I drove home broken and brokenhearted about Jimmy Dill. But I knew I would come back the next day. There was more work to do.
Chapter Sixteen
The Stonecatchers’ Song of Sorrow
On May 17, 2010, I was sitting in my office waiting anxiously when the U.S. Supreme Court announced its decision: Life imprisonment without parole sentences imposed on children convicted of non-homicide crimes is cruel and unusual punishment and constitutionally impermissible. My staff and I jumped up and down in celebration. Moments later we were inundated with a flood of calls from media, clients, families, and children’s rights advocates. It was the first time the Court had issued a categorical ban on a punishment other than the death penalty. Joe Sullivan was entitled to relief. Scores of people, including Antonio Nuñez and Ian Manuel, were entitled to reduced sentences that would give them a “meaningful opportunity for release.”
Two years later, in June 2012, we won a constitutional ban on mandatory life-without-parole sentences imposed on children convicted of homicides. The Supreme Court had agreed to review Evan Miller’s case and the case of our client from Arkansas, Kuntrell Jackson. I argued both cases in March of that year and waited anxiously until we won a favorable ruling. The Court’s decision meant that no child accused of any crime could ever again be automatically sentenced to die in prison. Over two thousand condemned people sentenced to life imprisonment without parole for crimes when they were children were now potentially eligible for relief and reduced sentences. Some states changed their statutes to create more hopeful sentences for child offenders. Prosecutors in many places resisted retroactive application of the Court’s decision in Miller v. Alabama, but everyone now had new hope, including Ashley Jones and Trina Garnett.
We continued our work on issues involving children by pursuing more cases. I believe there should be a total ban on housing children under the age of eighteen with adults in jails or prisons. We filed cases seeking to stop the practice. I am also convinced that very young children should never be tried in adult court. They’re vulnerable to all sorts of problems that increase the risk of a wrongful conviction. No child of twelve, thirteen, or fourteen can defend him- or herself in the adult criminal justice system. Wrongful convictions and illegal trials involving young children are very common.
A few years earlier, we won the release of Phillip Shaw, who was fourteen when he was improperly convicted and sentenced to life imprisonment without parole in Missouri. His jury was illegally selected, excluding African Americans. I argued two cases at the Mississippi Supreme Court in which the Court ruled that the convictions and sentences of young children were illegal. Demarious Banyard was a thirteen-year-old who had been bullied into participating in a robbery that resulted in a fatal shooting in Jackson, Mississippi. He was given a mandatory death-in-prison sentence after his jury was illegally told that he had to prove his innocence beyond a reasonable doubt and the State introduced impermissible evidence. He was resentenced to a finite term of years and now has hope for release.
Dante Evans was a fourteen-year-old child living in a FEMA trailer with his abusive father in Gulfport, Mississippi, after Hurricane Katrina. His dad, who had twice before nearly killed Dante’s mother, was shot by Dante while he slept in a chair. Dante had repeatedly told school officials about his father’s abuse, but no one ever intervened. I discussed Dante’s prior diagnosis of post-traumatic stress disorder following the attempted murder of his mother in my oral argument before the Mississippi Supreme Court. The Court emphasized the trial court’s refusal to permit introduction of this evidence and granted Dante a new trial.
Our death penalty work had also taken a hopeful turn. The number of death row prisoners in Alabama for whom we’d won relief reached one hundred. We had created a new community of formerly condemned prisoners in Alabama who had been illegally convicted or sentenced and received new trials or sentencing hearings. Most never returned to death row. Starting in 2012, we had eighteen months with no executions in Alabama. Continued litigation about lethal injection protocols and other questions about the reliability of the death penalty slowed the execution rate in Alabama dramatically. In 2013, Alabama recorded the lowest number of new death sentences since the resumption of capital punishment in the mid-1970s. These were very hopeful developments.
Of course, there were still challenges. I was losing sleep over another man on Alabama’s death row, a man who was clearly innocent. Anthony Ray Hinton was on death row when Walter McMillian arrived in the 1980s. Mr. Hinton was wrongly convicted of two robbery-murders outside Birmingham after state forensic employees mistakenly concluded that a gun recovered from his mother’s home had been used in the crimes. Mr. Hinton’s appointed defense lawyer got only $500 from the court to retain a gun expert to confront the state’s case, so he ended up with a mechanical engineer who was blind in one eye and who had almost no experience testifying as a gun expert.
The State’s primary evidence against Mr. Hinton involved a third crime where a witness identified him as the assailant. But we found a half-dozen people and security records that proved that Mr. Hinton was locked inside a secure supermarket warehouse working as a night laborer fifteen miles away at the time of the crime. We got some of the nation’s best experts to review the gun evidence, and they concluded the Hinton weapon could not be matched to the murders. I had hopes that the State might reopen the case. Instead they persisted in moving toward execution. The media was not interested in the story, citing “innocence fatigue.” “We’ve done that story before,” we heard again and again. We kept getting very close decisions from appellate courts denying relief, and Mr. Hinton remained on death row facing execution. It would soon be thirty years. He was always upbeat and encouraging when I met with him, but I was increasingly desperate to find a way to get his case overturned.
