Today on “The Argument,” what can America’s high profile trials tell us about our national priorities? [THEME MUSIC]
I’m Jane Coaston, and I follow a fair number of high level trials and court proceedings. I grew up watching Law & Order, after all. Though truth be told, reality is not like Law & Order. But when I think about cases like the Kyle Rittenhouse or Derek Chauvin trials from earlier this year, big cases, when we talk about those on TV, on Twitter, at the dinner table, it feels like we’re not just talking about the specifics of the cases themselves. Far from it. It feels like we’re using them to litigate the parts of America that we wish were different. I think we want to use these trials as tea leaves of public opinion, or the operations of our legal system. But is that a good thing? Nobody has thought more about that question than my guest today, Sherrilyn Ifill. She’s the president and director-counsel of the NAACP Legal Defense and Education Fund. Under her leadership, the LDF sued the Trump administration multiple times over issues ranging from voter fraud to free speech. And after nearly a decade, Ifill recently announced that in April, she’ll be stepping down. So at the end of a year that’s been full of headline making trials, I wanted to talk to Ifill about how she sees the symbolic value of the American legal system, about her tenure at the Legal Defense Fund, and the work she thinks there is still left to do there.
Sherrilyn Ifill, thank you so much for being here.
Thank you for having me.
Just to start right out the gate, you’re leaving the Legal Defense Fund in April after nearly a decade long tenure.
Yeah, I think it’s absolutely the right time. It’ll be 10 years, which feels somehow right, but most importantly, it’s really about thinking about what is the best time for the next leader to step into this role. I had the privilege and maybe even the luxury of stepping into this role when there were still a few years of the Obama administration left and it gave me time to get my land legs and to understand better how LDF can lead in the Washington ecosystem. We had an aligned Justice Department. When Mike Brown was killed, it couldn’t have been four or five days later that me and an LDF team were sitting just with Eric Holder in his office around the table talking about systemic police violence. So we had the ear of the Justice Department, we had a Justice Department that was willing to lean in to civil rights enforcement, and therefore when the 2016 election happened, I kind of knew what to do at a very scary time to kind of lead the organization. So I wanted the next leader to have some time. And I’d also just brought the organization to such a place of strength. And I feel — my philosophy is very strongly that that is the time when you should turn the organization over to the next leader —
—is when it’s super strong in terms of resources, strategy, staff. And my deputy, Janai Nelson, is just amazing and I felt very strongly that she would be the perfect person to be the next leader.
So you started at LDF back in 1988 —
—as assistant counsel. You left to teach.
And then you came back in 2013. What are some of the biggest changes that you saw within and without the organization?
Well, there was a lot without. Within, not that much had changed which made me really want to come back and lead, because I’m a New Yorker and most of our clients are in the South where most Black people live. And so for many of us, we ended up spending a lot of time in the South because that’s where our clients were, but it was for the first time for a lot of us because we were New Yorkers and maybe we had made trips, but we hadn’t spent concentrated time, and that was a wonderful thing. But I also felt that when I came back, that I wanted to make sure that the organization had a national voice which is something it had much more powerfully, obviously, when Thurgood Marshall was the director-counsel and at other periods as well. And I felt this was very much needed at this time in our country. And remember, this is when Obama was President, which although I have said meant we had an aligned Justice Department, was not a period of Shangri-La. You know? I just talked about the police killings. If you think about some of the worst videos you’ve seen, it was when, you know, Obama was president.
And so I felt that there was a lot we needed to do to freshen the organization, to give us the capacity to be more responsive. I wanted to build a rapid response capacity, which I did, which is why we were able to be so leaned in around police violence.
I wanted to make sure that we had a voice and that we were attending to the narrative about race and civil rights. And that’s the piece I think had been missing from LDF.
I’m curious about that, because you mentioned that you had a aligned justice system but you saw the continuation of police killings.
As a national organization, how do you thread that needle? Because you still had incidents like the killing of Walter Scott or the shooting of Mike Brown. You had a series of instances that are, in some ways, the responsibility of those local police departments. There are thousands of police departments across this country, there are small towns with 100 people where they still have a police department to collect traffic fines. I’m curious how you thread that needle between working as a national entity but doing so on behalf of clients who are dealing with local police departments.
