BILL MOYERS: This week on Moyers & Company…
BRYAN STEVENSON: Sadly, we still have a system that treats you better if you’re rich and guilty then if you’re poor and innocent.
BILL MOYERS: And…
MARTIN CLANCY: The smartest, most decent people in America have tried to figure out a fair and equitable way to administer capital punishment. And as far as I'm concerned they've failed.
TIM O’BRIEN: Having decided you’re going to have capital punishment, they're now finding the most difficult questions are, "Who gets executed?"
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BILL MOYERS: Welcome. We lost a great journalist this week. Anthony Lewis was a longtime reporter and columnist at the “New York Times.” I knew him during my years in Washington when he made his reputation as our foremost interpreter of the Supreme Court and the impact of its decisions on civil rights and liberties. As one legal scholar noted, Lewis had “an incredible talent in making the law not only intelligible but also in making it compelling.”
This was Tony Lewis’ masterpiece – “Gideon’s Trumpet” – an account of the Supreme Court’s Gideon v. Wainwright ruling in 1963 that established the constitutional right of criminal defendants to an attorney, even if they had no money to pay for one. The book has never been out of print, its’ story the subject of this CBS reports documentary:
MARTIN AGRONSKY ON CBS REPORTS: His name is Clarence Earl Gideon. He argued there could be no equal justice where the kind of trial a man gets depends on the amount of money he has. He argued there should not be one kind of justice for the rich, another for the poor. Gideon blew one note on his trumpet. He blew it over and over: a man cannot get a fair trial without a lawyer. And because he would not retreat one wit from that position, this man, Clarence Gideon, has wrought a profound change in the course of American Jurisprudence.
BILL MOYERS: Gideon was a drifter with a criminal record, charged with breaking and entering and robbing a pool hall in Florida. Denied representation, he defended himself and was sentenced to five years in state prison. From his cell, he exercised his right to petition the Supreme Court for a fair hearing. When the justices ruled In Gideon’s favor, hundreds of prisoners who also had been denied their legal rights were freed or given new trials and our current system of public defenders was born.
But fifty years later that system is floundering. When Gideon v. Wainwright was decided, fewer than half of all defendants were poor. Now, over 80 percent are. Of the 2.2 million inmates in the United States, more than sixty percent are members of racial and ethnic minorities, and the law puts a disproportionate number of them on death row.
Bryan Stevenson found his calling defending the poor and least powerful among us. Straight from Harvard Law School he went south, eventually to create the Equal Justice Initiative in Alabama, the state with the highest per capita rate of death sentences in the country. He and his colleagues have battled excessive and unfair sentencing, helped free prisoners on death row, challenged the abuse of the incarcerated and mentally ill, and stood up on behalf of minors, children, prosecuted as adults.
BRYAN STEVENSON: Thank you.
BILL MOYERS: That Supreme Court decision, Gideon, 50 years ago said, you have the right to an attorney in a criminal case, even if you cannot afford it. What was the impact?
BRYAN STEVENSON: Well, it was radical. It was revolutionary. For decades the poor had really been very vulnerable in our criminal court system and frequently faced very severe punishments alone. What Gideon did was basically say that our constitution requires that we treat people equally when their life and when their liberty is at risk. And it changed the way we thought about counsel for the poor in this country. At least in theory, at least in doctrine.
BILL MOYERS: Well, I read that there are approximately 15,000 court-appointed defenders representing millions of criminal suspects, defendants, and inmates all over the country and paid for by the taxpayers. But I also read that a poor person has a much greater chance of being incarcerated now than when the Supreme Court handed down that decision. Why is that?
BRYAN STEVENSON: Well, I think it's because we never really took the right seriously. You look at some of the Court's major decisions in the '50s and '60s, Brown v. Board of Education, would not have actually changed education for racial minorities in this country, had not thousands of people marched and fought and made that decision real.
Gideon was the kind of decision that didn't have advocates, didn't have people out there insisting that enforcement take place right away. It was really left to the discretion of states and some states took up the challenge and many states didn't. And so today we have only 24 states that have statewide public defender systems.
We have lots of states that have done very little to make the right to counsel for poor people effective. And so 50 years after Gideon, sadly, we still have a system that treats you better if you're rich and guilty than if you're poor and innocent. Wealth is still the determinative factor.
BILL MOYERS: And how have events since then affected our inability or unwillingness to carry Gideon out?
BRYAN STEVENSON: Everything has been aggravated by mass incarceration. As you point out in the 1960s, there were 200,000 people in jails, in prisons. The number of people who were poor facing confinement was a very small percentage, or half. Today, we have 2.2 million people in jails and prisons, nearly five million people on probation and parole.
And so our appetite for punishment, for incarceration, for condemnation has made the demand, the need for lawyers much greater than we've been able to comply with, we've been able to meet. And so I think quite sadly, the situation for poor people in the criminal justice system is much, much worse today than it was in 1963, largely as a function of numbers.
BILL MOYERS: What's been the impact of the war on drugs?
