Race & The Criminal Justice System

Editor's Note: The following article is an abridged text of a keynote speech given in January by civil rights attorney Bryan A. Stevenson at a U-M Law School Conference. Though his remarks were specifically aimed at an audience of potential public interest lawyers, Mr. Stevenson's experience and insights are extremely relevant and inspirational to anyone interested in the issues of race, poverty, equal rights and justice.

Mr. Stevenson is the Executive Director of Alabama Capital Representation Resource Center in Montgomery, Alabama. He earned his J.D. at Harvard Law School and was awarded the Harvard Fellowship in Public Interest Law. He simultaneously earned a degree in Public Policy from the Harvard School of Government where he was awarded the Kennedy Fellowship in Criminal Justice. Since that time he has been a civil rights attorney in the deep south advocating for the rights of poor people and minorities through his representation of death row prisoners.

Mr. Stevenson has received numerous honors for his work including the 1989 Reebok Human Rights Award, the 1990 ABA Wisdom Award for Public Service, the 1991 National Medal of Liberty from the ACLU, and the 1993 Thurgood Marshall Medal of Justice.

As a visiting professor at U-M's Law School next fall, Mr. Stevenson will be teaching a 6-week course entitled, "Race & the Criminal Justice System.

When we first got started in the process of setting up this project in Alabama, I got a call from somebody  who was about 30 days away from execution and he was begging me to represent him. He said, "My lawyers have dropped my case. They tell me there's nothing more they can do. I'm scheduled to be executed in 30 days. I've got to have you represent me."

It didn't make sense for us to get involved. We were trying to get to other cases where we could perhaps accomplish some relief. And yet this man kept calling. He kept calling. Finally, he called me back and said, "Mr. Stevenson, you don't have to tell me that you can get me a stay of execution. You don't have to tell me you can keep them from killing me. But you do have to tell me that you'll work on my case because I don't think I can make it over these next 30 days if I don't have any hope at all. I've just got to find a way to get through the next 30 days. So please tell me you'll represent me." And I said, "Okay, we'll represent you."

We worked hard on this case. We worked night and day to try to get a stay of execution but we weren't successful. And I never will forget riding from our office in Montgomery down to the prison to be with this man on the night that he was scheduled to be executed. It was very difficult. It was very painful. I was almost surreal. They don't prepare you for stuff like that in law school, standing back there with 30 minutes before his scheduled execution and talking to him. It's such a bizarre and difficult and painful experience.

In the conversation that we had he told me about his day. He said, "You know, it's been a strange day. When I woke up this morning the guards came to me and said, What do you want for breakfast?' Then they came to me and they said, "What do you want for lunch?' Then they came to me and they said, "What do you want for dinner?"" Every 15 minutes somebody was coming to him and saying, "Can I get you some stamps to mail your letters? Do you want to use the phone to call somebody? Do you need some coffee? Do you want some water?" Every 15 minutes they were coming to him and saying, "What can I do to help?"

And then he said something I'll never forget. He said, "You know, more people have asked me what they could do to help me In the last 14 hours of my life than they ever did In the first 19 years of my life." And standing there I couldn't help but think, Where were they when you were three years old being physically abused by your stepparent? Where were they when you were six years old being sexually assaulted by your stepfather?  Where were they when you were nine and were abusing heroin and were strung out? Where were they when you were 14 and homeless with no place to go? I know where they were when you were 19 and committed this offense: They were lined up to execute you.

It's difficult to have the guards say, "You have to leave now. We have to shave the hair off your client's body to prepare him for execution."

Race Bias in the Courts 

I'm a product of Brown v. Board of Education. I tell people that everywhere 1 go. I'm not ashamed of that In my community you couldn't go to the public schools if you were black. When It was time for us to start our education we had to go to the colored school.

My mom was the kind of person who would always answer any question you had. I have this memory from when I was a kid - you could ask my mom, "What's that star up in the sky, mom?" and she'd say, "Well that's the brightest star In the sky tonight" You'd ask my mom, "What's that planet over there by the moon?" and she'd say, 'Well that's the planet nearest the moon tonight."