Yeah. You know, so part of our job is to try to figure out where the leverage points are. Sometimes the leverage points are at the local or state level, but sometimes they’re at the federal level. And that’s also kind of our sweet spot. We know a lot about the power of the federal government. So for example, when the rash of police killings began and frankly it was really Eric Garner was first killed in July of 2014 and then Mike Brown was killed in August, and those are two of the people we now became familiar with, but when I wrote a letter to Attorney General Holder a few days after Mike Brown was killed, I listed out just the 10 police killings of unarmed Black people that we could just think of off the top of our heads, that we knew about, right? And we were making the case for the fact that this was a systemic problem because we knew, that as you say, there are 18,000 police jurisdictions in this country. We’ll never have the resources to deal with the injustice and brutality in all of them, but I do know that the Justice Department has a power that it received in 1994. And in that Crime Bill that had lots of terrible things in it was the power of the Justice Department to do these pattern and practice investigations of police departments. We also knew that the Department of Justice gives grants to police departments. Billions of dollars of grants to even very small and tiny police departments. And because we had been such a part of this, we knew that any money from the federal government is governed by Title VI of the Civil Rights Act of 1964, which says that the federal government cannot give funds to any program that engages in discrimination. It was originally enacted to compel school districts to comply with Brown. So we knew that there was that tool. So we went in with knowing that there was a tool that a power that has greater capacity than we ever could, which is the Department of Justice, actually could reach many more police departments than we could. And so we really pushed for them to begin leveraging that pattern and practice power, which they did and opened two times the number of pattern and practice investigations. Our job is to figure out what’s the leverage point and what’s the leverage point to make systemic change. We’re not solely interested in what happens to that officer, we’re interested in how to use the incident involving that officer to leverage broader change.
I think that leads me to my next set of questions, because I do want to talk about some recent high profile cases that have been in the news. Because I’m always curious. One, what does this case have to tell us? And two, should it be telling us anything about the broader justice system given how different each jurisdiction is? And so I want to discuss the case of Kyle Rittenhouse.
Can you talk about your initial reaction to the Rittenhouse killings before the prosecutors announced their charges?
So I was pretty enraged by the Rittenhouse killings. And the reason I was enraged is because I had been part of a set of conversations for a number of years pushing Facebook to really better enforce its own standards. Most of it was the work that I was doing along with other civil rights leaders was focused on addressing voting disinformation, inciting kind of hate crimes, but we had really talked about the way in which Facebook was being used to incite violence. And one of the standards that Facebook has is a prohibition on calls to arms.
So on Facebook, you are really not allowed to say, you know, we’re going to get our weapons and we’re going to go do whatever.
Well what Kyle Rittenhouse is believed to have responded to is a Facebook post that was called “A call to arms.” So this wasn’t like a mysterious thing, like, I wonder if it falls under the policy. I wonder if it doesn’t. So I was pretty furious and many people were. And so the first thing was it married together so many different pieces. So you had the Facebook piece that we had been talking about, you had what Kyle Rittenhouse did, and the law enforcement response to it, right?
He’s walking past them when they’re like, hey bro, they’re giving people water, they’re you know —
Which I think gets to — I was interested because after the trial, in the LDF statement it was mentioned that he acted with impunity —
— with the added context, which I’m sure you’re aware of, of like the people who have kind of celebrated him as a hero. What I want to focus on here is the idea that he could commit those actions and then walk past police and not be arrested until later.
Well I got to say, you know, that’s why I said it brings so many pieces together.
If you want to understand what having a white supremacist culture and culture of white privilege looks like, it looks like that night. Right? Because you have a boy, right, who is sent with an incredible weapon to hang out with other men who are armed who they don’t even know to police the streets.
So the impunity that we’ve been talking about with law enforcement for these many years also is an impunity that with the confluence of this kind of gun rights movement, is being kind of deputized, right? It is that any white man with a gun kind of has impunity. And in this case, a white boy. And so the police who see him, they don’t see a threat. Right? They just see one of them. And we saw the video of them, you know, thanking the various so-called militia folks who are out there and giving them water and they see themselves as aligned with those people. And those people see themselves as having the cloak of impunity that police officers enjoy applied to them as well. And that is super dangerous.
So is the goal, and I keep thinking about this because I think the thing I’ve changed my mind on the most has to do with gun rights, especially after learning more about how often African-Americans have been systemically denied their Second Amendment rights. And what I keep thinking about is how — there have been a lot of people like, well imagine if this happened to a black person.
Is the Rittenhouse case for you about ensuring that no one at all gets to do what he did, or that someone like a black kid, let’s take the exact same scenario, a black kid with an AR-15 who sees on Facebook that there’s a call to arms for this town that he does not live in but he’s been to. He’s volunteered in. This all happens. Is the idea that what Kyle Rittenhouse received, the acquittal, the support, the legal defense is extended to a Black person as well?
There’s so many levels in what you just said that it’s kind of hard to even like break it down. So number one. Do I want to fight for the right of a 17-year-old black child to carry a weapon of war into the middle of a city where people are protesting? No. Actually, that’s not one of the issues about which I am seeking parity. I actually think that is bananas for a healthy democracy, so that’s one side of things. Then it’s, what if something happens, right?
And the question for me in the what if something happens is always, what are the assumptions that are made, right, about both the victims and the perpetrator, right? And what I want in a justice system that is just is that I want the same assumptions that are made about a white defendant in that circumstance be made about a black defendant.
