New Haven legal experts share concern about inequality in Connecticut justice system Justice Harper: Diversity, cultural sensitivity vital

Attorneys Bevin Salmon, left, and Michael Jefferson are photographed outside of Superior Court in New Haven on 6/26/2014. Attorneys Bevin Salmon, left, and Michael Jefferson are photographed outside of Superior Court in New Haven on 6/26/2014. Photo: (Arnold Gold — New Haven Register) Photo: (Arnold Gold — New Haven Register) Image 1 of / 3 Caption Close New Haven legal experts share concern about inequality in Connecticut justice system 1 / 3 Back to Gallery

NEW HAVEN >> Attorney Michael Jefferson knew the evidence against his client did not lean in her favor.

Yet the black mother of three had no prior involvement with the criminal justice system when she was arrested on drug charges.

Jefferson, 50, said he believes the initial plea offer could have been different and quite possibly the outcome, had she been white.

“That was one of the first instances as an attorney that I felt race was an overwhelming factor in deciding the fate of one of my clients,” said Jefferson, who’s been a local defense lawyer for more than 15 years.

“The prosecutor wanted her to do two years in jail for selling drugs,” he said. “In most of the cases that I’ve handled involving first-time offenders charged with dealing drugs, the defendant usually doesn’t go to jail.”

Further, Jefferson noted the judge offered to give his client consideration if she tested clean for drugs.

She did so.

The prosector then reduced the state’s offer to one year in jail.

However, Jefferson was able to move the case before another judge, who gave his client probation in lieu of jail.

The sting of perceived racism in the judicial system has left some feeling that the cards are unfairly stacked against people of color, especially among young black men.

Racial disparities and the lack of diversity within the system are reasons some believe blacks are disproportionately incarcerated, policed and sentenced to death at higher rates than their white counterparts.

“Historically, white society has long maintained an irrational and entrenched fear of black men,” said Jefferson. “The fear is clearly manifested in the marginalization and mass incarceration of black men in American society.”

A 2014 report by the National Academy of Sciences, “The Growth of Incarceration in the United States: Exploring Causes and Consequences,” found that, of those imprisoned nationwide in 2011, about 60 percent were minorities, including 858,000 blacks and 464,000 Hispanics.

The report found that “racial and ethnic disparities in imprisonment reached extreme and unprecedented levels in the 1980s and 1990s.” They have since declined but “remained at deeply troubling levels.”

Further, the report concludes: “They are partly caused and significantly exacerbated by recent sentencing laws aimed at achieving greater severity, certainty and crime prevention and by law enforcement strategies associated with the war on drugs. They also result partly from small but systematic racial differences in case processing, from arrest through parole release, that have a substantial cumulative effect. And they are influenced by conscious and unconscious bias and stereotyping that remain pervasive in America despite the near disappearance of widespread beliefs about racial superiority and inferiority.”

In one example of systemic differences in case processing, the report says, “A sizable literature has long shown and continues to show that blacks are more likely than whites to be confined awaiting trial (which increases the probability that an incarcerative sentence will be imposed), to receive incarcerative rather than community sentences, and to receive longer sentences.

“While there is not convincing evidence of widespread racial bias in sentencing, there is, in contrast with several decades ago, credible evidence that black defendants are treated differently,” the report says.

As of Jan. 1, the incarcerated population in Connecticut totaled 16,594, and 15,485 of that number were men, according to the Department of Correction website. Of those inmates, 6,934 were black and 4,336 were Hispanic. Whites comprised 5,207 of the inmate population.

“The criminal justice system is a microcosm of the larger society; I just don’t think whites and blacks are viewed in the same light,” said Jefferson, New England district representative for Omega Psi Phi Fraternity.“I simply believe white life is valued more than black life even by some blacks — so it’s important for me to present the totality of the black defendant so his humanity isn’t disregarded.”

Jefferson is not alone in his motivation.

In 2002, attorney Bevin Salmon decided to practice law to advocate for minority clients and to provide a sense of cultural diversity within the system.