BRYAN STEVENSON: Well, the war on drugs has been probably the biggest factor in driving the prison population up. You've now basically imprisoned, hundreds of thousands of people for nonviolent, simple possession of crimes like marijuana, that result in incarceration. So you've thrown hundreds of thousands of people into the system, and of course this is these are the cases where you actually need a very smart, informed attorney.
BILL MOYERS: How so?
BRYAN STEVENSON: Well, because you'll be told that if you plead guilty, you can go home. You're not told that there will be these collateral consequences. You might lose your right to vote, you'll be barred from public housing, you won't ever be eligible for food stamps.
You'll be building toward this situation where if you get arrested again, you'll be facing mandatory sentences like 20 years in prison, or life in prison. And all of that stuff has to come from an advocate who explains the consequences. Yet what we've done with the system is create a situation where the lawyers themselves have an incentive to plead everybody out. About 94 percent of all cases in this country are resolved by a plea.
BILL MOYERS: Do judges have an incentive too?
BRYAN STEVENSON: Oh absolutely.
BILL MOYERS: To get a guilty plea instead of a ten-week trial?
BRYAN STEVENSON: Absolutely. I mean, again, by throwing hundreds of thousands of people into the system by, you know, allowing the politics of fear and anger to throw hundreds of thousands of people into our courts, court judges, trial judges, are overwhelmed.
They don't have the space, they don't have the resources, they don't have the facilities to process in a fair and reasonable way all the cases that are coming in. So they absolutely want cases settled. They don't want cases going to trial. And a lot of them find lawyers that will cooperate in processing cases in just that way.
BILL MOYERS: Anthony Lewis later confessed that he had been naïve, his word, to believe that our political system would vindicate the rights established in that decision. And the political system, as you indicate, has failed to deliver. What is the chief reason that the political system has turned its back on Gideon?
BRYAN STEVENSON: Well, I think it's largely a function of our never valuing the plight of the poor, our indifference to the poor in so many areas. And obviously, when you add to the poor the stigma of crime, of criminality, of criminal, that further disadvantages them. And so I think, like what we've seen in so many areas, the poor have always been marginalized.
But I think the real problem with Gideon is in part a function of what the courts themselves have done. If the courts had insisted on compliance with Gideon, in the way that we did with some of our anti-discrimination cases in other areas, the political system would have to respond to that. But our courts didn't do that. We've actually tolerated unbelievably poor lawyering.
Twenty years after Gideon, the court in case called Strickland v. Washington was asked to decide what are the reasonable, minimal standards for effective lawyering. And they created the standard very, very low. And so today, even in death penalty cases, we see lawyers that are drunk in court, asleep during the trial, who are disbarred and suspended at percentages way higher than what we see in other kinds of cases. And because the court has tolerated this kind of lawyering, the political system has had no constitutional compunction, no institutional imperative, to invest in the kind of system that we really need.
BILL MOYERS: But isn't that, Bryan, like the country going to war, and the Pentagon's charged to defend this, but the Pentagon won't commit its army? Won't fight the war--
BRYAN STEVENSON: It very much is--
BILL MOYERS: The courts are not fighting for it--
BRYAN STEVENSON: That exactly right. And it's one of the reasons why the court, I think, has to change its perspective on these issues. I mean, you can look at death penalty cases, which really are the cases where you expect the greatest investment in the right to counsel--
BILL MOYERS: Your life and death is at stake--
BRYAN STEVENSON: Life and death is at stake. And what the data tell us is that we have tolerated extremely bad lawyering in these cases. The average disbarment rate in most states is about one percent of lawyers. Washington State, one percent of lawyers end up disbarred or suspended. But the “Seattle Post-Intelligencer” looked at all the 84 cases that resulted in death sentences and found that 20 percent of those cases involved lawyers who were later suspended or disbarred.
Dallas did, the paper, did the same thing in Texas, looked at 461 cases, 25 percent of the lawyers suspended or got punishment. And you see these kinds of problems system-wide, statewide. And yet, the court, in reviewing these cases has frequently said, "Yes, the lawyer was drunk, yes, the lawyer was asleep, yes, the lawyer hated the client, yes, the lawyer presented no evidence. But because you haven't proved to us that the defendant was prejudiced by that, we're going to say that's not a constitutional problem."
BILL MOYERS: What do you mean, that they haven't proved that the defendant is prejudice by this?
BRYAN STEVENSON: Instead of saying that the right to counsel insists on a competitive, effective lawyer, in all cases, and particularly in death penalty cases, we created a standard that said, "Yes, the lawyer should be there. But the lawyer, and the lawyer should be reasonable. But we're also going to require before we grant any relief to a person on death row, that they get a new lawyer who will prove to us that the bad lawyer's conduct actually was consequential."
And so this prejudice standard has become a defining feature of how we regulate lawyering and the right to counsel in this country. And of course, you have to get another lawyer to kind of show that. And we don't create a right to counsel for that other lawyer. I mean, for the 2.2 million people in jails and prisons, hundreds of thousands of whom are claiming that they are wrongly convicted, there is no right to counsel. They can't actually even get into court to expose the problems that we're talking about.
