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Photo: Robin Holland. Source: Bill Moyers Show
Bryan Stevenson founder and executive director of the Equal Justice Initiative (EJI) made arguments to the United States Supreme Court in May 2012 against the sentencing of Juvenile to Life Without Parole. He is fervently against the death penalty and has consistently pointed out the injustices within the US legal system that benefit the rich over the poor.
This is the second part of a two-part conversation with Prison Photography. You can read part one here.
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PP: While presenting at TED, you encouraged the audience to educate themselves about communities beyond their circles, but you also warned the audience that the type of awareness that spurs you and your work – an awareness of profound inequality in American society – “will get to you”. Can you expand on that?
Bryan Stevenson: It is a challenge. It’s a new relationship with the world of injustice, poverty and bias that implicates you in ways in which you are otherwise not implicated. That’s both a burden and – in my judgment – a privilege, because to be able to respond to those things animates human beings in ways that very few things do. It creates meaning and purpose that can be transcendental.
I think the way you do it is by trying to insulate yourself from the politics of fear that have created many of these dynamics. We very rarely ask ourselves ‘What are we afraid of?’, ‘What are we angry about?’ but in public life we’ve been encouraged through our political leaders to be very angry about crime, to be very afraid of the society that we live in. There are things that we should be legitimately angry and legitimately concerned about, but I think as a world view this is a very destructive way to live.
When you’re consumed with fear and anger you make decisions about how you treat other people, even about how you think of your own needs, that often time leads to inequality, injustice and oppression. When you look at every example of massive human rights violations the story always begins with a narrative around fear and anger. I think one of the things we have to do is step back from that and begin to ask harder, more critical questions about the issues around us. Is it better to punish crime or to prevent crime? Are there things that we can do to reduce the prison population? Is it better to have a free population or an incarcerated population? If you start asking those kind of questions it will lead you to different policy outcomes than the outcomes we’ve largely elected.
What that means for individuals – and I think for me – is that you sometimes have to say things which are challenging; you have to be willing to stand when everyone else is sitting and be the voice that says ‘But what about this?’ You have to be willing to speak when everyone else is quiet. That’s not always easy and that’s not always comfortable. Certainly for me, it has at times been pretty overwhelming and vexing to be the target of other people’s anger and frustration because of what I am saying and who I am representing.
It has been frustrating to deal with this wall of ignorance when people are making decisions with so little information and with so little context of the people whose lives are being directly affected. What it has taught me is that I do have to believe things I haven’t seen and that is not always easy for people to embrace but I think it essential if you are going to create justice, if you’re going to create a new world.
As a little boy, growing up in the civil rights movement you’d hear Martin Luther King say, “The moral arc of the universe is long but it bends toward justice.” I heard the words, I understood their individual meaning but I didn’t really get what he was talking about until I became actively engaged in advocating for people who were hated and condemned.
One of the great challenges for our generation and community today is that so much of academic training is trying to deconstruct the things we believe, know and understand, and to make you accept the status quo – it is really intended to make you less idealistic, less aspirational, less confident that you can change the world in which you inhabit. That is unfortunate and while we have to be smart and strategic, we still have to be hopeful and we still have to believe in things we haven’t seen.
PP: This year you presented arguments in the cases Jackson vs. Hobbs and Miller vs. Alabama at the US Supreme Court. How did it go?
Bryan Stevenson: The United States Supreme Court is a tough room full of smart, thoughtful people who know these issues inside out. They ask a lot of difficult questions. Many of the justices asked some interesting questions about what sort of remedy would be necessary if relief were granted which is more encouraging than if they had asked no questions! I was pleased that the court granted review – that’s the hard part. There are thousands of petitions filed every year and the court rarely grants review, so for the court to do so on such an important constitutional question like this is even less common.
PP: In June, The Supreme Court ruled that all mandatory life sentences without parole given to children 17 and younger are unconstitutional. What happens now?
Bryan Stevenson: EJI will be dealing with as many of those cases as we can. We have made commitment to over 100 people in the last few months. We prepared to help those who would be affected by a favorable ruling. A lot of these kids don’t have right to counsel so even if the court grants relief, they’re going to have a hard time finding the legal help they need to get their sentence corrected. We’re trying to take that up.
