In Conversation with Bryan Stevenson
For our poorest children, he has won arguments at the U.S. Supreme Court. For the wrongfully convicted, he has secured freedom. For the moneyed-class at TED, he spoke truth to power. For everyone else, he is on The Daily Show.
Stevenson, founder and executive director of the Equal Justice Initiative, has fought racial and economic inequality in the criminal justice system for a quarter of a century. His new book Just Mercy is on the shelves now.
All images by the girls of Remann Hall, Tacoma, WA (2002). Info here.
I spoke to Bryan Stevenson shortly after he’d enjoyed what could be called “a good run.” In the spring of 2012, he wowwed the crowd at the annual TED Conference. Stevenson was only saying what he’d been saying for decades, but somehow the visibility and new audience of TED propelled his message into the mainstream.
Originally, he didn’t even plan to attend. When the invite arrived, he didn’t know what TED was. He asked his staff about it. They advised it’d be a good thing to go. They were right — the day after Stevenson’s talk, and in his absence, the conference attendees had a whip round. $1 million was raised in 15 minutes.
One week after TED, Stevenson made arguments in the Jackson vs. Hobbs and Miller vs. Alabama cases, at the United States Supreme Court. Stevenson argued that the use of Life Without Parole (LWOP) in sentencing for children was cruel and unusual. He prevailed and the court ruled Juvenile LWOP unconstitutional.
Stevenson works in service to America’s poorest and most disadvantaged. He knows it is they who suffer the racial and class biases within the U.S. criminal justice system. Can we reconcile the belief that the US is a society based upon fairness, equality and opportunity when over 7 million citizens are under some form of correctional supervision? Why do we sentence children to an entire life behind bars? Can we move away from an over-reliance on incarceration? Can we reject fear and anger?
Stevenson and I tackle these questions, ponder photo-advocacy, and debate why and how we must face the toughest and most urgent issues of justice in society today.
Q & A
Pete Brook (PB): Was there a point in your life that you decided a life of fighting racial bias and inequalities in the criminal justice was for you?
Bryan Stevenson: I grew up in a poor rural community where issues of race and poverty were very dominant. It was a southern community where the legacy of Jim Crow was very evident — schools were segregated, social institutions were segregated and that was all slowly starting to get dismantled as I was coming up. It was hard to not see that.
I decided when I was a senior in college that I’d go to law school really with no clear idea of what type of lawyer I’d be or even if I would practice law. I just knew, as a philosophy major, no-one would pay me to philosophize.
After a year in law school, I had an internship at an organization in the South that provided legal assistance to death row prisoners. I became acutely aware of just how stark the differences were for people who were poor and incarcerated when it came to legal help. I met people on death row who were literally dying for legal assistance.
“We cannot change this environment inside a courtroom alone; we’re going to have to change the broader political, social and cultural environment; if we are going to have the sort of conversation I think we need to have.”
As a student at Harvard Law School — a place where people were very anxious not whether they’d get a job, but about which job they were going to take — the idea that there were people moving toward execution largely because they could not find legal assistance was pretty startling and compelling to me. I found in criminal justice some really interesting questions about how we treat the poor, how we deal with racial bias, and how we deal with our history of racial discrimination. All of it spoke to me in a way that I found very hard to ignore.
I started working on death penalty cases when I was a law student and when I graduated I began working at the same organization on criminal justice reform, excessive punishment, conditions of confinement and to this day I find new reasons to pursue this more intensely, to dig deeper and to struggle toward a better future and better solutions to the ones I’ve seen along the way.
“Sometimes you have to say things which are challenging. You have to be willing to stand when everyone else is sitting. You have to be willing to speak when everyone else is quiet.”
PB: Why do you care? Have you or your family suffered unfairness within the criminal justice system?
Stevenson: When people think you’re doing something unexpected and something hard to understand they search for a narrative of something episodic or some incident to help explain how you got thrown off the path that you’re supposed to be on [laughs] … to this “misguided path” that they really have great concerns to see you traveling down.
