Bryan Stevenson on Mass Incarceration, Racial Injustice: “We All Need Mercy; We All Need Justice“

(Photo: Nina Subin)Bryan Stevenson (Photo: Nina Subin)Bryan Stevenson, founder of the Equal Justice Initiative and a professor at NYU, makes a detailed, compelling and personal case that prisons in the United States are filled with victims of injustice in Just Mercy. Michelle Alexander, author of The New Jim Crow, writes that “Stevenson is one of my personal heroes, perhaps the most inspiring and influential crusader for justice alive today, and Just Mercy is extraordinary.” Order the book today by clicking here!

Mark Karlin: Can you expand upon a statement in your introduction to Just Mercy: “We are all implicated when we allow other people to be mistreated … The closer we get to mass incarceration and extreme levels of punishment, the more I believe it’s necessary to recognize that we all need mercy, we all need justice …”

Bryan Stevenson: I think the criminal justice system has done things to children, the disabled, innocent people and others that are cruel, abusive, unjust and irresponsible. These things were done in our names on behalf of ordinary citizens. When we condemn an innocent person to spend decades on death row or put a 14-year-old in an adult facility where he will be assaulted and tormented, we are all implicated. I make this point because I think too many people are indifferent to what happens in our jails and prisons. I also think that every human being falters sometime; no one is perfect. Our mistakes require the mercy and understanding of others, which we can’t legitimately expect unless we offer the same to others.

You reflect in your chapter called “Mitigation” on how the post-Reconstruction period in the South led to a period that essentially “re-enslaved” African Americans through white violence and intimidation. What is the legacy of that period in 2015?

I think the narrative of racial difference that was constructed during the era of slavery created a lasting ideology of white supremacy; a doctrine of “otherness” got assigned to people of color with dreadful consequences. That narrative has never seriously been confronted. In the post-Reconstruction period, this narrative evolved into a presumption of guilt and dangerousness that was assigned to Black Americans that is still evident today. You cannot understand the police shootings of unarmed Black men or the disproportionately high rates of wrongful convictions and unfair sentences directed at people of color without understanding this history of racial injustice.

Can you talk about some of the statistics you provide on the role of race in relation to who receives the death penalty in the US?

The death penalty has always been primarily used in former slave states against people of color in a manner that reveals serious disparities based on race. The Supreme Court struck down the death penalty in 1972 because of the clear racial bias and discrimination which characterized its use. The modern era has revealed the same racial patterns. Race of the victim is the greatest predictor of who gets sentenced to death in most states. The Supreme Court has actually retreated from equal protection and anti-discrimination precedent to accommodate racially biased use of capital punishment; the problems are just that pervasive. The absence of people of color in decision-making roles, judges, prosecutors and jurors, has exacerbated the problem.

You state that, “When a serious felony case went to trial in a county like Monroe County [Alabama], which was 40 percent black, it was not uncommon to exclude all African Americans from jury service.” To what extent is there still a racist pattern of jury exclusion, particularly in trials with Black defendants?

Racial discrimination in jury selection remains a serious problem in many communities across this country. The legal standard that regulates racially biased jury selection has generally been applied very narrowly, leaving many accused people of color vulnerable to a trial by an all-White or nearly all-White jury. Many judges who evaluate whether prosecutors are illegally excluding Black and Brown potential jurors are former prosecutors who engaged in the same racially restricted jury selection tactics before coming onto the bench; they therefore tolerate a lot of racial bias and discrimination in jury selection.

Can you elaborate on your assertion that, “The criminalization of infant mortality and the persecution of poor women whose children die have taken on new dimensions in 21st century America, as prisons across the country began to bear witness?”

The misguided war on drugs has led to states straining to find new ways to accuse, condemn and imprison more and more people. One of the consequences of these policies has been to criminalize drug use by women or mothers who are pregnant or who live with young children. The percentage of women sent to prison has increased 640 percent in the last 20 years. This has made poor women especially vulnerable to suspicion, scorn and victimization. Unexplained deaths of infant children and infant mortality have become particularly complicated as some state officials have presumed that a crime is responsible for these tragedies. I’ve seen a dramatic increase in criminal charges being filed against poor women whose babies died during birth. With shockingly high infant mortality in the US, this policy has undermined the freedom of poor women who become at risk if they miscarry or an infant dies. Many poor women have been subject to wrongful accusations of criminal behavior unsupported by anything but a lot of hysteria.

In your author’s note, you mention that there are now 68 million people in the United States with criminal records. With the population of the US currently estimated at 320 million people, that’s between one in four and one in five people in this nation. Doesn’t that raise a red flag about a so-called “criminal justice system” that is more concerned about criminalizing people – particularly people of color and the poor – than achieving justice?

I think the arrest data is especially disturbing. Not only have we become a country with unprecedented police controls on daily living, but the collateral consequences are also dramatic. People with prior arrests are going to have a much harder time getting a job, a loan, housing, insurance and a range of other necessary supports. I think these data suggest a future where more and more people will be marginalized, disqualified and barred from meaningful engagement and definitely less justice for the poor and people of color. It’s something we need to challenge vigorously.

Why are so many people who have committed nonviolent offenses – such as writing bad checks and nonviolent drug offenses – in jail? What possible interest can that serve society other than feeding the beast of the incarceration industry?

Many low-level, nonviolent offenders end up in jail, in prison, sometimes for very long sentences, because of mandatory sentencing. One way legislators chose to get tough on crime in the 1990s was to take discretion away from judges and authorize very harsh prison sentences for very minor crimes. Mandatory sentencing is a huge factor in the tremendous rise in America’s prison population, which is the highest rate of incarceration in the world.

How does the growing privatization of prisons create a demand to keep them as full as possible?

Private prisons and related private industry has created an economic incentive to maintain a high prison population in this country in ways that are fundamentally destructive. Millions of dollars are being spent by private prison operators to lobby against reforms that could reduce the prison population and protect public safety because of the money motive to keep prisons full. There is no comparable lobby or funded interest to push against these economic incentives private prisons have to keep people locked up so private prisons have been especially problematic in sustaining mass incarceration.

How much do you think your personal concern and compassion for your clients has educated you about the forces of racism, “fear, angers and distance to shape the way we treat the most vulnerable people among us”?

I think the closer you get to a problem, the more deeply you feel the need for reform and a solution. Proximity can change our understanding of why some policy or practice is unjust and can motivate us to do things to fight or resist injustice we simply won’t do if we remain distant. So my work with the poor, the incarcerated and the condemned has changed me and my resolve. I cannot be at peace in a world where I’ve seen the suffering and inequality that characterizes so much of our criminal justice system. It has meant sleepless nights but it has given me the conviction to stand when others sit, to speak when others are silent. Sometimes that resolve is essential if you want to make a difference.

Can you explain what the Equal Justice Initiative (EJI) is and your role in founding it? How can readers contact the organization?

EJI was initially founded to respond to a crisis surrounding the absence of legal representation for death row prisoners in 1989. Since that time our work has expanded to include a broader set of criminal justice reforms including the treatment of children, the mentally disabled, cases reflecting abuse of power, racial bias or inadequate legal assistance to the poor. We now also challenge conditions of confinement, manage a re-entry program and have a new initiative on the history of racial injustice in the United States and systemic poverty. Readers can go to our website, where we have a lot of information about our work, reports and materials we make available the public.