In addition to ending LWOP for children, we are committed to ending the incarceration of children with adults. There’s still 27 or 28 states that put kids in adult facilities so that’s another campaign we’re trying to advance. We’ll take those cases on. We’re very interested in ending the underage prosecution of children; there is still a lot of states that have no minimum age for trying a child as an adult so frequently 9 and 10 year olds are looking at adult prosecution, something we think should never happen and we’ll keep doing those cases no matter what the court rules on Miller and Jackson.
PP: EJI was one of the earliest organizations to partner with Richard Ross. He has provided EJI with photographs for its reports and advocacy. In April, I wrote a piece for Wired.com titles Uncompromising Photos Expose Juvenile Detention In America about Richard’s photographs. What does photography do or change – if anything at all – in helping EJI describe these worlds we can talk about but rarely see?
Bryan Stevenson: I think photography is essential. There’s no question that Richard’s images provide a power and an intimacy to these issues that cannot be achieved any other way. It is important for photography and photojournalism to be a component of the kind of work we’re trying to do because in many ways the issues we’re discussing are underground issues.
We don’t really know what prisons and jails look like. We don’t know what the people inside them look like. We have some very outdated and exaggerated presentations of jails and prisons in popular culture. I don’t think people can get a perspective on what it is like to lock someone down 23 hours a day, year after year, decade after decade. We don’t understand what it is like for a child to be in custody in an adult facility where the risk of sexual assault is 10 times greater than it would be for an adult. We don’t know what it is like to go week after week with no contact with anybody who is not either a prisoner or a prison guard, which is true for many of our clients.
There is cruelty, real misconduct and brutality in prisons. There are all of these realities that good photographers can expose and give a lens to that is critical. Richard’s work has been hugely influential and we’ve worked with other photographers to bring these issues to light. Our first report in 2007 was mostly photographs, driven by images by Steve Liss who’d spent time in facilities taking photographs of young kids incarcerated.
Until we show people these children and the conditions of confinement in which we find these children we are not going to be able to get people to deal carefully and honestly with these issues. Photo-advocacy is critical to the work we do.
PP: Once an image is made and seen of a child in a prison cell it smashes all the stereotypes that you talked about within our a culture of fear?
Bryan Stevenson: That’s right.
PP: You argued at the Supreme Court that Juvenile Life Without Parole (JLWOP) is cruel and unusual. Definitions of cruel and unusual change over time. We perceive punishments as cruel and unusual depending on what we collectively consider socially reasonable. What do we need to do as a society to label practices that lead to mass incarceration as cruel and unusual?
Bryan Stevenson: We need to be quite intentional about how recognizing that having the highest rate of incarceration in the world is a negative thing. It is not a good reflection on a society that is committed to freedom and equality. We’re going to have to be as deliberate in our efforts to eliminate and reduce mass incarceration as we have been in creating it.
We have to begin a conversation where we say it would be better if 1 out 3 young men of color were not in jail, prison, probation or parole. It would be a positive thing if we solved the problems of drug addiction and misuse in our society rather than just continuing to imprison people. If you orient that way, then you can ask ‘What can we do instead?’
One of the things EJI talks about is having a deliberate target of reducing the prison pollution by 50% over the next 6 or 7 years. We have to be intentional. Drug policy is the largest contributor to our current prison population. We started about 30 years ago making something like simple drug possession a crime. We made drug addiction a crime. If we thought about drugs and drug abuse as a healthcare problem, rather than a criminal justice problem not only would we not be saving the thirty, forty, fifty thousands dollars a year to it costs incarcerate a person who has a health problem we could actually begin to pursue the interventions that reduce drug addiction. Redirect the resources.
That’s not just good for the government and for taxpayers; it’s good for families and communities. That orientation would go a long way to move us forward and eliminate these race disparities and the disparities that are created by class and status. If we did that seriously over the next 2 or 3 years we would dramatically reduce our prison population almost overnight.
