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Criminal Justice Magazine
Fall 2004
Volume 19 Number 3

IN THE TIME OF BROWN:
An Interview with Judge Arthur L. Burnett, Sr.

By Myrna S. Raeder

Editor’s Note: In honor of the 50th anniversary of Brown v. Board of Education, 347 U.S. 483 (1954), which set the standard for desegregation of American public schools, Myrna S. Raeder, a law professor at Southwestern University Law School in Los Angeles and former chair of the Criminal Justice Section, interviewed the Hon. Arthur Burnett, Sr., a long-time and active member of the Section, including a stint as chair of the magazine’s editorial board. Judge Burnett began his legal career at the start of the civil rights movement and offers a unique and compelling personal history of that time and its lasting impact on his professional career.

Myrna Raeder: Judge Burnett, it is a real privilege to interview you during the 50th anniversary of Brown v. Board of Education. Most of our readers know you through your longtime service to the Criminal Justice Section, and particularly as a former chair of Criminal Justice magazine. However, the ABA is only one of many organizations to which you devote your efforts, and I hope readers will first take a look at your other accomplishments listed in the sidebar before reading further.
While we have worked together on many Criminal Justice projects over the years, I still remember our first encounter in 1972, when you were a federal magistrate-judge and I was a newly minted lawyer in the Georgetown Prettyman Fellowship program. At the time, I didn’t know that you were the first African-American United States magistrate in the country, one of many firsts you have achieved.
You were at Howard [University] when Brown was decided. What role did race play in your own education and why did you choose to be a lawyer? Did you have a role model?
Judge Burnett: I was born in 1935 and grew up in a segregated America. When I started reading, something inside caused me to have a burning desire to do something about Negroes being sentenced to prison more harshly than white individuals and the limits and restrictions on what Negroes could do with their lives as to opportunities and pursuit of careers and professions. I thought it was so unfair that persons were judged by their “color” or “race.” It was like a “calling” . . . a part of my “inner core.” No, I did not have a role model—I knew no “colored” lawyers. This was before I had even heard of Thurgood Marshall, whose exploits I only began to study and follow when I became a teen.
In my senior year of high school—1951 to ’52—I was discouraged from pursuing my dream of becoming a lawyer. My high school agriculture teacher wanted me to go to Tuskegee Institute to become an agricultural expert. My high school principal wanted me to go to college to become a schoolteacher. My Baptist minister wanted me to go on to Virginia Union Theological Seminary to become a Baptist preacher. But I insisted that I did not want to preach to people just on Sundays; I wanted to change society and work on behalf of bringing justice to Negroes in all aspects of their lives, seven days a week.
Prof. Raeder: What type of challenges did you face due to your race in applying to law school?
Judge Burnett: I ended up at New York University School of Law in 1955 under some rather unusual circumstances. I had intended to go to Howard University School of Law and was a sophomore in college at Howard when Brown was decided May 17, 1954. At the beginning of my junior year, Howard Vice President James Nabrit, who had been lead counsel in Sharpe v. Bolling, asked me to consider applying to a six-year, college-and-law-school combination program at the University of Virginia School of Law. To enter law school in 1955, I was told to be prepared to become a plaintiff in the Prince Edward County School Board case to enforce implementation of Brown in Virginia. I was then the top student in my class at Howard with a 3.93 grade point. I was also advised to apply to several other top law schools as backup, and applied to Columbia, New York University, Syracuse, and Boston. I was admitted to all four of these schools, but heard nothing from the University of Virginia. At that time, Virginia was engaged in massive resistance to integration, and the Ku Klux Klan and others had indicated that any Negro who dared to integrate a white school in Virginia would be subject to violence—possibly death.
Mr. Nabrit advised me that he and Thurgood Marshall were negotiating with the U.S. Department of Justice to assign two U.S. marshals to protect me, and they were also going to federal court for an injunction mandating that the University of Virginia admit me. I had applied in October 1954; finally, in April 1955, James Nabrit called me to his office and told me that he and Marshall had been discussing “my special circumstances” and that Marshall had decided they had other priorities at that time, and that Virginia had offered to pay all of my tuition and book expenses [to attend a different school]. They said they wanted me to go to New York—to Columbia—to prove that a little Negro boy from rural Spotsylvania County, Virginia, could be just as good as they were, which I took to mean that they preferred that I go where I could show that I could do as well as what they considered to be the most outstanding scholars in the country.
There was one other significant event at this time. As a college junior, I had also applied to New York University School of Law for the prestigious Root-Tilden Scholarship. When I was interviewed by two members of the screening panel—Chief Judge Parker of the United States Court of Appeals for the Fourth Circuit and U.S. Senator Harry Byrd—I was told that I should become a social worker or a probation officer and not waste my time going to law school. I replied that I felt law was a medium to bring about change and improve people’s lives, and that I plan to stick with my goal and become an outstanding lawyer.
Prof. Raeder: Tell us about your law school experience at New York University School of Law.
Judge Burnett: I entered law school with the determination to excel. Every other time a student was called on in class, I was that student. I was always prepared and had either the correct answer or a persuasive answer. I slept only five hours a night. Even when the professor criticized my answer, my classmates rallied in support of me, and, instead of being ostracized and ridiculed, I was encouraged and accepted by my classmates. Indeed, in many instances, from their comments about Negroes in general, it appeared that they “forgot” or did not see me as a Negro. I frequently reminded them that their acceptance of me demonstrated why they should not engage in stereotyping people. I became a class officer and even president of the Benjamin F. Butler law club.
While Columbia had been my first choice, I chose New York University because it also awarded me a full faculty scholarship for law school and made me a teaching assistant for two years in the master in laws program in tort litigation with the famous Emile Zola Berman. I felt a strong sense of responsibility to the law school for the faith it had placed in me and felt I had to excel—some would say I had a compulsion to excel—and I did. I made law review, received the Founders Day Award for being in the top 10 percent of the class, and graduated 24 out of a class of 267 in June 1958.