I was encouraged by the fact that nationwide the rate of mass incarceration had finally slowed. For the first time in close to forty years, the country’s prison population did not increase in 2011. In 2012, the United States saw the first decline in its prison population in decades. I spent a lot of time in California that year supporting ballot initiatives and was encouraged that voters decided, by a huge margin, to end the state’s “three strikes” law that imposed mandatory sentences on nonviolent offenders. The initiative won majority support in every county in the state. California voters also came very close to banning the death penalty; the ballot initiative lost by only a couple of percentage points. Almost banning the death penalty through a popular referendum in an American state would have been unimaginable just a few years earlier.
We were able to finally launch the race and poverty initiative I’d long been hoping to start at EJI. For years I’d wanted to implement a project to change the way we talk about racial history and contextualize contemporary race issues. We published a racial history calendar for 2013 and 2014. We started working with poor children and families in Black Belt counties across the South. We brought hundreds of high school students to our office for supplemental education and discussion about rights and justice. Also, we worked on reports and materials that seek to deepen the national conversation about the legacy of slavery and lynching and our nation’s history of racial injustice.
I found the new race and poverty work extremely energizing. It closely connected to our work on criminal justice issues; I believe that so much of our worst thinking about justice is steeped in the myths of racial difference that still plague us. I believe that there are four institutions in American history that have shaped our approach to race and justice but remain poorly understood. The first, of course, is slavery. This was followed by the reign of terror that shaped the lives of people of color following the collapse of Reconstruction until World War II. Older people of color in the South would occasionally come up to me after speeches to complain about how antagonized they feel when they hear news commentators talking about how we were dealing with domestic terrorism for the first time in the United States after the 9/11
attacks.
An older African American man once said to me, “You make them stop saying that! We grew up with terrorism all the time. The police, the Klan, anybody who was white could terrorize you. We had to worry about bombings and lynchings, racial violence of all kinds.”
The racial terrorism of lynching in many ways created the modern death penalty. America’s embrace of speedy executions was, in part, an attempt to redirect the violent energies of lynching while assuring white southerners that black men would still pay the ultimate price.
Convict leasing was introduced at the end of the nineteenth century to criminalize former slaves and convict them of nonsensical offenses so that freed men, women, and children could be “leased” to businesses and effectively forced back into slave labor. Private industries throughout the country made millions of dollars with free convict labor, while thousands of African Americans died in horrific work conditions. The practice of re-enslavement was so widespread in some states that it was characterized in a Pulitzer Prize–winning book by Douglas Blackmon as Slavery by Another Name. But the practice is not well known to most Americans.
During the terror era there were hundreds of ways in which people of color could commit a social transgression or offend someone that might cost them their lives. Racial terror and the constant threat created by violently enforced racial hierarchy were profoundly traumatizing for African Americans. Absorbing these psychosocial realities created all kinds of distortions and difficulties that manifest themselves today in multiple ways.
The third institution, “Jim Crow,” is the legalized racial segregation and suppression of basic rights that defined the American apartheid era. It is more recent and is recognized in our national consciousness, but it is still not well understood. It seems to me that we’ve been quick to celebrate the achievements of the Civil Rights Movement and slow to recognize the damage done in that era. We have been unwilling to commit to a process of truth and reconciliation in which people are allowed to give voice to the difficulties created by racial segregation, racial subordination, and marginalization. Because I was born during a time when the stigma of racial hierarchy and Jim Crow had real consequences for the ways my elders had to act or react to a variety of indignations, I was mindful of the way that the daily humiliations and insults accumulated.
The legacy of racial profiling carries many of the same complications. Working on all of these juvenile cases across the country meant that I was frequently in courtrooms and communities where I’d never been before. Once I was preparing to do a hearing in a trial court in the Midwest and was sitting at counsel table in an empty courtroom before the hearing. I was wearing a dark suit, white shirt, and tie. The judge and the prosecutor entered through a door in the back of the courtroom laughing about something.
When the judge saw me sitting at the defense table, he said to me harshly, “Hey, you shouldn’t be in here without counsel. Go back outside and wait in the hallway until your lawyer arrives.”
I stood up and smiled broadly. I said, “Oh, I’m sorry, Your Honor, we haven’t met. My name is Bryan Stevenson, I am the lawyer on the case set for hearing this morning.”
The judge laughed at his mistake, and the prosecutor joined in. I forced myself to laugh because I didn’t want my young client, a white child who had been prosecuted as an adult, to be disadvantaged by a conflict I had created with the judge before the hearing. But I was disheartened by the experience. Of course innocent mistakes occur, but the accumulated insults and indignations caused by racial presumptions are destructive in ways that are hard to measure. Constantly being suspected, accused, watched, doubted, distrusted, presumed guilty, and even feared is a burden borne by people of color that can’t be understood or confronted without a deeper conversation about our history of racial injustice.
The fourth institution is mass incarceration. Going into any prison is deeply confusing if you know anything about the racial demographics of America. The extreme overrepresentation of people of color, the disproportionate sentencing of racial minorities, the targeted prosecution of drug crimes in poor communities, the criminalization of new immigrants and undocumented people, the collateral consequences of voter disenfranchisement, and the barriers to re-entry can only be fully understood through the lens of our racial history.