If we added to that a punishment system and scale influenced by what science has to teach us about rehabilitation, behavior modification, about how human beings can recover, I think we’d also save billions of dollars – billions with a B – on resources that are now being invested in doing nothing more than warehousing people, further damaging them before we release them back into society.
There are states where we spend over $100,000 per year to keep teenagers incarcerated. I can’t identify any educator who couldn’t make better use of those dollars. Most educators will tell you that for half of that – for a quarter of that – invested in each child you are working with, you could do some magical things to re-orient them and prevent crime and the problems we’re trying to deal with in the public safety sphere. We must approach this problem by first acknowledging it’s a PROBLEM, it’s not just an aspect of life in America that we incarcerate the poor and disadvantaged.
You’re right; the notion of cruel and unusual has evolved. It is rooted in a concept of how we relate to one another, but it is also related in a vision of human rights and human dignity that the framers of our constitution understood was critical in a free society. If we tolerate cruelty and violations of human rights we sow the seeds of destruction, discontent and animosity that ultimately undermine any free community. That’s why we can never make peace – in my judgment – the type of cruelty we see too much. To say to any child of thirteen, ‘You are only fit to die in prison’ is cruel. I don’t think you need a law degree or a degree in adolescent development to acknowledge that. You just need to be willing to think critically and honestly about what protecting children requires. A lot of these issues are much more simple than people think.
PP: It’s the first time I’ve heard someone put a figure on targets for decarceration in America. A reduction of 50% would mean releasing more than 1.1 million people. That figure would scare the hell out of most Americans.
Bryan Stevenson: [Laughs] Only because they don’t know who those people are!
There are hundreds of thousands of people in jails and prisons who have never committed a violent crime, they’ve never hurt anybody. We have close to a million people in prison for non-violent property crimes or drug crimes. Frankly, if someone stole $50 from your house, you’re never going to get that back in our current system, but you can imagine a world where the obligation to pay back to restore and to compensate the victims of crime in ways that are meaningful could replace the use of prisons to punish and crush folks.
All of a sudden a whole host of things are happening that I think are positive to our society; once we begin defining and describing how people get to prison and who they are, the idea of reducing the prison population becomes a lot more attractive. Also, when we start talking about the collateral consequences of the money we’re spending; we are undermining education in this country because of mass incarceration. We are depleting resources for public safety because of mass incarceration. We are stripping basic services and public utilities because of mass incarceration.
PP: At TED, you said that as a society we will not be judged by our technology. Will we be judged by the fairness of our laws?
Bryan Stevenson: Our laws express our fundamental norms and our fundamental values; I think it more complex than just our laws or just our technology. It has to do with the dynamics in our community. If we get comfortable with widespread racial bias and discrimination; if we get comfortable with a widespread population of people who are desperately poor; if we get comfortable with these vertical relationships then we are destined to become a different kind of America – an America that is not defined by commitment to fairness, equality and opportunity.
We have to pay attention to all of the strategies and techniques that create opportunity, and technologies are at the heart of that, design is at the heart of that, even entertainment can stimulate the kind of creativity we need. Those are important parts of it, and so are our laws. Ultimately, for me, the measure is what we do with technological tools and where we stand. There are more people living under the poverty line today than there were forty years ago. That’s a bad thing. Having 2.3 million people in jails and prisons is a bad thing. The growing population of people who have permanently lost the right to vote who are African-American – after the civil rights struggle – is a bad thing. The despair and hopelessness that I see in poor communities and minority communities – where 13 year old children believe they’re either going to be dead or incarcerated by the time they are 21 – is a bad thing. We will ultimately have to measure our commitment to society and to our norms and values by how we respond to those problems.
PP: And you’re helping us learn deeply about the problems, and offering solutions. More power to you. Thank you Bryan.
Bryan Stevenson: Thanks Pete.
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The first part of this conversation was published October 31st, 2012.
Below is Stevenson’s full TED presentation.