Prof. Raeder: How did race factor into your early legal career?
Judge Burnett: I entered law school intending to seek a legal career in the military in the Air Force Judge Advocate Corps. At the beginning of my third year, my classmates persuaded me to apply for the U.S. Attorney General’s Honors Program with the Department of Justice, and for the honors program with the Atomic Energy Commission. I was reluctant to do so because I felt that racial discrimination would lead to rejection. I thought I would face another University of Virginia “stonewalling” and that the effort was not worth my time. It would be a joke. But my friends “twisted my arm.” I was eleventh in my class at that time. In the fall of 1957 I was selected by Deputy Attorney General Lawrence Walsh for the Attorney General’s Honors Program. I decided then that I wanted to go “inside” the Justice Department to make sure that “Lady Justice” really was blind and did not see race or color of skin in deciding a just result in a particular case.

Prof. Raeder: All of us who know you can’t help but be impressed, not only by your success, but also by your grace and equanimity. Tell us about your philosophy in dealing with the hostility you often met and how you weathered personal and professional attacks.
Judge Burnett: Those who know me well know that I am a very religious person. I have always endeavored to suppress anger, neutralize bias and prejudice, to live with the utmost integrity and courage, and show by my actions and deeds what a quality life should be. I have always attempted to approach life’s issues and problems with a positive attitude that “I can” and “I will” overcome, and demonstrate the best character traits. Though a victim of segregation, prejudice, and race bias, I have attempted to bend over backwards to judge and evaluate every individual based on
his or her merit and inner qualities, and to be as free as humanly possible of prejudice and bias to any person of any
race, gender, sexual orientation, or any other basis of
differentiation.
You reference “professional attacks”; I prefer to call them “professional challenges.” I always felt that I had to be twice as thorough in my legal analysis and my persuasive skills to prove that just because my skin was brown it had no bearing on the quality of my legal work. I was compelled to leave no stone unturned or case unread in an effort to give to the profession my very best for the past 46 years.