I do get those questions and I tell people, ‘No, I’m not motivated because I have a loved one in prison, no-one in my family has ever been executed.’ That’s not to say that I don’t have an identity that is deeply vexed by the persistence of racial bias in our society; an identity that is challenged by the pervasive nature of poverty and our indifference to poverty; an identity that very much values freedom and fairness and the application of law. But it doesn’t come from a place of personal exposure.
“These are not issues only for activists and advocates; these are basic fundamental issues for people concerned about the quality of society in which we live.”
People should realize that these are not issues for activists and advocates; these are basic fundamental issues for people concerned about the quality of society in which we live. One of the great problems that we are dealing with is that mass incarceration, excessive punishment, the marginalization of communities of disadvantaged people in this country have been relegated to the boundaries and are not part of mainstream conversation, whereas in fact, I think they reveal more about us than many of the other things we are preoccupied with. If you look at magazines, we spend a lot of time looking at fashion, consumers habits, what we buy, what we watch on TV, the gadgets we use. All of these do reveal things about our culture, but when you have the highest rate of incarceration in the world and a system of justice that is systematically depriving people of basic human dignity and human rights – that says something about the society we live in as well.
You judge the character of society not by how you treat the powerful and the celebrated but how you treat the poor and the incarcerated and the condemned.
PB: You’ve said an awareness of profound inequality in American society is necessary for any citizen but that it “will get to you.”
Stevenson: It’s both a burden and – in my judgment – a privilege, because to be able to respond to inequality can animate us in ways that very few things do. It creates meaning and purpose that can be transcendental.
Insulate yourself from the politics of fear that have created many of these dynamics [of inequality]. We very rarely ask ourselves ‘What are we afraid of?’ or ‘What are we angry about?’ but in public life we’ve been encouraged through our political leaders to be very angry about crime, to be very afraid of the society that we live in. There are things that we should be legitimately angry and legitimately concerned about, but I think as a world view this is a very destructive way to live.
Stevenson: When you’re consumed with fear and anger you make decisions about how you treat other people, even about how you think of your own needs, that often time leads to inequality, injustice and oppression. When you look at every example of massive human rights violations the story always begins with a narrative around fear and anger.
I think one of the things we have to do is step back from fear and anger and begin to ask harder, more critical questions about the issues around us. Is it better to punish crime or to prevent crime? Are there things that we can do to reduce the prison population? Is it better to have a free population or an incarcerated population? If you start asking those kind of questions it will lead you to different policy outcomes than the outcomes we’ve largely elected.
“We’re going to have to be as deliberate in our efforts to eliminate and reduce mass incarceration as we have been in creating it.”
What that means for individuals – and I think for me – is that you sometimes have to say things which are challenging; you have to be willing to stand when everyone else is sitting and be the voice that says ‘But what about this?’ You have to be willing to speak when everyone else is quiet. That’s not always easy and that’s not always comfortable. Certainly for me, it has at times been pretty overwhelming and vexing to be the target of other people’s anger and frustration because of what I am saying and who I am representing. It has been frustrating to deal with this wall of ignorance when people are making decisions with so little information and with so little context of the people whose lives are being directly affected.
What it has taught me is that I do have to believe things I haven’t seen and that is not always easy for people to embrace but I think it essential if you are going to create justice, if you’re going to create a new world.
PB: You founded the EJI over two decades ago, and I presume while your focus has changed your message has been consistent. Did the TED conference have any effect on how your message has been received?
Stevenson: I was humbled by the response [to my talk]. People were generous and very enthusiastic. And it has had an impact – a lot of people have heard what we are trying to do and they’d otherwise have never heard about our work.
The Equal Justice Initiative (EJI) believes deeply in getting more information out, educating more people. We cannot change this environment inside a courtroom alone; we’re going to have to change the broader political, social and cultural environment; if we are going to have the sort of conversation I think we need to have.
PB: In your TED Talk you describe conceiving of, and writing, a motion asking for your poor, juvenile client tried as a 75-yr-old, white corporate executive! That latter description would fit many in the TED crowd!
Stevenson: You want to reach people where you and they are. I talk about a lot of tough issues and I genuinely want us to get to a better place; I genuinely want all people to achieve a relationship within the human community which is full, robust, respectful and appropriate, so whether you’re black or white, rich or poor, employed or not, whatever the dynamic we must find ways to communicate with one another.