She didn't have good answers to these questions. But no matter what you asked her she always gave you an answer. She wanted you to believe that there was no question that wasn't worth asking. But I could always remember vividly when we would drive past the Milton Public School and I would ask my mother what the word "public" meant She would bite her lip and she'd never say anything. She didn't want us to know we were being excluded from something that was meant for us.

I thought about that when I read McCleskey v. Kemp [a 1987 Supreme Court decision which deemed race bias In the criminal justice system "inevitable"] because lawyers came into Southern Delaware and they litigated Brown v. Board of Education and they opened up the public schools to black kids like Bryan Stevenson. And because of that I stand here today. If it hadn't happened I wouldn't be a lawyer. It was too difficult for minority kids of my background to get to a colored high school. It took money to do that. And but for the vision of those lawyers In the 1950s to make education accessible to kids who were poor and black, It wouldn't have happened for me.

And I thought about how in 1954 the Court could have said In Brown, "Racially segregated school systems are inevitable. It's inevitable that kids like Bryan Stevenson don't get high school degrees because white parents don't want their kids going to school with black kids and black families don't have the resources to get into the public schools. It would be too much conflict It would be too much controversy to integrate schools if we say that this is unconstitutional. So it's inevitable that we have this problem with education in America."

But they didn't say it. They said it was unconstitutional and its unconstitutionality made it not inevitable. And somehow there was a vision in 1954 that the Supreme Court had, with the commitment the Court had, that they lost in 1987 when it came time to deal with race and the criminal justice system.

And the consequences of that are quite powerful, quite overwhelming. Now when we go into courts and start talking about race bias and start talking about race discrimination, judges know that they can deny us relief with impunity. They know that they are litigating and presiding over cases and prosecutors are prosecuting cases in an era under a document which states race bias is inevitable, and therefore unavoidable. And the consequences are quite astounding. But we continue to challenge overt race bias. And sometimes the opposition laughs when we present them with this evidence about how biased things are. They just laugh because they know there's nothing that they have to do to overcome it.

There was a case out in Florida not too long ago involving a trial judge who was presiding over a capital case and who was quite willing and quite impatient about getting to the point where he could pronounce the death penalty against this black defendant. And at the end of the guilt phase, while the trial lawyers and the defense lawyers were preparing for the penalty phase and the mother and father of this black defendant were about to leave the courtroom, the judge, sitting on the bench, looked up and saw these people about to leave and fearing that he might lose some time in the proceedings, he said to the prosecutor, "Well there goes the nigger mom and nigger dad now. Why don't we get them to testify right away and save the state some time?"

Not surprisingly that man was sentenced to death. On appeal, the Florida Supreme Court reversed this man's conviction on grounds having nothing to do with the judge's comment about race, but the issue of race was nonetheless pressed at that court. The Court did not analyze the question of race bias on the part of this judge but put in a footnote, a one-sentence opinion, and I'm quoting here, "We want to admonish state court Judges in Florida to avoid the appearance of impropriety." End of quote. End of discussion. End of opinion.

It's ironic to me that if that trial judge had been a newscaster or sports commentator, he would have lost his job. But because he was a trial judge dealing with race in the criminal Justice system, it's "inevitable." It's okay. And he still sits on the bench today. And there is this tolerance, this willingness to accept bias in the administration of criminal justice, because we're talking about the bad people. We're talking about the people who give us fear. We're talking about the people who make us angry.

Poverty: Starting Out Unequal

We're living at a time when the problems of poor people seem to be getting worse. The latest statistics tell us that 49%of all African-American children are poor. They're living in homes that even the federal government defines as being impoverished. We're now living in a time when black men living in Harlem have a shorter life expectancy than anyone, male or female, living in Bangladesh. We're living at a time when homicide proves to be the leading cause of death of men of color between the ages of 18 and 34. And the problems of poor people as it relates to these problems become more and more frustrating, and more and more overwhelming.

