Portside

Most trial lawyers engage, daily, with the emotions and vices that underlie human conflict—anger, jealousy, greed, spite. Some do more than engage: They adopt these vices. Bryan Stevenson is the rare exception. He has dedicated his life to healing anger and fear, and bringing light to the darkest corners of our criminal justice system.

Harvard graduate, MacArthur fellow, and founder of the Equal Justice Initiative, Stevenson is vibrantly bright and thoughtful. He exudes hope. He lives much of his life among the dispossessed and hopeless.

I first met Bryan Stevenson more than twenty-five years ago in Montgomery, Alabama. He was shepherding a small group of smart young lawyers through the grim reality of post-conviction work in death penalty cases in Alabama’s courts. Today, he speaks to large groups and travels the country. Stevenson calls on us to hurry after him through the death rows, prisons, impoverished communities, and despairing neighborhoods he serves, and to nurture, within ourselves and without, the emotions and virtues that heal.

His new book, Just Mercy: A Story of Justice and Redemption, is a bestseller. I visited with him when he came to Madison, Wisconsin, where he had been chosen as the University of Wisconsin’s “Go Big Read” author. Hundreds of people turned out to pack a giant lecture hall and several adjoining spaces to hear Stevenson speak.

Q:The message of hope in your book is unmistakable, but I suspect that the origin of the book lies in part with anger. I’m wondering if that’s right.

Bryan Stevenson: I think of it as a burden rather than anger. I didn’t have to represent people on death row, I didn’t have to do the kind of work that I do, and I never wanted my choice to become something that made me angry. When I stepped into this world, I saw that we were all burdened by a certain kind of indifference to the plight of poor people. We were burdened by an insensitivity to a legacy of racial bias. We were tolerating unfairness and unreliability in a way that burdened me and provoked me. The book is an effort to confront this burden.

I’m persuaded that if most people saw what I see on a regular basis, they would want change.

I don’t think anybody who had been with me when I was holding a fourteen-year-old boy who was crying hysterically because he had been raped and abused in a jail cell would want him to stay in that cell. But our system of justice is so isolated. We’ve created these walls and barriers that shield what happens in our courtrooms and in our jails and prisons and in the margins of society with such effectiveness that most of us go through our lives with no consciousness about what these things really represent.

Q: Working in the justice system, what caught you off guard about these burdens?

Stevenson: It was the sense that people could actually know what the right thing is and still feel obligated to do the wrong thing because of politics or some other collateral concern. That was something I didn’t really anticipate. But it is structural and systemic.

Q: You say outsiders would be appalled by the unfairness that you encounter within the justice system. But there are hundreds of thousands of people who are insiders in the justice system who don’t appreciate that they, or we, have to take responsibility for change. Why?

Stevenson: We’ve all been acculturated into accepting the inevitability of wrongful convictions, unfair sentences, racial bias, and racial disparities and discrimination against the poor. I think hopelessness is the enemy of justice. We have too many insiders who become hopeless about what they can do. The defense attorney who has given up on talking about the presumption of guilt that gets assigned to people of color. The judge who has given up on trying to insist on the rule of law even when it’s inconvenient and unpopular. The prosecutor who has been corrupted by the power that he or she has accumulated through mandatory sentencing schemes. You can be a career professional as a judge, a prosecutor, sometimes as a defense attorney, and never insist on fairness and justice. That’s tragic and that’s what we have to change.

We’ve made finality more important than fairness. We shield even clear violations of people’s rights if [objections] aren’t raised at the right time in the right way.

Q: After wrongful convictions are overturned, apologists often say, “Look, that proves the system works.” That’s an infuriating claim for many of us who work in criminal justice. In your book you’ve assigned instead the term “provocative” to that claim. What do you mean by that?

Stevenson: In April, I walked out of a Birmingham city jail with a man named Anthony Ray Hinton who had spent thirty years behind bars for a crime he did not commit. He was locked down in a five-by-seven cell twenty-four hours a day for thirty years. The evidence of his innocence was presented to the state in 1999. The prosecution had said a gun they found in his mom’s home matched bullets found at the murder scene, and based on that evidence and that evidence alone, they convicted him. We got the best gun experts in the country to look at that gun and those bullets and say, “These do not match, that man is not guilty.”

The state fought us even after that evidence was presented because the prosecutors were more comfortable with the prospect of executing an innocent person than with acknowledging that they had put an innocent man on death row.

Eventually we got the U.S. Supreme Court involved, we got the case overturned, and he walked out of jail. It was a really glorious, wonderful moment. But I’ve spent a lot of time with Mr. Hinton over the last six months, and what we have done to him is nothing short of criminal.

That’s what’s provocative to me—that we can victimize people, we can torture and traumatize people with no consciousness that it is a shameful thing to do. And it’s not the first time we’ve done it. The greatest evil of American slavery was not involuntary servitude but rather the narrative of racial differences we created to legitimate slavery. Because we never dealt with that evil, I don’t think slavery ended in 1865, it just evolved.

