THE WASHINGTON FOREIGN PRESS CENTER, WASHINGTON, D.C. (Virtual)
MODERATOR: Good afternoon and welcome to the Washington Foreign Press Center briefing on “Addressing Racial Inequality in the Justice System.” My name is Jen McAndrew and I am the moderator today. First, I will introduce our briefer, and then I will give the ground rules.
Addressing racial equity is a top priority for the Biden administration, including advancing a comprehensive plan for criminal justice reform. To provide context and expertise on current advocacy efforts in this field, our briefer today is Bryan Stevenson, an acclaimed public interest lawyer, founder, and executive director of the Equal Justice Initiative in Alabama. Mr. Stevenson will address EJI’s leadership on criminal justice reform as well as the public education work of the Legacy Museum and the National Museum – the National Memorial for Peace and Justice, which chronicle the legacy of slavery, lynching, and racial segregation, and the connection to mass incarceration and contemporary issues of racial bias.
As a nationally recognized leader on racial justice issues, Mr. Stevenson has initiated anti-discrimination efforts that challenge inequality in America. He has argued and won multiple cases at the Supreme Court and is the author of the critically acclaimed New York Times bestseller Just Mercy, which has been adapted into a feature film. Under Mr. Stevenson’s leadership, the Equal Justice Initiative has won major legal challenges in the area of criminal justice reform, including eliminating unfair sentencing and exonerating death row prisoners.
This February during Black History Month, as we honor the history and achievements of African Americans, we are privileged to have Mr. Stevenson brief with us today. The Foreign Press Centers will be programming a series of briefings on racial equity over the coming months and we are so pleased to launch the series with the Equal Justice Initiative today.
And now for the ground rules: This briefing is on the record. The views expressed by briefers not affiliated with the Department of State or U.S. Government are their own and do not necessarily reflect those of the U.S. Government. Participation in Foreign Press Center programming does not imply endorsement, approval, or recommendation of their views. We will post the transcript of this briefing later today on our website, and if you publish a story as a result of the briefing, please share it with us.
Mr. Stevenson will give opening remarks and then we will open it up for questions. And with that, I will pass it over to Mr. Stevenson for your presentation. Over to you.
MR STEVENSON: Well, thank you very much, and it’s a great honor to be with all of you and to participate in these incredibly important briefings about critical issues that we’re facing in the United States.
I thought I would start by just providing some background on my own journey into this world. I grew up in a community where black children were not allowed to attend public schools – it was the end of the Jim Crow era – and I started my education in a colored school. There were no high schools in our county for black kids when my dad was a teenager, so even though he was hardworking and smart, he couldn’t go to high school in our county. And lawyers came into our community and enforced the United States Supreme Court landmark ruling in Brown vs. Board of Education, which struck down racial segregation in education. And because those lawyers came into our community, opportunities were available to me that had not been available to the generation that came before me.
It’s important to note that if you had a vote in our county at the time, most people – it was an 80 percent white community – would have voted to maintain racial segregation. But because of our commitment to the rule of law, these lawyers had the power to enforce this Supreme Court decision and make these doors open up. And because of that I got to go to high school, I got to go to college. I ended up going to law school because I wanted to use that same power to help other disempowered, disfavored groups. And I went to Harvard Law School, and when I graduated in the 1980s it was clear to me the community of people who are now most at risk was this community of people growing in our jails and prisons.
Throughout the 20th century, in the United States, the prison population was largely stable. In the 1970s, we only had about 200,000 people in our jails and prisons, but then that changed and we went from 200,000 people in jails and prisons to 2.2 million people in jails and prisons today. We began this investment into mass incarceration, over-incarceration. We had political leaders that were governing through what I call the politics of fear and anger. They wanted people to be afraid and they wanted people to be angry. And they said that people who are drug-addicted and drug-dependent are criminals, and they said we need to use the criminal justice system to deal with that population.
Now they could have said that people suffering from addiction and dependency have a health problem and we need a health care response, but instead we opted for this crime response and the prison population began to grow and grow and grow. There was a competition between our political parties over who could be the toughest on crime, and that created all kinds of sentencing policies that were quite extreme. And by the end of the 20th century and for the last 20 years, we occupied this space where the United States now has the highest rate of incarceration in the world. There are nearly six million people on probation or parole in this country. There are 70 million Americans that have criminal arrest histories, which means that when they often try to get jobs or try to get loans, they’re disfavored by that arrest history.
We’ve done some pretty tragic things to women. The percentage of women going to jails and prisons has increased 800 percent over the last 30 years. Eighty percent of the women we send to jails and prisons are single parents with minor children, which means that there is an impact for the next generation. You’re dramatically more likely to end up in jail or prison if you’re the child of an incarcerated parent.