It was gratifying to be able, finally, to address some of these issues through our new project and to articulate the challenges created by racial history and structural poverty. The materials we developed were generating positive feedback, and I became hopeful that we might be able to push back against the suppression of this difficult history of racial injustice.
I was also encouraged by our new staff. We were now attracting young, gifted lawyers from all over the country who are extremely skilled. We started a program for college graduates to work at EJI as Justice Fellows. Having a bigger staff with very talented people made meeting the new challenges created by our much broader docket seem possible.
A bigger staff, bigger cases, and a bigger docket also sometimes meant bigger problems. While exciting and very gratifying, the Supreme Court rulings on juveniles created all sorts of new challenges for us. Hundreds of people were now entitled to pursue new sentences, and most were in states where they had no clear right to counsel. In states like Louisiana, Alabama, Mississippi, and Arkansas, there were hundreds of people whose cases were affected by the recent decisions, but no lawyers were available to assist these condemned juvenile lifers. We ended up taking on almost one hundred new cases following the court’s ban on life imprisonment without parole for kids convicted of non-homicide offenses. We then took on another hundred new cases after the decision banning mandatory life without parole for juveniles. In addition to the dozens of cases already on our juvenile docket, we were quickly overwhelmed.
The total ban on life-without-parole sentences for children convicted of non-homicides should have been the easiest decision to implement, but enforcing the Supreme Court’s ruling was proving much more difficult than I had hoped. I was spending more and more time in Louisiana, Florida, and Virginia, which together had close to 90 percent of the non-homicide cases. The trial courts were often less sophisticated in thinking about the differences between children and adults than we had hoped, and we would often have to relitigate the basic unfairness of treating kids like adults that the Supreme Court had already recognized.
Some judges seemed to want to get as close to life expectancy or natural death as possible before they would create release opportunities for child offenders. Antonio Nuñez’s judge in Orange County, California, replaced his sentence of life imprisonment without parole with a sentence of 175 years. I had to go back to an appellate court in California and argue to get that sentence replaced with a reasonable sentence. We met resistance in Joe Sullivan’s and Ian Manuel’s cases as well. Ultimately, we were able to get sentences that meant they could both be released after serving a few more years.
In some cases, clients had already been in prison for decades and had very few, if any, support systems to help them re-enter society. We decided to create a re-entry program to assist these clients. EJI’s program was specifically developed for people who have spent many years in prison after being incarcerated when they were children. We were committed to providing services, housing, job training, life skills, counseling, and anything else people coming out of prison needed to succeed. We told the judges and parole boards we were committed to providing the assistance our clients required.
In particular, the Louisiana clients serving life without parole for non-homicides faced many challenges. We undertook representation of all sixty of those eligible for relief in Louisiana. Almost all of them were at Angola, a notoriously difficult place to do time, especially in the 1970s and 1980s when many had first arrived. For many years, violence was so bad at Angola that it was almost impossible to be incarcerated and not get disciplinaries—additional punishments or time tacked onto your sentence—due to conflicts with another inmate or staff.
Prisoners were required to do manual labor in very difficult work environments or face solitary confinement or other disciplinary action. It was not uncommon for inmates to be seriously injured, losing fingers or limbs, after working long hours in brutal and dangerous conditions.
For years, Angola—a slave plantation before the end of the Civil War—forced inmates to work in the fields picking cotton. Prisoners who refused would receive “write-ups” that went into their files and face months of solitary confinement. The horrible conditions of confinement and their constantly being told that they would die in prison no matter how well they behaved meant that most of our clients had long lists of disciplinaries. At the resentencing hearings we were preparing, state lawyers were using these prior disciplinaries to argue against favorable new sentences.
Remarkably, several former juvenile lifers had developed outstanding institutional histories with very few disciplinaries, even though they did their time with no hope of ever being released or having their institutional history reviewed. Some became trustees, mentors, and advocates against violence among inmates. Others had become law librarians, journalists, and gardeners. Angola evolved over time to have some excellent programs for incarcerated people who stayed out of trouble, and many of our clients took full advantage.
We decided to prioritize resentencing hearings in Louisiana for the “old-timers,” juvenile lifers who had been there for decades. Joshua Carter and Robert Caston were the first two cases we decided to litigate. In 1963, when he was sixteen, Joshua Carter was accused of a rape in New Orleans and quickly given the death penalty. A condemned black child awaiting execution in those days had little reason to hope for relief. But to coerce a confession from him, police officers had beaten Joshua so brutally that even in 1965 the Louisiana Supreme Court felt the need to overturn his conviction. Mr. Carter was resentenced to life imprisonment without parole and sent to Angola. After struggling for years, he became a model prisoner and trustee. In the 1990s, he developed glaucoma and didn’t get the medical care he needed, and he soon lost his sight in both eyes. We tried to persuade New Orleans prosecutors that Mr. Carter, blind and in his sixties, should be released after nearly fifty years in prison.
Just Mercy: A Story of Justice and Redemption Page 32