BILL MOYERS: Have you personally seen in the courtroom, defendants affected adversely by incompetent counsel?
BRYAN STEVENSON: Oh my Lord, yes. I mean, too frequently. I've seen Judy Haney's case, the lawyer was actually so intoxicated, the judge stopped the trial in the middle of the trial and made the lawyer spend a day in jail, becoming sober, then picked the trial back up. The client was sentenced to death. And on appeal, the state appellate court said, "No constitutional problem with that." I've seen dozens of people go before the judge after waiting for months to get a lawyer appointed. Say, "Your Honor, just, I'll plead guilty. Just please let me go home." And so they never actually get the lawyer they're entitled to because the no lawyer has been appointed. We see it too frequently.
It's in so many of these cases, no investigation, no mitigation, we've got death penalty cases where the lawyer basically tells the jury that he hates his client. Calvin Burdine, was openly gay, the lawyer basically told the jury, I don't care whether you sentence him to death or not. He was a criminal defense attorney, representing a man who was openly gay, about whom he expressed hostility and contempt.
BILL MOYERS: I don't know if you saw this remarkable article recently in "The Atlantic" magazine by Andrew Cohen--
BRYAN STEVENSON: Uh-huh.
BILL MOYERS: --who wrote that 50 years after Gideon, the situation for poor defendants is bad everywhere in America, but particularly in the South. What is it about the South?
BRYAN STEVENSON: Well, I think we didn't, we were resistant to a lot of the Supreme Court decisions that were coming out during that era. And I think Gideon was no exception. And so there just wasn't a willingness to invest. It's a poor region. And obviously providing effective assistance to incarcerated, accused people, has a resource component.
And getting resources organized is difficult everywhere, but particularly difficult there. And it's a leadership issue. You know, we have not been very good at embracing some of these constitutional mandates, there's been resistance and a culture of resistance. State of Alabama where I practice has no public defender system.
BILL MOYERS: None?
BRYAN STEVENSON: None.
BRYAN STEVENSON: The defendant gets an appointed lawyer by the judge and in many places the lawyer is appointed based on prior conduct. And so if you make the judge happy, don't take cases to trial, do the right thing, you get appointed. If you make the judge mad, take a case to trial, you won't get that appointment.
We have statutory caps on compensation. Half the people on death row in Alabama were represented by lawyers who by statute could not be paid more than $1,000 for their out of court time. And that kind of system is necessarily going to produce some very, very bad outcomes. And you see that all over the country. You know, 70 percent of the people in Florida, misdemeanants, don't have lawyers when they go before the judge.
BILL MOYERS: How does the legacy of slavery, Jim Crow, and lynching play out in justice in the South?
BRYAN STEVENSON: Well, I think we have really never confronted this problem of disfavored people in our society. I don't think we've actually done a very good job of embracing people who have been victims of our excess, our abuse, our bias, our discrimination. We've allowed these narratives that emerge, where we feel like it's okay to abuse certain kinds of people.
And I think that does have a lot to do with what we've seen over the last 200 years. I mean, you know, slavery really wasn't well understood in this country. I don't believe we actually did a very good job of appreciating that in America, we had a slave system that was actually a caste system. Where we enslaved people because we didn't think they were as good as the rest of us. And during that era, we redefined people who were formerly enslaved as criminals. We used convict leasing and other systems and lynching to basically create this narrative of criminality. And once you designate somebody as a criminal, you can do anything you want to do with them. And the Jim Crow era, the civil rights era was similarly, I think, compromised by a proper narrative.
We didn't finish the civil rights movement with the commitment to a process of truth and reconciliation, which is what other countries have recognized you have to do. After decades of human rights abuses, you can't just stop with the law and expect things will be okay. We didn't do that. We didn't spend time talking about the trauma, all of that humiliation, all of that degradation that African Americans experienced. All of that abuse that white people in this country experienced by being told that they were actually better than other people because of the color of their skin, we didn't deal with that.
And because we didn't deal with it, we then created, in my judgment, a new legacy, which is evident in our system of mass incarceration. We throw people away, we disfavor them. We're now seeing it in the immigration context. Where tens of thousands of people who are undocumented are being shelved into detention facilities, because that's what we do with our unwanted.
And we've got to understand that narrative, if we're going to actually get at effective remedies for dealing with things like the right to counsel, a fair treatment of the accused.
BILL MOYERS: Even people of empathy must have a hard time imagining what it's like to be without any money, absolutely poor, standing before the court alone. From your experience, what is it like?
BRYAN STEVENSON: Well, I think it's terrifying. You're having to make decisions with no understanding of what the consequence of those decisions are going to be. You tend to get tunnel vision. You're looking for the first exit. Anything that somebody says to you will get you out, you take with, again, without appreciating what those collateral consequences.
