Washington Lawyer

Legends in the Law: John Garrett Penn

(Appeared in Bar Report, August/September 1997)

Judge John Garrett Penn served as chief judge of the United States District Court for the District of Columbia from March 1, 1992 until July 21, 1997. He was born and raised in Pittsfield, Massachusetts, and received his law degree from Boston University School of Law in 1957. After a tour of duty with the U.S. Army Judge Advocate General Corps, he joined the U.S. Department of Justice during the first year of the Kennedy administration. He was appointed to the bench of the Superior Court of the District of Columbia by President Nixon and subsequently appointed to the U.S. District Court bench by President Carter. Calling his family "my greatest accomplishment in life," Judge Penn and his wife Ann Elizabeth Rollison Penn, have three grown children: John Garrett Penn II, Karen Renee Penn, and David Brandon Penn.

Bar Report: Can you give us a bit of background?
John Garrett Penn: I was born in Pittsfield, Massachusetts in 1932. That was the middle of the great Depression, so those were tough times. My father was a carpenter and a draftsman by trade, but he couldn’t get a job in that field at all. He worked as a machinist at a factory that made paper mill machinery. I was an only child and I attended the public schools there in Pittsfield, which had a population of about 55,000, approximately 500 of whom were black. I think our family knew every black family in Berkshire County.

BR: Did you experience problems growing up as a consequence of race?
JGP: There were problems, but I never felt any limitations. My father was a very hardworking man and he instilled the belief in me that you can accomplish great things through hard work and dedication. Quite often, the black youngsters at Pittsfield High School were pushed into vocational training or home economics. But my parents wanted me to go college, and I took college prep courses.

BR: When you say "there were problems," what sort of problems?
JGP: We were living in New England and didn’t have anything like the sort of segregation that existed in the South, but we also knew there were certain neighborhoods where we couldn’t buy or rent a home. My father grew up in Reidsville, North Carolina. His brother-in-law was a businessman down there, and when I was still a little boy, we’d visit the family in Reidsville. Down in North Carolina you had the Jim Crow laws and segregation was rigidly enforced. But you also had a community of black businessmen, black church leaders, and black professionals. In my uncle’s town, a black businessman could go to a bank and get financing for his business. That didn’t happen in Pittsfield. You also had the black college system in the South. Although I don’t know what the actual numbers are, I suspect that a higher percentage of black students in the South went to college than was the case in the North. In the South you had this segregated, ghetto system where knew what the rules were. But in the North you didn’t always know. In Pittsfield I can recall families wondering if it would cause problems if they went into a certain restaurant or business establishment. And I vividly remember my father being told that he couldn’t buy a lot to build a house on because he was black. On another occasion when I was in law school I was denied a part-time job because I was black. It was a different type of discrimination from what you saw in the South, but there were things that happened that were hurtful and disturbing nonetheless.

BR: When you encountered that kind of discrimination would it make you angry?
JGP: Oh, yes, it made me very angry. But as I look back, I’m not angry now. If anything, I feel sorrowful. I’ve come to realize that segregation was not only harmful to blacks, but it was also very harmful to whites.

BR: How so?
JGP: Just look at what’s happened in the South in the past quarter century. You’ve got booming economies in places like Atlanta, North Carolina, and Mississippi. The school systems are vastly improved over what they were thirty years ago. Back in the old days, when the local politicians were pushing segregation, the southern states had very poor school systems. Poverty was widespread, and it wasn’t confined to the black communities. There was a lot of white poverty, too. The old deep South politicians used segregation to keep poor whites happy. As a consequence, everyone suffered. To me there’s no question that people are better off today—white and black.

BR: You mentioned earlier that you think more students went to college in the South than in the North. When you went to college, were there many other black students there?
JGP: When I enrolled at the University of Massachusetts in 1950, there were about 800 students in the freshman class, and I was the only black male in that incoming class—there was one other female, and maybe six or seven black students on the entire campus.

BR: Did that bother you?
JGP: No, not really. Growing up in Pittsfield I was used to that kind of ratio. I had lots of friends at the University of Massachusetts, and I enjoyed the years I spent there very much.