Source: Flickr, Jurvetson
Bryan Stevenson is not a pioneering scientist or tech entrepreneur, nor is he a globally known entertainer, a powerful politician or a media mogul. Given that Stevenson’s day-to-day company includes the poorest Americans, prisoners and the condemned he would not seem to be a likely candidate to speak at the prestigious pay-to-attend TED Conference. And yet, Stevenson, a lawyer of over 25 years, founder and executive director of the Equal Justice Initiative (EJI), stole the show at this year’s TED meet.
Without the aid of flashy visuals, Stevenson described how it is the poor and disadvantaged who suffer the racial and class biases within the US criminal justice system. Not only a breath of fresh air, his presentation was a challenge to both the moneyed and influential TEDsters in the room and we – the online audience – to engage with the facts, laws, and shortcomings of criminal justice within our communities.
Can we reconcile the belief that the US is a society based upon fairness, equality and opportunity when over 7 million citizens are under some form of correctional supervision? Why do we sentence children to an entire life behind bars? Can we adopt restorative justice and move away from an over-reliance on incarceration? Can we truly see and tackle the causes of despair, poverty and crime?
Given his other commitments, appearing at TED was not even Stevenson’s priority. One week after TED, he stood in front of the United States Supreme Court and made arguments in the Jackson vs. Hobbs and Miller vs. Alabama cases against the use of Life Without Parole (LWOP) sentencing for children. Stevenson believes it cruel and unusual – and therefore a violation of the eighth amendment – to sentence a minor as an adult, and especially cruel when the sentence carries no possibility of release.
For many reasons including the current budget crises, criminal justice spending and policy is under scrutiny. Stevenson is at the sharp end of this hot topic. He sat down with Prison Photography to discuss his start in these tough issues, the need for us all to treat issues of poverty and marginalization as our own, and the long arc of the universe that Stevenson – despite the inequalities he battles daily – still believes bends toward justice.
Prison Photography (PP): How did you get invited to TED?
Bryan Stevenson: I hope it’s not too embarrassing to admit that I had never actually heard of TED. I was never really that plugged in to that community. I was given a Four Freedoms Award in New York, last year, and that is where I met Chris Anderson.
Chris was very generous. He said, “I think you might be great for a TED talk.” I said, “Well, I’ll talk to you about that.” I went back to Alabama and asked my staff, “What’s a TED Talk?” and they said I should do one. It was a tough month because I had cases going to the Supreme Court and I wasn’t sure I could do all of it, but I decided I would.
PP: You founded the EJI over two decades ago, and I presume while your focus has changed your message has been consistent. Did the TED conference have any effect on how your message has been received?
Bryan Stevenson: It was really surprised by what a vibrant community TED is. There are a lot of very thoughtful people all engaged in the pursuit of ideas. I listened to many of the presentations and I was quite inspired by them.
Frankly, I was tempted to do things differently to what I had planned; everything there was so visual, dazzling and spectacular. I don’t usually use visual aids or do Powerpoints. I was a little concerned about that but I just decided to give the talk I planned. I was humbled by the response; people were very generous and very enthusiastic. For me, that was very affirming.
I talk in a lot of places where there’s a great deal of hostility, where there is a great deal of resistance; where you know you’re saying things that people don’t really want to hear and frequently they show that. It was very gratifying to be received well at TED. And it has had an impact – just the notion that you can put a talk like that online in a venue that people regularly visit has meant that a lot of people have heard what we are trying to do and they’d otherwise have never heard about our work.
The Equal Justice Initiative (EJI) believes deeply in getting more information out, educating more people. We cannot change this environment inside a courtroom alone; we’re going to have to change the broader political, social and cultural environment; if we are going to have the sort of conversation I think we need to have.
PP: Did you really raise $1million in 15 minutes from TEDster donations?
Bryan Stevenson: Yes. The day after my talk, I had to go to Seattle to give another talk, so I wasn’t at TED, but a lot of people had said that they wanted to advance the work we were doing and to participate directly. Chris was kind enough to have a few minutes to invite people to offer support and they did and we have gotten pledges of about a million dollars which really comes at a critical time. We’re engaged in campaign right now to end excessive sentences of children. The United States is the only nation in the world that still sentences children to die in prison. Life in prison without parole for children as young as thirteen is a sentence that is still widely imposed in the US and we are really actively trying to eliminate that sentence, so we’ve been at the US Supreme Court, we’ve been in courts across the country and we’re now doing a national campaign.