It is what we mean by injustice. It is what we mean by unfairness. You know, to be in a fight, which is what our system is structured to facilitate. It's an adversarial system, with a state with all of its resources, with all of its might, with all of its power, is going come after you and try to take away your liberty. Sometimes try to take away your life. And it is a fight. And to be in that fight unarmed, unaided, uninformed, exposed, hated, disfavored, is pretty overwhelming
BILL MOYERS: How does this weigh on the public defenders? You know a lot of them. What's it like to be on the front lines of a system like this?
BRYAN STEVENSON: Yeah. I think it can be very, very dispiriting. I, you know, I have the privilege of teaching and I have these wonderful students who are so committed and so energetic and they go and they work in a defender office where to be effective, they need a caseload of about 100, maybe 150. And very quickly, they're given a caseload of 500. Some places--
BILL MOYERS: 500 when--
BRYAN STEVENSON: Yes, the A.B.A., the American Bar Association says, the limit really should be around 100 or 150. Yet in many of these defender programs, defender offices lawyers are handling cases, 500 cases a year.
BILL MOYERS: Wow.
BRYAN STEVENSON: Some places 700 cases a year. And you can make any great lawyer ineffective if you give them more than they can manage. And it's dispiriting. And what a lot of them do is they leave. And of course when they leave, they create a vacuum, which results in poor people not having advocates that care about them, not having lawyers who are prepared to fight for them. It's one of the great tragedies of, again, what we've done. And you see it at the top end, you got people literally dying for legal assistance on death row in this country, and you see it at the very bottom, where misdemeanants never see lawyers before they forfeit very basic freedoms and liberties because they don't know any different.
BILL MOYERS: Give me a profile of a public defender.
BRYAN STEVENSON: Sure. So a profile in many urban offices today will go to their office, they'll have a stack of files that will have maybe 30, 40 cases that are active that day, they've never met those clients, they'll go to the courthouse, there'll be a room of dozens of people sitting up there. Their cases will be called in about an hour. And they'll have about that much time to meet 20 or 30 clients, figure out what the case is about and then go before the judge on the trial, on essentially the adjudication.
BILL MOYERS: All in one day?
BRYAN STEVENSON: All in one day. And I've been in courtrooms where the appointed lawyers don't even go and meet the clients. The judge will call out a name and the client will stand up and the lawyer will roam around and then they'll go up and three minutes later, they'll plead guilty. And tragically, that happens far too often and in too many places.
BILL MOYERS: Didn't you and your colleagues do research showing that children of color tend to be sentenced more harshly?
BRYAN STEVENSON: Oh, no question. And I think one of the tragic aspects of what we've seen over the last 40 years is what it's done to children. Again, at the time of Gideon, there were virtually no children in the adult criminal justice system. Today, there are a quarter of a million of kids in the adult criminal justice system, in jails and prisons--
BILL MOYERS: Kids being under--
BRYAN STEVENSON: Under the age of 18, 17 and younger, some as young as eight and nine years of age. We eliminated the minimum age for trying children as adults. We subjected children to execution, which we only banned in 2005, to death in prison through life imprisonment without parole. Nearly 3,000 children in this country have been sentenced to die in prison. And yes, there are huge racial disparities about 74 percent of the youngest kids serving life without parole are African American or Latino.
And again, all of this creates this cultural problem that I'm very concerned about. What I hate about what we're doing is not only is it destroying communities where you have high percentages of young men of color in jail and prison, it's also changing the attitudes of these kids. These young kids, 13 and 14 tell me that they don't believe they're going to be free or alive by the time they're 21, because that's what they see happening in their communities. And that is a real tragedy that I think speaks to a lot of very serious problems that we have to confront.
BILL MOYERS: You won a landmark decision before the Supreme Court last year, what was that about?
BRYAN STEVENSON: Miller versus Alabama was a case where we challenged the constitutionality of life without parole sentences for children. Evan Miller was 14 years of age, the second case, Kuntrell Jackson also involved a 14 year old. There are hundreds of children, 13, 14, 15, 16 who have been sentenced to die in prison. And most of them got these sentences in mandatory sentencing proceedings. And what we asked the court to do was to ban mandatory life without parole sentences for children. And the court did that in a five-four ruling.
BILL MOYERS: What do you think was the convincing or compelling turning point in the argument?
BRYAN STEVENSON: Well, I think it was really recognizing that children are different. That we can't be indifferent to the status of children. We protect children in virtually every other area of law. We even punish people more harshly if they victimize a child. We don't let them drink, we don't let them smoke, we recognize their limitations.
But in the criminal justice system, over the last 30 years, we've just abandoned any consciousness about what it means to be a child. And so it was important for us to explain to them the developmental differences between children and adults, but to also explain to them that to say to any child of 13, that you're fit only to die in prison, is cruel. And it's also unusual. We're the only country in the world that imposes that kind of sentence on a child that young.
BILL MOYERS: "Every person," you said, "is more than the worst thing they've ever done." And you said even the court has recognized this sort of reality.
