident did not
warrant any charges. Was this a singular case of excessive
prosecution or a window into the inequities within our justice
system and our juvenile justice system. Whether in Jena,
Louisiana, or in Wisconsin or any other State, violence like
this has no place anywhere but let alone in our schools and nor
does a racially hostile school environment.
But as I said, we have hard-won laws aimed at protecting
our children against violence motivated by hate. And we've
tried as a Nation to take a strong stand both substantively and
symbolically against such inequity. So are our hate crime laws
effective? I'm getting back to the same sort of big questions
that my colleague from New York raised. What can we do to
mitigate these injustices in the national criminal justice and
how do we understand the lack of prosecutions as well as the
excessive prosecutions in Jena and around the country? I know
these are big questions, but perhaps just starting with the
hate crimes question itself, are they effective and how can we
make them stronger?
Mr. Conyers. Well, that's a great question to ask after
your time has expired, but let's give it a shot. Let's see if
we can quickly move down the table and get some responses. You
know, we're not trying to solve this historic problem in one
session. This is going to be something that goes throughout the
110th Congress, and my guess is even beyond. So let's go right
down the row to Ms. Baldwin's query.
Ms. Krigsten. On behalf of the Federal Government, I can
tell you that hate crime laws are effective and they are being
used aggressively across the country. We're prosecuting cross
burnings, we prosecuted a case in Ohio where individuals put
mercury on the front steps of a couple, a bi-racial couple and
their children with an intent to drive these individuals out of
their home. Those perpetrators are now in prison. The Saldana
case that I mentioned. We can go through a laundry list of
cases in which the Criminal Section of the Civil Rights
Division along with the FBI, along with our partners in the
local U.S. attorneys offices, have used the tools provided by
this Congress very effectively across the nation and we'll
continue to do so.
Mr. Cohen. Thank you. I think you're absolutely right. It
is inexplicable how Mr. Walters could say that there were no
crimes that could have been prosecuted there. There clearly
were crimes that could have been prosecuted in the noose
hanging. Again, though, I want to make clear that we are not
here to call for the prosecution of noose hangers. What we're
here to call for is a level playing field, an equal justice
under the law. And that is not what has happened in Jena.
Prosecutor unfortunately sees race. And when that happens,
there are calls for retribution and this kind of stuff has to
end. Someone has to have enough common sense to say enough is
enough. I hope people file charges against Mr. Walters, get him
removed from office. I hope the people of Jena reject him when
he runs again. If he does. But I think your comments are right
on the mark.
Reverend Sharpton. I concur with Mr. Cohen. And in fact,
let me make a record, Mr. Chairman, that national action
network has filed charges with the disciplinary and ethics
committee in Louisiana and they have acknowledged receipt of
it. But I think that Mr. Cohen's statement applies for us
national action network and I would also in this particular
matter speak for Martin Luther King, III, and realize the dream
because we've operated jointly in this. We addressed this as an
even playing field. This is not about prosecuting one side and
not the other. It is how do you rationalize no prosecution
based on juvenile status for the hangman noose and then
prosecute juveniles the same age as adults for a fight.
And I think that a lot of confusion, and I think
Congressman Weiner addressed this properly, a lot of confusion
was one that there was no immediate reaction by the Justice
Department to explain to us how kids of the same age, one
becomes adult and the other remain juvenile. I mean, explain
that. The same age. They all go to the same school, same age.
And I think we fabricate this--well, did they have anything to
do with the noose. It doesn't matter, it is the same
prosecutor.
And I might add for the record that even when they were--
there was a record, they should expel the kids that was
overturned into a suspension and the district attorney is the
general counsel of the school board that overturned the
expelling. And even if they were expelled, that's still not the
criminal justice system. I think what we're begging for,
Congresswoman Baldwin, and Congressman Weiner, is an even
playing field where the Justice Department responds by saying
there must be equal protection under the law.
And Congressman Weiner's point that he made very
eloquently, and Mr. Chairman, I'll tell his folks at home that
he spoke very eloquently today, he is correct. If we can't turn
to the Federal Government, as we have for the last 50 years,
then what are we telling young students that marched at Jena,
where do they turn and how do we tell them that we want peace
and we want nonviolence if the Federal Government is saying
we're going to wait and see what happens, okay, he has done 10
months, let's see what happens in 13 months? We can't keep
telling young people that.
Mr. Ogletree. I'll just briefly say this. I agree with
those comments. I think Congressman Weiner and Congresswoman
Baldwin and Congressman Artur Davis who left, it seems to me
that to make this record complete, and really get answers to
the questions which you haven't heard today, you have to
propound the question what authority did the State and Federal
officials lack to create a fair and equitable criminal justice
system and educational system in Jena. And what resources the
State and Federal Government lacked to bring future actions.