In addition [we're working on] a couple of other things – stopping the underage prosecution of children as adults, and stopping the incarceration of children with adults. This support will really allow us to move that forward. TED has had a tremendous impact on the visibility of our work and I’m hoping that out of it will come new partnerships, new colleagues, new opportunities for these very critical social justice issues for our era.
PP: One of the biggest laughs you got in the talk was when described writing a motion to have your poor, juvenile client tried as a 75 year-old, white corporate executive! That latter description would fit many in the TED crowd. Beforehand, were you nervous about the demographic and reaction of the TED crowd? Did you think it might be a tough crowd?
Bryan Stevenson: It ended up be a very generous crowd. I was a little nervous about that story, of course, but one thing I’ve learnt is that you want to reach people where you and they are. I talk about a lot of tough issues all the time and I genuinely want us to get to a better place; I genuinely want all people to achieve a relationship within the human community which is full, robust, respectful and appropriate, so whether you’re black or white, rich or poor, employed or not, whatever the dynamic we must find ways to communicate with one another.
We impose on people in the criminal justice system identities that presume guilt, presume dangerousness and a fitness for incarceration. It has contributed to a high rate of error and wrongful convictions. We have to deconstruct that and my story about the motion is just one of the ways I’ve tried to raise important questions about why we are so indifferent to the status of people who are needy and vulnerable when to be just we need to acknowledge those deficits and deal with them appropriately.
PP: You talked about identities, how they are made, individual identity and collective identity. Was there a point in your life that you decided a life of fighting racial bias and inequalities in the criminal justice was for you?
Bryan Stevenson: I grew up in a poor rural community where issues of race and poverty were very dominant. It was a southern community where the legacy of Jim Crow was very evident, schools were segregated, social institutions were segregated and that was all slowly starting to get dismantled as I was coming up. It was hard to not see that.
I decided when I was a senior in college that I’d go to law school really with no clear idea of what type of lawyer I’d be or even if I would practice law. I just knew, as a philosophy major, no-one would pay me to philosophize.
After a year in law school when I had an internship at an organization in the South that provided legal assistance to death row prisoners and I became acutely aware of just how stark the differences were for people who were poor and incarcerated when it came to legal help. I met people on death row who were literally dying for legal assistance.
As a student at Harvard Law School and going back there where people were very anxious about which job they were going to take, not whether they’d get a job, the idea that there were people moving toward execution largely because they could not find legal assistance was pretty startling and compelling to me. I found in that area also some really interesting questions about how we treat the poor and how we deal with racial bias and how we deal with our history of racial discrimination. So all of it spoke to me in a way that I found very hard to ignore.
I started working on death penalty cases when I was a law student and when I graduated I began working at the same organization on criminal justice reform, excessive punishment, conditions of confinement and to this day I find new reasons to pursue this more intensely, to dig deeper and to struggle toward a better future and better solutions to the ones I’ve seen along the way.
PP: So there was no single personal experience in which you or your family were directly involved with the criminal justice system or a personal racist confrontation?
Bryan Stevenson: When people think you’re doing something unexpected and something hard to understand they are always searching for a narrative of something episodic or some incident to help explain how you got thrown off the path that you’re supposed to be on [laughs] to this misguided path that they really have great concerns to see you traveling down.
I do get those questions and I tell people, “No, I’m not motivated because I have a loved one in prison, no-one in my family has ever been executed.” That’s not to say that I don’t have an identity that is deeply vexed by the persistence of racial bias in our society; an identity that is challenged by the pervasive nature of poverty and our indifference to poverty; an identity that very much values freedom and fairness and the application of law that is just and reliable. But it doesn’t come from a place of personal exposure.
