Why doesn't Sheriff Hennessey believe in a color blind society?  Mr. Hennessey states, "when a Black defendant walks into a courtroom that has a White judge, a White prosecutor, White lawyers and jurors, and all White guards, that defendant may feel like it’s an “us versus them" situation." The truth is, this racial make-up Hennessey describes does not exist in San Francisco. Hennessey just doesn't get it. It is us against them. The good guys against the criminals. Race is not the issue.

An Excerpt from the Racial Privacy Initiative. Impact on City Programs

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San Francisco Human Rights Commission The Racial Privacy Initiative: Anticipated Impacts on City Programs 15 D. Issues Committee: Impact on San Francisco’s Law Enforcement Representatives from the San Francisco Police Department, Sheriff’s Department, Public Defender’s Office, District Attorney’s Office, and Office of Citizen Complaints each spoke about the impact that RPI would have on their offices should it pass. 1. Earl Sanders, Chief of Police, San Francisco Police Department Earl Sanders, Chief of Police for the San Francisco Police Department (SFPD), has worked as a San Francisco law enforcement officer for 38 years. Chief Sanders stated that the SFPD uses racial descriptions in its work, and that racial data are documented in the SFPD arrest records and/or contact records. To the extent that these data are used as an investigative tool, their use and collection will not be affected by the proposed initiative. However, the SFPD also collects racial data beyond that used in conducting criminal investigations. For example, San Francisco’s citizens requested that the SFPD collect racial data relating to traffic stops because of allegations of racial discrimination (profiling) by police in conducting these stops. These data are being used to assist the department in offering better training, education, supervision, and management of officers, as well as to impose possible sanctions against those who use an individual’s race in a negative way. The purpose of collecting racial data is to determine whether individuals are being treated differently or being discriminated against because of their racial group. The SFPD strives to serve a diverse community, and an essential part of how this is accomplished is by employing a diverse staff. RPI would affect recruitment efforts in the department. When personnel are chosen with diversity in mind, the department is able to get the best of the best officers. Chief Sanders expressed that historically, the SFPD has led the way in diversity. At the time that Chief Sanders (then Assistant Chief) issued this report to the Committee, the SFPD had an Asian (Chinese American) Chief, an African American Assistant Chief, an Irish American female as a Deputy Chief, and an African American female as a Commander. Chief Sanders stated that recording racial data assists the department in keeping balance and representation of the people it serves. This diverse representation in the department would be affected negatively should RPI pass. 2. Michael Hennessey, Sheriff, San Francisco Sheriff’s Department Sheriff Michael Hennessey stated that RPI would place the government in a position of being uninformed about its citizenry and/or the impact of its programs for its citizenry. He explained that the initiative provides certain exemptions for some law enforcement functions. However, his department maintains data and classifies people by ethnicity or race in ways that would be prohibited by the law, but that benefit the department and community, and maintain the safety of the city’s jails. RPI provides an exception for the classification of prisoners, but this exception has some limitations.