We don't have a public defender system in Alabama. I have a staff of seven lawyers. We operate on a budget of $600,000 a year. We're trying to provide representation to 140 people who are under a sentence of death. At the same time, there are 240 people awaiting capital murder trials. And it's simply more than we can do.

Our clients and people who need us don't have the means and resources to find lawyers who could protect their rights. And it's very painful. I get calls all the time from the multitude of young defendants. And these are the particularly disturbing calls. We have in Alabama a statute that allows the prosecutor to indict you for capital murder no matter how old you are. So you get a lot of kids who are 12, 13, and 14 years old who are indicted for capital murder. And their lawyers aren't informed or sophisticated enough to know that if you're charged with capital murder at that age, you probably can't get the death penalty because the state law doesn't authorize the death penalty for kids who are 12 years old or 13 years old or 14 years old. but because these lawyers don't know that, they plead their 12-and-13-and 14-year-old clients guilty to capital murder in exchange for sentences of life imprisonment without parole.

And these mothers cali and say, "Can you help us, can you do something about us?" And of course we want to. And yet there are too many clients and too many needs and too many situations that we have to confront and we get overwhelmed with the problems of poverty as it relates to criminal justice.

I was talking to one of the sisters of my client not too long ago and she was telling me how difficult it is to live in Pike County, Alabama when you're poor. She's lives out in the middle of this field- a cotton field- and she was describing what was going on with her children. She said, "You know, I'm scared for my kids, because they're getting angrier every day that goes by. Every birthday that comes by they lose some of their sweetness of childhood. And they're getting angry and they're getting mean and they're getting frustrated."

She said, "When they go to school in the morning they hate school. They hate it. We live out in this field and during the wintertime when it's dark they have to walk down this road to get to the place where the school bus will pick them up. And the cows go across the road and there's manure on the road so that it's impossible for them to get to the end of the road and get on that bus without having stepped in some manure. When they get on the bus the kids call them stinky and make fun of them and they ostracize them and then they get into fights and they keep getting suspended from school."

And she said, "When I talk about this, when I complain about this, when I say things to people, nobody seems to hear. When I try to identify for people the problems that we're suffering, that we're experiencing, nobody seems to see us." And then she said, "It's like we're invisible. I feel like we're invisible."

And this was a woman who's not well-read. She'd never read Ralph Ellison's "Invisible Man," but she knew what it meant to be invisible, to feel excluded, to live in the margins. And hearing her talk about that Is very difficult.

This Problem of Hopelessness

But the problem of responsibility and the problem of race and the problem of poverty doesn't compare to the seriousness of this last problem - this problem of hopelessness. Because in so many ways it's the most profound problem that we have to confront in our society today- this notion that we can't do anything about the problems that we so quickly and readily identify.

I see it not only with my clients but with the client community as well. When I talk to the siblings of some of my clients who are 13 and 14 years old they tell me, "Mr. Stevenson, I'm not going to live past 18." And they believe it "So don't talk to me about school, don't talk to me about laws, don't talk to me about any of that kind of stuff. I know I'm not going to live past 18. If I'm not dead In the streets by 18, I'll be in prison for the rest of my life."

And unfortunately it's hard to tell them that they're wrong because too many of the kids that they see around them are In fact dead by 18. And they've become hopeless about their lives. And obviously they don't care about the values and the norms and the respect and the procedures and the things that we would like for them to care about because of this hopelessness. 

But it's not just their hopelessness. You hear it in the way our Congress is now talking about the issues of poverty and care. "We've got to eliminate the welfare state, we've got to eliminate doing for poor people because what we're doing is we're just contributing to their laziness. We've got to marginalize them more. We've got to stop worrying about race and the legacy of slavery in this country. We've got to get past all this guilt feeling about affirmative action, about the problem with black people. That's their problem. We've got to move past all of that."

The death penalty is the ultimate expression of hopelessness. It says this person's life Is beyond hope, beyond redemption, beyond value. Their life no longer has purpose. Kill them. And It's this hopelessness that is feeding so much of what we see and what we do. And It's the biggest thing that we have to confront, if we truly want to be advocates in what I believe is a better public Interest.