BRYAN STEVENSON: I think that we too frequently define these legal rulings through the lens of a crime. And we think the crime is what we're actually condemning and sentencing. And there's no question that crimes can be brutal and horrific and painful. But we give justice to people. And we're not actually condemning crimes, we're condemning people.
You know, I think most people listening to this could never imagine that their 12 or 13 or 14-year-old child could to anything that would justify putting that child in prison until they die. We just can't imagine it. And we can imagine our kids doing some really bad things.
BILL MOYERS: Right.
BRYAN STEVENSON: And what happens of course is that when you don't see the child as your child, which happens to a lot of racial minorities, and undocumented children and native children in these court systems, we don't take that attitude.
You know, there are a lot of us that are talking about a pipeline, a school-to-jail pipeline, the schoolhouse-to-jailhouse pipeline, because even in school systems now, we're arresting children six and seven and eight year old kids, we put them in handcuffs, we treat them like criminals. And it's not something that any responsible parent could ever imagine being legitimate as applied to their children.
And we just have to have this notion that all children are children. I mean, that's basically my argument to the court, it's been my argument to policy makers. All children are children. You can't say, "That's not really a child because he's black or because he's brown or because he's Latino, because he's had some problems, because he's disabled, because he's angry, because he's homeless." You can't say that that makes him not a child. And it's the thrust of that argument really that we're trying to present to courts and policy makers.
BILL MOYERS: What are the consequences of what you've described? Of what's happening?
BRYAN STEVENSON: It's been pretty horrific. I have been in jails, where I've met young clients who I've had to hold while they cried hysterically after explaining to me that they had been abused by adults in that facility. You're ten times more likely to be the victim of a sexual assault if you're a child in an adult jail or prison.
You're much more likely to commit suicide. And when I work with these kids, I see a tremendous amount of pain and abuse. I've had clients who've had the names of people carved into their skin who have abused and raped them. And when you're dealing with that kind of pain and anguish, when you hold a kid after he's cried for an hour because you're trying to, he's trying to make sense of what's happening to him, you leave the facility and you say, "Who is responsible for this?"
And then when you realize that we are all responsible for it, it does make this issue a very compelling issue. I think it makes the need to say something an overwhelming need and I think the obligation to do something a priority. And that's part of the reason why we've been pushing these issues.
BILL MOYERS: You gave a TED talk last year—
BRYAN STEVENSON AT TED: I've come to TED because I believe that many of you understand that the moral arc of the universe is long, but it bends toward justice. That we cannot be full evolved human beings until we care about human rights and basic dignity. That all of our survival is tied to the survival of everyone. That our visions of technology and design and entertainment and creativity have to be married with visions of humanity, compassion and justice. And more than anything, for those of you who share that, I've simply come to tell you to keep your eyes on the prize, hold on. Thank you very much.
BILL MOYERS: You got one of the longest, if not the longest and most intense standing ovation of anybody who had appeared before TED. And a number of people called up and pledged I think over a million dollars to your nonprofit down there in Alabama. And yet public opinion seems more strongly and sternly than ever to resist paying for, to defend the poor. How do we close that contradiction?
BRYAN STEVENSON: I think we have to raise the question of justice. We have to raise the question of fairness. We can't analyze these issues without appreciating that if we're not willing to fund an adequate system, we're going to be unjust. We're going to be unfair. We‘re going to throw people away in ways that are not consistent with our values. And I think we have to raise that.
I do think we have to educate too. I mean, the reality is, is that we could reduce the prison population by 50 percent in a very short period of time, not increase threats to public safety, bring down the cost of managing the criminal justice system, and increase the resources for fair and adequate defense. But it's going to take a lot of leadership, which we haven't seen in a long time.
BILL MOYERS: Senator Patrick Leahy of Vermont, as you know introduced legislation just last week called the Gideon's Promise Act of 2013. It would give the justice department the ability to sue states and counties that fail to uphold the Sixth Amendment right to counsel. It also promises money to states to improve indigent defense. Do you expect anything to come out of this?
BRYAN STEVENSON: It's a first step, but I actually think until we appreciate that we are in a crisis, that what we're doing is just fundamentally unjust, that we're throwing hundreds of thousands of people away in ways that cannot be reconciled with a country committed to fairness and see it as a crisis in many of the same ways that we saw the civil rights conflicts of the '60s, as a crisis moment and what we were doing to the desperately poor in the '20s and '30s as a crisis moment we're not going to have the will to actually move forward.
I think that Congress can play a role. But I think the court plays the critical role here. If the court starts saying, "Look, we are not going to tolerate these kinds of trials where the lawyers are unprepared and unskilled and if we challenge some of what we've seen in some of these places, I think we can turn this issue around." But it's going to take that kind of intervention.
BILL MOYERS: What are a few things you think we could do to turn this around?
BRYAN STEVENSON: Well, I think we should take advantage of the fact that we can't afford to keep putting all these people in jails and prisons and immediately demand political reforms. Let's stop this misguided war on drugs, let's stop incarcerating people at these high rates for a simple drug possession. Let's stop putting people back in prison for simple technical violations. That would bring down the prison population, which would be a first step. I think we should demand of our courts a commitment to Gideon. I think we should renew that commitment. And stop insisting that the poor person go find a volunteer lawyer to show the court that their bad lawyer actually did something consequential.