I think everyone should realize that these are not issues for activists and advocates; these are basic fundamental issues for people concerned about the quality of society we live in. One of the great problems that we are dealing with is that mass incarceration, excessive punishment, the marginalization of communities of disadvantaged people in this country have been relegated to the boundaries and are not part of mainstream conversation, whereas in fact, I think they reveal more about us than many of the other things we are preoccupied with. If you look at magazines, we spend a lot of time looking at fashion, consumers habits, what we buy, what we watch on TV, the gadgets we use. All of these do reveal things about our culture, but when you have the highest rate of incarceration in the world and a system of justice that is systematically depriving people of basic human dignity and human rights – that says something about the society we live in as well.
I’m always saying to folks that you judge the character of society not by how you treat the privileged the rich and the powerful and the celebrated but how you treat the poor and the incarcerated and the condemned. I do think it is a very mainstream question that it is difficult for many people to ask or respond to because it has been so marginalized in popular discourse.
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The second part of a two-part conversation with Prison Photography can be read here.
I recommend Bryan Stevenson’s TED presentation.
© Richard Ross. Cell of a 15 year old boy on the mental health wing of King County Youth Service Center, Seattle, WA. Many of the children on the wing here are on psychotropic medication. He didn’t leave his house for three years; he hasn’t gone to school in three years. He is locked up because he assaulted his mother and his mother doesn’t want him. Placement will be difficult. The first step will be reconciliation with his mother. Alternatives to Secure Detention (A.S.D). He is under 24-hour observation and checked on every 15 minutes.
“The U.S. Supreme Court hears arguments Tuesday in two homicide cases testing whether it is unconstitutionally cruel and unusual punishment to sentence a 14-year-old to life in prison without the possibility of parole,” says Nina Totenberg (Do Juvenile Killers Deserve To Be Executed) for NPR. “There are currently 79 of these juvenile killers who will die in prison.”
Much of the coverage on JLWOP, an undeniably emotive issue, can be skewed. Totenberg, however, deals with the facts very evenhandedly (as she always does when reporting on the labyrinthine legal SCOTUS cases).
She gets to the heart of the matter, which is to ask ‘Are 14-year-old killers always killers who either can never – or do not deserve – to be rehabilitated?’ Essentially, in the 18 states where JLWOP has been handed down, the law believes that is the case.
It is Bryan Stevenson (whose TED appearance I mentioned last week) that is representing the two boys in this case. He argues that it is cruel and unusual to lock up until death a child who does not have the developmental capacity to appreciate his or her actions nor the ability to fully grasp consequence.
“We’re not saying that juvenile offenders who commit homicide can’t be punished severely,” Stevenson says. “They may even end up spending the rest of their lives in prison. But it’s premature, excessive and unfair to say we know this juvenile will never be rehabilitated.”
The problem is that law prohibits the consideration of an individual’s history or the circumstances of the crime in sentencing.
“Judges can’t consider it. Juries can’t consider it. No one can consider it,” says Stevenson.
Totenberg offers the example of Kuntrell Jackson a 14-year-old who robbed a video store with two others. An employee was shot dead but Jackson was not the gunman. “Under Arkansas’ felony-murder law, Jackson was deemed just as responsible as the triggerman. He was tried as an adult for aggravated murder and, under state law, received a mandatory sentence of life without parole,” explains Totenberg.
Sadhbh Walshe has just written (What JLWOP means: life without parole for kids) about a similar case in Pennsylvania. Robert Holbrook was look out for a drugs deal in which a female was killed.
Also in the Guardian, Ed Pilkington video interviews Quantel Lotts who murdered his step-brother in a fight aged 14 (Jailed for Life at 14: US supreme court to consider juvenile sentences). Lotts is in Missouri.
Pilkington puts it to Lotts that he might be a different person now as a 26-year-old. Lotts characterises his childhood – during which he was told violence solved everything – as a “phase.”
As I said in my last post, retribution cannot be eternal. We cannot justify it and we can only tolerate it if we make it invisible.
I close by repeating the words of an adult I met who had served three decades in prison on a LWOP sentence before winning a governor’s clemency against all odds. He said, “LWOP means you’re dying inside. It’s no different to a death sentence. It IS a death sentence.”