BR: Did you go to college with the idea of becoming a lawyer?
JGP: No. I loved science and I was a chemistry major my first two years. One of the requirements to obtain a chemistry degree was that you had to complete four years of German language study. The logic was that so many books and articles on chemistry were written in German. I didn’t enjoy the study of foreign languages, and I had great difficulty with that requirement.

Also, this was the early ’50s, when civil rights was beginning to become a pressing national issue. Civil rights cases were being litigated in the courts. Thurgood Marshall and the lawyers from NAACP Legal Defense Fund were bringing cases up through the system that eventually culminated in the 1954 Brown v. Board of Education case. I followed those cases closely and read a lot about civil rights. Thurgood Marshall and Spotswood Robinson were heroes of mine. In bringing the legal actions they brought, they were fighting my battle. I was excited by what they were doing, and the focus of my course work began to change. I started taking courses in sociology and government, and it was then that I started thinking that maybe I’d like to become a lawyer.

BR: Where did you go to law school?
JGP: Boston University. I was admitted to both Boston University and Georgetown, and I chose BU because of the segregation that existed in the South. But before I could enroll in law school, I had to deal with my local draft board. This was 1954. The Korean war was winding down, but the military draft was still in place. I’d been given a student deferment when I was an undergraduate, and that summer I received a letter from my draft board telling me that I had been reclassified 1-A. I went to my local draft board and told them that I wanted to enlist, but that I’d be of much greater service to the military after graduating from law school. I said that I wanted to join the judge advocate general corps. The local draft board denied my request. So I appealed to the state board, and they agreed to let me go to law school, provided that I enlisted upon the completion of my studies.

BR: Did you enjoy law school?
JGP: Very much. I found law school to be difficult, challenging, and rewarding all the same time.

BR: Did you have a vision of the kind of law you wanted to practice?
JGP: I was thinking primarily in terms of civil rights and criminal law. Like most young law students, I had a vague notion of what I wanted to do, but you never really know what it’s all about until you get out into the world and get some practice under your belt.

I was extremely fortunate in that I had my military obligation waiting for me. That turned out to be quite advantageous. It was really one of the best things that could have happened to me. I graduated from law school in 1957. At that time it wasn’t easy for black lawyers to find jobs. Someone told me that there were 40 black lawyers in Boston, and most of them were either working at the Post Office or selling real estate. None of that interested me. But in the military I got right into the practice of law. I went through basic training at Fort Benning, Georgia, went to JAG school at the University of Virginia, and was stationed at Fort Lewis, Washington. During my time at Fort Lewis, I tried over 100 cases. So it was a great experience.

BR: What kind of cases were you dealing with?
JGP: I was involved in a wide range of things, including two murder cases. I was a prosecutor in a capital murder case where we got a conviction, but the death penalty was not imposed. There were also rapes, robberies, and a lot fraud cases. The army was making a big push on travel fraud, where servicemen were trying to collect travel allowances for their families when the travel had not occurred.

BR: Did that give you a taste for criminal law?
JGP: Yes, I was fascinated by criminal law. I still am. There were cases where I was assigned as a prosecutor, and there were cases where I worked as defense counsel. So I saw both sides. Like I said, it was an invaluable experience.

BR: Did you go straight into the Justice Department from the Army JAG Corps?
JGP: No. My tour of duty at Fort Lewis ended in December 1960. I went back to my hometown of Pittsfield and looked for work around there. But jobs were scarce. One fellow offered me $100 a week to bring cases as a bill collector. But that wasn’t what I wanted to do. I also looked around Boston, where I was offered a job in a legal aid office at a salary of $2,500 a year. The guy in charge of the office told me, "It isn’t much money, but you can work on your own and bring in some extra income." Well, he’d also told me I’d be expected to work five days a week plus Saturday mornings. That left me wondering, "When would I have time to work on my own?"

I was a bit discouraged. I wasn’t sure what I was going to do. Some of the tax matters I’d dealt with in the army had interested me, so I applied with the IRS in Boston. I was told that I wasn’t eligible to work in my home region, and that I should apply in either Washington or New York. So I came to D.C. to interview with the IRS. I remember I stayed in a room at the YMCA on G Street. One morning, I had some time to kill and I went out for a walk. I happened to walk past the Justice Department, and I thought to myself, "Hey, I should put an application in here."