And we talk about this as a presumed prejudice standard. If the court would presume prejudice if the lawyer's drunk, intoxicated, didn't investigate didn't meet the client until right before, just presume prejudice there, that would radicalize our commitment to the public defense system. And finally, I think we created an atmosphere where everybody gets revved up around a particular crime. And these bad crimes create bad laws that then become bad policy. And we need to do a little bit of that soul searching that allows us to be more honest about what justice requires. The people who need the protection of the law, the people who need our commitment to the rule of law, are not the powerful people, not the rich and the famous.
It's the poor people. It's the incarcerated people. It's the accused people that actually need a commitment to the rule of law. And so we have to understand that ultimately, that's where we're going to be judged. We're not going to be judged by how well we're doing for the rich and famous. We're going to be judged by how well we do with the Clarence Gideon’s of this world, which are frankly everywhere these days.
BILL MOYERS: Bryan Stevenson, thank you very much for being here and thank you very much for the work you do.
BRYAN STEVENSON: Thank you.
BILL MOYERS: Public opinion against capital punishment has grown, perhaps reflecting the Supreme Court’s own shifting and evolving attitudes toward state killing. In 1972, the Justices ruled that the death penalty was carried out in too arbitrary a manner and the court imposed a moratorium. Four years later the practice was allowed to resume, and since then more than 1,300 men and women have been executed.
Over time the Justices have more narrowly defined the circumstances under which the death penalty may still apply, but you never know which way The Court might in deciding next who lives and who dies.
That's one of the fascinating insights in this new book, Murder at the Supreme Court-- which combines elements of a true crime suspense thriller with courtroom drama and the backroom debates of nine human beings about to give "thumbs up" or "thumbs down" to another human being.
The authors, Martin Clancy and Tim O’Brien are old hands at journalism, both for ABC News.
O’Brien, trained as a lawyer, has been the network’s longtime law correspondent; Clancy, the winner of many awards for his investigations as both a producer and writer. He is also an old friend and colleague going back to my first days in the field more than four decades ago.
It's been years since we worked together, so it's good to see you again, Martin.
MARTIN CLANCY: Thank you very much.
BILL MOYERS: And to welcome Tim O'Brien.
TIM O’BRIEN: Thank you.
BILL MOYERS: I learned a lot from your book, including how our colonial fathers kept the executioners busy. I mean, the first execution on what is now American soil, 1608, Captain George Kendall put to death on spying for Spain. One Daniel Frank, hanged 14 years later in Jamestown for stealing a calf. And the first murderer put to death was troublemaker on the Mayflower by the name of John Billington. We were a bloody people even then.
MARTIN CLANCY: Well, partially out of necessity. There weren't any jails in colonial America, so what do you do with somebody who steals a calf? You either fine him, or you flog him, or you dispatch him.
BILL MOYERS: Some were even carried out, you write, by being broken on the wheel.
MARTIN CLANCY: They would literally strap a guy on a great, big wheel from his four appendages and roll the wheel until he was dead.
BILL MOYERS: And gibbeting?
MARTIN CLANCY: They cut, they literally cut him up in pieces. I mean, it was awful stuff.
BILL MOYERS: But hanging became the preferred method, didn't it?
MARTIN CLANCY: It did.
BILL MOYERS: And a public spectacle?
MARTIN CLANCY: It became a public spectacle until the public spectacle became so embarrassing, the authorities would bring it inside.
TIM O’BRIEN: We have a culture in this country, the Wild West, and it manifests itself, I think, to this day. There is sort of a mentality in pockets of our country. There's, we don't care if it's unpleasant.
BILL MOYERS: I can't get William Kemmler out of my mind after reading this book and I'd never heard of him.
MARTIN CLANCY: William Kemmler was an experiment. William Kemmler had the misfortune to be the first person sentenced to the electric chair in the United States. The deciding on electricity as a form of as a form of execution was an evolving kind of grisly process in New York State. It began with an electrical engineer. And he figured that that would be a good way and a humane way to execute. And they tried it out on dogs and cats in Buffalo. They used to drown dogs and cats in Buffalo and they thought it would be an improvement to electrocute them. They did, it was kind of awful, but they perfected a process that the New York State legislature approved and Kemmler was the first victim.
BILL MOYERS: And you have in here the “New York Times” headline from that experience. "Far worse than hanging," the New York Times says, "Kemmler's death proves an awful spectacle. The electric current had to be turned on twice before the deed was fully accomplished." MARTIN CLANCY: There were eight minutes of what one person described as living hell or it may be dying hell in that room with smoke and sparks and a foul odor. It took William Kemmler a while to die and it could not have been anywhere near painless.
TIM O’BRIEN: He was essentially burned at the stake.
