UC Hastings Commencement Address
On May 15, 2015 Judge Gertner gave the Commencement Address at University of California, Hastings College of the Law. A video of the address can be viewd here. A transcript of the address can be found below.
May 15, 2016
Dean Faigman, Trustees, Faculty, Graduates, honored guests, and parents, especially, parents. It has been only a few years since I was sitting where your parents are, watching the graduations of my three children. It will be an extraordinary day. Count on it.
Now, as is my practice, I did research for this talk. I did not reread the great books to lard this talk with pithy quotes or cite to Greek philosophers so that you can understand the breadth of my education – and go right to sleep. I did not go over the year’s events to sum up current affairs so that you can see the scope of my interests – and zone out. I will not talk about presidential politics and the disgraceful scenes of the past year. We have heard enough of that. I thought about regaling you with the stories of my misadventures, so you understand that life’s choices are not linear. (I have to interject at this point: No one in my law school class would have predicted that I would become a judge one day. I took sociology of law at Yale Law School. I planned to be an academic. I thought “dying intestate” was a disease – some kind of man’s disease.)
I did listen to other commencement speeches, some inspired, some rather dopey, many funny, often unintentionally; the speeches of scholars, politicians, and comedians. And then I decided to steal liberally from other people’s work. Why not?
Al Gore gave an amazing Ted talk recently in which he described this scene: It was 1961, a new president, President Kennedy, only a few months into his term in the White House, challenged America to "land a man on the moon and return him safely to the Earth." The fact is no one in America knew how to make it happen. They were starting from a blank slate, literally a blank slate.
Yet, eight years later Apollo 11 happened. Three astronauts landed on the moon, a first in human history without parallel. The television screens reflected the extraordinary exuberance in the Mission Control room when its success was clear. Many things were remarkable about that event. But among the most remarkable was this. The men in that room – and sadly, they were mostly men – were scientists and engineers whose average age was twenty-eight. Let me say that again. Twenty-eight. That means that when President Kennedy called for a mission to land a man on the moon they were roughly your ages. When the call to change the world as we knew it was made, they had graduated college, were in the midst of post graduate degrees. They were at your stage in their lives. They were you.
Now I am not calling for you to land a mission on Mars or one of the new exoplanets! I know you are law students, soon to be lawyers and may well be math- and science- phobic.
I want you to think about what your clarion call should be, what will be the functional equivalent of your moon mission. It must be something. It must be some engagement with the world, with issues swirling around you. You cannot be passive; you cannot stand by.
I am intrigued by the title of Howard Zinn’s memoir, “You can’t be Neutral on a Moving Train.” Howard Zinn was a renowned historian. The title of his memoir reflects a version of the theme of the 60’s, the era in which I grew up: If you are not part of the solution, we used to say, you are part of the problem.
Now let’s look at where this train – our world – is moving. (Note that I have moved from an extraterrestrial metaphor to one that is earthbound.) We can visualize that moving train, can’t we? Our planet, moving through space, with greenhouse gasses trapped in the atmosphere, building and building over time. We can see what those first astronauts saw, a world both beautiful and vulnerable. We understand our contribution to the environment –every time we ride in our car, turn on a light, or the air conditioner, every time we cut down a tree, get on a plane, or buy a vegetable that has been transported across the country. We know that we are adding to the carbon dioxide of the planet. We cannot escape it. We cannot get off.
Is that your challenge, your generation’s moon shot? Shall you remedy climate change, finally come to grips with the calamity that scientists have been predicting for years, in eight years or ten?
Or do you look earthward to the issues in our country, issues that we have only recently come to see. Now those are harder to see, harder to acknowledge what our responsibility is. Up until recently when we heard of a young man being sentenced to a mandatory term of years for drugs, a nonviolent offense, when we know that the prison term he is getting is wildly, wildly out of proportion to what he did, to any reasonable penal policy, we did not see how we have contributed to it. When we heard about how the United States imprisoned more people, incarcerated at a higher rate, than any other industrialized state (our nearest competitors were Rwanda and China), we did not see how it concerned us. It is them not us. We haven’t added to the sum of their pain with our acts – as we add to the sum of the carbon dioxide in the air with our cars, our air conditioners.
When we learned that we have imprisoned African American men at a level not seen since Reconstruction, we didn’t understand our role. Forty percent of those in American prisons are black, a number wholly out of proportion to the population of minorities and out of proportion to their share of crime. Nearly ten percent of black males between the ages of twenty-five and twenty-nine are in prison. Blacks are imprisoned 5.6 times the rate of whites. Indeed, one in three black men will go to prison during his lifetime, 1 in 17 white men will do so. And the consequences of this imprisonment are stunning. It is generational; kids are more likely to go to jail if one of their parents is imprisoned. And it is invisible; the economic and social consequences are ignored. We may have been horrified by all of this if we knew it – but we didn’t feel responsible as we do with the environment.
But this moving train is our country, for which we are responsible– the people we elect to Congress, the public debate about crime to which we contribute. We can’t be neutral on this moving train. These are my issues. They are yours.
So when I was sitting where you are sitting when I graduated college, then law school, I wanted to be an academic, think grand thoughts, write grand books. But I could not sit still. I could not sit in the library. I felt the train moving. I was too drawn to participate in the movements for criminal justice, women’s rights, and racial equality. The first time I represented someone who was acquitted, or who secured a settlement of a gender or race discrimination case, the first time a client told me I had saved their life, or their career, I thought I could not stop. It was my version of the whoop that went up in Mission Control when Astronaut Armstrong took those first steps on the moon.
