Josh Rushing: In the last year, it's been a zeitgeist issue of videos of police shooting young African-American men. But this kind of relationship between police and the black community, this started long before cellphones started capturing it on camera, right? How far back do you go with this?
Bryan Stevenson (the founder of the Equal Justice Initiative): I think you have to go back to slavery. The reason why young men of color are at risk in too many of our streets is that there is a presumption of dangerousness and guilt that gets assigned to people of color. We act on that presumption in ways that are sometimes violent. These police officers are reacting to this narrative of racial difference, this presumption of guilt and dangerousness that you can't understand unless you think about the legacy of slavery.
Even before slavery, the genocide of indigenous people in this country, where we began to shape our whole worldview based on color. I mean, for me, the great evil of American slavery wasn't involuntary servitude. It wasn't forced labor. It was really this ideology of white supremacy we made up to make ourselves feel comfortable with enslavement. We said that black people are different — we're actually civilizing them by enslaving them. And that was the great evil of American slavery. We never dealt with that.
So it's easy for me to fall into the trap of saying, "Look, slavery happened so long ago that I don't feel any relationship to it." But in your family you were much more connected to it than I realize even possible in today's times.
That's right. My grandmother was the daughter of people who were raised by — who were born into slavery. I mean, my great-grandparents were enslaved. But I think for all of us, the legacy of slavery is still around us. We don't actually end slavery and the worst part of slavery in 1865. Slavery doesn't end. It just evolves. It turns into decades where we use that same narrative to justify terrorism perpetrated against African-Americans throughout this country and brutal public spectacle lynchings. What we did to African-Americans between the end of Reconstruction and World War II rivals anything we read about in the Mideast today perpetrated by [the Islamic State in Iraq and the Levant]. We strung people up. We mutilated them. We set them on fire. We shot them a hundred times. We cut off parts of their body and took it home as souvenirs.
Then we didn't talk about it. We just sort of moved it indoors and created a criminal justice system that perpetuated that same narrative …
Heroic black people did do some extraordinary things, but there was opposition to civil rights. There was resistance to civil rights by elected officials. If you don't know that resistance story, if you don't know how that continued past the 1960s into the 1970s, you can't understand mass incarceration and excessive punishment today. At each point of these historical eras, people who identified with law enforcement, they were the foot soldiers empowered to sustain this racial hierarchy. They were the ones who were maintaining the rules of slavery.
Explicitly or implicitly? Do you think they knew that — that "that's one of my jobs here"?
Oh, absolutely. During the era of slavery, it was the law enforcement that would chase the fugitive slaves into the North and bring them back. They were the ones that would enforce the conflicts. During the era of terrorism, there'd be some accusation of the crime. And the sheriff would make the arrest. And then he would open up the jail doors to the mob, who would engage in these acts of violence.
There's been this complicity between law enforcement and this history. In mass incarceration in our contemporary era, it is the police who are being looked to to keep the public safe — but, more than that, to sustain these dynamics, to resist any kind of challenge to this identity that we've grown up with. And so we need in America truth and reconciliation. We need to kind of reshape our identity.
I'm not interested in punishing people for slavery or punishing people for terrorism. I'm not interested in punishing people for segregation or even punishing people for police violence. I'm interested in getting us to a place where we're feeling something that looks more like freedom and justice.
You draw an incredible parallel there to the American South being as bad as [ISIL], which is incredibly provocative to say. And that the black neighborhoods in LA and Cleveland and Chicago were refugees, not unlike the refugees from crisis we see today in Europe.
Yeah, and my critique is not that the South was as bad as that but the acts of terror that people were allowed to engage in with impunity are no less gruesome and are no less provocative in the acts. If you hang a person out and you mutilate them and you set them on fire and then you shoot them and then you insist that they hang from the tree for a week and you make black people look at them as a statement to that community, you've done something horrific. And it has the parallels that we talk about in the modern context.
And you're right — what happens in response to that is that millions of black people flee to Chicago and Cleveland and Detroit, not as immigrants looking for new economic opportunities but as refugees and exiles from terror.
We have to stop telling the lies that we tell about who we are. You go to the American South, and the landscape is littered with the iconography of the Confederacy. We celebrate our history of slavery. We celebrate our era of terrorism.
Talk about erasing the death penalty, because when you look at death row … blacks are not the majority that are there. There are actually more whites than blacks. But you have to look past that to find how race really plays into the death penalty. Explain that.
Sure. It's race of the victim. So that death penalty is the blue ribbon we give to people who murder the folks we care most about. And because there is this hierarchy of whose lives matter, 80 percent of the people on the death row are there for victims who are white. And even though people of color are much more likely to be the victims of homicide, they don't become the death penalty cases.
It is still incredibly racially skewed, and you find that evidence not just in the percentage of defendants of color, which is disproportionately high, but you find it most dramatically with the race of the victim.
The court case that the United States Supreme Court took on that was really designed to end racial bias in the death penalty because of the evidence of race was all about race of the victim.
The Baldus study in 1987 established that in Georgia you're 11 times more likely to get the death penalty if the victim is white than if the victim is black. 22 times more likely to get the death penalty if the defendant is black and the victim is white. And these data could not be contradicted. And the United States Supreme Court didn't quibble with the data. They didn't say, "We don't believe you."