That the person who you get to see the photos of them with their families. You get to see the photos of them volunteering.
Yes. Or you get to believe that they’re the victim.
Even though they walked into the circumstance with an AR-15 —
— that if that’s the assumption to be given to a white boy, that’s the assumption I would want a black boy to have access to as well. But all of the ways in which white people are presumed to be fearful, to be protecting themselves. I mean we are living in a circumstance when just a few years ago, a white woman killed Botham Jean, a black man who was like eating ice cream on his own couch in his own home. Atatiana Jefferson was killed in her own home in Texas by a police officer, right?
So that’s the issue I’m really concerned about, is not whether everyone should get — I don’t believe that anybody, any civilians should be carrying weapons of war. But what I do believe is that the assumptions that we make in the criminal justice system and the cloak of innocence and the perception of victimhood and the perception of vulnerability, that we are willing to extend to white people has to be extended to black people.
Is that what it would mean for the system to work is for that same extension of innocence to be permitted for all?
Well there would be more, because the system is also inhumane. I don’t want anyone to be in solitary confinement for any extended period. I don’t want anyone to get a 200 year sentence or a 100 year sentence. I don’t want any 17-year-old to be sentenced to life in prison without the opportunity for parole. So there are some parts of it that are broken.
And that are inhumane.
Right. You don’t have a Tom Cotton-esque, ah, everyone should go to prison.
No. No. So I’m not trying to impose on white people the cruelty of the criminal justice system when at its worst it’s imposed on black people. So we have a lot to fix in our criminal justice system. We have racism, which actually gives permission for greater cruelty in the system, right? Because white people by and large and the people who are creating criminal laws do not believe that those laws will be imposed on them, their friends, their families, or will decimate their communities. So it makes it easier for the system to ramp up the cruelty factor. But I don’t want the cruelty factor to be equally applied to white people as it is to black people. I want the cruelty factor to also be eliminated, but I also want what we think about people in that system and the kinds of second chances and belief in innocence that we give to white people, black people are entitled to that. [MUSIC PLAYING]
- jane coaston
What are you arguing about with your family, your friends, your frenemies? Tell me about the big debate you’re having in a voicemail by calling 347-915-4324 and we might play an excerpt of it on a future episode. [MUSIC PLAYING]
We’re going to go to kind of the future of LDF and kind of the bigger picture, but I wanted to ask you. One, why do you think people looked at the Rittenhouse case and wanted to talk about it as being representative of wider trends? And two, is that a useful way to look at cases or to think about the law?
Yeah, I think sometimes you have to. There are always exemplars that help us see more deeply. It’s not because that particular case tells us everything we need to know or tells us what’s going to happen in the future and other cases, it’s that there are cases that are — I wrote a book about lynchings.
There were thousands of them. Why do we respond as we do to Emmett Till, right? So you could say, well that’s one case. There were other lynchings that were different where there were lots of people present. Well why do — we respond because this was a boy, we respond because — right, there’s all kinds of —
Because of the bravery of his mother.
Because his mother’s insistence that we see because we did see him. Because of the elevation of the taboo and the alleged story that a white woman can accuse the black — there’s all kinds of reasons why we focus on that. It’s not because other lynchings didn’t also have lessons for us. So I think in the Rittenhouse case, the power of a white boy to show up with a weapon of war and kill people, and you know, then before trial be out having beers even though he’s underage and giving the White power signal and then being acquitted. Having jurors look at him and see something very different than others might have seen. So I don’t think it’s wrong for us to look at certain kinds of cases as pivotal moments in which we’re able to see things more clearly than we were able to see before. If I can, I’ll tell you a story.
In 2013 when I came back to lead LDF, we worked on a case, filed an amicus brief in the Supreme Court in a case that I thought at the time was going to be the case that was going to center and lift the issue of police violence against unarmed black people in a way that we had never seen. This is an issue I had been exposed to from the time I was a child with police killings here in New York City, and I thought this case was it. And the reason I thought this case was it is because it involved a young man named Robbie Tolan and Robbie Tolan was driving a very nice car in Texas and he lived with his parents. He drove into their driveway in a very nice neighborhood, then the police tailed him and followed him and came out and started to question him and his parents came out and said that’s our son, like what’s going on. And the police made some kind of move towards his mom and then, of course, he was blocking for his mom, and the police shot him.
And I thought, this is the case. Not only because of those facts, but Robbie Tolan happened to be a baseball player and his father had been a Major League Baseball player. I thought this is it.
This is the case. Now I’m betting most people listening have never heard of Robbie Tolan. I thought the case was the exemplar. It turned out the exemplar was Mike Brown, actually. So we don’t even know what is going to get the consciousness of the people. I don’t think there’s anything wrong with that. And when it happens, it’s worthwhile I think, for people to see something in a moment that helps dramatize for them the nature of an injustice that they may have known about but that they couldn’t see as clearly as crystal clear as they can through a particular incident or case.
