Retired Federal Judge Reflects on Long Career, Tackles Racial Bias in Courts

Senior U.S. District Judge Thelton Henderson of the Northern District of California.

OAKLAND, Calif. (CN) — You can’t sit back and wait for things to happen. That’s the advice offered by retired U.S. District Judge Thelton E. Henderson, who oversaw a series of pivotal cases that helped improve conditions in California state prisons and combat racial bias in the Oakland police force.

Appointed to the bench by Jimmy Carter in 1980, Henderson served as a federal judge until 2017 and oversaw high-profile cases including one that required California to reduce its prison population in 2009, a decision upheld by the U.S. Supreme Court, and another in which a federal monitor was appointed to oversee Pelican Bay State Prison in the 1990s after Henderson found prisoners were subject to excessive force and inhumane conditions there.

Henderson reflected on his 37 years on the bench during a one-hour talk with U.S. District Judge Haywood Gilliam on Thursday as part of two-day seminar on racial bias in federal court organized by the Northern District of California Federal Practice Program.

Born in Shreveport, Louisiana, and raised in South Central Los Angeles, Henderson was one of only two Black students to graduate from UC Berkeley law school in 1962 before he became the first Black lawyer to join a new civil rights division at the U.S. Justice Department enforcing voting rights in the south.

On Thursday, Henderson described the tactics he used as a federal judge to bring radical change to government institutions, including the health care system that serves more than 100,000 California state prisoners.

In 2001, lead plaintiff Marciano Plata filed a federal class action accusing California of violating prisoners’ constitutional rights by failing to provide adequate medical care. The case was assigned to Henderson, who was dismayed to learn that a prisoner was dying every six days on average due to the lack of proper medical care.

“My view of my job as a judge is not to sit and wait until there’s a motion and rule on it,” Henderson said.

The retired judge said he explored every option, including consulting with prominent experts and sociologists, but was told it would take eight to nine months to make changes that could save lives.

“I said, ‘Are you kidding? Do you know how many people will be dead by then?’” Henderson recalled.

That’s when he decided to appoint a receiver to oversee California’s health care system for state prisons in 2005. It was an unprecedented move.

“I didn’t know what would happen if they would appeal,” Henderson said. “Fortunately, they didn’t.”

Today, California’s state prison health care system is still being managed by court-appointed receiver in a case that U.S. District Judge Jon Tigar took over after Henderson retired.

Henderson also oversaw a case filed in 2001 over the “Riders” scandal, in which four Oakland police officers were accused of kidnapping, beating, robbing, and planting evidence on residents of an impoverished West Oakland neighborhood.

In a 2003 settlement, the city paid $10.5 million and agreed to undergo extensive reforms overseen by a court-appointed monitor. While supervising the reform efforts, Henderson heard about a Stanford professor’s study that found a glaring racial disparity in Oakland police traffic stops. Henderson immediately sought out that professor, Jennifer Eberhardt, and asked her to help reform the department. Eberhard joined the independent monitor’s team and started teaching OPD officers about implicit bias and related topics.

“I learned that when you do this, you’re by no means going to turn around the entire department, but you’re going to turn around those that want to do the right thing,” Henderson said.

Another problem Henderson identified in the OPD was a “code of silence” among officers — the idea that officers should never “rat on” their colleagues when they use excessive force or engage in other misconduct. Henderson found an attorney to teach classes on how this “code of silence” is bad for police and the communities they serve.

“They owed a higher duty to do the right thing when they see the wrong thing being done,” Henderson said.

Oakland’s police force remains under the control of a court-appointed monitor today, despite initial plans to end the oversight within five years, due to repeated failures to meet reform benchmarks like reducing officer-involved shootings and racially motivated traffic stops.

During his 37-year judicial career, Henderson also saw sentencing guidelines go from advisory to mandatory with the Sentencing Reform Act of 1984.

Although the 1984 law was intended to make sentencing more uniform and fair, Henderson said it took away judicial discretion and forced judges to dole out harsher sentences for crimes fueled by drug addiction instead of diverting defendants into treatment.

Henderson recalled having to sentence two teenagers from Eureka who were about to go to college to long prison terms for growing marijuana because he could not get around the mandatory minimum.

“I sent them off for 10 years, and I think they deserved much better than that,” Henderson said.

In another case, a “mule” who was asked to drive a truck full of illegal drugs to Fresno was caught. Sentencing guidelines required Henderson to put him away for 10 years. The kingpin who hired that mule was caught later and cooperated with federal agents, allowing him to obtain a much lighter sentence.

“The head of the organization, the real villain, turns in everybody he could think of, and he gets three years,” Henderson said. “I just thought this was a really unjust system.”

The U.S. Supreme Court invalidated mandatory sentencing rules in 2005’s United States v. Booker.

During his time on the bench, Henderson also worked with a pretrial diversion program in Alameda County that allowed first-time drug offenders to get help with counseling, education and job-skills training instead of going to jail. He served as a judge in the program once a month.

Henderson recalled one night when he was picking up a friend in a “rough neighborhood” in West Oakland and a “big dude” who looked “really tough” knocked on his window. When Henderson rolled down the window, the man told him to wait there as he ran to get his parents. The young man was a graduate of the diversion program. He told Henderson he had found a job and was doing well. The man’s parents thanked the judge for giving their son an opportunity to turn his life around.

“It’s that kind of stuff that is so fulfilling,” Henderson said. “One of the greatest feelings in the world to know you helped someone with their lives.”

Henderson also talked about the need to increase diversity in jury selection. Noting that many people of color often don’t have jobs that will pay them while they sit on juries, Henderson said he used to personally call a potential juror’s employer and ask them to pay their employee for that time.

“I would get the name and actually call and talk to the employer and say, ‘Come on, this is an important civic duty and you’re part of this community,” Henderson said. “I must have made 15 or 20 calls while I was doing this, and every single one they said we’ll pay them.”

Another problem, according to Henderson, is that many minorities don’t fully understand the crucial role that juries play in the criminal justice system. Henderson said he would go to churches and high schools and give talks to educate people about the importance of serving as jurors.

“You can be the voice of diversity,” Henderson said. “You might change a jury because you have insights.”

On the lack of diversity among judges’ law clerks, Henderson said many minorities don’t pursue clerkships because they often have fewer financial resources and law school debt to pay off. Clerkships tend to pay substantially less than law firms.

Henderson said law students and graduates should be educated about the value of working under a judge for a year. Lawyers can earn more money in the long run by gaining that experience and get a bigger bonus when they join a law firm after serving as a law clerk, he said.

“Anyone who joins a trial firm after a year of clerking is going to be a step ahead,” Henderson said.

Addressing the broader issues of racial bias recently brought to the surface by the high-profile death of George Floyd under the knee of a Minneapolis police officer last May, Henderson said he is optimistic about the future, especially when he sees white people marching with people of color to protest racism and police brutality.

But Henderson said he was disappointed that several policing reform bills failed to advance in the California Legislature this year.

“By and large, I’m optimistic, and I’ve always clung to Martin Luther King’s thoughts about progress,” Henderson said. “It’s slow. It’s two steps forward and one step backward, but you do make it.”

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