Prof. Raeder: I understand that you gave up an opportunity to work for Thurgood Marshall doing civil rights litigation in favor of joining the Department of Justice. What were the reasons for that choice, and were you able to do what you hoped? Were you criticized for your decision?
Judge Burnett: Shortly after being selected for the Attorney General’s Honors Program, I had an interview with Thurgood Marshall. This is one time I wish I could have cloned myself, but I told Thurgood that not many Negroes get the opportunity to work in the Justice Department, and I wanted to bring the civil rights movement and the principles of Brown to bear on the administration of criminal laws by the government itself. I told him that there were other Negroes who could work with him on civil rights litigation and in the NAACP; I wanted to be the inside “agent for equality” in the criminal justice system. He said he understood. From that point on, Thurgood Marshall treated me as if I was a nephew, and through the years we discussed my endeavors. I was never criticized for that decision, although some suggested that, had I gone with the NAACP and Thurgood Marshall, my legal career might have taken a different path and I might have ended up on the federal bench.

Prof. Raeder: You were the legal advisor to the Metropolitan Police Department in the District of Columbia in the late 1960s. What was the relationship between the police and the community at that time? Did race factor into the issues you were consulted about?
Judge Burnett: I took the job of legal advisor (now called general counsel) in December 1968, and race did enter into the issues brought before me. In the 1950s, the Metropolitan Police had a reputation for arresting Negroes for investigation without probable cause. I was also concerned about false arrests, and the excessive force used in making those arrests. I applied for the job in order to eliminate these practices by ensuring that law enforcement practices were racially blind and that the department complied with Supreme Court decisions regarding probable cause, arrest and search warrants, stop and frisk, and lineup procedures. I wrote the general orders for the Metropolitan Police Department on these issues, and laid the groundwork for expanding the legal advisor’s office to include five lawyers to work with the department to help it comply with these goals. One of the legacies of which I am proudest is that, since 1968, we have not had major incidents of police brutality or police violation of the civil rights of citizens in the District of Columbia. I like to feel that I played a significant role in setting that tone.

Prof. Raeder: What led to you becoming a magistrate judge?
Judge Burnett: I expected to serve as legal advisor to the Metropolitan Police Department for at least three years, but was asked to submit an application for the court and saw an opportunity to get into the federal judicial system on the ground floor and instigate reform at the entry level.

Prof. Raeder: As a magistrate judge, were you able to further any of your goals concerning racial equality? I know you chaired the Judicial Education Committee. What did you hope to accomplish in that role?
Judge Burnett: I wrote the material for newly appointed U.S. magistrates at the Federal Judicial Center on how to administer a bail and pretrial release system that would be racially blind. As to arrest warrants and search warrants, I was able to establish standards that stood up on appellate judicial review. I taught that the standards for probable cause to search are the same in a public housing project as in an affluent residential area. I turned preliminary hearings into meaningful exercises and not just a rubber stamp proceeding for the police or the prosecution. Indeed, I set up a test case—Coleman v. Burnett—in the United States Court of Appeals for the District of Columbia Circuit in which Chief Judge Spottswood Robinson established the legal principle that defense counsel has the right to subpoena witnesses to a preliminary hearing, if such a witness would negate probable cause, showing, for example, that no crime occurred or that the government had the wrong person. To a limited extent, the preliminary hearing was a minibench trial and could lead to a finding of no probable cause. The principles of this case were later adopted in the formal rules for U.S. magistrate judges system.
Finally, I testified before the Senate Judiciary Committee in opposition to the position taken by then-Attorney General Griffin Bell and the Justice Department that parties who consented in civil cases to a trial before a U.S. magistrate could seek a de novo trial in district court if any of the parties were unhappy with the magistrate’s decision. I proffered the view that this procedure would add expense to the litigation process, delay the final resolution of civil cases, and discourage such parties from using U.S. magistrates. I also emphasized that U.S. magistrates were highly qualified, having been selected by the district judges. Finally, I argued that the requirement of consent was a potent quality control feature; if U.S. magistrates wanted to continue to try consent civil cases, they would have to impress the bar with the quality of their judicial work. The quality of the U.S. magistrate system today is due in no small part to the groundwork laid by those of us who helped establish the standards and procedures used in handling civil rights litigation in the federal courts.
I was a U.S. magistrate judge for more than 14 years, serving as chair of both its Education and its Legislative Committees. In 1984 I became president of the National Association of United States Magistrates, and I see the evolution of the U.S. magistrate judges system as one of the legacies of my commitment to equality in the criminal justice system.

