Public Service Voices
Conceptions of Justice: An Interview with Jay Stansell, a Seattle Federal Public Defender
By Ilana Mantell
Class of 2009, William H. Gates Public Service Scholar
Jay Stansell is an Assistant Federal Public Defender in Seattle. He spoke with UWLS 2L Ilana Mantell on August 31, 2007.
IM: Did you enjoy law school?
JS: I went into law school with idealistic conceptions of justice. But we live in a conservative world that values wealth and money above people, and the law is a system that perpetuates those values. It’s an inherently conservative profession, so it’s a conservative education. I actually quit law school during my second year because I was so disillusioned with it. The law might be fair if one corporation sues another and they have similar amounts of money, but the reality of the “chess game” of law is that we punish many people who may have committed a legal infraction, but who are morally innocent. The idea of justice seems disconnected from the legal system. So no, I didn’t enjoy law school, at least not at first.
I was really into politics and the Central American solidarity movement, so after I quit law school I focused on political work. I spent a lot of time talking to people about the law, and the limits of what the law can do. And I was surprised to realize that law school had shaped the way I think about social relations, and my view of the world. Eventually, I decided that I needed to go back. I also wanted to have the law degree as a credential because I thought it would help me in doing future political work.
When I returned to law school, I vowed to focus on classes I cared about, from professors I was interested in. I didn’t worry about taking classes that were on the bar exam, and I stopped worrying about grades. I had got onto law review, but quit when I realized that it didn’t speak to my values and ambitions. So when I went back to school, I decided that my professional goals would follow my identity.
I decided to supplement my law school education by getting internships and doing other volunteer legal work, and that was great. For example, I got to travel around with well-respected lawyers, to churches and other social organizations, talking about the consequences of being a refuge or sanctuary for refugees. Doing internships like that was the right decision – there was only one time in my life when people wanted to see my grades, but every other time people cared about who I am and what I’ve been doing. I got jobs because I spent my time in law school actually “in” the profession, working on things I cared about, and then one thing led to another.
So what was your first job after law school?
I did contract work for a professor at Seattle U, and he actually became a lifelong friend. I also got contract work at The Defender Association, doing appeals. It’s a county level public defender that handles people charged with violating state criminal law. I wasn’t aiming to become a public defender, I just fell into it. My original goal was to do political work on human rights violations in Central America. But it’s an illusion to think there’s one right spot to go to work for social justice – it’s where your heart is. I started doing misdemeanor criminal defense and I realized that there was a lot of human rights work that needed to be done here too. For example, incarcerating people for longer than they need – I think that’s a human rights violation. Or the way that police target young African-American men – that’s a human rights violation too. About 40% of my caseload back then wouldn’t have existed but for law enforcement’s practice of being in the face of every young black man they could. There were so many cases that only existed because of the consistent police oversight of young black men.
In some countries, there is no rule of law. If you’re mugged or robbed in Cambodia, for example, there are no police to help you, and you basically have no recourse. But you also know that if you carefully cross the street, you’re not going to get a ticket for violating one of society’s rules. Whereas here in the U.S. we have rule of law, and an army of enforcement personnel, to arrest or fine you for things like jaywalking. It’s an enormous machine. But if that machine is even the slightest bit out of tune, it creates harm for the people in its way. As a public defender I saw so many poor guys who got a ticket for jaywalking, or some other small thing, and then ended up getting cited for resisting arrest.
What did you do after you were a public defender at The Defender Association?
An opportunity came up doing deportation defense at a local non-profit, and I was interested and qualified because of the work I had done with refugees during law school. I worked on waivers of deportation for people who had been convicted of deportable crimes, but had done their time and been rehabilitated, so I developed expertise in the intersection of immigration law and criminal defense. I consulted on cases of illegal entry after deportation and the immigration consequences of conviction.Immigration cases are the fastest growing area in the federal criminal system. Contrary to public opinion, only a small percentage of them are smuggling cases. The large majority are people who were deported and then re-entered the U.S. to be with their families again. I think it’s a human rights violation that an artificially created border should separate families, so I fight to minimize the damage of laws on people who simply want to be with their families. All of that brought me to the Federal Public Defender, where I’ve been working since 1995.
A lot of the work I do today is sentencing mitigation. If I can get a reduction in someone’s sentence from 15 years to nine years, that’s considered a success. And the fact that it’s a success is atrocious. The policies of both the criminal justice system and the immigration system are atrocious. In truth, the immigration system has been that way for over a century, since at least the 1880s. Imagine the outrage of people who spent ten years building the railroad in the 1800s, who bought homes here and built lives here, and then went back to China for a short visit, only to find that they could not return to the U.S. because a law was passed while they were away saying that they could not return. That actually happened. But it’s outrageous, and it’s unfair. The law was built on outrageous legal constructs and legal fictions, which treat deportation as a civil sanction akin to losing your driver’s license. To try to create a just immigration policy would be to fly in the face of a century of injustice, and the Supreme Court’s support of that injustice.
Our criminal justice system didn’t used to be so bad, but it has ramped up to the point where we now incarcerate more people than any other developed country in the world, by far. Everybody should wake up every morning and be outraged about those incarceration rates. It doesn’t make sense, especially because the overwhelming majority of people who are incarcerated are there for non-violent offenses. And then there were the thousands of people who were kept in detention even after they had served their sentences….
Is that the case you took to the Supreme Court, and won?