Taking into account, we know you've prosecuted all these
cases. We're talking about this one in this city that everyone
is talking about. My sense is that the best way is to propound
questions and get answers. And they'll tell you whether the
government is satisfied, they have all the authority that they
need and don't need any more. And if they say that, I think
we've got a very different role for this Committee to play in
addressing what we've already heard about.
Reverend Moran. Thank you. Mr. Ogletree, I really thank you
for elaborating on some of the things the Justice Department
has been stating. I think the main initiative now is
considering what is going in Jena, not considering what they've
done in past incidents in different cities and different
States. We have six Black boys, young men who are charged
unrighteously and we're here today to see that fair judgment is
dealt out to them. Also, I was quiet a few moments ago, but I
want to elaborate on what Mr. Washington said about the TV
broadcast that he himself was on. I seen the TV broadcast. And
personally, I took it as though he said that your hangmen
nooses were not an act of hate. That's the way I received it.
And that's the way our community received it and that has a lot
to do with the copycat mentality it has a lot to do with it.
Because if it had been ruled out not be a hate crime. There
would have been a lot of people who would have been scared to
even look at a noose or think about a noose. Because, in fact,
it was ruled out not a hate crime and because it was said not
to be a hate crime, it has a lot to do with the copycat
mentality. And the stupidity of anyone that would hang a noose
after hearing that it is not--it is not a hate crime, someone
would even be so stupid as to commit a crime as far as hanging
somebody.
If we continue to allow people to see that this is not a
hate crime, somebody is going to hang somebody. And I wonder
whose eyes are we--who are we going to be putting our eyes on
then and I would think it would be the Justice Department for
ruling out a noose as not being a hate crime.
Mr. Conyers. Thank you very much, Ms. Baldwin. And I want
Reverend Sharpton to know that Mr. Weiner speaks eloquently at
all of these hearings.
Reverend Sharpton. I'll stipulate to that.
Mr. Conyers. And now I'm very pleased to turn to Ms. Debbie
Wasserman Schultz, the gentlelady from Florida.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr.
Washington and Ms. Krigsten, I need to get a sense because I
have repeatedly heard both of you say that because these
children were under the age of 18, it was not within your
discretion prosecutorially to pursue a hate crimes charge; is
that accurate?
Mr. Washington. Yes, that is accurate. It is not a matter
of we wouldn't pursue hate crimes charges. It is a matter of we
could not pursue hate crimes charges.
Ms. Wasserman Schultz. That leads me to believe that it is
your testimony that you declined to charge them with a hate
crime because they are under 18?
Mr. Washington. That's correct.
Ms. Wasserman Schultz. Okay. Is there anything in the
Federal hate crimes statute that specifically excludes minors?
Does it say anywhere in the law that you cannot charge a minor
with a hate crime?
Mr. Washington. 18 USC 5036, I think it is the statute that
governs--did I get that right, 5036? Okay. I'm sorry. We could
charge them under 18 USC 1845, but we get back to the
limitations for juvenile proceedings for juveniles that is also
in the United States Code which puts us in a position of having
to find juveniles who have committed what is called a Federal--
a felony crime of violence or some of the enumerated crimes
that are in that statute.
Ms. Wasserman Schultz. But there is nothing in the law that
specifically prohibits you from charging a minor with a hate
crime, other than process, the order in which you'd pursue a
case against a minor?
Ms. Krigsten. If I could add something. Mr. Washington is
absolutely correct. And I think there may be a matter of
semantics that I want to make sure is cleared up. When we talk
about prosecution, that is a term that is used in adult court.
And these individuals, because they were juveniles were not
eligible to go to adult court. Now If we're talking about
juvenile delinquency proceedings, that possibility was there to
address the August 2006 incident.
Ms. Wasserman Schultz. But when a juvenile is charged with
a crime in juvenile court, can it result in them being held in
a----
Ms. Krigsten. It can. The result of a finding in juvenile
court is a finding of delinquency, not a conviction. One of
the----
Ms. Wasserman Schultz. You're right. That is a matter of
semantics. So when you're charged with a crime whether a
juvenile or an adult, If you're held in a facility in which you
cannot voluntarily leave, it doesn't matter whether it is
called a prosecution or a case against a juvenile or whatever
you choose to be calling it. But what Reverend Sharpton or
Professor Ogletree and all of the people other than you have
been saying is that this is a matter of equality, of equal
justice under the law that clearly does not seem to have been
applied here. Here is my other concern.
Congressman Weiner asked you directly whether there was
anything that you needed to change in the law in order to have
pursued hate crime charges against these minors. From what it
sounded like to me said no, that your Department has led the
way in pursuing civil rights cases and that you are doing just
great. Well, if process is what has prevented you from pursuing
hate crimes against minors, then it appears that the law needs
to adjust the process so that those things can be pursued
simultaneously, wouldn't it?
Ms. Krigsten. I'm happy to have this opportunity to clear
up any confusion. There have been several statements during
this hearing both from panelists and from Members of the
Committee about equality between the August 2006 noose incident
and the December incident.