We impose on people in the criminal justice system identities that presume guilt, presume dangerousness and presume a fitness for incarceration. It has contributed to a high rate of error and to wrongful convictions. We have to deconstruct that. My story about the motion is just one of the ways I’ve tried to raise important questions about why we are so indifferent to the status of people who are needy and vulnerable when — to be just — we need to acknowledge those deficits and deal with them appropriately.
PB: You presented arguments on the cases Jackson vs. Hobbs and Miller vs. Alabama at the U.S. Supreme Court. How was that?
Stevenson: The Supreme Court is a tough room full of smart, thoughtful people who know these issues inside out. They ask a lot of difficult questions. Many of the justices asked some interesting questions about what sort of remedy would be necessary if relief were granted which is more encouraging than if they had asked no questions!
PB: As a consequence in June 2012, the Supreme Court ruled that all mandatory life sentences without parole given to children 17 and younger are unconstitutional.
Stevenson: EJI is dealing with as many of those cases as we can. We have made commitment to over 100 people. We prepared to help those who would be affected by a favorable ruling. A lot of these kids don’t have right to counsel so even if the court grants relief, they’re going to have a hard time finding the legal help they need to get their sentence corrected. We’re trying to take that up.
In addition to ending Life Without Parole (LWOP) for children, we are committed to ending the incarceration of children with adults. There’s still 27 or 28 states that put kids in adult facilities so that’s another campaign we’re trying to advance. We’ll take those cases on. We’re very interested in ending the underage prosecution of children; there is still a lot of states that have no minimum age for trying a child as an adult so frequently 9 and 10 year olds are looking at adult prosecution, something we think should never happen and we’ll keep doing those cases no matter what the court rules on Miller and Jackson.
PB: EJI was one of the earliest organizations to partner with photographer Richard Ross and make use of his images of juvenile detention. EJI reports and advocacy have included his photographs. I wrote a WIRED article ‘Uncompromising Photos Expose Juvenile Detention In America’ about Richard’s photographs. What does photography do or change?
Stevenson: There’s no question that Richard’s images provide a power and an intimacy to these issues that cannot be achieved any other way.
It is important for photography and photojournalism to be a component of the kind of work we’re trying to do because in many ways the issues we’re discussing are underground issues.
We don’t really know what prisons and jails look like. We don’t know what the people inside them look like. We have some very outdated and exaggerated presentations of jails and prisons in popular culture. I don’t think people can get a perspective on what it is like to lock someone down 23 hours a day, year after year, decade after decade. We don’t understand what it is like for a child to be in custody in an adult facility where the risk of sexual assault is 10 times greater than it would be for an adult. We don’t know what it is like to go week after week with no contact with anybody who is not either a prisoner or a prison guard, which is true for many of our clients.
“We impose on people in the criminal justice system identities that presume guilt, presume dangerousness and presume a fitness for incarceration. It has contributed to a high rate of error and to wrongful convictions.”
There is cruelty, real misconduct and brutality in prisons. There are all of these realities that good photographers can expose and give a lens to that is critical. Richard’s work has been hugely influential and we’ve worked with other photographers to bring these issues to light. Our first report in 2007 was mostly photographs, driven by images by Steve Liss who’d spent time in facilities taking photographs of young kids incarcerated.
Until we show people these children and the conditions of confinement in which we find these children we are not going to be able to get people to deal carefully and honestly with these issues. Photo-advocacy is critical to the work we do.
“We don’t really know what prisons and jails look like. We don’t know what the people inside them look like. We have some very outdated and exaggerated presentations of jails and prisons in popular culture.”
PB: You argued at the Supreme Court that Juvenile Life Without Parole (JLWOP) is cruel and unusual. Definitions of cruel and unusual change over time. We perceive punishments as cruel and unusual depending on what we collectively consider socially reasonable. What do we need to do as a society to label practices that lead to mass incarceration as cruel and unusual?
Stevenson: We need to be quite intentional about how recognizing that having the highest rate of incarceration in the world is a negative thing. It is not a good reflection on a society that is committed to freedom and equality. We’re going to have to be as deliberate in our efforts to eliminate and reduce mass incarceration as we have been in creating it.