And the narrative of fear and anger that fueled all of these policies has been at the heart of my work. I actually think that fear and anger are often the essential ingredients of injustice and oppression. If you go anywhere in the world where people are being abused and mistreated, where their rights are being violated, where people are being marginalized and excluded – if you ask the oppressors why they are doing what they are doing, they can give you a narrative of fear and anger. And our work has been very much rooted in this idea that we have to resist, we have to reject the politics of fear and anger. We have to look for solutions to deal with some of these vexing problems.
I believe we need a health care orientation when it comes to many of the behaviors that result in people going to jails and prisons. We have hundreds of thousands of people in our jails and prisons who suffer from mental illness, and we haven’t managed that in a way that responds to the health crisis underlying these problems. We have a lot of other issues that have animated my work. I believe we have a criminal justice system in this country that treats you better if you’re rich and guilty than if you’re poor and innocent. Wealth, not culpability, too often shapes outcomes, and that has to change. That has to be challenged.
And so we set up a nonprofit, and over the last 30 years, we provided legal services to the poor, to the vulnerable, to the neglected, to the abused, to the mentally ill. We’ve fought for children. One of the other features of this era of fear and anger is that we had politicians and criminologists going around 30 or 40 years ago arguing that some children aren’t children. And they began to make this really tragic argument that some kids, even though they look like kids and sound like kids, aren’t really kids. And we demonized a generation of children by calling them, quote, “super predators.”
And that’s when states in America lowered the minimum age for trying children as adults, and we began prosecuting children and putting them in prison for life with no chance of parole. I’ve represented 13 and 14-year-old children sentenced to life imprisonment without parole. We have 13 states that have no minimum age for trying a child as an adult. And so I’ve represented nine- and ten-year-old kids facing 40 and 50-year prison sentences. And we’ve had – we’ve done some work to challenge this and we’ve made some progress, but there’s a great deal of work that still must be done. When it comes to children, I believe that all children are children. I don’t think a nation shows its commitment to children by looking at how well it treats talented kids and gifted kids and privileged kids. I actually think our commitment to children has to be expressed by how we treat poor kids and neglected kids, abused kids, kids that have fallen down.
In 2001, the Bureau of Justice projected that one in three black male babies born in this country is expected to go to jail or prison during his lifetime. The projection for Latino boys was one in six. And sadly, it didn’t trigger the kind of pandemic-level response that I think it should have. It is and was a crisis that really needed to be addressed. And so I’m now hopeful that there is a will to begin engaging in the kind of reforms that address these critical problems. We have hundreds of thousands of people in our jails and prisons who are not a threat to public safety.
And getting them out will not only create opportunities for their families and their communities, it will also save tons of money. We went from $6 billion in spending on jails and prisons in 1980 to over $80 billion in spending last year. We have allowed private institutions, private prisons to engage in building this prison-industrial complex, investing in mass incarceration. And now you have institutions that have an economic incentive to maintain these very high levels of incarceration. That is perverse, that is a threat to the kind of justice that many of us seek, and that must change.
I continue to do my work as a lawyer. I continue to represent the poor, the condemned, the excluded, the disfavored. Much of my work has been focused on the death penalty. I don’t think just societies – I don’t think societies committed to human rights tend to have the death penalty. For me, the death penalty isn’t a question that can be resolved by asking do people deserve to die for the crimes they have committed. I think the threshold question is: Do we deserve to kill? And in a nation that is still so compromised by bias and economic discrimination, where the system does not work the same for the poor and the rich, where there are political factors that shape what happens, we cannot continue to engage in executing people.
I also believe that each of us is more than the worst thing we’ve ever done. I’m still of the mind that for every human being, you are more than your worst act. I think if someone tells a lie, they’re not just a liar; I think if someone takes something, they’re not just a thief; I think even if you kill someone, you’re not just a killer. And because of that, justice requires that we understand the other things you are. And all of that leads me to condemn the executions that we witnessed at the end of last year in this country: spectacle executions, gratuitous executions, executions that I think reflected the worst aspects of the American criminal justice system. And it’s why it becomes so urgent for me and people like me to do the work we do to represent the poor and the condemned.
But about 12 years ago, my work shifted just a little bit. It grew. It evolved. It expanded. Because about 12 years ago, I was reflecting on the fact that I am the product of Brown versus Board of Education, that transformative 1955 case that resulted in ending racial segregation in education, or at least attempting to end segregation in education. And I began reflecting on the fact that I don’t think we could win a case like Brown versus Board of Education today. I became concerned that in this country, we didn’t have the will to do something that disruptive on behalf of disfavored groups – poor groups, marginalized groups, disenfranchised groups – and that made me worry that we’re going to have to get outside the courts and begin talking about these issues in a broader way. And that gave rise to the racial justice work that we’ve been doing at the Equal Justice Initiative.