And in so many ways the challenge that you face as law students in confronting careers in the public interest, and the kind of challenges I face trying to provide assistance for people on death row, is essentially a challenge about confronting hopelessness, overcoming the despair that so many of us just recognize, acknowledge and leave alone.

The Case of Walter McMillan

I mentioned this case of Walter McMillan. It really was an outrageous case, but I learned something about hopelessness. When I got involved in Mr. McMillan's case It was one of those situations that was just so unbelievable. Mr. McMillan had been arrested for a capital crime that took place in 1986.

Essentially what happened was the police could not solve this murder in Monroeville, Alabama. Seven months had gone by, gun sales had tripled, and the people in the community were talking about impeaching the sheriff and the district attorney. They were mad and angry that this young white woman had been murdered in downtown Monroeville and no arrest had been made. And finally, we believe, the police decided it would be better to arrest somebody- anybody - regardless of their guilt or innocence, than to allow this case to go unsolved.

So they decided to arrest our client, Mr. McMillan. Now he wasn't the kind of person you would typically suspect of killing somebody. He was 45 years old He had never been convicted of any prior felonies. He was a hard-working person. He had worked his way up all his life. He was fairly well respected. He was just not the type of person you would expect to be the target of a frame. His one mistake-the one thing he had done to bring himself to the attention of the police was that he had had an affair with a young white woman who was 29 years old and the relative of one of these police officers. And we think that fact and that fact alone was what made him the target of this frame-up.

So seven months after the crime they arrested him and they charged him with capital murder. Now he was at home at the time of the crime with his family having a fundraiser for their church. There were 30 people there who could document where he was- who could prove where he was at the time this crime took place some 11 miles away. And they kept hoping and believing that any day after his arrest that he would be returned home because they knew it had to be a mistake.

Instead of recognizing that he was an innocent person, the system just kept doing things to make his guilt seem more acceptable. They put him on death row a year before his trial. He spent 13 months on Alabama's death row awaiting his capital murder trial. It made for a quite interesting cover for the press. They'd say: "Death-row defendant Walter McMillan will be arraigned tomorrow"; "Death-row defendant Walter McMillan will have pretrial hearings next week"; "Death-row defendant Walter McMillan will start trial tomorrow." It created a nice ambiance to  get him convicted of a capital crime he had not been involved in.

And when we got involved in this case is took us four years to finally get the state of Alabama to acknowledge his innocence and to let him go. It was a wonderful experience to finally prevail in that case. I never will forget. We went down to Holman prison and got him and got his possessions and belongings and his box and we walked out the front gate of Holman prison, the front gate of the prison where death row is. It was so incredibly exhilarating. The guys in the tiers were cheering and it was Just a wonderful experience. Actually, Walter was a wonderful client who would always do what you'd tell him to do. 

When we walked out that front gate I was just so exhilarated and so encouraged and sort of happy, I turned to him and I said, "Walter that was just so wonderful, let's go back in and do it again." And that was the only time in the five years I represented him, he turned to me and he said: "No." I learned something during this case about hopelessness. We were having these hearings in Monroe County and we had organized all of these witnesses who were going to testify about how Walter couldn't have committed this crime. We had gotten tapes that showed the police interrogating this witness who testified against them. They were saying, "You've got to tell us a story of Mr. McMillan." He was saying on the tape, "You want me to frame an innocent man for murder and I don't want to do it." And they were saying, "Don't think about that" and all this remarkable stuff.

We went to court and we were prepared to prove his innocence. And the first day, the court was packed full of black people who had been there from the community because they were very invested in this case. They knew he was innocent. In some ways it would have been easier for the black community if he had been out in the woods hunting by himself, because then they could entertain the possibility that he might be guilty of this crime. But because they were there, because they were with him, it was almost as if they were on trial too.