Prof. Raeder: When you graduated, there were very few lawyers of color. What is your view of the benefit of having a diverse bench and bar?
Judge Burnett: I hope that the presence of a more diverse bench and bar will lead to an improved cultural sensitivity on the part of those who administer justice; I also hope it gives litigants a sense that the court system will better understand and appreciate them and their problems. I hope it helps all minorities begin to trust the courts more to resolve their problems. Those within the court system will become broader in perspective and understanding and, hopefully, be empowered to render an even higher quality of justice. Many judicial decisions—both in criminal and civil litigation—require the wise and provident exercise of judicial discretion, and increased exposure and comprehension that diversity brings should lead to better exercise of that judicial discretion in achieving true justice. A diverse bench and bar should also encourage more minorities to go into law as those already in the profession act as role models.

Prof. Raeder: Is enough being done to encourage minorities to become lawyers and judges? How do you view your role as a mentor?
Judge Burnett: The simple answer is “no.” We need more lawyers—Caucasian and minorities—to go into public interest work and to render pro bono services. We are greatly concerned about effective assistance of counsel in criminal defense work and the problem of wrongful convictions. We need more lawyers—more effective lawyers—in our juvenile justice system. We need compassionate lawyers who are trained in child development and psychological issues to go into the family law area to deal with child custody matters and children in foster care. As for judges, we need more minority judges from all segments of our society, who should interact with each other to improve their perspectives and cultural sensitivity. As a mentor, it is my responsibility to be a role model and motivate more minorities to become lawyers and judges.

Prof. Raeder: Some people assume that racism is no longer a factor in a person’s ability to succeed. What are your thoughts about this topic generally and in light of your own experiences?
Judge Burnett: Unfortunately, we have not reached the state where race no longer matters. Frequently, unconscious racial assumptions are made based on a person’s physical characteristics, or language, or manner of speaking. One only needs to think of the reactions in the last few years to those who look Arabic, or Pakistani, or Indian. Just this past year, a white individual approached me in a hotel as if I were a service employee—even though I was attired in a suit. (I simply responded that I was a guest and not a hotel worker.)

Prof. Raeder: You have been very involved in efforts to prevent juvenile delinquency. What prompted your interest? How has the juvenile justice system changed over time and what trends do you see for the future?
Judge Burnett: In presiding over adult criminal cases in both federal court and the District of Columbia’s superior court, I became convinced that if we want to reduce the crime rate, the prison population, and the recidivism rate, it is vitally important to put our efforts and resources into the juvenile justice system to ensure that a child’s encounter with the juvenile court will be his or her only contact with the criminal justice system. I believe the quality of legal skills, availability of resources, and sentencing or disposition options should be far superior in the juvenile justice system if we are to “nip a criminal disposition in its bud.”
The juvenile justice system shifted in the 1970s and 1980s from an emphasis on rehabilitation and treatment to one of incarceration and protecting the safety of the community. Now there is a shift to finding a balance between the two. We see more concern about dealing with emotional and mental health issues that are often the underlying factors to delinquent conduct. We need to move aggressively to address these issues in community-based facilities. We need to provide more counseling, intensive therapy, and treatment in a community setting rather than warehousing in a detention center a youngster who, when released, is a greater threat to the community than when he or she was initially detained. These are some of the issues I will focus on in my new position as the executive director of the National African-American Drug Policy Coalition, emphasizing education, prevention, and treatment to reduce illegal drug usage by African-American youth.