I was so green that I just walked in the door and asked for the employment office. I was given an application to fill out, and after I completed the form and a lady asked, "What kind of job are you looking for?" I told her I was an attorney, and she took my application and tore it up. I said, "Hey, what are you doing?" She said, "You don’t apply for an attorney’s job here. Let me call upstairs."

The next thing I know, I was directed upstairs to meet with a assistant deputy attorney general. Even though I hadn’t been through the formal application process, he interviewed me on the spot. He was very cordial, but after a while he said, "Well, you’ve got two problems. You didn’t go to one of the prestigious law schools, and you don’t have any trial experience." I said, "But I’ve tried over 100 cases!" "Yes," he said, "but there’s a difference between military law and civilian law. They’re not the same." He was on his feet inching toward the door—making it clear that the interview at an end. As I was getting up to leave, I asked him about his trial experience. I was stunned when he said, "Oh, I’ve never tried any cases. Before I came to Justice I did administrative work." "With all due respect," I said, "how you can judge my trial experience if you’ve never even tried a case yourself?" We got into a friendly argument, talking about rules of evidence and criminal procedure. Finally he said, "Okay, I’ll tell you what I’ll do. I’ll send you down to the tax division." So he made a phone call, and a few minutes later I was interviewed by an attorney in the tax division.

I went back to Pittsfield not knowing if anything would come of it. I’d been home about a week when I got a letter signed by Louis Oberdorfer, the head of the tax division. It was written in bureaucratic language, and I didn’t know what to make of it. I telephoned the secretary in Oberdorfer’s office and said, "I’ve received this letter, but I’m not sure if I’ve been hired or not." She said, "Oh, yes, yes, you’re hired. You’ve just got to go through the security check." So that’s how I arrived at Justice. I went out for a walk one morning and just stumbled through the door.

BR: When did you start your job at the Justice Department?
JGP: June of 1961.

BR: Was Washington still a segregated city?
JGP: Yes, it was. When I tried to find a place to live, it wasn’t an easy task. I read the classified ads for housing and found a place on 16th Street that rented for $83 a month. It was close to the Justice Department and looked good to me. So I called and went through all of my information on the telephone, telling the woman who answered that I was an attorney at the Justice Department and so forth. "Yes, yes," she said, "that all sounds good." But when she found out I was black that was the end of it. She told me, "No colored here." Those were the exact words she used.

In going through the classified ads in the Washington Post and the Washington Star, I’d noticed that some of them said "COL," but I didn’t understand what that meant. Then it dawned on me: "COL" means "colored."

BR: Did you find your work in the tax division to be challenging?
JGP: Yes, it was challenging. It was also exciting. One moment I’ll never forget was when I appeared in federal court for the first time. The case was called and the judge said, "Who represents the United States?" I stood up and said, "I do. I represent the United States." I can’t tell you how good that made me feel.

BR: What sort of cases were you handling?
JGP: Within the tax division I developed an expertise in trusts and estates.

BR: Do have any favorite cases?
JGP: There were many. One of the most memorable was a massive case that landed on my desk shortly after I arrived that dealt with the Houston estate in Philadelphia. The testator had made millions of dollars in oil, and the estate included Standard Oil of New Jersey, which had since broken up into dozens of other corporate entities and investments. So it was a very complex estate, worth over $250 million—which, back in 1961, was a lot of money. The original will had been drafted in 1895, and it was a beautiful hand-written document, as all legal documents were in those days. The final beneficiary of that will died in 1960, and the question was: had the interests vested in the grandchildren or was that interest contingent upon them surviving their parents? The government’s position was that the interest had vested, and if the court ruled in our favor then that would mean approximately an additional 18 million dollars or so to the federal treasury.