About 12 years ago, we actually began putting out reports that talk about slavery and lynching and segregation. We started narrative work to create a consciousness about our nation’s history. I don’t think we’re really free in America. I think we are still burdened by our history of racial injustice. And it doesn’t matter whether you live in Oregon or California or Mississippi or Texas or Alabama or New Hampshire; if you live in this country, you live in a space where the legacy and the history of racial inequality has created a kind of smog, and we breathe that smog in and it corrupts our ability to sometimes be fair and just with one another. And I think to change that narrative, to deal with these toxins, we can no longer wait for them to dissipate. They’re not going to dissipate. We’re going to have to do some things that we haven’t done before. And at EJI, we believe we’re going to have to have conversations that are new.
We’re going to have to talk about the fact that we are a post-genocide society. I think what happened to indigenous people when Europeans came to this continent was a genocide. We killed millions of native people through famine and war and disease. We kept their lands and we kept their words. Half the states of the United States are actually native words. But we forced the people out and when we created our Constitution in the 18th century, we didn’t apply those concepts, those values of equality and justice for all to indigenous people. We instead created a narrative of racial difference. We said, oh, those indigenous people, they’re savages. And this rhetoric, this narrative of racial difference allowed us to exclude them from the promises of equality.
And that narrative of racial difference was the same narrative we used to justify two and a half centuries of slavery. And I don’t think the great evil of American slavery was the involuntary servitude and the forced labor. The real evil of American slavery was the narrative we created that black people aren’t as good as white people, that black people aren’t fully human, black people aren’t fully evolved, that black people are less deserving, less capable, less worthy. And that narrative created this ideology of white supremacy, and that was the true evil of American slavery.
We fought a Civil War. The North won the Civil War, but the South won the narrative war because that idea of racial hierarchy, of white supremacy, survived the Civil War. It even survived the constitutional amendment that attempted to end slavery. The 13th Amendment talks about ending involuntary servitude and forced labor, but says nothing about ending this ideology of white supremacy, this narrative of racial difference. And because of that, I don’t think slavery really ended in America; I think it just evolved.
We had a century where black people were pulled out of their homes, they were beaten, they were drowned, they were tortured, they were traumatized, they were lynched, sometimes on the courthouse lawn, and that violence was devastating to African Americans in this country. It was traumatizing. Six million black people fled the American South and the demographic geography of the United States today was shaped by this era of lawlessness and racial terror. The black people in Cleveland, in Chicago, in Detroit, in Los Angeles, in Oakland didn’t go to those communities as immigrants looking for new economic opportunities. They went to those communities as refugees and exiles from terror in the American South. And when they got to the North and West, they didn’t face the same threat of mob violence, but they weren’t welcome, they weren’t accommodated, they weren’t treated the way you’re supposed to treat a refugee dealing with trauma and devastation. They were merely tolerated. They were excluded. They were segregated. They were put in the ghettos that we see today, and services were not provided, and we see that huge (inaudible) playing out.
And then in the ‘50s and ‘60s we had this heroic movement, the Civil Rights Movement, where courageous people did extraordinary things to push this nation to confront the demands of equality and justice, and Rosa Parks and Dr. King and so many others would put on their Sunday best and they’d go places to protest and they’d get battered and bloodied and beaten, and yet they continued. And we passed a civil rights law and we passed a voting rights law, and things began to change for some, but that narrative of racial difference – that ideology of white supremacy – it continued. There was still a presumption of dangerousness and guilt that got assigned to black and brown people.
And here we are today, in 2021, and we’re still living at a time where there is this presumption of dangerousness that gets assigned to black and brown people. And you can be a State Department lawyer. You can be an elected official. You can be a doctor. You can be a lawyer. You can be a journalist. You can be kind and loving. But if you’re black or brown, you will go places in this country where you have to navigate a presumption of dangerousness and guilt. And I can tell you as an attorney who’s been doing this work for a very long period of time, we’re tired. You get tired of having to navigate these presumptions. You get worn out having to deal with all of these challenges. And what many of us are now saying is that things must change. We’re going to have to commit to an era of repair. We’re going to have to commit to an era of truth-telling.
In South Africa after apartheid, there was a recognition that the country couldn’t move forward without a commitment to truth and reconciliation. It doesn’t solve all of the problems, but it is a necessary part of how you begin to transition to a more just society. I’ve spent time in Germany, and it’s striking to me when I go to Berlin because you can’t go 200 meters in Berlin without seeing markers and stones that have been placed next to the homes of Jewish families that were abducted during the Holocaust. In the center of the city is the Holocaust Memorial, and the cab drivers and the hotel operators encourage you to go to the spaces that honor and remember the victims of the Holocaust.
In Germany, there are no Adolph Hitler statues. It would be unconscionable for someone to try to honor the architects of the Third Reich and the perpetrators of the Holocaust. And yet I live in a region of the United States where the landscape is littered with the iconography of the Confederacy, where we still have holidays named after the architects and defenders of that. That has to change, and I believe we need an era of truth and justice, truth and reconciliation, truth and restoration, truth and reparation. And the thing about truth and justice, I believe these things are sequential. You can’t skip the truth-telling and get to the reconciliation. You’ve got to tell the truth.