Ms. Wasserman Schultz. I'd like you to answer my question
about the process and whether the law needs to be adjusted so
that hate crime charges could be pursued without regard to
juvenile proceedings being pursued against minors.
Ms. Krigsten. And with all due respect, I'm answering it
the best way I know how, which is to say that looking at the
way the Federal Government looked at the August 2006 incident
is completely separate from how the State government looked at
the December 2006 incident. We're not talking about the same
offices. We're not even talking about the same system of
government. The December incident was charged by a State
prosecutor in State court. We're talking about Federal charges
in the 2006 incident. And so with that framework, what I can
say is as a matter of policy at the Department of Justice, this
case was declined because these individuals were juveniles and
because there was a noncriminal alternative to prosecution that
was reached by the school district. Immediately after the
incident----
Ms. Wasserman Schultz. What does that have to do with the
price of fish?
Ms. Krigsten. Looking at the noncriminal alternatives is
one of the principles of Federal prosecution that Federal
prosecutors are obligated to consider in considering any
charges. The decision and the manner in which this decision was
reached is consistent across how the Criminal Section of the
Civil Rights Division reaches charges in all Federal cases.
Ms. Wasserman Schultz. Then that would seem to cry out for
a change in the law so that it didn't have to be pursued that
way any longer. Ms. Krigsten, I have to be honest with you, to
follow in the same vain that my colleague Congressman Weiner
did, caution is advisable in many cases. Too much caution
results in impotence and that appears to be what has happened
in the pursuit of justice and equal justice under the law in
this case specifically.
And, Mr. Chairman, I also appreciate that you held this
hearing, that you called us together to examine this more
closely because one would think that in 2007, something that
happened in Jena wouldn't happen. And no one is discounting any
of the crimes, the pursuit of justice against any of the crimes
that were perpetrated. It is just that that pursuit should have
been handled equally.
And, Mr. Chairman, I have to tell you that as someone who
has witnessed in my community the spraying of swastika stickers
on homes and synagogues, and if you substitute a swastika for a
noose on this tree, I would want the same treatment that the
people in the community of Jena are asking for, and I assume
that we might have a different reaction. But I don't trust that
we would, under this Justice Department. I yield back the
balance of my time.
Mr. Conyers. I thank the gentlelady from Florida. Now
normally the last Member asking questions is the final person
on the Committee, but we regard Keith Ellison as our cleanup
hitter. The gentleman from Minnesota has been very important in
this 110th Congress. And we recognize him at this point.
Mr. Ellison. 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
statement?
Mr. Ogletree. No. As I said earlier. There were both State
and Federal provisions available to pursue this and they were--
the nice words, they were declined.
Mr. Ellison. Right, they were declined. Mr. Cohen, I know
how you feel about the question of prosecuting the noose
hangers. But let me just ask you this question. I'm asking this
just from your legal analysis. Isn't it fundamentally a
question of discretionary latitude?
Mr. Cohen. That is correct. You could absolutely prosecute
the noose hangers both as juveniles under 245 and as adults
because the hanging of a 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 1850.32.
Mr. Ellison. So, Mr. Washington, you've used your
discretionary latitude to decline the juvenile proceedings for
the noose hangers; isn't that true?
Mr. Washington. Actually, what our process is----
Mr. Ellison. I need a yes or no.
Mr. Washington. Well, I'm trying to answer your question
the best----
Mr. Ellison. No. I'm not going to let you waste my time. I
need you to answer my question.
Mr. Washington. My office works with or actually the Civil
Rights Division----
Mr. Ellison. Sir, I've got 5 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.
Mr. Ellison. Okay. Well, we've got two learned counsel that
says that is not true. Now, in the course of 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 Gonzalez and Bush.
You still have a job, don't you?
Mr. Washington. Yes, sir.
Mr. 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
is what I would expect of somebody who was truly in fidelity
with that great legacy of Martin Luther King.
Let me say that Jena 6 is obviously the occasion that we
are here. But for those folks who are not from Jena, you know
and I know that we're outraged because we all have some Jena
6s. We've got some Minnesota Jena 6s. The fact is 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 subzero tolerance
policies. But that is just school discipline. The fact is
juvenile justice data mirrored 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 the civil rights decision
and the hate crimes stuff, what about Black youth and Latino
youth in the criminal justice system and the overincarceration
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 criminal justice system to do what the
Jim Crow system did in the past? Isn't it just an extension?
Reverend Sharpton, could you elaborate on this?
Reverend Sharpton. No. I think you hit it on the head. I
think the challenge of the 21st century is exactly that,
Congressman Ellison. I said in my statement on September 20 in
Jena with Martin, III, and others that we've got from Jim Crow
to James Crow, Jr., Esquire. He is a little more polished, he
uses different techniques. But it is 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 the 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, we'll study it, maybe, then what do we do? So there
are those of us that respond, even though we'll be attacked--
Martin, III, Father Michael Pfleger is on his way to Jena. We
are only responding because they won't respond.