Another attorney had been working on the case, but apparently the supervisor wasn’t happy with his work, and the case was handed to me. So here I was, a brand new attorney, and I didn’t know a thing about Pennsylvania estate law. I spent day after day after day sitting in the law library, reading cases, learning as much as I could about the relevant Pennsylvania case law. The judge was a fellow by the name of Charles Kline, who was known as "the president judge." He was a tough judge, and I quickly learned that he didn’t stick to the cases cited in the briefs. It was nothing for him to say, "Mr. Penn, what about the Rose estate case? How does the language there differ from the language here?" I was fortunate that I’d spent all of those hours in the law library. I found that I could answer his questions, and after many years and many arguments we won the case.

BR: Your arrival at the Justice Department coincided with the arrival of John Kennedy in the White House, which was an extremely volatile time in civil rights. During the Kennedy years we had the Freedom Riders, the riots brought on by enrollment of James Meredith at the University of Mississippi, Martin Luther King leading the March on Selma and the March on Washington—did any of that spill over into what you were doing?
JGP: Only in the sense that I paid very close attention. I spent a lot of time in Philadelphia litigating this case. I remember I’d go back to my hotel room after spending the day in court and I’d watch the bus burnings and the riots and the marches on television. The tax division had nothing to do with that. It was all handled by the civil rights division. But I followed the news very closely. I was extremely fond of John Kennedy. Coming from Massachusetts, he might not have had the intuitive feel for civil rights that Lyndon Johnson had, but he always ended up in the right place. I was proud to be at the Justice Department during the Kennedy years. I was proud of the leadership he provided.

BR: Can you remember what you were doing when you heard he’d been assassinated?
JGP: I remember it very well. I’d gone across the street to eat lunch at a restaurant called "The Beefeater," which was located where the FBI building is today. When I got back to the Justice Department, everybody was gathered around their radios listening to the news reports from Dallas. The first report was that there had been shots fired at the presidential motorcade and that the president might have been wounded. I went up to the anteroom outside the attorney general’s office where there was an AP ticker. I remember standing there reading the news that the president was dead. When I went back to my office, my section chief expressed the hope that Kennedy would be okay. I said to him, "No. The president is dead."

That was a very sad day. An absolutely tragic day. When I walked out onto Pennsylvania Avenue, I was amazed to see pictures of President Kennedy in the display windows of the department stores—and they were all draped in black. The streets were full of people, but no one was talking. Washington was like a tomb.

BR: Did President Kennedy’s death have much impact on the running of the Justice Department?
JGP: No, not that I could see. The institutional wheels continued to grind along. After Robert Kennedy left as attorney general, Nick Katzenbach came in and then Ramsey Clark. I didn’t know Robert Kennedy very well, but I did know Ramsey. He was a very friendly guy. Across the street from Justice there was a place called "The Traymore." You could go in there and see the attorney general sitting on a stool having a hot dog, and the guy next to him wouldn’t be aware of who he was. That was Ramsey. He was very informal. But I didn’t notice any great change in the way the Department was run.

BR: Was there a point at which you began to think about becoming a judge?
JGP: No, a judgeship wasn’t something I aimed for. In the late ’60s I’d begun to look outside Justice, thinking I could make more money in the private sector. Atlantic Richfield was recruiting me, and I’d pretty much committed myself to heading up their legal office in Chicago. Then I got a call from the assistant deputy attorney general, who said, "I want to talk to you about something." So I went up there and he told me that President Nixon was committed to a new court system for the District of Columbia. At the time, local criminal cases were tried in federal court, and the D.C. Court of General Sessions heard misdemeanor cases and civil cases where the contested value was $3,000 or less. The Nixon administration was backing the court reform legislation that created the Superior Court and the system we have today. Anyway, I was told that they were looking for some good people from the Department of Justice to become judges. So after talking it over with my wife, I decided to stay put. Then when the new court was created, I was nominated to sit on the Superior Court by President Nixon. That’s how I became a judge.

BR: Are you glad you did it?
JGP: Yes, very glad. It was exciting to set up the new court. Harold Greene was the chief judge. He was one of the architects of the Civil Rights Act of 1964, and it was a great experience to work with him. It was a challenge to build this new court system from the ground up. Ten of us set up shop over on G Street where they are building the new arena. We had makeshift chambers and courtrooms in a building next to the old Bergman’s Laundry.