It's like If next week somebody comes to you and says we're going to charge Tracy Weaver for a murder she committed at 1:30 on Saturday, January 28. All of you know she's in this room. All of us see her here. All of us know that she could not have committed this crime. We'd laugh when we first heard about it. We'd say, "Well Tracy's going to get a great lawsuit against them because she's not guilty of that crime." And then after a week we'd start to get worried and after a month we'd become more worried and after she got convicted we'd be heartbroken. And then when we saw her moving toward the electric chair, every day our hope, our convictions, our beliefs about what justice is, would be slowly taken away from us.

And that's the way it was for this community. They knew Walter was innocent. They saw him moving toward execution and they could not reconcile that with their commitment to this country, to this society. So when we had these hearings they packed the courtroom, and after the first day of hearings everybody was so encouraged because they heard us presenting this evidence and doing these things and we were encouraged too that they were getting some relief, that they were feeling some power behind our litigation on behalf of them and we went home that night feeling good.

I came back the next day and I got to the courthouse and I noticed that all the people who had been inside the courtroom the day before were now outside the courtroom. And I said, "What are you all doing out here?" And they said, "Well, they haven't opened the courtroom for us yet" And I walked to the gate and I said, "I want to go inside the courtroom. " And the deputy said to me , "You can't go in yet" I said, "Well I represent Mr. McMillan and I want to go in to prepare." And he said, "Okay, you can go in." And they opened the door.

And between the first day and the second day they had erected this metal detector. You had to walk through this metal detector and on the other side of the metal detector was this German-shepherd dog - this huge dog. I walked past the dog and I walked into the courtroom and I turned around and I looked at the courtroom. It was half-filled with white people who had been brought in by the prosecution to change the dynamic of the courtroom.

I was angry and I complained to the judge that I knew that everybody wasn't going to get in from the black community because they had said they weren't going to let anyone stand in the courtroom. I walked back out there and I was angry that they had done this, that they had kind of gotten around this in this way. I told people that not all of them would get in - only some of them could get in because they had done something tricky and sneaky, but we were going to fight it.

And then I saw something wonderful happen. Instead of getting depressed and discouraged, people began to say, "Well, we'll just designate some of us to go in today and

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Race & The Criminal Justice System (FROM PREVIOUS PACE)

some of us can go In later on." And they quickly began saying, "We're going to let the older and the most respected people who really need to be In there go In there first." And they quickly identified this older woman from their community, Mrs. Williams, to go into the courtroom first. And she took such pride at being so quickly and readily identified as somebody who needed to be in that courtroom, you could just see her swell with pride. And they said, "Mrs. Williams, you get to go into the courtroom."

She gathered her shawl, she collected her hat, and she clutched her pocketbook, and she proudly made her way to that courtroom door and she proudly walked through that metal detector. Then she caught sight of that dog out of the corner of her eye. And when she saw the dog she became overcome with fear. You could just see it happen. She saw that dog and she just froze. I saw her try to pick up her leg and walk on but she could not do it and she began to shake and tremble and tears were coming down her face and finally she just drooped. Her whole body just drooped. Her head sagged, her body dragged, and she turned around and walked out of the courtroom. It was a painful thing to see. 

But some other people carne into the courtroom. We went through the proceedings, we had a good day, and that night when I was going to my car, she was still sitting outside the courtroom just waiting. And she came up to me and she said, "Mr. Stevenson, I'm so sorry. I feel so bad. I feel like I let you down. I felt like I let Mr. McMillan down. I feel so worthless. But I didn't have the courage to get past that dog. I just don't know what to do." And she was crying. I could not console her. I said, "Mrs. Williams, it's alright, it's okay. It's not your fault." And she said, "No, no, no, I should have walked through, past that dog. I shouldn't have turned around like that I feel so bad. But when I saw that dog," she said, "I thought about Selma, 1965, and I remember walking across the Edmund Pettus Bridge, and I remember being chased by dogs. I just couldn't get my courage up to walk past that dog."

And she went home. Her daughter talked to me later on the next day and told me that all the way back home she kept saying to herself, "I ain't scared of no dog." And that night when she went to bed, she got on her knees and she was praying and they could hear her praying and saying in a loud voice, "Lord, I ain't scared of no dog."

