An advocate for Black lives on the bench

About 100 public defenders marched through the heat in downtown Madison on Monday, stopping in front of the Madison Police Department to listen to Mario White, a former public defender who was recently appointed by Gov. Tony Evers to be a Dane County Circuit Court judge, as he read the names of African Americans killed by police through a megaphone.

The march was part of a nationwide day of action, in which public defenders protested police brutality and a broken criminal justice system on behalf of the victims — their clients.

George Floyd, who was suffocated by Minneapolis police, triggering more than a week of mass protests across the country, could easily have been White or his nephew, who is graduating from high school in Oklahoma this year, White says.

“You just never know,” he adds. “It doesn’t take more than an incident. Any time you’re walking down the street something could happen. You can be jogging in your neighborhood or sitting in your car.” 

Greater public consciousness of police violence might not make Black Americans feel any safer, he says, “but at least people are talking.”

White grew up in Oklahoma, where he attended college. After a three-year stint as a high school math teacher in Dallas, Texas, he moved to Madison to attend law school at the University of Wisconsin. He worked in the State Public Defender’s office for ten years, before becoming a court commissioner in 2018. Over the course of his career, White has had plenty of opportunity to see the disparities in Wisconsin’s criminal justice system up close. He brings a defense attorney’s perspective to his new role on the bench.

On June 2, announcing his choice of White to fill a vacancy left by Dane County Circuit Judge William Hanrahan who is leaving to become an immigration judge in San Francisco, Evers said, “As the last week has shown, we need top-to-bottom change in our criminal justice system to address its systemic racism.”

“One of the ways we can do this is ensuring we have judges who understand and reflect the communities they serve,” Evers added. “As a former teacher and highly accomplished public defender, Mario White will do just that.”

“It’s long been recognized and reported that there is a disparity in incarceration in Wisconsin, Dane County, across the country,” says White. “And the question is, what do we do about that?”

Owning the problem

As a judge, it will ultimately be his decision whether or not people who come before him are incarcerated. “There has to be some ownership of that,” says White.

Police officers who make arrests, prosecutors who charge crimes and judges who “mete out what they think is an appropriate sentence based on certain factors — which include whether or not the person has been incarcerated before” all feel they are just doing their jobs, White says. “So everybody sort of stays in their lane. And the result is, we have a disproportionate number of people of color that are incarcerated. Something’s wrong with that.”

As a public defender, White represented people who were poor and who had committed minor, nonviolent offenses, but who had a previous criminal record. “And so it was just kind of 30 days jail here, 45 days jail there — that’s just sort of where the conversation started sometimes when it came to a plea negotiation. And that shouldn’t be the starting point of the conversation.” 

Treating incarceration as an ending point, not a starting point, is part of the approach White wants to bring to the bench.  

Color of change

As a person of color, he also brings some needed diversity to the courtroom.

The majority of White’s clients were people of color when he worked in the public defender’s office, he says, yet it was striking to him that the overwhelming majority of people who were making decisions about their lives, from arresting officers to judges, jurors and probation agents, were white.

“To the extent that someone believes that they are not getting a fair shake in court, because they’re the only one that looks like them in court, that perception — whether or not it’s actually true — does inform reality and that undermines confidence,” he says. “So I think it’s important for the courts to reflect the community.”

White sees it as a good thing that the public has begun to view the police more skeptically. 

“It shouldn’t be just, well the officer says it, so it must be true.” he says. “We are finding that there are cases in which people have their convictions overturned because of police misconduct.”

“I think it’s important to be critical, to scrutinize the evidence and not just go along with, ‘Well, this is a law enforcement officer, so I want to believe what they say.’”

As one of only a handful of Black public defenders, White had some clients who were very appreciative that they were represented by someone who looked like them. But there were also clients, Black and white, who didn’t want a Black lawyer. “You know, there’s the stereotype of a lawyer, which is a white guy with gray hair. And so if you don’t fit that stereotype, then you’re already at a disadvantage in some people’s eyes.”

That stereotype attaches even more firmly to judges.

As a commissioner, White also heard from people who told him they were glad to see someone who looked like them on the bench — “I think that does have a positive effect on people.”

Not enough good options

When it comes to solving the problem of mass incarceration, “there are not enough good options,” says White. 

“If someone spent a little bit of time in jail, you might do a time-served so they don’t have to spend any more time in jail, put them on probation or incarcerate. I mean those are really the only options.” Community service is another possibility, he adds, but only for certain offenses.

“The problem is there aren’t that many tools that are available for sentencing.” 

As a public defender, White saw probation applied in cases where people did not have a drug or alcohol addiction or other problem requiring treatment and supervision, which only made things worse. 

“Sometimes probation gets overused and that sort of feeds into people being incarcerated, because if you get revoked from probation, your only option is to be incarcerated.”

There will have to be more and better options if we are going to move away from the prison pipeline and toward a more equal society. 

Defund the police?

White says he has only recently begun reading about the Defund the Police movement. “My understanding is that it’s just sort of pre-allocating resources to more community-based programs, rather than spending that money on law enforcement. So it’s an interesting concept.”

But, he adds, “I think the title of it is a misnomer, which leads to people instantly dismissing it.”

He agrees that law enforcement officers are too often expected to serve as social workers and mental health providers, “all these things that they’re just not equipped to be.”

“And certainly, you know, having a stronger mental health system, social workers, counselors, community programs that intercede — everybody would agree that would be better.”

White has enjoyed living in Madison for the last 15 years and says he hasn’t had any personal run-ins with the police, “So I don’t have that personal story that a lot of people may have.”

But, he adds, “I know what my clients would say, which is that their experiences with the police have not been positive.”

He sees community debates about creating civilian oversight of the police as a good development. 

“There is a need for more community involvement with the police, so it’s certainly a good thing that that conversation is happening,” he says. “As for what actually happens after that — when the rubber hits the road — that’s a whole other story.”

As for the dramatic protests around the country, White says, “People have been voicing protests regarding police brutality for a while, you know. This is nothing new, which is sad.”

But the surge of activism among young people makes him cautiously optimistic.

“I guess I’d like to feel hopeful. You know, we hope that things will get better. Otherwise, you don’t have that hope and life’s really not worth living.”