And so my work now is very much involved in that. We’ve opened these sites, the National Memorial for Peace and Justice and the Legacy Museum: From Enslavement to Mass Incarceration, here in Montgomery. I invite all of you to come to Montgomery and spend time in our sites. We think they are unique, but they are truth-telling spaces. We want to create cultural spaces where people go through and at the end are motivated to say never again can we tolerate racial violence and bigotry.
This past year we saw the continuation of the problems of police violence. It is a manifestation of this presumption of dangerousness and guilt that gets assigned to black and brown people. It has lethal consequences for so many. And there’s a resistance, there’s a fatigue, there’s a rejection of the continuation, and that’s why this is such a critical moment in American history. I think if we commit to this era of truth-telling, we can get to someplace. And I’ll end by saying that a lot of times when I talk about the problems of slavery and lynching and segregation, people think I want to punish America for this history. I have no interest in punishment. My interest is liberation. I actually believe that there is something better waiting for us. I think there is something that feels more like freedom, feels more like equality, feels more like justice waiting for us in this country. We’ve done a lot of great things in America. There are a lot of places to point to that reflect achievement and excellence, but there is still something better waiting for us. But to get there we’re going to have to be willing to commit to the truth and justice that is required for a nation to recover, to get better.
I’ll end with this: I live in Montgomery, Alabama. I stand on the shoulders of people who did so much more with so much less. The generation that came before me – people like John Lewis – had to frequently say, “My head is bloody, but not bowed.” I’ve never had to say that. But despite the blood, despite the beatings, despite the dogs, despite the fire hoses, despite the bombings, despite the threats, the people who brought me into this community were willing to say, “We shall overcome.” And what a lot of us are saying is that we shall overcome. We will not be turned around. We will not be intimidated. We will not accept inequality and injustice. And this moment is an exciting moment because we believe the opportunity to advance justice is rich and ripe and before us, and that’s what excites me about having opportunities like this to share with you and being in conversation with the United States Government and private and public institutions across the country.
I’ll stop with that.
MODERATOR: Thank you, Mr. Stevenson, for those inspiring words and your call to action. I would now like to start the Q&A. As a reminder, if our journalists can please rename your Zoom profile to your name and media outlet so that we can call on you. You can ask a question by raising your hand in the participant field. You are also welcome to submit a question in writing in the chat box and I will read it for you.
We do have one question that’s already submitted from Martin Burcharth from the Danish Daily Information. I will read the question now: “Your organization is called Equal Justice Initiative. Please explain what in your view is the difference between racial equality and racial equity in light of President Biden’s executive orders on racial equity and his election promise to improve the lives of minorities in the United States.”
MR STEVENSON: Well, I think in many ways equity is a new word that we’ve started to use to reflect the way in which you can’t just create equal opportunity if people have been disadvantaged by the circumstances that gave rise to that. I’m a lawyer, and in most areas of the law, if you violate someone’s rights, you’re not allowed to simply say, “I won’t do that again” and that becomes justice. My clients who commit crimes – if you commit a burglary, I can’t take my client into court and have that client say, “Oh, I won’t do it again” and people accept that as justice. There has to be repair. There has to be some process of recovery. And in corporate law and tax law, wrongdoers, offenders have to do things. They have to pay things to kind of restore, to create equity.
And that’s what I – I think that’s what the notion of equity is about. It is about creating – restoring and providing remedy to injury. And in this country, we haven’t really done that. I think in many ways when we passed the Civil Rights and Voting Rights Act laws in the 1960s, we didn’t do enough to provide the equity needed. If black people were disenfranchised in this region for 100 years, it wasn’t enough to say, “Okay, we’re going to now let you vote.” We needed to do some things to protect the integrity of that vote. I actually think it would have been appropriate for states like Alabama to be required to register all black people when they became of age. I don’t think it would have been wrong to say that African Americans, after being excluded and intimidated and threatened for a century from registering to vote, to now have a different process for registration than white folks. And I actually think had those states said, “Oh, you know what, we’re going to automatically register black people when they turn of age,” we’d be in a very different place today when it comes to equity so that we then might able to change the rules so that they were equal, where everybody had to register. But in the absence of that commitment to remedy, we haven’t achieved that.
And in many areas, I think that is the challenge. We denied education to African Americans for nearly a century in many places. Like I said, I grew up in a community where you couldn’t go to high school. There were no high schools for black kids. They just opened the schools up. They didn’t do anything to help a generation of families where no one had gone to high school or no one had graduated from college to deal with those deficits. I went to Harvard Law School; I’d never met a lawyer until I got to law school. I had to believe I could be something I’d never seen. And I think an equitable response to these legacies and these histories would be thinking more broadly, more comprehensively, about what’s required to create justice, to create the kind of just society that many of us seek.
MODERATOR: Okay. There’s a couple hands raised, so I would like to first call on Casper Thomas from the Amsterdammer. We’ll now unmute you so you can ask your question.