Yes. Ashcroft v. Kim Ho Ma. The case began with a number of refugees, mostly from Southeast Asia, that my office represented – people who had committed crimes, served their time, and were ordered to be deported. The problem is that, for example, the Cambodian government wouldn’t take deportees back, so the U.S. government was holding them in indefinite detention. They could have been held in prison forever, even after they had finished serving their sentences. We weren’t arguing against the deportations, we just said these guys should have their freedom until they got deported. So we fought it to the Supreme Court and won their freedom. Then the U.S. government pressured Cambodia into taking them back. The problem is that my clients are guys who had left Cambodia as kids – many of them didn’t even speak the language and they didn’t know the culture. They had no idea how to survive there. And these guys are from families that risked everything to escape from Cambodia – they were terrified that their sons and husbands would get killed when they were sent back.
At that point, there was nothing I could do as a public defender. But I could, as a citizen of the world, try to help them. So I helped establish an NGO in Phnom Penh. I wanted to make sure that these guys didn’t “get disappeared” into the jungle, and to help them find work and housing.
Starting an NGO in Cambodia seems like a far cry from the Public Defender’s Office.
Well, I don’t think that lawyers should pigeon-hole themselves. The fact that my work has informed my life in the community has been the most precious part of my work. It’s all part of who I am. My work reflects my values, and my life outside of work reflects my values – they compliment each other. And the two aren’t as remote as you’d think. Because of my knowledge about Cambodia I got a Fulbright grant to teach a law school course there on International Human Rights Law. It was an amazing experience – I taught aspiring lawyers, in a place with no rule of law, no truly functional legal system. And yet, we would pick up a newspaper and there would be ample evidence of human rights violations in the U.S., like at Guantanamo. And with these Cambodian students we had a wonderful dialogue about how precious the rule of law is, and how susceptible it is to disappearing in a cloud of smoke, no matter what country you’re in. The rule of law is just a concept unless it’s informed by the citizenry of the country you’re in.
Being in Cambodia, where the legal system is a debacle, gave me a lot of perspective on the U.S. system. Before I went there I felt a little worn down about practicing law in the U.S., but when I returned here, I felt grateful to be part of this system. And I had seen that happen when I did the Kim Ho Ma case. Five judges in Seattle, and then the Ninth Circuit, said to the President and his administration, “you’ve got it wrong, this violates the Constitution.” And then we took it to the Supreme Court. John Ashcroft was our opponent. And in spite of the most conservative Supreme Court in 50 years, they told the executive branch that it was wrong, and the executive had to say “okay.” That’s an astounding thing. It’s remarkable. Whereas in a place like Cambodia, somebody in power would make one phone call and the whole thing would be over.
I think my time in Cambodia was rejuvenating because the people were so hopeful. That whole country is at square one. It might be chaotic now, but it’s exciting to think of the possibilities. My class would talk about history, and we’d talk about how, in the U.S. in the 1880s, if you tried to organize a silver mine or to lead a strike in a factory, the owners would hire thugs to beat you up and they’d bring in desperately poor people to replace you. It’s like that now in Cambodia. But we’ve obtained a remarkable degree of law and justice in the U.S. over the past century, because of the hard work of lots of people. And yet, it’s apparent how easy it is to backslide into tyranny, in a place that’s supposedly the beacon of freedom and democracy in the world.
For many people in the world, they look at the Al Jazeera reporter who was swept up while covering the war and has been detained in Guantanamo for the past four years, and they think it’s tyranny. The U.S. is flipping the idea of law in service of democracy and liberty upside down. Democracy and liberty have a fragile spirit, and they can evaporate, as they have in so many ways. People should be outraged because the executive department of the U.S. government, for the last six years, has passed policies to legitimize torture and call it legal, when it defies belief that the leading democracy in the world would behave that way. It’s a human rights violation when the U.S. President and Vice-President say that water-boarding is not torture. Because it’s not degrading? You feel like you’re drowning and that’s an okay thing to do?
So how do you balance these two ideas of, on the one hand, being grateful that the U.S. legal system functions, such that you can convince the Supreme Court to rule against the President, and, on the other hand, feeling that liberty and democracy are at risk?
I recognize that the system here functions well, on some levels. Judges here don’t take bribes – you can’t say that about many countries. But it’s still a draconian system.There are two books I’ve read over and over again in the last couple of years – Orwell’s 1984, and The Grapes of Wrath. 1984 is about gaining political control over the population by making them afraid, through endless war. And we have that. We have a war that will never end, the supposed War on Terror, and we’re spending billions of dollars now in Iraq. But what if we used those billions to bring potable water to everyone on the planet? What heroes we’d be, if we could bring water to everyone, regardless of religion or political beliefs.
The other book I keep returning to is The Grapes of Wrath, which is a beautiful, poetic book about the struggle to take care of your family. Instead of reading it as people moving from one state to another, I read it as people moving from one country to another, moving to take care of their families, suffering from xenophobia and racism. That’s how I see a lot of immigrants and refugees in the U.S. today. They’re moving simply in order to take care of their families. The fact that they’re crossing international borders instead of state borders doesn’t make their lives and their hopes any less important or compelling than Tom Joad and his family in Steinbeck’s book. I don’t know why the American public refuses to see it that way.
It sounds like you enjoy being a lawyer and have had some significant successes, but are often frustrated with the system. Would you advise your children to become lawyers? Would you encourage them to use the law as a tool for social justice?
For me, it’s enormously important to lead a balanced life, and to make time for my kids and my wife. I coached my oldest son’s little-league baseball team for seven years, and I’ve coached my youngest son’s soccer team for five years. They need to understand that this is my life, and these are my clients. They know my clients as family friends, not just as people who got into trouble with the law. My kids understand that good people make mistakes and still deserve to be called family, to be loved and respected. There are no easy answers, but everything flows if we can be kind and loving. I want my kids to understand that once we treat everyone else with dignity and respect, progress on issues of social justice will naturally flow from there.