Mr. Ellison. Thank you for acknowledging the presence of
Father Michael Pfleger, a hero and many years of service, sir.
Thank you. But I just wanted to go back to this eight U.S.
Attorneys things because this is taking up a lot of time here.
And one of the things that always concerned me was not just the
eight who were fired 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 one of the things that I would like to know is, Mr.
Washington, have you prosecuted other juveniles in your tenure
as U.S. attorney? Have you prosecuted other juveniles?
Mr. Washington. No.
Mr. Ellison. Because let me tell you, I've defended
juveniles in Federal court. Let me tell you, sir. 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
prosecute. You prosecute them for having 5 grams of crack
cocaine. You know you put them in jail for that. We have
incarcerated generations over your drug war. And I say it is
yours because you will not step away from an unfair system.
What about the selective justice? You're telling me you have
never prosecuted a juvenile? We're going to find out. Is that
your statement before Congress?
Mr. Washington. In my district--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.
Mr. Ellison. Right. Well, let me just say this, Mr.
Washington, 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? Does that explain
your change in testimony?
Mr. Washington. I don't believe so, sir.
Mr. Ellison. Have you come to see the light? Is that why
you're saying that it is a crime today?
Mr. Washington. I don't think I've changed my testimony.
Mr. Ellison. Well, you changed your statement. Do you agree
with that?
Mr. Washington. I don't think so.
Mr. Ellison. Well, the Reverend seems to have another
viewpoint. Reverend Moran, do you have another thing you'd like
to share on that?
Reverend Moran. Well, I think a gun on school property is a
Federal offense, is it not?
Mr. Ellison. I think that it certainly could be. What about
that case, about the guy having a guy pointed----
Reverend Moran. Justin Barker, the one that was accused of
being jumped on at the school.
Mr. Ellison. Had a gun at school?
Reverend Moran. Yeah, yeah.
Mr. Ellison. Did he get prosecuted by a U.S. Attorney?
Reverend Moran. Nobody.
Mr. Ellison. If you claim to be a beneficiary of the work
of Martin Luther King, you have got to stand on that. It is 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 is 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?
Reverend Sharpton. I think that all that one can expect is
that they'd keep the door open that they walk through and even
make it more open for the generations behind it. 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. Mychal 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.
Mr. Ellison. Mr. Washington, I just have a last question.
Mr. Conyers. The gentleman's time is nearly expired.
Mr. Ellison. I just have one more question for you. I mean,
the worst thing that can 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? Couldn't that have been an outcome
of the prosecution of these noose hangers?
Mr. Washington. 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 has been some talk
here----
Mr. Ellison. So at least you admit that you elected not to
do it. What about a juvenile proceeding against them, the noose
hanger? 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.
Mr. Conyers. I'm going to have to cut my friend off. I know
he is the cleanup hitter, but I'm going to have to stop him at
this point. Please respond.
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 views
to send a message, the Department of Justice wants to be very
careful and is exercising prosecutorial discretion. It does not
use that discretion to send a message. Moreover, that message
could not have been sent because the result of such a
proceeding never would have reached the public.
Reverend Sharpton. Mr. Chairman, can I say in response to
that, that one, the prosecutor in Jena did not use the juvenile
system to send a message. The third 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
national headlines with Mychal Bell. So it is very, very
strange to me that if the Federal Government had elected to go
juvenile that they 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
crime against juveniles. Or against those that were guilty of
what was done on that day.
Mr. Conyers. I thank the gentleman. I thank Mr. Ellison for
bringing us to a conclusion. And I'd like to let everybody know
that this hearing has taken place on two dimensions. One is
around Jena, but the other is around the state of the criminal
justice system in America going back way beyond Jena, going
back beyond the 20th century and I feel honored to be the
Chairman of the Committee that has had this kind of hearing for
the first time since I've been in Congress.
We've had some forums and we've had romp hearings and we
have had other things, but this is indeed critical and so to
the fact that we have not resolved this case yet is certainly
not the point. This matter goes on. Clearly as we all know,
this is not the last hearing or inquiry because we are dealing
with a historic circumstance that even proceeds the late Dr.
Martin Luther King, Jr.
And I want to celebrate the stimulating debate, but the
question that will really be the test of time for this hearing
on October 16th will be what do we do about it and what
solutions ultimately come out of it? And so I believe this
Committee owes its thanks to those persons who rallied around
the Jena 6 and came in to march and lifted one case that could
have been a newspaper item, but lifted it not just nationally,
but internationally.
We are now focused on this question of disparate treatment
under the law in the United States like, in my view, we have
never been before. To that, we owe you thanks. We are also
going to solicit your continued cooperation. From my point of
view, we need to help the Department of Justice. I mean, this
is a crippled agency. We don't even have an attorney general at
this moment. We've gone through months and months of hearings
as has been alluded to about the nature of the laws both
Federal and State. I'm asking for an expedited return of the
transcript. We've got a lot of searching and inquiry to do in
terms of finding out what the state of the laws are and then
how we accelerate the enforcement of the law.