Q: If we were to replace a culture of assigning blame in the criminal system with a culture of humility, a recognition that mistakes are bound to happen, would that get us anywhere?

Stevenson: I absolutely think we need a paradigm shift where we’re not motivated by fear and anger. We’ve got politicians competing with each other over who can be the toughest on crime. Whenever society begins to create policies and laws rooted in fear and anger, there will be abuse and injustice.

We have to step away from the politics of fear and anger and start asking ourselves the more basic question: What are we trying to achieve? If we did that, then we’re not going to put people in jails and prisons who aren’t a threat to public safety and spend billions of dollars warehousing them when it doesn’t accomplish anything. We’re going to use those dollars to actually promote care and treatment.

That paradigm shift is something that we have to have all the way through the system. Our police officers become warriors who are using the fear and anger paradigm to battle against whole communities. We don’t need police officers who see themselves as warriors. We need police officers who see themselves as guardians and parts of the community. You can’t police a community that you’re not a part of. That paradigm shift is part of how we create true custodians of justice. If you’re just the person with power, exercising that power fearfully and angrily, you’re going to be an operative of injustice and inequality.

Q: You’ve spoken powerfully about the persistence of racism and fear in the criminal justice system. Expand on that.

Stevenson: I don’t think there’s any question that our system treats you better if you’re rich and guilty than if you’re poor and innocent. The presumption of guilt and dangerousness that gets assigned to some people is going to compromise their ability to get to a fair outcome. I also think our comfort level with tolerating disparities based on race has made us comfortable with all kinds of other disparities and all kinds of unfairness.

The Bureau of Justice is now projecting that one in three black male babies in this country will go to prison.

That is unbelievable. It wasn’t true in the twentieth century, it wasn’t true in the nineteenth century, it became true in the twenty-first century. And we’re not talking about it. For Latino boys, it’s one in six.

We need to start talking about the forces that are creating this kind of reality. I’m still shocked that we have these data that are so disturbing—a 640 percent increase in the number of women being sent to prison [from 1980 to 2010], almost 70 percent of whom are single parents with minor children and most are not going for violent crimes.

Q: Would you talk about how this relates to the legacy of slavery?

Stevenson: I think there is a contempt for the human dignity of people who were enslaved. You couldn’t see them as fully human and so you didn’t respect their desire to be connected to a family and a place. That was the only way you could tolerate and make sense of lynching and the terror that lynching represented.

We did horrific, brutal, barbaric things to people during these lynchings, mutilating bodies and cutting off extremities and taking parts of the body as a souvenir. What kind of a society does that? Only a society that doesn’t think of that person as fully human. That disconnect means you’re necessarily not going to respect their aspirations of identity, family, and connectedness.

And that’s true today. We haven’t dealt with that fundamental disconnect, that fundamental contempt for these people because of their race or their ethnicity. That, to me, is the essential problem.

Can we get our society to begin to acknowledge the cruelty, the barbarism of these institutions and what that means and what that says about us?

Q: Your grandfather was murdered by teenagers when you were a teenager yourself. Did that draw you to, or initially repel you from, the work that you’re now doing with juveniles in prison?

Stevenson: When my grandfather was murdered, the question my grandmother and family members were asking was: Why would someone do that? We were more preoccupied with the circumstances that would create children acting in this way.

There are many places in this country where the majority of children are traumatized by the time they’re four and five. They’re in households where they see violence and where people are always shouting. They need the same kinds of interventions that our combat veterans need when they come back from war. Unfortunately, our current system only thinks in one language, which is punishment.

Q: How do we make it more acceptable to speak of love, compassion, mercy, or redemption in our system of justice?

Stevenson: I think we have to affirm the things that matter to us. We have a relationship to one another. We can’t have a healthy, strong relationship until we learn to say, “I’m sorry.” I don’t know any two people who’ve been married or in a strong relationship for a long time who haven’t learned to say, “I’m sorry.” We haven’t learned how to do that when it comes to dealing with the shameful parts of our history.

The other thing is we have to believe in things we haven’t seen. Part of what constrains us is that we haven’t actually seen what a loving system of justice looks like because we’ve been so fearful that that’s not going to be as harsh and punitive as we think it should be.

Ultimately, I think we have to want more. We have to aspire to something that feels more like freedom than what we have in this country. We’re not free, we can’t relate to one another who are different without bumping into each other and creating these tensions and fears.

There is a better, freer place that we can achieve in this nation, but we’d have to want it.

I use this Reinhold Niebuhr quote in my book: “Love is the motive, but justice is the instrument.” If you love your country, then you need to be thinking a lot more critically about what justice requires. If you love your community, then you need to be insisting on justice in all circumstances, and that’s not something we’ve done. ω

This interview originally appeared in the December 2015/January 2016 issue of The Progressive magazine. Dean A. Strang is a criminal defense lawyer in Madison, Wisconsin. He is the author of Worse Than the Devil: Anarchists, Clarence Darrow, and Justice in a Time of Terror (University of Wisconsin Press, 2013).