Prof. Raeder: What are your views about African Americans being overrepresented as both victims and offenders in the criminal justice system?
Judge Burnett: This is a tough question. There are three significant factors bearing on the issue. First, more African Americans are arrested because of greater police presence and concentration in African-American neighborhoods. Second, the absence of labor-type jobs and unskilled work has led to greater unemployment, especially among African-American males, who then turn to drug trafficking and other criminal enterprises. Third, crack cocaine and other illegal substances, and the accompanying prostitution, has left the African-American family far more dysfunctional, and frequently without a stable adult male in the home. As a result, children often receive little or no moral grounding or guidance in the years between birth and when they start kindergarten. They then start out far behind in reading and literacy skills and are playing catch-up throughout the education process. The socioeconomic deprivation leads African Americans to see no promise in their futures; they, in turn, perpetrate crimes upon other African-American victims. And the cycle goes on. We need a “Marshal Plan” for all our urban communities that will directly address these problems and change this vicious cycle that has gone on for more than 30 years.

Prof. Raeder: What do you view as the most pressing issues facing the criminal justice system today?
Judge Burnett: Obviously, a major issue is whether we have too many behaviors described as crimes in our society. Do we overcriminalize conduct? Do we imprison people for too long? Although sentencing guidelines were meant to be the great equalizer—to ensure like sentences for like conduct for offenders with like backgrounds—have they become a straightjacket too rigidly enforced without the flexibility to show compassion and mercy in individual circumstances? Have legislatures placed too many restrictions on judicial discretion in sentencing? What changes need to be made to allow those leaving prison and reentering society to make healthy adjustments and not become recidivists because of collateral consequences of convictions and other obstacles placed in their path?

Prof. Raeder: If you could change one aspect of the criminal justice system what would it be?
Judge Burnett: I am not sure I have the wisdom of a Solomon; however, I would treat illegal drug offenses differently than we now do. For the individual caught with only a small quantity of illegal drugs for self-use or the addict involved in small-time selling simply to get a personal supply to subsist, I would treat the situation first as one demanding a public health and medical response rather than criminal prosecution. But treatment must be “real”—it must be for a significant duration followed by an effective aftercare program. And it must be holistic, in that the person must not only become drug-free, but also be trained to perform a job that is in demand in the market with a decent wage. We must also provide access to affordable housing and transportation so that the individual can have a stable, functional existence, minimizing the risk of relapse or criminal recidivism. In my view, this front-end approach to the drug problem would greatly decrease our prison population and reduce the heavy economic burden that taxpayers bear to keep individuals incarcerated as opposed to in a treatment program.

Prof. Raeder: What has been your greatest disappointment in the law?
Judge Burnett: Some changes in the law take too long to accommodate the needs of the people impacted. Other than the delays that occur in the political process in the appointment of judges and the checks and balance system of our three branches of government, I conclude that our legal system has functioned very well. I have experienced no significant disappointment in the law.

Prof. Raeder: You have devoted considerable time over the years to the Criminal Justice Section of the ABA. Are there projects you are particularly proud of?
Judge Burnett: Yes. I am most gratified with my service on the editorial board of Criminal Justice magazine, having served as chair, and the quality of articles we have published during the past decade. I have also served with you for the last two years on the Innocence Project Task Force to prevent wrongful convictions and ensure that law enforcement pursues finding the real wrongdoer, thus, increasing public safety. I have been involved in the work of the Juvenile Justice Committee for more than 20 years and have had the opportunity to make many recommendations that were favorably acted upon. Finally, I have had the experience of serving on the Council of the Criminal Justice Section and have relished the debates on criminal justice issues, finding them to have been thorough, passionate, and scholarly.