MARTIN CLANCY: Exactly right. He was finally pronounced dead but people, witnesses left the chamber vomiting. One of the coroners who was present said he'd never seen a spectacle so awful.
BILL MOYERS: What drew you, as journalists, to murder at the Supreme Court?
TIM O’BRIEN: I've been covering the Supreme Court, as you know, many years. I've found so behind so many of these very important cases were great interesting stories with very important legal questions, philosophical questions. To us, it seemed like a no-brainer this is something we should write about.
MARTIN CLANCY: Example, the Supreme Court decided in 1946 that it wasn't cruel and unusual punishment to sit someone down in an electric chair twice. You look back at that decision and you trace it back and it's, the story is amazing. It's the story of a 17-year-old black man named Willie Francis in Louisiana which had a traveling electric chair.
They used to travel the chair around the state, display it on the county courthouse steps in fact, we talked to a fellow who in sixth grade was taken on a field trip that day to the Saint Martinsville Courthouse to look at the electric chair on the on the courthouse steps. They then moved the chair inside, hooked up a generator from the truck, and sat Willie Francis, who had shot a pharmacist in a robbery, sat him down to electrocute him, and the machinery didn't work. Smoke, flames, sparks, but Willie wasn't really hurt. They finally unhooked the chair…
BILL MOYERS: He wasn't hurt?
MARTIN CLANCY: Wasn't hurt in any major way, a few minor burns. They sent him back to his cell. This became a major Supreme Court case. Would it be cruel and unusual punishment to sit him on the chair again? The Court ruled that it wasn't. But Felix Frankfurter, who had voted for the execution because he felt he had no choice constitutionally, behind the backs of his fellow justices, went to a friend in the Louisiana Bar and said, "Fight this locally. This would be an embarrassment if it happened and I'd feel really ashamed if it happened."
TIM O’BRIEN: It says something, also, about the Court, how sometimes they will vote one way when their personal feelings go another way. Sometimes Supreme Court justices, more than anybody else in public life, have to hold their nose when they do their job. They have to be faithful to the law. And you'll see justices saying, "I personally oppose the death penalty" they'll confide that in friends, maybe write about it after they leave the Court, "but we have to uphold it because we feel the state has the right to do it, even though we disagree with it."
BILL MOYERS: You begin with a decision the court made on the 9th of March, 1969, a seminal case involving a condemned convict from Alabama named William Maxwell. The justices voted eight to one to spare his life, declared the verdict unconstitutional and then changed their mind. How did that happen?
MARTIN CLANCY: It was an internal matter. The justices were grappling with several issues and came at it from a bunch of different directions. But eight of them thought it was unconstitutional, the Alabama statute was unconstitutional for different reasons. That decision evaporated overnight literally when Justice Harlan wrote to the chief justice the next day saying, "I'm not so sure any more. I think we ought to reconsider this." Then the court composition changed. Justice Fortas left the court. Earl Warren retired and the case had to be reargued.
BILL MOYERS: Why did you start with that one? Was it because you wanted to show the anguish that judges can go through in trying to reach these decisions?
MARTIN CLANCY: We started with it because it provided a window to the court that was unique. We know very little about what happens in the Supreme Court conference room. We know more about what happens in the White House situation room than we do about the Supreme Court conference room. But because of some notes from the justices we had kind of a play by play of what happened in that conference room on that day.
BILL MOYERS: You have a photograph in your book of Justice Harlan's, a note he wrote the next day, as you say, to Chief Justice Earl Warren, saying, "I'm not at rest with my yesterday's vote." He was troubled overnight.
MARTIN CLANCY: Yes he was. These justices are tortured by these decisions--
TIM O’BRIEN: Ten of the 15 cases we focus on divided the court five to four. Having decided you’re going to have capital punishment, they're now finding the most difficult questions are, "Who gets executed?" And what we, in the Maxwell case, we saw the early division on the Court and the sharp divisions on the Court about capital punishment. And they resonate throughout all the jurisprudence.
BILL MOYERS: What became clear to me in reading this is that the justices suffer doubts and fight prejudices about the death penalty, just like everyone else.
TIM O’BRIEN: Yeah, it's true. In fact, you have three good actually, you have five justices who sat together at one time, all of whom have concluded the death penalty should be abolished. Unfortunately for opponents of capital punishment, it was never in the case or at the same time.
You had Brennan and Marshall opposed it in all cases. Lewis Powell supported capital punishment throughout his tenure on the Court. Only after he left the Court did he say, "I actually think I made a mistake. It doesn't work. Justice John Paul Stevens, in his last few days on the Court, was saying, "We looked to capital punishment to serve society's interest and deterrence and retribution. It really doesn't either."
BILL MOYERS: But did you find any justices who were vehemently for the death penalty, consistently?
TIM O’BRIEN: The most articulate proponent would be Justice Antonin Scalia, who not only favors it as a matter of policy, although he doesn't talk much about that. He's very adamant that there's nothing, the Constitution clearly authorizes it and nothing has happened since to suggest it should be impermissible.