“I’ve had family members in the system, some in civil and the criminal setting and you see the difference when defense attorneys are not committed to their clients,” said Salmon, 50, who works as a New Haven public defender.

“In my opinion, too many of our people settle with attorneys that are not committed to their cause; I wanted to make a difference,” he said.

Salmon, who’s of Jamaican descent, said possible reasons for long prison sentencing could stem from diversity issues.

“Folk will tend to be more sensitive to issues that our people are faced with if there were more diversity within the system,” said Bevin, who studied law at Pace University in New York.

“I tell all my clients that the criminal justice system is arbitrary. You can get the same set of facts on individuals and come out with two totally different dispositions depending on who the judge or the prosecutor is,” he said.

Salmon said he could not speak to judges’ motivations regarding harsh sentencing.

“Each judge is different. While the maximum sentencing on offenses and the minimum mandatory on offenses may be uniform, there is a lot of discretion incorporated that judges and prosecutors have,” he said. “I tell my clients to stay out of the system.”

But Jefferson said he hasn’t seen a pattern of judges hammering down the full sentence for minor offenses among black men.

“I’ve been fortunate to work with many prosecutors and judges who are very decent and actually care about making the system work,” said Jefferson, while also noting the most challenging aspect of representing black men is safeguarding their humanity.

“I’ll admit there have been some challenges along the way, and there are some jurisdictions which still linger in the dark ages, but for the most part I don’t encounter those types of problems,” he said.

Although Salmon agreed with Jefferson that it’s rare for clients to receive the maximum penalty, there is a lack of confidence among some clients on how judges will rule.

“From my experience with clients, there’s no confidence that judges will do the right thing; it’s anxiety for many of them.” he said.

Robert Devlin, chief administrative judge for the Criminal Division of the state Superior Court, said several factors are looked at before a decision is made.

“We look at the aggravating and mitigating factors. If the person is young or has no prior criminal record, I’ll consider that a mitigating factor,” said Devlin.

“Then we look at the victim to determine whether or not they were traumatized in a way of emotional harm; is it a minor or serious offense? Every crime is different,” he said.

Devlin said in cases where the offender has been neglected as a child or has had difficult circumstances growing up, those would be considered mitigating factors.

Connecticut numbers

According to the Judicial Branch External Affairs Division, of the state’s 173 Superior Court judgeships, white males and females disproportionately outnumber other ethnic groups.

There are 92 white male Superior Court judges and 47 white females. There are 12 black males, 11 black females, five Hispanic males and no Hispanic females on the bench.

According to the American Bar Association, lawyers and judges have a unique responsibility for sustaining a political system with broad participation by all its citizens. A diverse bar and bench create greater trust in the mechanisms of government and the rule of law.

And diversity goes straight to the heart of the quality of justice, said retired state Supreme Court Justice Lubbie Harper Jr., the state’s chairman of the Commission on Racial and Ethnic Disparity in the Criminal Justice System. “It’s the main artery, from the entry point of interacting with police, to the adjudicatory proceedings; the commission has worked to promote diversity and cultural sensitivity over the years,” said Harper, a New Haven native who retired from the Supreme Court in 2012.

The commission was established to eliminate racial and ethnic disparity in the state’s criminal justice system. Harper, who now sits by designation on the Appellate Court, said that, from 2001-02, the commission performed a multivariate analysis of cases with sentences of either incarceration or probation.

“This study showed that individual’s criminal history was the strongest predictor of a sentence or incarceration,” said Harper, who’s also a longstanding member of Omega Psi Phi Fraternity.

Harper was nominated to the Supreme Court in February 2011 by Gov. Dannel P. Malloy.

Approximately one-third of Malloy’s judicial appointments and elevations have been minorities, including three out of five appointments to the Supreme Court, according to the governor’s office. More than 20 percent of Malloy’s total appointments and elevations have been African American, including two appointments to the Supreme Court.

“Governor Malloy is deeply committed to increasing the diversity of the bench, as reflected in his appointments,” said Andrew Doba, the governor’s communications director.

