Authors: Bryan Stevenson
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.
Robert Caston had been at Angola for forty-five years. He lost several fingers working in a prison factory and was now disabled as a result of his forced labor at Angola.
I traveled back and forth between the trial courts in Orleans Parish quite a bit on the Carter and Caston cases. The Orleans Parish courthouse is a massive structure with intimidating architecture. There are multiple courtrooms aligned down an enormous hallway with grand marble floors and high ceilings. Hundreds of people crowd the hallways, bustling between the various courtrooms each day. Hearings in the vast courthouse are never reliably scheduled. Frequently, there would be a date and time for the Carter and Caston resentencings, but it seemed to mean very little to anyone. I would arrive in court, and there would always be a stack of cases, and clients with lawyers gathered in an overcrowded courtroom, all waiting to be heard at the time of our hearings. Overwhelmed judges tried to manage the proceedings with bench meetings while dozens of young men—most of whom were black—sat handcuffed in standard jail-issued orange jumpsuits in the front of the court. Lawyers consulted with clients and family members scattered around the chaotic courtroom.
After three trips to New Orleans for sentencing hearings, we still did not have a new sentence for Mr. Carter or Mr. Caston. We met
with the district attorney, filed papers with the judge, and consulted with a variety of local officials in an effort to achieve a new, constitutionally acceptable sentence. Because Mr. Carter and Mr. Caston had both been in prison for nearly fifty years, we wanted their immediate release.
A couple of weeks before Christmas, I was back in court for the fourth time trying to win the release of the two men. There were two different judges and courtrooms involved, but we felt if we won release for one it might then become easier to win release for the other. We were working with the Juvenile Justice Project of Louisiana, and their lawyer Carol Kolinchak had agreed to be our local counsel in all of the Louisiana cases. At this fourth hearing, Carol and I were busily trying to process papers and resolve the endless issues that had emerged to keep Mr. Carter and Mr. Caston incarcerated.
Mr. Carter had a large family that had maintained a close relationship with him despite the passage of time. In the aftermath of Hurricane Katrina, many family members had fled New Orleans and were now living hundreds of miles away. But a dozen or so family members would dutifully show up at each hearing, some traveling from as far away as California. Mr. Carter’s mother was nearly a hundred years old. She had vowed to Mr. Carter for decades that she wouldn’t die until he came home from prison.
Finally, it seemed like we were close to success. We got things resolved so that the Court could grant our motion and resentence Mr. Caston so that he would immediately be released from prison. The State usually wouldn’t bring inmates from Angola to New Orleans for hearings but instead had them view proceedings on a video hookup at the prison. After I made our arguments in the noisy, frenetic courtroom, the judge granted our motion. She recited the facts about the date of Mr. Caston’s conviction, and then something quite unexpected happened. As the judge spoke about Mr. Caston’s decades in prison, the courtroom, for the first time in my multiple trips there, became completely silent. The lawyers stopped conferring, the prosecutors awaiting other cases paid attention, and family members
ceased their chatter. Even the handcuffed inmates awaiting their cases had stopped talking and were listening intently. The judge detailed Mr. Caston’s forty-five years at Angola for a non-homicide crime when he was sixteen. She noted that Caston had been sent to Angola in the 1960s. Then the judge pronounced a new sentence that meant Mr. Caston would immediately be released from prison.