When it was time to go to court the next day she told everybody In her house, "I'm going to court today." On the way from Monroe County to the court house - it's about an hour-and-a-half trip - she kept saying, "I ain't scared of no dog." It became like a mantra. She was saying it from the time she got into the car until the time she got to the court. And then she got to the court and she said, "Nobody goes into the courtroom before I do." She kept saying to herself, "I ain't scared of no dog, I ain't scared of no dog."

When they opened the courtroom they still had the metal detector, they still had the dog, and she went into that courtroom saying, very loudly , "I ain't scared of no dog. " And I saw her walk past that metal detector and walk past that dog, looking that dog straight in the face saying, "I ain't scared of no dog," and walk behind me and take her seat in the front row of that courtroom.

When she took her seat, she turned to me and said, "Mr. Stevenson, I am here." I turned around and I said, "Mrs. Williams, I see that you're here." I turned back around and she said, "No, Mr. Stevenson, you don't see me. I am here." And I did see her. And then In a very loud voice, she told everybody In that courtroom, "I am here." Nobody said a word.

Rejecting Hopelessness

In so many ways, that's what we need to do. Some of us are going to have to say this when people start talking about how poor people have no values, how they're lazy, they're stupid, and we can't worry about giving them welfare. When poor kids believe these things, begin to believe that their life has no value, somebody has to be prepared to stand next to them and say, "I'm here and what they're saying about your worth is wrong." When they start talking about finding other ways to kill people and say their lives have no purpose, have no value, somebody's got to be prepared to say, "I'm here and what they're saying is wrong."

And when we start talking about, "We can't do anything about the environment, we can't do anything to change the plight of poor people in this society, we can't do anything to help the hungry, we can't do anything about medical care, we can't do anything about health care, we can't do anything about mental Illness in society, somebody's got to stand up and say, I'm here and you're wrong.'"

You may have to say, "I may be young, but I'm here." You may have to say, "I may not understand everything that I need to understand, but I'm here." You may have to say, Tm not even sure that I have all the answers, but I'm here."

When you say, "I'm here," you're saying something hopeful. You're saying something hopeful about what we can do as lawyers to change the society, because the law is very much a part of the hopelessness that we're trying to overcome. And we need lawyers with hope to help us overcome it.

One of the things I've learned about hopelessness Is you can't give what you don't have. We can't give hope If we don't have it. So we've got to prepare ourselves to say, I'm here," even when people tell us that we ought not be there. A lot of people don't believe I should be in Montgomery, Alabama. "You're not from Montgomery, you don't belong here." A lot of other people say, "You shouldn't be in Montgomery, Alabama. You could be making a lot more money doing a lot of other things. You shouldn't be down there."

But it's necessary for me to say, "I'm here" when I hear about them executing people because they're poor, or because they're black, because they haven't gotten justice. I've seen that happen. Because I've seen that happen, I have no choice but to say, "I'm here." I may not beat you, I may not overcome, I may not win every time, but I've got to be here to be a witness against what you're doing.

One of the things I've learned doing the work I do Is that you have got to be prepared to believe things you haven't seen. I haven't seen equal Justice In Alabama, but I believe It's got to happen. I haven't even seen equal justice In America, but I've got to believe It's got to happen. I never met a lawyer until I got to law school but I had to believe I could be one even though I'd never seen one.

It's this dynamic of believing things that we haven't seen which gives us power, power to do things that the rest of society doesn't think we can do, power to do things as lawyers that even some of our classmates don't think we can do. "You're too idealistic. You're too silly, you're too naive. Why do you think you can do something to help poor people, to change the problems with the environment, the problem of homelessness? You think you can overcome fear and anger toward people who are gay or lesbian? You think you can change the role of women in society? You people are foolish."

But when we say, I'm here," we're basically expressing a commitment to justice. We're rejecting the inevitability of bias. We're rejecting the inevitability of this hopelessness. And we're saying that we have a vision.