San Francisco Human Rights Commission The Racial Privacy Initiative: Anticipated Impacts on City Programs 16 In San Francisco, for example, according to the US census, the African American population is approximately 8%. Because the Sheriff’s Office is able to keep and gather statistics on San Francisco’s jail population, it is known that the jail population is 54% African American. Having this data raises the question of whether San Francisco’s criminal justice system has a disparate impact on a particular community, in this case, the African American community. This begs the question of whether our laws are being enforced fairly and evenly. We can ask whether or not the OR system (wherein inmates are released on their own recognizance, without bail) operates fairly and evenly. Is the bail system being enforced in an evenhanded manner? Having statistics that raise those questions makes for a fairer justice system. Second, the Sheriff’s Department operates a number of programs in the jails that are designed to help people better themselves. These include educational programs, drug treatment programs, job development programs, and psychiatric programs. Mr. Hennessey stated that it is important that these opportunities be available on a non- discriminatory basis. Keeping statistic enables the department to monitor, for example, whether or not Black inmates are able to get into educational programs as frequently or at a similar percentage as White inmates or Asian inmates. Mr. Hennessey believes that under RPI, the department would be unable to gather and use such data. A third way that RPI would limit the department’s efforts to eliminate discrimination relates to employment practices. The department conducts outreach to all the different ethnic communities in San Francisco in an attempt to recruit a diverse work force. Having African-American officers in proportion to the large percentage of African- American inmates helps make the jails safer, said Sheriff Hennessey. Similarly, it’s important to have gay officers since we have gay inmates, and to have Asian officers not only because of some Asian deputies’ bilingual abilities but because prisoners in custody are frightened, don’t know whom to turn to with a complaint, don’t know whom to trust. There is often a visual and cultural bonding that occurs between prisoners and staff when there is an ethnic similarity. If the department is able to adjust its hiring practices to reflect its prisoner population, it is better able to gather complaints and information from inmates, and helps reduce tensions between inmates and staff. Mr. Hennessey explained that when a Black defendant walks into a courtroom that has a White judge, a White prosecutor, White lawyers and jurors, and all White guards, that defendant may feel like it’s an “us versus them” situation. The Sheriff’s department does not want to see that happen in San Francisco. RPI would limit the department’s ability to recruit and maintain a diverse staff. Fourth, prohibiting the government from gathering this data is going to make the government more vulnerable to attack in cases of allegations of racial discrimination. For example, Mr. Hennessey explained, if there is a job opening and he has the authority on a promotional examination list to pick from the first three candidates, if he skips over a Black person to select someone else whom he considers more highly qualified, that person might claim racial discrimination. If he can show his past practices, such as that in 27 other cases he promoted the Black person who was most eligible, he’s able to

San Francisco Human Rights Commission The Racial Privacy Initiative: Anticipated Impacts on City Programs 17 defend his practices. If the department is unable to collect or keep such data, he cannot defend his choice. 3. Kevin Allen, Deputy Public Defender, Office of the Public Defender The Public Defender’s office is a representative agency for all indigent people in San Francisco. It often relies on statistical information to do its work. While the department does not have a staff member designated to gather statistical racial information regarding the jails, the office relies on Sheriff Hennessey’s statistics on the racial makeup of the jail population. Based on these statistics, the office can question whether or not disproportionate numbers of inmates of a certain race are imprisoned based on some invidious type of prosecution and selective enforcement of the law. The department relies on this statistical data when defending a person under the laws of the State of California and the Federal Constitution (particularly the Equal Protection Clause and the 14 th Amendment), which provide equal rights for every person. The Public Defender’s Office also collects racial data in its intake process. For example, the office documents the nationality of many of its clients because there may be immigration consequences for criminal defendants. In order to provide reliable and responsible representation, it’s important that the office gather this information from clients so that it can fully inform them of the consequences of a conviction or plea. In fact, if attorneys don’t inform their clients of the immigration consequences, case law makes clear that they can be found to have provided ineffective assistance, and can be brought before the Bar. Often it is important not only to know whether or not a person is a United States citizen, but more specifically, at times it is critical to know where a person is from. For example, if someone is from Cuba or Afghanistan, they can be informed that the U.S. is unlikely to deport them. That may affect what happens in every day practice in the courtroom. In some cases, attorneys confer with the Immigration Legal Resource Center here in the City for such information. Mr. Allen agreed with Sheriff Hennessey concerning the importance of employing a diverse staff. When a defendant walks into a courtroom and sees only people of one race, it is disconcerting. People need to feel comfortable. To have a criminal case pending against you is not fun; it’s not enjoyable; it’s nerve-racking. At times, the Public Defender may be the last friend these people have. For them to see diversity, at least somebody else sitting across from them whether it is a Black defendant seeing a Black attorney or an Asian attorney, then they feel that it isn’t us against them. If you have one race of people that is prosecuting, defending, and judging—and another that is coming through the doors dressed in orange, defendants are going to feel that they are not getting a fair and proper defense. Mr. Allen explained that having a diverse staff also helps in providing clients with the best possible defense. For example, he stated that recently he was reviewing a tape that was interpreted from Tagalog. His office mate, who happened to be Filipino, noticed that the interpreter was making mistakes. Because the office staff is so diverse,  80 attorneys representing 20 nationalities, gay, lesbian, male, female, tall, and short, they can share information about cultural practices and background that may help them better defend their clients.

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