They simply held that the death penalty is constitutional because of two reasons. One, if we deal with racial bias in the administration of the death penalty, it's gonna be just a matter of time before we start having to hear complaints about racial bias in other forms of the criminal justice system. And Justice [William] Brennan in his dissent ridiculed the court for its … "fear of too much justice." And he was right.
The second thing was the thing that I think ought to haunt us, all of us. As the court said that a certain quantum of bias — a certain amount of discrimination in the administration of the American death penalty, a certain level of racial bias — is inevitable. And because it's inevitable, we can't do anything about it. This is the court that has "equal justice under law" engraved on its front.
It is the court that produced Brown v. Board of Education.
You've argued in front of the Supreme Court a number of times. To your knowledge, any of the justices who are making the decisions about the death penalty and its constitutionality, have they ever actually witnessed an execution?
Oh, I'm certain they have not. I mean, the only justice who had any kind of personal relationship to the death penalty was Thurgood Marshall, who stood with condemned people, who represented condemned people. And, of course, he was passionately oppositional to the death penalty.
I think part of the challenge that we have in this country is that we've created great distance between the people we put in jails and prisons and the rest of us. We build these prisons out in the middle of nowhere. We don't make them accessible. We make it really hard for [other] people to get inside.
We have the highest rate of incarceration in the world. And we don't feel especially ashamed about that. You know, the death penalty — we've exonerated now 156 people. That means for every nine people we've executed, we've identified one innocent person on death row, who was proved innocent. It's a shocking rate of error. And yet we just carry on. I mean, if for every nine planes that took off, one crashed and everybody died, the FAA wouldn't let anybody fly. And none of us would want to fly.
To get them closer to the death penalty, because they can't witness it. It's very difficult to get in and witness it. I've witnessed it. You've witnessed it.
For me, the great violence of execution isn't really the moment when someone's put in a chair and the electricity is turned on. The real violence of the death penalty, it's in those moments, the hour before, when you're seeing someone who's healthy, who's not a threat to anyone, have to say goodbye to the people around him because the state says, "We have to kill you."
When I started working in Alabama many years ago, had a bunch of people with execution dates who didn't have lawyers. And the guy called me up and said, "Mr. Stevenson, I heard you opened an office. I've got an execution date in 30 days. Will you take my case?"
Thirty days. “I'm not ready to take an execution case." And the guy got quiet. And he said, "But I need a lawyer." And I said, "I'm sorry, I can't." Came back the next day, and the guy called me again. He said, "Mr. Stevenson, I know what you said." He said, "But I'm begging you, please take my case." He said, "You don't have to tell me you can win." He said, "But I don't think I can make it the next 29 days if there's no hope at all." And when he put it like that, I couldn't say no. I said yes. Tried very hard to get a stay of execution. One of the perversities of our system right now is that our courts are more committed to finality than fairness. They're just trying to get to the end.
The court denied his stay motion. And I went down to be with him. Then I had a conversation with the client, who told me, he said, "Bryan, it's been such a strange day." He said, "More people have said, 'What can I do to help you?' in the last 14 hours of my life than they ever did in the first 19 years of my life."
I was standing there holding that man's hands, thinking, "Yeah, where were they when you were 3 years old and your mom died? Where were they when you were 6 and 7 being physically abused? Where were they when you were 10, being sexually abused? I know where they were after you went off to Vietnam, got traumatized and you came back in a really disrupted state. They were lined up to execute you when you committed this crime."
It's that kind of understanding, it seems to me, that teaches you something. And when you're up close, you do learn the reality, the brutality of it. If you said to people, "Let's rape people who are guilty of rape," you're probably not gonna get much support for that.
And that's because we can't imagine how an otherwise healthy public official could be required to go rape someone as punishment. But we say, "Let's kill people who are guilty of murder. You know, let's do that." It's because we have this fantasy in our mind that we can actually kill people with impunity, that we can do it in a way that doesn't implicate us, where we don't feel like we're playing a role in that.
Your grandfather was murdered?
My great-grandmother was murdered in Texas, in her 90s, by a young African-American woman who was looking for money for drugs. The girl goes to prison in Texas. And while she was in, she got to complete a college degree. I think almost everyone before me in my family didn't get to go to college. And then they see the person who murders their beloved grandmother get to go to college. From a societal standpoint, I understand that. From a personal standpoint, I understand the pain and how that looks like unfairness.
I think there is no right way to feel after you have lost someone you loved. I think it is wrong for any of us to have expectations that you have to feel a certain way or think a certain way. What the rest of us ought to be thinking is, "Why did we allow this child to be roaming in this way, where she is preying on 90-year-old blind people to meet a need? What kind of society have we created where people have that need? And can we do better?"
I think we can do better. And I want to disrupt all of the pathologies that put that child at your great-grandmother's doorstep in the first place. And that means, yes, investing in education and, yes, reaching out to people who are otherwise going to suffer and struggle. It doesn't mean that we're doing that because we don't care about the victimization.
Look, my grandfather was murdered. Same story — 86 years old, in a house, kids trying to get money stabbed him to death. But what it makes me want to do is to create a nation that's less violent.
I hate violence. Hate it, hate it, hate it. And if there was something you could do to change that narrative, where your great-grandmother doesn't die, I'd want to do that.
I want something that is responsive to inequality and injustice. And that is equality and justice. And if that's your orientation, then the world is just full of options.