To many, the 47-month sentence that Judge T.S. Ellis III handed down to former Trump campaign chief Paul Manafort this month, a sentence that fell far below federal guidelines, smacked of racism. Despite the severity of Manafort’s crimes, it seemed that Ellis gave him benefits of the doubt that are routinely denied defendants who aren’t white and wealthy — a point made clear as lawyers and politicians rushed forward with examples of defendants receiving harsher sentences for far less severe crimes.
The argument that the justice system plays by two sets of rules is not new. But the sentence Ellis handed down shined a light on the role of judges in that system, something usually neglected by reformers focused on sentencing guidelines and, more recently, prosecutors. Yet while judges such as Ellis play a critical role in maintaining an unequal system, they can also help to dismantle it, as Detroit judge George Crockett Jr. showed 50 years ago.
One of Detroit’s few black lawyers in the 1940s, Crockett co-founded Goodman, Crockett, Eden, and Robb, which is believed to be the country’s first interracial law firm and one that regularly represented immigrant defendants. Throughout his time at the bar, Crockett earned a reputation as a champion of the Constitution and the marginalized.
Crockett witnessed the inner workings of a two-track justice system that mostly upheld the rights of people who were white and economically comfortable but that abridged due process for people of color and poor folks. Police ran roughshod over the rights of the latter, and prosecutors often helped. Detroit’s judges, who could have served as a brake in this system, instead practiced what Crockett called “the old habit of accommodating the police and the prosecutor’s office,” deferring to them on questions that ranged from habeas corpus to bail to sentencing. Judicial “accommodation” allowed police misconduct and brutality, primarily against the poor and minorities, to go unchecked.
This reality prompted Crockett to run for, and win, a judgeship in 1966. He aimed to embody the judicial ideal of independence, as opposed to his colleagues’ willingness to hop into bed with police and prosecutors. That was a difficult goal in the 1960s. So distorted was the system that when judges resisted requests from law enforcement, media outlets, public officials and citizens condemned them as anti-police. By 1969, Crockett wrote, judicial accommodation of police and prosecutors had gone on “for so long that to most of us, the violation of the law is the law.”
When Detroit erupted in a five-day uprising in July 1967, the difference between Crockett and his peers was stark. Police swept up 7,200 citizens, more than 80 percent of whom were black. Wayne County Prosecutor William Cahalan requested judges’ help in keeping people “off the streets.” Police made hundreds of illegal arrests, Cahalan’s office rubber-stamped warrants, and judges upheld the indictments. To keep people in prison, most judges set bails of $10,000 to $25,000, often for petty misdemeanors. Some indicted whole groups of people at once, and the bench’s executive judge even ordered the sheriff to consult him if any defendants tried to post bail so that he could potentially raise bail to an unpayable level.
But not Crockett — he would have none of it. He individualized bail, with levels of $2,000 or less for the majority of people who came before him. And he threatened the sheriff with contempt of court if he didn’t honor bonds. For years afterward, Crockett spoke out about the unequal justice displayed during the uprising. “Try to imagine what our system of justice — and those who administer it — would have required if these defendants had been white or rich,” he wrote. “Hundreds of cases can be cited to show that for such defendants, personal recognizance would be the only requirement for their immediate release.”
While the uprising exposed the willingness of judges to operate as appendages of police and prosecutors, a case a year and a half later showed how distorted the public’s expectation of the justice system had become. On March 29, 1969, the Republic of New Africa, a radical all-black group dedicated to reparations and building a black nation in the United States, exchanged gunfire with Detroit police outside a church, leaving one white officer dead. Police sprayed the church with gunfire, stormed in and arrested all 142 men, women and children inside.
Local ministers notified Crockett, who hurried to the precinct to discover that police had still not made a list of the arrestees and no one had been allowed to make phone calls. So he demanded a makeshift court be set up in the precinct and commenced habeas corpus proceedings. Detroit police had mass-arrested citizens because they were black and radical. Crockett wouldn’t allow it to stand unchecked.
Over the next several hours, prosecutors moved to release 130 arrestees. But Cahalan wanted nine individuals detained as “key suspects,” because they had tested positive when police administered nitrate tests to detect gunfire residue. Crockett ordered their release on the grounds that the tests had been unconstitutional and that the police had violated the rights of the arrestees by denying them counsel.
Police and the media erupted, leading to an effort to impeach Crockett. The Detroit Police Officers Association and Detroit News claimed Crockett “release[d] killers” and gave “license to kill policemen.” Off-duty police and their families picketed outside Recorder’s Court, circulated petitions to remove Crockett from the bench and took out full-page ads saying Crockett was racist. Mayor Jerome Cavanagh and the city’s other daily, the Detroit Free Press, backed the police, noting that Crockett’s actions were not “standard.”
As hysteria whipped up and threats against his life mounted, Crockett initially stayed quiet. But after several days, he broke his silence. He corrected journalists’ misrepresentations, noting that it was days before any outlets asked for a copy of the certified proceedings, so willing had they been to take the police and prosecutor at their word. His actions had been “legal, proper and moral,” he maintained. He too wanted “criminals [to] be apprehended.” “But I will not … subvert legal processes and deny justice to some because they are poor or black.”
A double standard in the application of constitutional rights was clear: “Can you imagine the Detroit police invading an all-white church and rounding up everyone in sight?” Crockett asked. “Can anyone explain in other than racist terms the shooting by police into a closed and surrounded church?”
Crockett looked like an activist judge because he maintained judicial autonomy. Racism in the courts had been so normalized that the public reacted hysterically when Crockett challenged this crooked norm.
Months later, Michigan’s Judicial Tenure Commission found Crockett to be in the right. Crockett remained on the bench until 1980.
Judge Ellis defended ignoring prosecutorial recommendations in sentencing Manafort by invoking judicial independence. This shouldn’t bother us. What should bother us, however, is that defendants of color and poor defendants have historically not benefited from such independent thinking by judges. Instead they face judges who act at the behest of police and prosecutors.
As Crockett often reminded his peers, “There is no equal justice for black people in our criminal courts today … because our judges, by their rulings, make it so.” Judges today must be more like George Crockett if we are to have a fair and equitable justice system.