Prof. Raeder: Tell us about your new position as national executive director of the National African-American Drug Policy Coalition.
Judge Burnett: The coalition will focus on educating middle and junior high school African-American youth about the dangers of illegal drug usage, not only from a legal point of view but also as to the medical, psychological, and socioeconomic impact of such usage. We will send panels of experts—lawyers, judges, doctors, dentists, psychologists, social workers—into our urban schools to address student assemblies and classes of 40 or more students throughout the school year. We will work with the National Association of Drug Court Professionals to expand the use of drug courts and treatment programs as an alternative to incarceration, and we will urge legislative bodies to appropriate far greater funding for such endeavors, including intensive aftercare. We will encourage prosecutors to use treatment as an alternative to criminal prosecution. We intend to establish pilot programs in at least seven cities in the coming year where local coalitions will work directly with the criminal, family, and juvenile courts to get people into treatment programs, with mentors and wraparound services so as to be effective as an alternative to the penal incarceration approach we now take. We will offer our comments to Congress and state legislatures as to the changes needed in our drug laws and policies on mandatory sentences, the length of sentences, the exercise of judicial discretion in sentencing, and on reentry. We will sponsor symposia, seminars, and conferences on best practices, and publish handbooks for use by judges nationwide. We will coordinate with the National Council of Juvenile and Family Court Judges, with the American Bar Association Steering Committee on the Unmet Legal Needs of Children
(on which I serve), and work closely with the U.S. Department of Health and Human Services and its components, SAMHSA, CSAT, CSAP, and with the National Institute of Drug Abuse, and the Office of National Drug Control Policy in the White House.

Prof. Raeder: What motivates you to keep up such a
hectic pace and how do you find enough time for all of
your activities?
Judge Burnett: The answer is simple: There is such a need. So much remains to be done. I have been blessed in my life, and with my family, with five children who are successful professionals and happy in their individual lives, and with a wonderful and understanding wife who has shared 44 years with me. I am in good health and have plenty energy. Thus, I feel the need to do what I must and answer the call to serve as long as I can.

Prof. Raeder: What would you like to be remembered for?
Judge Burnett: As a person who gave his life completely to improving the administration and quality of justice for all people, without discrimination based on race, national origin, gender, or any other invidious basis for differential treatment in the circumstances presented.

Prof. Raeder: Is there anything else that you would like to tell our readers?
Judge Burnett: I hope I have not bored you. I have not intended to be egotistical. Rather, I am very thankful for the rich and rewarding professional life I have had.

Prof. Raeder: Thank you for sharing your personal experiences with our readers. I am delighted to be able to express my gratitude for the many years that you have served as a role model and mentor.

RETIRED, BUT HIS DOCKET IS STILL FULL

Reading Judge Burnett’s list of accomplishments makes one wonder whether he ever stops to sleep. He graduated Howard University summa cum laude, where he was elected to Phi Beta Kappa. At New York University School of Law he was an associate research editor of the law review. Before his appointments to the Superior Court of the District of Columbia and as a magistrate judge with the United States District Court for the District of Columbia, he served as general counsel of the District of Columbia Metropolitan Police Department, as an assistant United States attorney in the United States Attorney’s Office in the District of Columbia, and as a staff attorney in the Criminal Division of the United States Department of Justice. He was the superior court’s community relations liaison judge, generating community support for the creation of mentoring and other programs to reduce juvenile delinquency and prevent recidivism, as well as working with many groups in the District of Columbia to improve the foster care system, the operation of the adoption programs, and the handling of neglect and abuse cases. He also served as the “judge-in-residence” with the Black Community Crusade for Children at the Children’s Defense Fund, promoting such programs and activities nationally in dealing with children in the juvenile delinquency, foster care, and adoption systems. In addition, he is an adjunct professor for appellate advocacy at the Columbus School of Law at Catholic University and in trial practice at Howard University School of Law. A number of organizations have honored him, including the American Bar Association, the National Bar Association, the Federal Bar Association, and the Washington Bar Association. Now, instead of enjoying senior status, he has taken leave from the bench to become national executive director of the National African-American Drug Policy Coalition.
— Myrna Raeder



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