QUESTION: Yes, thank you very much. Hello, Mr. Stevenson. My name is Casper Thomas from the Amsterdammer in the Netherlands. My question is: What is your stance on the debate on reparations? Do you think compensating for the injustices of the history of slavery and racial injustice in some way involves monetary or material compensation?
MR STEVENSON: Well, I definitely believe there needs to be repair. I don’t think that it’s as narrow or as specific as monetary. I actually think that would be undervaluing the harms that have been created by two and a half centuries of slavery. I actually think that there are a multitude of things we can and should be doing to repair the damage done by this legacy of racial inequality, and I think it begins with the truth-telling.
So if we had newspapers throughout the 19th and 18th centuries that were saying things that supported racial hierarchy, that blocked black progress, that contributed to the bigotry that we still see evident today, we want those papers to acknowledge that and then we want them to commit to the kind of reporting that helps people understand the wrongfulness of racial bigotry – why you should not embrace the kind of hierarchy that we have had to live with. If there were banks that denied black veterans loans and support after World War II, which is what happened – we had a GI bill that was intended to help our veterans recover, and white veterans got loans and got support and they were able to move into the middle class. They could build homes in the suburbs and their children inherited property that their parents could give to them because of that economic boost created by the GI bill, while black parents, black veterans couldn’t get loans because they wouldn’t give loans to black people and black communities; couldn’t get the mortgage assistance. My father fought in the Korean War, built a house in the 1950s for $12,000. He never got to the point where he could own that house because he never had the equity, he never had the support that his white colleagues had.
And that consequence is something that we can remedy. And so I want those banks to now be thinking, “What do we owe black families in our community? What are the programs we should be setting up to repair the damage done by a half-century of denying mortgage investment and loan investment in the black community?” And from sector to sector to sector, there are remedies that I think we can and should be exploring. Universities in the American South denied entrance to black people until my generation, and then they open it up, but they were very cautious and were very resistant. I actually think that in a lot of these states, they owe it to a generation of children who are the descendants of people excluded to provide tuition and to provide education at less cost or no cost as a remedy to a hundred years of resistance to educational opportunities.
So I’m not looking for a check. I’m looking for justice. I actually think that the opposite of poverty isn’t wealth. I really believe the opposite of poverty is justice. It’s when we do justice that we can deconstruct the conditions that give rise to poverty, and I’m just – I just think – when I think and talk about reparations, I think way more broadly than some check in the mail. That would be too simplistic. It wouldn’t achieve the kind of transformation in American society. I’d still be presumed dangerous and guilty with my check in the bank, when I go to the store, when I drive someplace, and that’s not ultimately going to be enough.
But I think it begins with the truth-telling, because the truth-telling is what creates the environment. And I look at what other countries have done. Without the truth-telling in Germany, you wouldn’t have a consciousness that exists there. Every schoolchild goes to the Holocaust Memorial. There’s a learning that takes place that hasn’t taken place in this country, and that’s why, I mean, we’re still fighting about Confederate monuments and memorials. And so all of that has to be part of the repair process that I think of when I think about the question of reparations.
QUESTION: Thank you very much.
MODERATOR: Thank you. I’d now like to call on Torsten Teichmann with ARD in Germany. We will now unmute you.
QUESTION: Thank you very much. Thanks for doing this. Bryan Stevenson, you were talking about justice and also there is a way of enlightenment in this country where people see what the problem is and the underlying causes of the racial divide that you have in America; on the other side, you have a way where you have blunt racism we saw over the last couple of years, I think, very prominent also in America. Which of these two ways or two trains is in the lead right now in your perception?
MR STEVENSON: I don’t know that we’ve actually created dual tracks. I don’t think actually anybody has engaged in the kind of truth-telling that would allow the train that you’re imagining to kind of win a race. Even in our most elite and educated spaces, we talk very little about the native genocide. The most educated people in this country can’t tell you how many indigenous people died when Europeans came to this continent. Most people have no knowledge about the transatlantic slave trade or the domestic slave trade. They don’t understand the multiple ways that enslavement created trauma. If you ask people did we abolish slavery, they’ll say, “Of course we did. It’s in the 13th Amendment.” They won’t know that the 13th Amendment contains a clause that exempts the prohibition against slavery for people convicted of crimes. We’ve documented over 6,500 lynchings that took place between 1865 and 1950. We now have the most comprehensive data on lynching in this country, and we’ve done it all in the last five years. It’s not something that academic institutions have taken on. And the psychic consequences of this burden, of these challenges, have not been confronted at all.
So I actually think we’re going to have to get everyone to reorient. We’re going to have to kind of revive, we’re going to have to trigger this interest in truth-telling, and that will then create an environment where people who don’t tell the truth will be seen as folks who are not aware. It’s – that’s the only way you get to it. I mean – and I just think cultural institutions have a role to play. Media has a role to play. Journalists have a role to play. Historians have a role to play.