And so I am deeply indebted to the witnesses who have given
up their time, of those would have gone to Jena. And I think
you can understand the pride that I have for the Committee on
the Judiciary. We've had a tremendously insightful commentary.
And I want to reach out to those Members of the Judiciary
Committee that weren't here today, because that is what it is
really all about. I mean, we can hold a meeting or rally, but
the question is, what is the Congress going to do? We've got a
responsibility just as the Department of Justice does. Just as
the community relations service does, just as the U.S.
attorneys do.
And so it is in that sense that I again thank you from the
bottom of my heart, not only the witnesses here, but many
distinguished men and women in the audience, the lawyers that
are still active. This matter goes on. It is far from resolved,
and perhaps our discussion can cast in a small way a positive
light on what will ultimately end up. We are an integral part
of this solution and of the resolution of Jena 6. And so we
will give all Members 5 legislative days to submit additional
questions to the witness and 5 days for the record to be open
for the submission of other materials. And I pronounce the
Committee concluded for the day.
[Whereupon, at 2:46 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
Mr. Chairman, thank you for holding this very important hearing.
Let me also extend a warm welcome to our distinguished panel of
witnesses:
Mr. Donald Washington, U.S. Attorney, Western
District of Louisiana;
Mr. Richard Cohen, President and CEO, Southern
Poverty Law Center;
Reverend Al Sharpton, President, National Action
Network;
Professor Charles Ogletree, Director, Charles
Hamilton Houston Institute for Race and Justice, Harvard Law
School;
Reverend Brian Moran, Pastor, Jena Antioch Baptist
Church, President, NAACP Jena Chapter; and
Ms. Lisa Krigsten, Counsel to the Assistant Attorney
General, Civil Rights Division
Mr. Chairman, as every member of this Committee is fully aware,
under your leadership this Committee has been one of the most active in
the Congress when it comes to oversight. The record speaks for itself.
Hearings have been held regarding: U.S. Attorney firings; warrantless
surveillance programs; the FBI's use of national security letters;
misuse of presidential clemency powers; misuse of presidential signing
statements; and protecting the right to vote. Nonetheless, I believe
that this is one of the most important oversight hearings that will be
held in this Committee during this session of the 110th Congress.
Mr. Chairman, one of the great challenges facing our country today
is the fact that incarceration is not an equal opportunity punishment.
It is in fact a punishment meted out disproportionately to African
American males. As of September 20, 2007, there were an estimated
2,283,818 people in U.S. prisons and jails. The United States
incarcerates a greater share of its population, 737 per 100,000
residents, than any other country on the planet. But when you break
down the statistics you see that incarceration is not an equal
opportunity punishment. Consider the following statistics:
U.S. incarceration rates by race, June 30, 2006:
Blacks: 2,468 per 100,000
Latinos: 1,038 per 100,000
Whites: 409 per 100,000
Gender is an important ``filter'' on who goes to prison or jail,
June 30, 2006:
Females: 134 per 100,000
Males: 1,384 per 100,000
Looking at just the males by race, the incarceration rates become
even more frightening, June 30, 2006:
Black males: 4,789 per 100,000
Latino males: 1,862 per 100,000
White males: 736 per 100,000
Looking at males aged 25-29 and by race, you can see what is going
on even clearer, June 30, 2006:
For White males ages 25-29: 1,685 per 100,000.
For Latino males ages 25-29: 3,912 per 100,000.
For Black males ages 25-29: 11,695 per 100,000.
(That's 11.7% of Black men in their late 20s.)
Perhaps the most damning statistic of all is that the United States
locks up its African American males at a rate 5.8 times higher than did
apartheid South Africa, which was the most openly racist country in the
world:
South Africa under apartheid (1993), Black males: 851
per 100,000
U.S. under George Bush (2006), Black males: 4,789 per
100,000
The purpose of today's hearing is to examine the role of the
federal government as it pertains to hate crimes, race-related school
violence, and disparities within the juvenile criminal justice system.
While the high profile, controversial case of the ``Jena 6'' warrants
federal oversight, this hearing is intended to illuminate other
inequities on the basis of race within the nation's school discipline
and legal systems.
As you have stated, Mr. Chairman, the case of the Jena 6 is not an
isolated incident, but rather a reflection of a larger nationwide
phenomenon. Accordingly, this case is an appropriate vehicle for a
larger discussion about the unequal application and protection of the
law, particularly with respect to African American males, and the
appropriate federal response to remedy these inequities.
This hearing will also discuss the federal remedies available for
those students and juveniles who have been subjected to discriminatory
and biased treatment by school administrators, prosecutors, judges, and
law enforcement.
It is important to briefly recount the factual background
surrounding the case of Jena 6.
