October 3, 2017

Diversity of One

diversity of courts, Victoria Bassetti

by Victoria Bassetti

*Victoria Bassetti is leading ACS' analysis of US Attorneys.

On September 21, when Louis V. Franklin, Sr., raised his hand to take the oath as U.S. Attorney for the Middle District of Alabama, he could not have known that Donald J. Trump, the man who had appointed him, would launch an attack the next day on black football players who take the knee.

What Franklin surely knew, however, was that he is the only African-American President Trump has selected thus far to be a U.S. Attorney or indeed to hold any senior position at the Department of Justice.

President Trump has nominated 46 people to be U.S. Attorneys to date. Of them, three are women; two are Asian American; and one is Native American. And one, Franklin, is the only African American.

Law enforcement officials and prosecutors are concerned about the lack of diversity in the Trump class of US Attorneys.

“I can probably tell you that the vast majority of people they are going to be serving or prosecuting are going to be black or brown people. So, it’s troubling,” said William Jorden, president of the National Black Prosecutors Association. “How can you say you represent the people. You can’t represent the people if you don’t look like the people.”

“This coincides with the troubling regularity of divisive rhetoric and with the violence [of Charlottesville]. It all has to go in one large melting pot of concern,” said Jorden.

“It’s important to have confidence in the system, especially at this point in time. A diverse corps enhances the credibility of the system,” said Ron Weich, dean of the University of Baltimore School of Law. “There is a crisis of faith in the criminal justice system, and we need law enforcement officials who represent the full range of community members,” he said.

Overall, two percent of Trump’s nominees are black. Seventeen percent of President Barrack Obama’s nominees for the top prosecutor posts were African American. There are 93 US Attorneys in the United States, serving in each of the judicial districts.

The 59-year-old Franklin has spent almost his entire legal career at the U.S. Attorney’s office for the Middle District of Alabama. He started with the office as an Assistant U.S. Attorney in 1990 and eventually rose to be its Criminal Chief. He was briefly in private practice from 1996 to 1998. The Senate confirmed him as U.S. Attorney on September 14 by voice vote.

The Middle District of Alabama covers the southeastern corner of the state and includes the state’s capital, Montgomery.

In 2006, as head of the office’s criminal division, Franklin led the headline making prosecution of Alabama’s then-Governor Don Siegelman on corruption charges. Siegelman, the last Democrat to hold statewide office in Alabama, was convicted on bribery and obstruction of justice charges. The jury found that Siegelman had sold a seat on a state regulatory board in exchange for a $500,000 donation to a campaign he was associated with.

The Siegelman case was quickly embroiled in controversy, with charges that the prosecution was politically motivated, that it had been strongly influenced or even driven by then White House Senior Advisor Karl Rove, and that it had little legal justification. More than 50 state attorneys general from both parties pushed for a congressional investigation of the matter shortly after Siegelman’s conviction. "I haven't seen a case with this many red flags on it that pointed towards a real injustice being done," Grant Woods, the former Republican attorney general of Arizona told a CBS reporter at the time. The House Judiciary Committee opened an investigation into the prosecution.

Franklin himself came under fire from observers for offering multiple and conflicting explanations for the decision to investigate and then prosecute Siegelman. An investigation by the Department of Justice’s Office of Professional Responsibility concluded that the investigation was not politically motivated.

The 93 U.S. Attorneys President Trump appoints will be at the forefront of his Administration’s efforts to set law enforcement priorities

Department of Justice watchers worried that the lack of African Americans in prominent positions would also affect the process by which future policy decision would be made. Historically, the Attorney General has an Advisory Committee composed of U.S. Attorneys that provide him or her feedback. In the early days of the Obama Administration, when the Department was headed by Eric Holder, that committee was chaired by Loretta Lynch, then the U.S. Attorney for the Eastern District of New York and an African American. There was always “an array of views and perspectives in that room,” said Weich who was the Assistant Attorney General for Legislative Affairs under Holder.

“I was in many meetings with U.S. Attorneys at DOJ, and I was always struck by the diversity of viewpoints and experience in the room. That was so valuable,” Weich said. “African American U.S. Attorneys were strong advocates for the Department’s positions on sentencing reform and hate crime legislation.”

The lack of African Americans “is concerning because not only is the U.S. Attorney the lead law enforcement offices for the district” but because of their role in advising Attorney General said Barbara McQuade, who was the U.S. Attorney for the Eastern District of Michigan for seven years in the Obama Administration. Under Attorney General Holder, the U.S. Attorneys met as a group eight times a year and in addition served on several DOJ working groups including one on racial diversity. “It’s useful to have diverse perspectives at the table for the administration of justice,” McQuade said.

In the eight months since Jeff Sessions became Attorney General, he has reversed course on many Obama-era prosecutorial objectives. In May, he directed local DOJ offices, led by the U.S. Attorneys, to bring the most serious charges and seek the most severe penalties possible in criminal cases with an emphasis on mandatory minimum sentences. The directive reversed an Obama-era initiative that urged prosecutors to avoid bringing charges that could trigger mandatory minimum sentences against non-violent drug offenders.

Sessions also announced a renewed use of civil asset forfeiture at the Department this summer. “We will continue to encourage civil-asset forfeiture whenever appropriate in order to hit organized crime in the wallet,” he said. Civil asset forfeiture is a technique used by law enforcement to seize property involved in criminal activity. In many cases, the property can be taken before a criminal conviction has been secured. Sessions revived a program put to rest by Attorney General Eric Holder that allowed state and local governments to seize assets under the auspices of federal law. Federal agencies later shared the bounty back with them. That program was viewed as enabling abuse of civil asset forfeiture laws.

Washington Post analysis of the program found that more than $2.5 billion in assets had been taken under the program in a thirteen-year period from late 2001 to 2014. It found that “local and state police routinely pulled over drivers for minor traffic infractions, pressed them to agree to warrantless searches and seized large amounts of cash without evidence of wrongdoing.”

The absence of African Americans at the Department could “retard the growth and development of what National Black Prosecutors Association have been pushing for – more inclusion of black and brown people in the prosecutorial ranks,” said Jorden.

The reason for the lack of African-American nominees is unclear. Traditionally, responsibility for selecting U.S. Attorneys is diffuse. Nominees are selected on a state-by-state basis with Senators, especially those of the President’s party, playing a dominant role in suggesting the nominees to the White House and Department of Justice. “I’m not sure if it’s fair to lay [responsibility for the lack of diversity] at the President and Session’s door. No one’s looking at the whole field,” said McQuade. She noted that there is a tendency for Senators to pick people they know. “There is an old boy’s network. If that’s what’s going on, instead of a merit selection process, that could account for the difference,” between the diversity of Obama and Trump’s picks.

One reason for the lack of African-American appointees could be because African Americans are reluctant to work for an Administration that is seen as “hustling backwards,” Jorden said. “Some people may not want to serve.” He also added that qualified African-American candidates might be overlooked because they are not viewed as law enforcement leaders. “Either way, I know it’s troubling.”

Jorden said, however that there were many qualified African-American prosecutors who would be interested in being U.S. Attorneys. “All they have to do is reach out and ask.”

One Senate staffer who worked on the nominations process at the beginning of the Obama Administration, who asked not to be named, said that he recalled clear input from the White House pushing Senators to actively seek minority and women candidates for the post.

Overall, African-Americans are underrepresented in prosecutors’ offices. A 2014 survey of 2,400 elected prosecutors nationwide found that 95% of them were white and 79% were men.

Equality and Liberty, Importance of the Courts, Judicial Selection, Racial Justice