I look at the film industry, for example. We have a hundred films on the Holocaust, more than a hundred, and they’re all powerful, and we need each and every one of them. And every time we put out a great film, we build an understanding of what happened during that time period that makes it less acceptable for people to say, “Oh, that didn’t happen, it wasn’t a big deal, it would be okay if that happened again.” And when you look at the history of the African American experience in America, there’s not that same catalog. There are films about black achievement, but there aren’t a lot of – you can’t name five great films about American slavery that focus on the experience of black people. You can’t name five films about lynching of African Americans and lawlessness that took place between the end of the Civil War and the Civil Rights era. You haven’t – we haven’t explored the legacy of segregation from my generation.
And so I think it’s a more complicated picture than that. I don’t actually think there’s this kind of educated, woke elite over here in competition with these other folks. I think we’re all in a space where we have to do more, and I see it playing out day-in and day-out. I mean, I’ve argued all these cases at the U.S. Supreme Court, and I still go into courtrooms – I argued a case at the Supreme Court, won the case, and I was going around the country doing hearings. And I went to a courtroom in the Midwest, not the South, and I was there, I had my suit and tie on, I was sitting at defense counsel’s table, and when the judge walked in and saw me sitting there, he got angry. And he said, “Hey, hey, hey, you get back out there in the hallway. You wait until your lawyer gets here. I don’t want any defendants sitting in my courtroom without their lawyer.” And I had to stand up and apologize and say, “Oh, I’m sorry, Your Honor. I didn’t introduce myself. My name is Bryan Stevenson; I am the lawyer.”
And the judge started laughing, and the prosecutor started laughing. I didn’t think it was funny, but I made myself laugh, because I didn’t want to disadvantage my client, who was more vulnerable than I was. And after the hearing, I got in my car and I was reflecting on the fact that I’m a middle-aged black man, I’ve got all of these degrees, I’ve had all of these successes, and I’m still required to laugh at my own humiliation to counter, to navigate these presumptions.
And so in that kind of space, I actually think we don’t have trains moving in the right direction. We’re going to have to create a different kind of station, a different kind of place of departure that has to kind of begin with this thorough motivation to reckon with history. And I just think that hasn’t quite happened, and it’s – I won’t go deep into this – there are reasons for that. In South Africa, during the change in power after apartheid collapsed, South Africa became a black majority. And there was black political power that could shape a truth and reconciliation process. The Germans lost World War II. And as a result of that defeat, there was this kind of necessity to reckon. I’m not sure we’d have all of that Holocaust architecture and mindfulness had that not happened.
And so that change in power has been critical for many of the efforts that have allowed transitional justices to succeed around the world. In the United States, there has been no change in power. As I’ve said, the North won the Civil War, but the South won the narrative war. The people who were the perpetrators of all of that were quickly re-empowered. They wrote the constitutions that we’re still living with. That’s why all those governors could push back against integration.
And so we’re doing something quite unique, and that we’re kind of demanding justice, we’re seeking transitional justice without the power that usually comes in facilitating that. And that’s why Dr. King had to use not violence, that’s why so many have had to use strategies that are distinct and unique. It’s because it – we don’t have the military or the political power to demand some of the transformations that we’ve seen in other societies. It doesn’t mean that it can’t be done; it’s just going to be a different process.
QUESTION: Thanks for the (inaudible.)
MODERATOR: Okay. We’ve had a few questions from European outlets. I’m now going to turn to a question in the chat box from Sam Suzuki from NHK with Japan Broadcasting Corporation. The question is: “The coronavirus has ravaged many prisons around the country where incarcerated people must live in congregate settings. On the other hand, there’s been some pushback on efforts by states and localities to prioritize prison populations in vaccine rollout plans. What should the Biden administration do to address this problem?”
MR STEVENSON: Well, thank you. I appreciate that question. Yes, I think it’s absolutely critical that the administration and others be very vocal about prioritizing the needs of vaccinating people who are incarcerated. I mean, we’ve taken away the opportunity of 2 million people to socially distance themselves, to protect themselves, to comply with all of the recommendations that have been made by health officials. And when you’re in prison and you’re hearing how urgent it is to kind of have six feet apart, to do all of these things, and you’re unable to do that because of your confinement, it just adds to the stress and anxiety that we’ve all lived with during this pandemic.
I think it’s absolutely essential that the administration encourage and direct states to prioritize vaccinations of incarcerated populations, both for the incarcerated population and the correctional staff that are working there. The rates of infection among correctional staff are through the roof in many states. We – and the rates, of course, of incarcerated people are five times greater than they are in the general population in a lot of places. The mortality rates are greater.
And so I do believe this is an area where, because of our general reluctance to value the lives and protect populations that are disfavored, like incarcerated groups, it’ll be important to show leadership and speak to how urgent it is that incarcerated populations be vaccinated as soon as possible, because we know that they are more vulnerable than other parts of our population. And the whole theory behind a sensible vaccination strategy is to protect the most vulnerable first, to give it to the people who are most vulnerable – the elderly, those who are at risk, but – and that includes the incarcerated.
