Retiring judge does justice to civil rights
Fresh out of law school at UC Berkeley, Thelton Henderson traveled south as the Justice Department’s first black Civil Rights Division lawyer, assigned to keep an eye on local law enforcement for the Kennedy administration. It was 1962, and it was hazardous duty in hostile territory.
But there were others, he soon found out, who were putting themselves in greater peril in the fight against white supremacy in the Jim Crow South.
“I would see these kids come to Birmingham with a toothbrush and toothpaste, wrapped in a face towel, ready to go to jail and take their beatings,” Henderson, 83, recalled in an interview last week after announcing his retirement as a federal judge in San Francisco. He met Martin Luther King Jr., who “knew he wasn’t going to live to old age.”
With his government ID, Henderson said, “I felt
like a coward.”
He crossed paths with King a year later after the Justice Department had assigned the young lawyer to investigate the lethal bombing of the 16th Street Baptist Church in Birmingham, Ala.
King needed to travel to Selma, more than 70 miles away, and had a car with a flat tire. Henderson lent him his government car, setting off an uproar from supporters of segregationist Gov. George Wallace. It cost Henderson his job — the most crushing blow of his life, he said, but still a decision he doesn’t regret.
The route to Selma “was a mean stretch of road, and with a breakdown he would have been a dead man,” Henderson explained. “I was torn between whether my job was just taking down the reports and following cases, or something bigger.”
He eventually found a job that led to expanded horizons, an appointment on the federal bench where he would oversee historic cases on prisons, police conduct and civil rights.
The appointment by President Jimmy Carter in 1980 followed many years in private law practice, in Legal Aid and at Stanford, where he recruited minority students to a virtually all-white law school.
Perhaps more than any other public figure, Henderson has brought about change in California’s huge prison system. Soon after becoming the court’s chief judge in 1990, he said, he started getting petitions on yellow paper from inmates of the supermax Pelican Bay State Prison on the North Coast, an institution he’d never heard of, complaining of mistreatment.
In a meeting arranged by Henderson, the warden told the court’s judges that Pelican Bay was a “new era prison” for the “worst of the worst,” Henderson recalled, and he described what techniques were used to keep the inmates under control. The judges reacted in shocked silence, Henderson said.
Assigned the case by random draw, Henderson issued a scathing decision in 1995 finding that inmates were being brutalized — beaten, hogtied, caged naked in cold and rainy weather. And he ordered changes and court monitoring that lasted for 16 years. The case laid the foundation for a settlement that imposed the first restrictions on California’s use of solitary confinement.
Another breakthrough came in 2006, when Henderson, in a case challenging the adequacy of health care in California prisons, ruled that the state was violating constitutional standards with medical treatment so shoddy that more than one inmate per day was dying needlessly.
He appointed a receiver to manage the health care system. Three years later, a panel that included Henderson and two other judges found that prison overcrowding was the primary cause of poor health care and ordered population reductions. The U.S. Supreme Court upheld the order in 2011, and the result has been 40,000 fewer inmates in California prisons and changes in state sentencing laws to prevent the numbers from rising again.
Another judge will be needed to replace Henderson on the prison panel and, in another major case, as overseer of the Oakland Police Department.
The case involved a 2000 lawsuit by 119 people who accused a group of veteran officers, nicknamed the Riders, of beatings and evidence-planting, and it exposed disproportionate arrests of racial minorities in the city. Henderson presided over a $10.5 million settlement in 2003 and has been overseeing the department’s slow, painful compliance with the terms of the agreement ever since. He’s appointed a series of monitors to enforce the settlement and keep him informed.
“I see light at the end of the tunnel,” Henderson said of Oakland’s efforts to improve police practices. He said he hasn’t met the city’s incoming police chief, Anne Kirkpatrick, formerly a top police official in Chicago, but “she talks the way I’d like to hear a chief talk. Police should be accountable.”
He said some of the cases he’s proudest of involved civil rights challenges by individuals, like the woman who sued State Farm Insurance Co. in the early 1980s, when the company had virtually no female insurance agents. In a 1985 ruling, Henderson found intentional sex discrimination, and in 1992, State Farm agreed to pay $157 million to 814 California women who had been turned down for jobs. The company also agreed to hire at least 50 percent female agents in the state over the next 10 years.
In 1987 Henderson ruled that the Defense Department had discriminated in its decades-old practice of denying security clearances to gay or lesbian applicants. It was only a year after the Supreme Court had upheld a Georgia criminal law against gay sex, and Henderson said last week he wasn’t surprised when an appeals court overturned his ruling in 1990.
But as public attitudes on gay rights evolved over the years, so did government policies and court rulings. President Bill Clinton outlawed antigay discrimination on security clearances in 1995, and the Supreme Court reversed its ruling on gay sex in 2003, 12 years before legalizing same-sex marriage nationwide.
“Time has proven me right,” Henderson said.
Racial issues took a different course.
When California voters banned affirmative action in 1996 based on race or gender in public education, employment or contracting, Henderson blocked enforcement of the measure, which appeared on the ballot as Proposition 209. He said it was likely to be ruled unconstitutional. He noted that the state still allowed preferred treatment in university admissions for veterans and the disabled, for example, while banning it for minorities and women.
But a federal appeals court overruled Henderson in a scornfully worded decision. The Supreme Court denied review of the case and in 2014 upheld a similar law approved by voters in Michigan. Prop. 209 remains in effect.
Some congressional Republicans called for Henderson’s impeachment after his ruling. Death threats arrived in the mail, and U.S. marshals were assigned to guard his home.
“I can take the taunts,” the judge said. “The death threats were a little scary.”
But Henderson has endured. He served as the district’s chief judge from 1990 to 1997, then transferred to senior status in 1998, with a reduced caseload, creating a vacancy for Clinton to fill. But he has kept a substantial calendar and presided over the recent criminal trial of Pacific Gas and Electric Co., convicted by a jury of violating pipelinesafety laws. The case stemmed from the deadly gas pipeline explosion in San Bruno in September 2010.
Henderson said he is retiring in August because of a progressive muscle disease that first afflicted him 30 years ago. The disease has forced him into a wheelchair and limited his movements and energy level. The normally amiable and softspoken judge said he’s also found himself getting “grumpier on the bench.”
“I don’t like the judge I’ve sometimes become,” he said. “I love the job, but it’s time to go.”
Henderson said he plans to take car and train trips with his wife, Maria Alaniz, when she retires as a San Jose State sociology professor next year.
Reflecting on what shaped his outlook, he recalled his childhood in South Central Los Angeles, where two of his uncles were in and out of jail and his mother regularly put up her house as security to bail them out.
“On sentencing days, I see families” of defendants waiting to be sentenced, he said, “and I think of my family, wondering what’s going to happen to my uncles. It’s humbling.”