Then, after two decades of being a civil rights lawyer and a criminal defense lawyer, I became a judge. Make no mistake about it: I had the same passions, the same concerns as I had had before; no confirmation conversion for me. But I fully understood that my role had dramatically changed. I had sworn to uphold the Constitution, and our laws, and while I believed that those laws would mostly align with the just result, I understood that sometimes, they would not.
Now I was the one sending those young men to jail for nonviolent drug offenses. I was the one who watched them come into the courtroom as free men and walk out shackled, hearing the cries of their families. Mass incarceration was not an abstraction to me. Sadly, I was part of it. I was part of it.
I could not – and I would not – wring my hands and say that there was nothing I could do. I couldn’t pretend to say that just because the law said it it was right. It would have been easier to sleep at night if I had; instead I wanted to keep in front of me an abiding sense of the wrongness of the system. I would work to make the sentences proportionate to the crime – and to publicly criticize the law when that was impossible. There is never nothing to do. Let me say that again. There is never nothing to do.
But I left the bench to work on my moon shot. Here it is:
First, it has to be said and said clearly: Over a seventeen-year judicial career, I sentenced hundreds of defendants to sentences, eighty percent of which I believed to be disproportionate, unfair, and discriminatory.
There were ten, fifteen, twenty year mandatory sentences for drugs offenses that made no sense under any rational social policy, even life sentences for marijuana distribution. There were mandatory Sentencing Guidelines, which often led to absurd results. When I made a small downward adjustment, explaining what I did in a written opinion, I risked reversal by an appellate court which saw only sentencing calculations, not people.
To say that we treated human beings like numbers is not an overstatement. What mattered most was the quantity of drugs or how many Guideline “points” were in their criminal record. What did not matter were facts like whether the defendant dealt drugs out of the car he was living in, or dealing to buy a fancy car. What did not matter was whether his record was violent or just a collection of petty offenses, such as “driving while black” traffic infractions. What did not matter was how much their records reflected policing decisions in minority communities, or schools that would sooner kick them out at the tenth or eleventh grade than actually deal with their issues.
Factors everyone would agree are meaningful to determine culpability, even the risk of reoffending, were irrelevant. Addiction was not relevant, even though we understood the direct relationship between addiction and crime, how drugs hijack the brain, and better yet, how to treat it. Mental health issues were not ordinarily relevant, even though they shaped the choices these young men made – in some cases a troubling soup of brain damage, impairment, or post-traumatic stress disorder. Family ties were not ordinarily relevant, even as we blithely presided over the destruction of families. And social background was not relevant, even though neuroscience teaches us about what toxic environmental stress can do to children – children who were abused, who lived with the sounds of gunshots in their neighborhood, who watched loved ones die.
I did what I could to find out about the human beings before me, even when their humanity did not seem to “count” in the law. I kept files on each man, so that I would not forget them. I had a spreadsheet listing their sentences, what their background suggested, and what became of them. Did jail make a difference? Rarely. It hurt more than it helped, a waste of money, and a waste of lives. Mass incarceration and the racism it reflected was simply a scourge on our nation’s record.
I did what I could to mitigate the harsh affects of this regime but I do wish I had done more. I left the bench to undo the damage I (and others) had done. I am not in my twenties anymore; I want to see this change in my lifetime.
I am writing about the men I sentenced, in effect resentencing them in my book, reimagining what the outcomes should have been in a humane system. So much has been written about mass incarceration in the abstract, I want to write concretely about the men (and they were largely men) I came to know.
More than writing, I am doing. I am identifying those who should get Presidential clemency – because of changes in the law, or because their sentences were wildly disproportionate; writing letters on their behalf; even reaching out to lawyers for them.
My efforts, and even those of the President and Congress, are puny next to what needs to be done. David Cole and Mark Mauer proposed a Marshall plan for communities decimated by our failed war on drugs. Through the Marshall plan after World War II, we rebuilt the countries we had vanquished rather than punishing them. While we did not destroy American communities with bombs and ammunition, but with prosecutions, prisons and punishment, the impact is clear. A generation of African American men is missing from their neighborhoods’ economic life, barred from federal aid, subsidized housing, and employment. They are silenced, unable to vote, to serve on juries. The sons and daughters of jailed parents too often follow them to jail.
So when I oppose mandatory minimums, onerous guidelines, when I work to get clemency for the men I sentenced, and when I write about it, it is not an abstraction. I know what it felt like to pronounce a heartbreaking sentence on a human being who did not remotely deserve it. I was part of the problem. I want to be part of the solution.
I needed to leave the bench so that I could speak, and write, say what I had seen, what I had heard, why it was wrong and how to change it. In some ways, I was no different from the young woman who could not stay in the library; in some ways, I am very different.
So I am delighted to be here today. It is not about fashioning your life’s plan today, like the young men who heard President Kennedy’s call. I know that there is a fair amount of partying to be done. But it is about drawing the linear path for you to follow. It is about taking responsibility for the direction of our country, for our neighbor’s plight, for our pernicious politics. It is about changing the direction of that train and the world. It’s about reaching for the moon.
From President John F. Kennedy:
“Our problems are man-made- therefore, they can be solved by man [and I will add woman]. And man can be as big as he wants. No problem of human destiny is beyond human beings. Man’s reason and spirit have often solved the seemingly unsolvable – and we believe they can do it again.”
From Rabbi Abraham Heschel: “The opposite of good is not evil. The opposite of good is indifference.”
And from Reverend Martin Luther King: “Our lives begin to end the day we become silent about things that matter.”
So read the directions of life, but don’t always follow them. Know where the lines are – but sometimes step outside of them. And understand how you contribute to the moving train, but more importantly, know how to stop it.
Congratulations, congratulations, congratulations to you all!