MODERATOR: Thank you for that. I’ll now call on Michael Persson with De Volkskrant, Netherlands.
QUESTION: Hi, Mr. Stevenson. Thank you for doing this. My question considers criminal justice reform. We’ve seen under the Trump administration a rare new law, which was the First Step Act. My question is, do you consider that an actual first step, or merely symbolic? And second, do you think that with the dynamics and the awareness that happened since, that the ground has become less or more fertile for a second step? And what should that second step consist of, in your opinion? Thank you.
MR STEVENSON: Yeah. I mean, I think the First Step Act was important only in that it reinforced the bipartisan consensus that we have too many people in jails and prisons, that we’ve gone too far with incarceration. I think the great development over the last 20 years is that we’ve had people on both the right and the left agree that the war on drugs was too much, that we have too many people in our jails and prisons, that we’re spending too much to incarcerate too many. There are conservatives who are very suspicious and critical of big government, and there’s no example of big government that stands out more than what’s happened in jails and prisons.
And so I think even during the Trump years, there was some nod to this bipartisan reckoning with over-incarceration. The problem is is that a lot of the problems in our criminal justice system cannot be fixed by the federal government. Criminal justice policy is really state policy; it varies from state to state. Some states don’t have the death penalty; some states do. Some states put a lot of people in prison; some states put less. And so it’s really at the state level.
And so I don’t think – I think the First Step Act probably was hyped more than it should have been. It was more symbolic and political than actual. I mean, only 9 percent of the people in our jails and prisoners are in the federal jails and prisons. The First Step Act only applies to people in the federal jails and prisons. It only applied to a very small percentage of that population. So it made no appreciable impact on the number of people in jails and prisons.
What I think the Congress has to do is to retreat from these policies that have emerged over the last 25 years that have spurred so much over-incarceration. So for example, the federal government gave money to states if they eliminated parole, if they expanded the amount of time that people were in jails or prisons. So I’m representing people who wrote bad checks for $100 or who were convicted of shoplifting who are doing life sentences because these laws that were passed in the ‘80s and ‘90s were designed to keep people in prison forever. We have to retreat from that.
And because there was a federal investment to incentivize abolishing parole, I’d like to see a federal investment to incentivize bringing down jail and prison populations. We fund these drug task forces which have been fueled – have fueled a lot of this over-incarceration of people. We need to stop that. We need to redirect those funds into drug treatment, and to cares – care and providing services. The federal government could do a lot to create a network of care centers and provide and model the kind of treatment that people need, a re-entry. We’re going to need investments to help us get people out of jails and prisons and succeed. Right now when you come out of jail or prison, you get nothing in this country, and it’s very hard to stay out without support. And that’s another area where the government can play a role.
And then the last thing I’ll say is that the law is going to have to shift. We passed three bad laws in the mid-‘90s: the Prison Litigation Reform Act, which really made it hard to challenge unconstitutional conditions – I think that needs to be amended; the Antiterrorism Effective Death Penalty Act really shut down the federal court’s ability to intervene when there are wrongful convictions and unfair sentences – I think that needs to be reformed. Right now, if someone is innocent and they can prove their innocence and they file a federal habeas petition, the courts can’t actually grant relief unless they find an additional constitutional violation. Under the Supreme Court case law and the constraints of the habeas law, you’re not authorized to do that, and I think that’s unconscionable. No one can defend having innocent people in jails and prisons and not creating remedies for that.
We’ve seen a lot of racial basis in criminal cases. We’ve seen even in some of these recent executions evidence that black defendants were tried by all-white juries, evidence that prosecutors engaged in illegal racial discrimination in jury selection, and right now courts are not required to address the merits of those claims, but they rely on these procedural defaults to insulate those claims from review. I think we need federal law that mandates that when there’s dramatic evidence of racial discrimination that violates existing law, that courts be required to address that and create remedies. That’s how you restore confidence in our systems. That’s how you create diversity.
Most of the judges in this country are white. Ninety-some percent of the prosecutors are white. The only opportunity for diversity in the decision-making role is on the jury, and yet, in most communities there’s an underrepresentation of black people in jury pools or brown people in jury pools. And the law says it should be equal, but we haven’t been able to enforce that because of these procedural barriers. So I’d love to see the Congress take these issues up soon and provide the kind of remedies that would have prevented some of these wrongful convictions, some of these tragic executions, and some of these other upsetting circumstances that we’ve witnessed over the last couple of years.
MODERATOR: Okay, I’d like to go back to Torsten Teichmann with ARD German Radio with a follow-up question about the lynching memorial in Montgomery. Torsten.