On Thursday, August 31, 2006, a small group of black students asked
if they could sit under a tree on the traditionally white side of the
Jena High School square. The students were informed by the Vice
Principal that they could sit wherever they pleased.
The following day, September 1, 2006, three nooses were found
hanging from the tree in question. Two of the nooses were black and one
was gold: the Jena High School colors. On Tuesday night, September 5,
2006, a group of black parents convened at the L&A Missionary Baptist
Church in Jena to discuss their response to what they considered a hate
crime and an act of intimidation.
When black students staged an impromptu protest under the tree on
Wednesday, September 6, 2006, a school assembly was hastily convened.
Flanked by police officers, District Attorney Reed Walters warned black
students that additional unrest would be treated as a criminal matter.
According to multiple witnesses, Walters warned the black student
protestors that, ``I can make your lives disappear with a stroke of my
pen.'' This was widely interpreted as a reference to the filing of
charges carrying a maximum sentence of life in prison.
On Thursday, September 7, police officers patrolled the halls of
Jena High School and on Friday, September 8, the school was placed on
full lockdown. Most students, black and white, either stayed home, or
were picked up by parents shortly after the lockdown was imposed.
The Jena Times suggested that black parents were to blame for the
unrest at the school because their September 5 gathering had attracted
media attention.
Principal Scott Windham recommended to an expulsion hearing
committee that the three white boys responsible for hanging the nooses
in the tree should be expelled from school. On Thursday September 7,
2006, asserting that the noose were merely a silly prank inspired by a
hanging scene in the television mini-series ``Lonesome Dove,'', the
committee opted for a few days of in-school suspension. The names of
the three students were not released to the public for reasons of
confidentiality.
According to press accounts, on September 10, 2006, several dozen
black parents attempted to address a meeting of the school board but
were refused an opportunity to speak. At a second September meeting of
the school board, September 18, 2006, a representative of the black
families was allowed to give a five-minute statement, but school board
refused to discuss the ``noose issue'' because the matter had been
fully addressed and resolved.
Although few major disciplinary issues emerged during the fall
semester at Jena High School, there is strong evidence that several
black male students remained unusually agitated throughout the semester
and that disciplinary referrals on these students spiked sharply. On
Thursday, November 30, 2006, the academic wing of the Jena High School
was largely destroyed by a massive fire. Officials strongly suspect
arson.
Throughout the following weekend, Jena was engulfed by a wave of
racially tinged violence. In one incident, a black student was
assaulted by a white adult as he entered a predominantly white partly
held at the Fair Barn (a large metal building reserved for social
events). After being struck in the face without warning, the young
black student was assaulted by white students wielding beer bottles and
was punched and kicked before adults broke up the fight. It has been
reported that the white assailant who threw the first punch was
subsequently charged with simple battery (a misdemeanor), but there is
no documentary evidence that anyone was charged.
In a second major incident, a white high school graduate who had
been involved in the assault the night before pulled a pump-action
shotgun on three black high school students as they exited the Gotta-
Go, a local convenience store. After a brief struggle for possession of
the firearm, the black students exited the scene with the weapon.
The Jena Times has reported that, in light of these racially-tinged
incidents, several high school teachers begged school administrators to
postpone the resumption of classes until the wave of hysteria had
dissipated. This request was ignored and classes resumed the morning of
Monday, December 4, 2006.
Shortly after the lunch hour of Monday, December 4, 2006, a fight
between a white student and a black student reportedly ended with the
white student being knocked to the floor. Several black students
reportedly attacked the white student as he lay unconscious. Because
the incident took place in a crowded area and was over in a matter of
seconds eye witness accounts vary widely. Written statements from
students closest to the scene (in space and time) suggest that the
incident was sparked by an angry exchange in the gymnasium moments
before in which the black student assaulted at the Fair Barn was
taunted for having his ``ass whipped.'' The victim of the attack is
close friends of the boys who have admitted to hanging the nooses in
September of 2006.
Within an hour of the fight, six black students were arrested and
charged with aggravated battery. According to The Jena Times, at least
a dozen teachers subsequently threatened a ``sick-out'' if discipline
was not restored to the school. According to the Alexandria Town Talk,
District Attorney Reed Walters responded to the teacher's threat by
upping the charges on the six boys to attempted second-degree murder
and conspiracy to commit second-degree murder--charges carrying a
maximum sentence of life in prison.
On the basis of the charges filed by the District Attorney's
office, all six black students have been expelled for the remainder of
the school year and, according to The Jena Times, several teachers
quickly demanded that the accused boys be barred from the school for
life.
On December 13, 2006, District Attorney, Reed Walters published a
statement in The Jena Times in which the young men arrested in the
school fight incident were characterized as criminals who had been
terrorizing both the school and the community. The sloppy wording of
the statement and an introduction associating the tirade with the
``recent two incidents at Jena High School'' created the impression
that those accused of involvement in the fight were also suspected of
settling the school fire.