BR: After nine years in the tax division, did you find it daunting to deal with crimes of violence?
JGP: No, I didn’t find it difficult or daunting. I found it to be interesting. Criminal law has always fascinated me. As a judge, my job as a judge was to be evenhanded and apply the law—to be neither pro-defense nor pro-prosecution. I wanted to make sure the defendant was given a fair trial. There are many defendants for whom we appoint counsel, and because I was always mindful that I might be called on to sentence a defendant to awful lot of time if he was found guilty, I always wanted to be sure that the defendant was well represented. And I think we were able to do that. The Superior Court is an excellent court.

The one area that concerned me the most was juvenile court, where the judge decides guilt or innocence without a jury. I remember one case I had where a youngster was charged with the unauthorized use of a motor vehicle. I listened to the evidence that was presented, and I found him guilty. When he stood up to be sentenced he started crying. He said, "Judge, I didn’t do it. I didn’t do it." I was confident that the evidence indicated beyond a reasonable doubt that he was guilty. But I was also conscious that the law, like any other profession, is imperfect. Mistakes can be made. That case bothered me. I can’t help but wonder where that youngster is today.

BR: When did you join the federal bench?
JGP: I was appointed to the federal court by President Carter in 1979.

BR: And you were named chief judge in 1992?
JGP: That’s right.

BR: Has that been rewarding?
JGP: Yes, I think the United States District Court for the District of Columbia is the most important trial court in the world because of the issues that are brought to bear here. It’s great to sit on a court where you have direct contact with the Court of Appeals and the Supreme Court. We have excellent collegiality on the court, and I’d like to think that I helped contribute to that during my tenure as chief judge.

It’s also been my pleasure to sit on the Judicial Conference for the United States, which is comprised of the 13 chief judges from the courts of appeals, 12 judges from district courts around the country, the chief judge of the Court of International Trade, and the chief justice of the Supreme Court. When I’d sit down for the meetings of the Judicial Conference, I couldn’t help but think, "Well, the little kid from Pittsfield has been very, very fortunate. I’ve been truly blessed by God."

BR: Has the trend toward mandatory sentences imposed by Congress been of concern to you?
JGP: Yes, I’m disturbed by mandatory minimum sentences. The first mandatory minimum case I had involved a young woman who was fairly naïve. She was 18 years old and didn’t have any prior convictions. She was paid $300 to transport a package and was being used as a mule to bring drugs into the District. Due to the amount of drugs she was carrying, I had to sentence her to not less than five years in prison. In my heart, I felt that sentence was too harsh. It was not good for her and it was not good for the community. I thought five years in prison would turn her into a career criminal because she’d be trapped in the system.

On the other hand, I’ve had cases where I thought the sentencing guideline was too lenient. I recall one case where the defendant was clearly heavily involved in the drug trade, but he was smart enough to not get caught with a large amount of drugs on his person so he wouldn’t get hit hard if he was arrested. The sentencing guidelines were such that I couldn’t sentence this defendant to more than two-and-a-half years, and he was heavily involved in the drug trade, whereas the young lady I referred to who had no prior convictions got a much stiffer sentence. A mandatory sentence based purely on the amount of drugs a person is carrying is not a good system.

I’ve heard people say that judges complain about mandatory minimums because they don’t like losing their power. But that’s not true. Judges are concerned because they encounter so many cases where the mandatory sentences are not appropriate to the crime.

I’m also troubled by the distinction between crack cocaine and powder cocaine and the difference in the sentencing range. The law is the law and I follow the it. I hand down the sentences. But the mandatory minimums trouble me.

BR: Is there anything that can be done?
JGP: I’d like to see Congress take a second look at this issue. The mandatory minimums and the mandatory sentencing guidelines are in need of reform. I’d feel a lot less troubled if harsh mandatory sentences were imposed on a defendant who had two prior convictions of a serious nature. But for first time offenders, I think the dispensation of justice requires discretion. It requires that we look at the totality of the facts in a particular case, and not just the amount of drugs involved.

BR: Now that you’ve completed your term as chief judge, what happens next?
JGP: I’m looking forward to more trial work. I’ve picked up some cases from Judge Johnson, the new chief judge, and I’m on the regular wheel again.