I was struck when researching for the site, there’s a quote from Ayesha Hardaway. She’s an associate professor of law at Case Western Reserve. And when asked about the Ahmaud Arbery verdict from a PBS piece called, What the Arbery Verdict Reveals About Race and Justice in America, she actually pushed back and said that “I think it is important for us not to be tempted to extrapolate too much about where we are as a country from one case to the next. The patchwork system that is our criminal legal system with various states having their own specific set of laws, as well as sort of community standards and expectations, what might be appalling in one state could be completely acceptable in another.” We talked a little bit about the patchwork state of law enforcement in this country.
How do you, as part of an advocacy organization that is also a legal organization, how do you pick and choose, how do you think through those issues where you may be in a case where something that takes place in Manhattan is very specific to Manhattan, but we have a tendency to extrapolate outwards to be like, here’s why you in Seattle need to know about this thing that happened. The context is lost to you. How do you work through that?
Well you know, it’s interesting. The legal system is actually an ecosystem, which means people are meeting and talking across states about the system itself. And that’s why you’ll see these waves happen, right? Where across the country criminal laws will tighten up, right? Because the various legal systems are very much influenced by each other. People are meeting in conferences. The governors are meeting. The legislators are meeting.
Everyone’s decided that critical race theory is something they need to get very serious about.
There you go. Right. Exactly. And it’s not just one state, right, so it doesn’t really work that way. There is actually quite a bit of cross fertilization and influence that happens across the board. And again to go back to the role of the federal government, the federal government incentivizes and de-incentivizes criminal law as well, right? And so very often the states follow the example of what is happening at the federal government level. So we’re always tracking that. We’re always looking at what those trends look like. It’s also true that where we think there are federal claims within some activity that involves police officers or criminal activity or criminal cases, and we deal with discrimination on juries, we have been doing death penalty cases since we began. And so where we can find a federal piece to it — remember that the federal courts are divided into circuits. Which means that, let’s take the Fourth Circuit, for example. That’s Maryland, that’s West Virginia, that’s South Carolina, right, that’s North Carolina. So they’re all in the same circuit, which means that to the extent you’re making federal law that comes out of a Maryland case, right, and it ends up in the circuit court and the circuit makes a decision, that decision governs the federal law in all those states. So there are lots of places where there are these intersections that actually allow you to leverage one state’s experience for broader influence.
As you leave LDF, what’s next for you?
I’m not fully sure. I do have a pretty important book contract that has to be fulfilled and I’m going to write this book and I’m excited about writing it, because I think it’s the right moment. I want to pull together my thinking about what ails this country and how we move forward. I want to talk honestly about the role of white supremacy in unraveling this democracy, because I do believe that that is at the core of it. I don’t separate what happened on January 6 from the reality of the corrosive effects of white supremacy. I think it is all of a piece. And if we are to have a healthy democracy and notice I didn’t say restore, because we haven’t had a healthy democracy. If we are to have one, we are going to have to confront our demons, we’re going to have to be grown ups, we’re going to have to redefine what it means to be a responsible citizen in a healthy democracy. And I want to spend some time writing about that. And then I want to think about what is the next way I can contribute to what has been the work of my life, which is focusing on racial justice inequality. So I want to be a part of thinking through how to put these pieces together and I think we’re in a very dramatic moment. The time is short. There is no guarantee we make it out of this period as a democracy, let alone a healthy one. And so it feels quite urgent and my leaving LDF is partly a recognition of that. That our institutions have to be strong, and sometimes that means that then you’ve got to transition at the right time so that the institution can maintain its strength. It’s not about you. Sure, I could continue to run LDF. Doesn’t mean I should. It doesn’t mean that you’re stepping out of the work. It just means that you’re building the troops. So I think we need all hands on deck.
Sherrilyn Ifill, thank you so much for joining me.
Thank you, I really enjoyed this. [MUSIC PLAYING]
- jane coaston
Sherrilyn Ifill is president and director-counsel of the NAACP Legal Defense and Education Fund. For more about these cases and Ifill, I recommend Sherrilyn’s 2018 book, “A Perilous Path: Talking Race, Inequality, and the Law.” She co-authored it with Loretta Lynch, Bryan Stevenson, and Anthony C. Thompson.
The Argument is a production of New York Times Opinion. It’s produced by Phoebe Lett, Elisa Gutierrez, and Vishakha Darbha. Edited by Anabel Bacon and Alison Bruzek. With original music and sound design by Isaac Jones. Additional engineering by Carole Sabouraud. Fact-checking by Kate Sinclair and Andrea Lopez-Cruzado. And audience strategy by Shannon [INAUDIBLE]. Special thanks this week to Kristin Lin. [THEME MUSIC]