The Louisiana Rules of Professional Conduct 3.6(a) state that:
``A lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an
extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public
communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the
matter.''
At a January 29 school board meeting called to consider the
possibility of reversing the decision to expel the students, District
Attorney Reed Walters, appeared as the school district's legal counsel.
Although it is standard practice in Louisiana for district attorneys to
represent the local school board, there is strong evidence that the
disciplinary investigation undertaken by the school and the criminal
investigation of the December 4 fight are virtually indistinguishable.
This heightens the impression that the charges filed by DA Reed Walters
reflect the understandable hysteria engulfing both the student body and
the school faculty in the wake of the school fire and a weekend of
racial violence.
In June of this year, the first of the Jena 6, Mychal D. Bell, was
convicted of aggravated second-degree battery and conspiracy by an all-
white jury. The ``deadly weapon'' cited as a predicate for the
aggravated charge was a tennis shoe worn by the defendant. The court-
appointed attorney who represented Bell called no witnesses and
presented no evidence in his defense.
On September 4, 2007, Jena District Court Judge, J.P. Mauffrey
granted a motion to overturn Bell's conspiracy conviction, stating that
the case should have been tried in juvenile court. Then on September
14, 2007, Louisiana's 3rd Circuit Court of Appeals overturned Bell's
remaining aggravated second-degree battery conviction, also on the
grounds that the case should have been tried in juvenile court. LaSalle
Parish District Attorney Reed Walters did not appeal this decision on
September 27, 2007, but rather, has pursued aggravated second-degree
battery and conspiracy charges against Bell in juvenile court.
After spending more than nine months in jail, Bell was released on
September 27 after bail was set and posted in the pending juvenile
case. However, on October 11, 2007, Judge J.P. Mauffrey sentenced Bell
to 18 months in a juvenile facility for violating probation on cases
unrelated to the Jena 6 matter.
Mr. Chairman, I have called upon the Department of Justice to
commence a thorough and comprehensive review and investigation of the
circumstances leading to and including the legal proceedings against
six young African American high school students known to the world as
the Jena 6. Specifically, I have called upon the Department of Justice
and its Civil Rights Division to conduct an investigation to determine
whether violations of the federal criminal statutes in Title 18 or
federal civil rights laws codified in Title 42 of the United States
Code have been committed by persons acting under color of law.
The shocking case of the ``Jena 6'' has focused national and
international attention on what appears to be an unbelievable example
of the discriminatory and disparate treatment and the separate and
unequal justice that was once commonplace in the Deep South. This case
suggests that there is more to the controversy in Jena, Louisiana than
an effort to turn back the clock on racial justice and equality. It
appears to most outside observers that social life in Jena has been
frozen in a time period reminiscent of the 1950s. This is simply
unacceptable in the year 2007.
That is the message delivered by me and the tens of thousands of
persons of goodwill who traveled to Jena on September 20 to bear
witness and protest the unequal protection of the law in the case of
the Jena 6.
Mr. Chairman, it is inconceivable that in 2007, a young African
American high school student could be charged with attempted second
degree murder and convicted of aggravated assault for a schoolyard
fight. This action seems to me all the more egregious in view of the
fact that the fight was provoked by white students, who hung three
nooses in a tree at the high school courtyard, to warn black students
not to sit there.
After this act of racial intimidation was dismissed as a harmless
prank by the school administration, black students protested under the
tree. The local District Attorney, Reed Walters, was called in to
school to address the students. According to media reports, Mr. Walters
warned the black students that he ``could take their life away with the
stroke of a pen.''
It seems inescapable to me that the failure of the local authority
figures refused to take a stand against this act of racism, the noose
incident led to a series of fights between white and black students.
After one such fight, only black students were arrested and charged--
with attempted murder. One of the defendants has already been tried and
convicted of aggravated battery.
The prosecution's theory for seeking a guilty verdict on the charge
of aggravated battery is that the defendant used a deadly weapon when
he kicked the victim while wearing a pair of sneakers. What makes this
decision to charge certain of the defendants with felony offenses and
attempt to try them as adults doubly egregious as an abuse of
prosecutorial discretion is that no action was taken in a recent and
remarkably similar case involving a white defendant and an African
American victim.
Let me remind those who regard the hanging of a noose from a tree
in Jena, Louisiana as a harmless act at best and a juvenile prank at
worst of its frightening and symbolic power, which was captured so
poignantly by Billie Holiday in her unforgettable rendition of Southern
Fruit:
Southern trees bear strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees.
Finally, Mr. Chairman, while it is very important for this
Committee to focus attention on the case of the Jena 6, it is even more
important to evaluate what legislative and other responses by the
federal government, if any, should be take to prevent the recurrence of
cases like the Jena 6.