“He has also sought to encourage more minority candidates to apply to the judicial selection commission, which determines the pool of applicants from which he can select his appointments,” Doba said.

In the court and at home

State NAACP President Scot X. Esdaile said assessing the evaluations of plea-bargain deals by prosecutors is critical.

“Over the years, I’ve seen a lack of diversity among prosecutors in the state; we need to push for more diversity for prosecutors within the urban community,” said Esdaile, who’s been in a leadership role with the organization since 1994.

“All of the negotiations or the majority of the cases are handled in the plea bargain process, and that’s where the lack of the diversity is,” he said. “When we look at the deals white kids get and black kids get, they aren’t the same. That’s the issue; it’s in the plea bargain process.”

City neighborhoods such as Dixwell, Newhallville and the Hill are home to high concentrations of poverty that in many ways have forced some in those communities to become more vulnerable to criminal activity.

According to an NAACP report, blacks represent 12 percent of monthly drug users, but comprise 32 percent of persons arrested for drug possession.

“Universally, its been established that the minority community have been more adversely impacted by drug laws,” said Salmon. “It’s hard to say if the motivations by some judges are racist, but whether racist or not, the impact is the same.”

Jefferson said it comes down to how certain communities are policed.

“White people and white communities are simply policed differently than blacks and black communities,” Jefferson said.

For example, a report by www.drugpolicy.org found that, from 1980 to 2007, about one in three of the 25.4 million adults arrested for drugs was African American.

Devlin said it’s unlikely for judges to give the maximum sentence available on drug cases.

“We see far more prosecutions for narcotics versus gun violence. I don’t have the stats on race, but offenders generally, excluding race, are in for the violation of narcotics,” said Devlin, who’s served as a judge for 21 years.

However, Devlin noted the importance of diversionary programs within the system, such as the Community Service Drug Education Program.

“They are evaluated, then the program sets up a number of sessions and, if they complete the program, the charges are dismissed,” Devlin said.

“Judges look at diversionary programs before sentencing. We try to give people a chance to not have a criminal conviction and to participate in the program,” he said. “Lawyers would make a motion to have their client participate in the program if they’re eligible and that’s usually the first option they go for.”

Reversing the cultural trend

Glorifying the thug life is a stigma that needs to change within the black community, according to Salmon.

“We have to address this culture of it’s cool to have a criminal past or given street credit by being incarcerated a few times; this type of lifestyle is leading our kids down the wrong path,” said Salmon. “Addressing this problem is one of the biggest things we need to get a hold on as a community.”

The Rev. William Mathis, program manager of New Haven’s anti-violence program, Project Longevity, said some youths don’t understand the consequences of committing crimes, especially for the long term.

“What they do understand is the culture in which they presently live, which has become their way of life,” said Mathis, a former assistant state’s attorney in Baltimore.

“For many of them, it’s survival and also becomes the expectation,” he said. “Expectation for them and from them; if you don’t expect anything, then you really don’t respect others or need to change yourself.”

Mathis said what’s unique about the project is that it not only seeks to reduce homicides and violence, but builds relationships with community stakeholders.

“It’s a comprehensive community initiative, which partners with researchers, law enforcement, service providers and the community to reduce group-related homicides and violence,” he said.

The chairmen of the strategy and implementation team are New Haven Police Chief Dean Esserman and New Haven funeral home Director Howard K. Hill.

Salmon and Jefferson said they believe that self-hatred is the primary cause that drives gun violence in black communities.

But amid the self-hatred and dysfunction among some black youth in the city, Jefferson said there is hope.

“The fraternity continues to focus our efforts on creating healthy families through our Fatherhood Initiative program,” said Jefferson. “We believe that eradicating the dysfunction in black families by supporting efforts to increase the number of well-adjusted adult black males is the key to our resurrection and salvation as a people.”

The fraternity’s cardinal principles are manhood, scholarship, perseverance and uplift.

Call Community Engagement Editor Shahid Abdul-Karim at 203-789-5614. Have questions, feedback or ideas about our news coverage? Connect directly with the editors of the New Haven Register at AskTheRegister.com