We have to begin a conversation where we say it would be better if 1 out 3 young men of color were not in jail, prison, probation or parole. It would be a positive thing if we solved the problems of drug addiction and misuse in our society rather than just continuing to imprison people. If you orient that way, then you can ask ‘What can we do instead?’
One of the things EJI talks about is having a deliberate target of reducing the prison pollution by 50% over the next 6 or 7 years. We have to be intentional. Drug policy is the largest contributor to our current prison population. We started about 30 years ago making something like simple drug possession a crime. We made drug addiction a crime. If we thought about drugs and drug abuse as a healthcare problem, rather than a criminal justice problem not only would we not be saving the thirty, forty, fifty thousands dollars a year to it costs incarcerate a person who has a health problem we could actually begin to pursue the interventions that reduce drug addiction. Redirect the resources.
That’s not just good for the government and for taxpayers; it’s good for families and communities. That orientation would go a long way to move us forward and eliminate these race disparities and the disparities that are created by class and status. If we did that seriously over the next 2 or 3 years we would dramatically reduce our prison population almost overnight.
If we added to that a punishment system and scale influenced by what science has to teach us about rehabilitation, behavior modification, about how human beings can recover, I think we’d also save billions of dollars – billions with a B – on resources that are now being invested in doing nothing more than warehousing people, further damaging them before we release them back into society.
There are states where we spend over $100,000 per year to keep teenagers incarcerated. I can’t identify any educator who couldn’t make better use of those dollars. Most educators will tell you that for half of that – for a quarter of that – invested in each child you are working with, you could do some magical things to re-orient them and prevent crime and the problems we’re trying to deal with in the public safety sphere. We must approach this problem by first acknowledging it’s a PROBLEM, it’s not just an aspect of life in America that we incarcerate the poor and disadvantaged.
You’re right; the notion of cruel and unusual has evolved. It is rooted in a concept of how we relate to one another, but it is also related in a vision of human rights and human dignity that the framers of our constitution understood was critical in a free society. If we tolerate cruelty and violations of human rights we sow the seeds of destruction, discontent and animosity that ultimately undermine any free community. That’s why we can never make peace – in my judgment – the type of cruelty we see too much. To say to any child of thirteen, ‘You are only fit to die in prison’ is cruel. I don’t think you need a law degree or a degree in adolescent development to acknowledge that. You just need to be willing to think critically and honestly about what protecting children requires. A lot of these issues are much more simple than people think.
PB: It’s the first time I’ve heard someone put a figure on targets for decarceration in America. A reduction of 50% would mean releasing more than 1.1 million people. That figure would scare the hell out of most Americans.
Stevenson: [Laughs] Only because they don’t know who those people are!
There are hundreds of thousands of people in jails and prisons who have never committed a violent crime, they’ve never hurt anybody. We have close to a million people in prison for non-violent property crimes or drug crimes. Frankly, if someone stole $50 from your house, you’re never going to get that back in our current system, but you can imagine a world where the obligation to pay back to restore and to compensate the victims of crime in ways that are meaningful could replace the use of prisons to punish and crush folks.
All of a sudden a whole host of things are happening that I think are positive to our society; once we begin defining and describing how people get to prison and who they are, the idea of reducing the prison population becomes a lot more attractive. Also, when we start talking about the collateral consequences of the money we’re spending; we are undermining education in this country because of mass incarceration. We are depleting resources for public safety because of mass incarceration. We are stripping basic services and public utilities because of mass incarceration.
PB: Closing thoughts?
There are more people living under the poverty line today than there were forty years ago. That’s a bad thing. Having 2.3 million people in jails and prisons is a bad thing. The growing population of people who have permanently lost the right to vote who are African-American – after the civil rights struggle – is a bad thing. The despair and hopelessness that I see in poor communities and minority communities – where 13 year old children believe they’re either going to be dead or incarcerated by the time they are 21 – is a bad thing. We will ultimately have to measure our commitment to society and to our norms and values by how we respond to those problems.
PB: And you’re helping us learn deeply about the problems, and offering solutions. More power to you. Thank you, Bryan.
Stevenson: Thanks Pete.