I suggest the Congress ought to consider imposing limitations on
the nearly unfettered discretion of prosecutors in determining which
offenses to charge defendants with violating. In particular, I believe
this Committee should investigate and consider whether there is a need
for legislation:
1. encouraging states to establish and use the grand jury
system of returning indictments in controversial cases like the
Jena 6 by offering or withholding DOJ Program grants;
2. requiring certain states or localities to use grand jury
system similar to the way the Voting Rights Acts requires
preclearance of election law changes in covered jurisdictions.
The idea is that where there is a history of prosecutorial
abuse of power or misconduct, controls ought be in place to
prevent future abuse;
3. requiring data to be collected and reported relating to
allegations of prosecutorial abuse and misconduct and can
condition eligibility or receipt of federal funds on a state or
localities history;
4. providing that allegations of prosecutorial abuse or
misconduct in cases like Jena 6 are immediately reviewable in
federal court;
5. directing the Government Accountability Office to conduct a
study comparing incidence or likelihood of prosecutorial abuse
in jurisdictions using grand jury system versus those using
information (D.A. decides) system;
6. making grants to State and local programs designed to
combat hate crimes committed by juveniles as does H.R. 254, the
David Ray Ritcheson Hate Crimes Prevention Act, which I
introduced earlier this year;
7. conditioning receipt of federal funds on state's
establishment of procedures to notify public of the right to
file grievances against prosecutors who are alleged to have
abused power; and
8. conditioning receipt of federal funds on state's enactment
of laws placing limits on amount of bail that can be required
to secure release of juveniles in non-capital cases; no
juvenile in custody of his or her parent should have bail set
at a amount that will bankrupt or impose undue burden on
parents.
I look forward to discussing these important issues with our
distinguished panel of witnesses. Again, thank you Mr. Chairman for
holding this hearing. I yield the remainder of my time.
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Committee on the
Judiciary
I first learned about the ``Jena Six'' several months ago and was
greatly troubled to by the stories of unequal justice for whites and
African Americans in Jena, Louisiana. At the time, I raised my concerns
with the Committee, and I am glad to see that this hearing is being
held not only to expose what went wrong in Jena, but also to explore
the larger issue of racial inequity in the nation's criminal justice
system. The series of race-based attacks between white and black high
school students that took place in Jena started with the display of
nooses by white students who were seeking to exclude their black
classmates from socializing under the so-called ``white tree.'' For
centuries, the noose has been used to intimidate African Americans
through its symbolization of violence against them, yet both federal
and state authorities determined that they could not pursue hate crimes
prosecutions in Jena based on the display of the nooses. I intend to
work with my colleagues to give law enforcement the tools necessary to
pursue prosecutions in such instances.
Prepared Statement of the Honorable Betty Sutton, a Representative in
Congress from the State of Ohio, and Member, Committee on the Judiciary
Thank you, Chairman Conyers, for holding this important hearing on
the Jena Six.
When a black student asks whether he can go into an area where only
whites usually gather, he is met with nooses that warn him to stay
away. This could be a story out of an old history textbook, but it
happened here, in the United States, just over a year ago. What
happened in Jena, Louisiana is a sharp reminder that although many
speak of the civil rights movement as if it happened in the past, in
many respects, we still have a long way to go.
The story begins at a Jena High School assembly last year, when a
black student asked if he could sit under a tree where the white
students usually sat. The principal told him he was free to sit where
he wished, but students arriving early at school the following day were
greeted with three nooses hanging from that very tree.
Although the students responsible for hanging the nooses were
initially expelled from school, this punishment was later deemed too
harsh for students who committed what they called an ``innocent
prank.'' Fights subsequently broke out among several members of the
student body, and at an assembly convened to address this outbreak of
violence, LaSalle Parish District Attorney Reed Walters reportedly
warned students that ``with a stroke of my pen, I can make your lives
disappear.''
A noose is not just a piece of rope; it's a hateful and violent
symbol that represents some of the most reprehensible events that
occurred in this country during the last century. To simply dismiss
this as an ``innocent prank'' without an acknowledgement or honest
discussion of the emotions it provoked is to disrespect the civil
rights movement that fought against everything a noose represents.
Yet the concerns of many in the black community went unheard, and
there is every indication that blacks and whites were subject to
different standards by the prosecutor. While one member of the group of
whites who started a fight with a black student received probation, the
black students who started a fight with a white student were at one
time charged, as adults, with attempted murder.
Although the events we are discussing today started in Jena, this
has turned into a national issue that urgently requires our attention,
and I would like to commend the Chairman for his strong leadership in
this area. I look forward to hearing from our distinguished panel about
the federal government's role in dealing with hate crimes and race-
related violence in our public schools, and about the racial
disparities that exist in our juvenile justice system.
Articles submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
Material submitted by Charles J. Ogletree, Jr., Director, The Charles
Hamilton Houston Institute for Race and Justice, Harvard Law School
Post-Hearing Questions* submitted by the Honorable Lamar Smith, a
Representative in Congress from the State of Texas, and Ranking Member,
Committee on the Judiciary
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*The Committee had not received a response to these questions prior
to the printing of this hearing.