QUESTION: There we go. So Bryan, when I visited the memorial, I think it’s two and a half years ago, you explained to me that you have these pillars hanging from the ceiling and then you have the pillars doubled as a copy and communities can ask for having these pillars in their community if they do a project, if they learn about the history. How is this going? What is the progress? Do you have communities where this already is happening?
MR STEVENSON: Yeah, thank you for that. Yeah, just so other people understand, so at the National Memorial we have hundreds of monuments that are connected to counties where lynchings took place, and they’re counties from all over the United States. And they are presented in the memorial first at eye level so people get a sense of that, of the people and the nature of the violence, and then we lift them up, and so you’re surrounded by this history of lynching and trauma. And then we have a park with duplicates of those monuments so people can find their community. And we have invited communities to engage in what we call community remembrance as a process for advancing truth and justice locally. And I’m happy to report, Torsten, that yes, we’ve had hundreds of communities engage with us on this.
We now have markers up in about three or four dozen communities. We were slowed down some by the pandemic. We would have done a lot more this past year but the pandemic really disrupted a lot of that process. But I’m very hopeful that as we get post-pandemic we’ll see a real increase in the number of markers and monuments that get erected in communities.
We’ve seen quite a few already, and it’s been really powerful to see communities reckoning at the local level with their particular history of mob violence and racial terror lynchings. Those are the conversations that are the most meaningful because they’ll shape the day-to-day experiences of people in those spaces. And I’m really thrilled by the work that we’ve seen in dozens of communities across the country already and very hopeful that that will expand dramatically as we come out of this pandemic.
QUESTION: That would be really interesting to visit such a community for us, so maybe I’ll get in touch with your office again about that.
MR STEVENSON: Yeah, on our website we actually have lots of examples and photographs. Each time we put up a marker we do an article, so you can some of the communities there.
QUESTION: Thanks so much.
MODERATOR: Okay, we are coming to the end of our time, so we do have a question for maybe one or two – time for one or two more questions. You can raise your hand or submit it in the chat box. But in the meantime, I will go back to a question that was submitted in advance from Sara Maria Glanowski from Danish Broadcasting Corporation. And she asks: “Mr. Stevenson, if you can reflect on what you view are the biggest obstacles to criminal justice reform” – I know you’ve touched on this a little bit already, but maybe you can expand —
“and what are the main reasons these issues have not been solved much earlier in U.S history?”
MR STEVENSON: Well, I mean, I think, again, it’s important to first recognize that our incarceration crisis is a relatively recent phenomenon. It’s only been in the last 50 years that we’ve had this tremendous increase in the number of jails and prisons. I think one of the challenges is that this policy is decentralized. For those of you who live in countries where policy is central and made for the entire country, it’s like we have 50 nations here and they each have their own rules and laws, and there are disparities in resources in challenging those among these states. And so in my region, the American South, the infrastructure for reform is very, very undeveloped because we also deal with a lot of other issues. And so I think the decentralized nature of the problem is a big barrier.
I argued a case that ended life-without-parole sentences for children. We went to the U.S. Supreme Court; the U.S. Supreme Court made that ruling. And that process has been effective for changing policy nationwide. But we have a pretty conservative court. It takes a lot of work to get before that court, and so that’s not going to be a mechanism or strategy for reforming all of the things that need to be reformed. It’s going to have to happen at the local level.
The biggest force in facilitating some of this has actually been cost. I mean, the amount of money that states are spending to incarcerate so many people has really disrupted their ability to fund education and to fund roads and health and human services, and I think the costs are causing a lot of states to begin looking for ways to bring down prison populations. And we’ve seen that in states like Louisiana, Mississippi, and other places that you don’t tend to think of as being leaders on these issues. And I think that will continue to push a lot of the reforms that we’ve been advocating. California’s just done some things recently. That has tragically been required to get the consciousness that we need.
I think the biggest obstacle we face right now is, again, the emergence of fear and anger. There are going to be people who always want to hype the bad crimes. And in this country, we have a bad habit; when there’s a really bad crime it usually results in a bad law. That’s the way we react. And I think that model of lawmaking has to be rejected, and because as long as we do that we’re going to continue to be in this cycle of bad crime resulting in bad policy.
I’m hopeful, but we still have an enormous amount of work to do. And unfortunately, it’s going to have to be done state by state.
MODERATOR: Thank you. For the last question, I’ll go back to Michael from the Netherlands. Michael. Michael, are you there?
MODERATOR: Go ahead, Michael.
MODERATOR: We may be having some trouble with audio. Okay, I’ll ask Michael to submit his question via email and we can circle back with you, Mr. Stevenson.
I want to thank you so much on behalf of the Washington Foreign Press Center for this really timely and important briefing about the critical work the Equal Justice Initiative is doing. And I want to just flag for all of our journalists, there will be more briefings planned for the racial equity series. Thank you again, Mr. Stevenson.
MR STEVENSON: You’re very welcome.
MODERATOR: And we wish to everybody a good afternoon. Thank you.