Justice Scalia is committed to a view of the Constitution that it means what it says, and that it cannot change absent of constitutional amendment. So, what is cruel and unusual punishment? He says if it wasn't cruel or unusual in 1791, when the Bill of Rights was ratified, than it can't be cruel and unusual today.
"Now, I'd, so, even if it's unusual today," I asked him, "if it rarely happens today, it still wouldn't qualify as cruel and unusual?" "No." So, some of the torture that you referred to if it happened at the time the Constitution was ratified, it would be allowed today.
BILL MOYERS: Is there a conspicuous thread that runs through these 15 cases? Did you choose them at random, or did you choose them because they added up to something you--
MARTIN CLANCY: We chose those that seemed to have the most impact on our society in combination with the fact…
TIM O’BRIEN: The stories.
MARTIN CLANCY: What we'd call the back story in our line of work. And the more we delved into some of these big decisions, the more really, entranced we became as reporters.
MARTIN CLANCY: Well, this was just go going back to plain, old, honest, shoe-leather reporting. I mean, finding the 80-some odd year sheriff who had been retired for years down in Florida who could tell me about a murder 35 years ago and he remembered the color of the sky. He remembered the names of the witnesses. He remembered what they said. I mean, he almost wrote the piece for me.
BILL MOYERS: But it does seem to me that you reveal an evolving thread of what we would call decency over the years as the Courts weigh, different Supreme Courts weighed these cases. Is that right? Did they?
TIM O’BRIEN: I think that is correct. They've been trying to make it more fair, more rational since 1972. In 1972, the Supreme Court threw out capital punishment as it was being implemented then, finding in the words of one justice that it was being implemented in an arbitrary and capricious way. So, they tried to make it more predictable, more rational. Juries must have guided discretion. They must be certain specified aggravating circumstances. Doesn't apply to just any murder. And then the Court subsequently ruled there ought to also be an inquiry for mitigating circumstances facts that might help this condemned inmate. The question is, has it worked? They keep trying to make it more fair, more rational, but you still find that with 12,000 homicides in the United States, you get 40 death sentences. How do you figure that?
I mean, was we've described it, when people weigh capital punishment, they tend to look at the crime and the criminal and they say, "This person may be deserving, based on those considerations, of the death penalty. Not everybody goes along with that, but many people do. But what if the system were to determine whether you will be executed, you pick a card. You pick the wrong card, you will die? Nobody would allow that. But in effect, if you look at the numbers, that's pretty much what we have.
MARTIN CLANCY: It's not rational. I mean, Warden Clinton Duffy, who put 90 people to death in San Quentin said, "I never executed a rich man." Bottom line is if you can afford a decent defense, you probably will not die in an execution chamber.
BILL MOYERS: What did you come to see as to the role of race in the decisions by the Court?
TIM O’BRIEN: The race of the victim is more important than the race of the defendant. If the victim is white and the perpetrator is black, you're ten or 11 times more likely to get a death sentence than if it's the other way around.
BILL MOYERS: How much did the primal sense of retribution play out in the cases, you know, eye for an eye, how did that play out in the cases you report?
TIM O’BRIEN: We found that retribution is now the primary motive behind capital punishment. It's no longer deterrence the evidence is really out on deterrence. People have arguments both ways. If those who favor it, sometimes they use the word "justice." Sometimes they use the word "revenge," "retribution."
In our view, it all means the same thing. We do have a chapter in the book about retribution being a legitimate purpose of the law. Does it satisfy the desire for retribution to execute somebody? The question is one; life in prison without parole is also retribution. And you're looking for justice sometimes but along with justice loved ones are looking for closure. You look at these appeals; we have people on death row for 25 years. There's no closure there. A life sentence might provide closure.
BILL MOYERS: What did you learn about murder, the act itself?
MARTIN CLANCY: That it's brutal. I mean, the cases that got to the US Supreme Court, the cases we looked at, are not your garden variety domestic homicides. They're not your 7-11 robberies. These, in most cases, are just brutal crimes by depraved or awful people.
TIM O’BRIEN: I've spoken to quite a few. And I find that they make a sympathetic argument. They said, "I made a mistake." Many of them have found Jesus and they make a very good, "Look, I know I did wrong." And some even say, "I'm ready to die for what I've done." You don't know whether to believe them or not. But sometimes good people do bad things.
MARTIN CLANCY: In many cases, I'm thinking I can't reconcile the person before me with what I know about the crime. And I think that's true in life. I mean a lot of people don't reveal who they are on the surface.
BILL MOYERS: So, you can understand retribution as a motive for some victim's loved one wanting this person to be put to death?
MARTIN CLANCY: Absolutely. And I think most of America can. I mean, remember the Dukakis debate…
BILL MOYERS: Refresh me.
MARTIN CLANCY: In which he was asked, "If your wife was raped and murdered, you know, would you be willing to have a death sentence?"
BERNARD SHAW: Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?
GOV. MICHAEL DUKAKIS: No, I don't, Bernard, and I think you know that I've opposed the death penalty during all of my life.
TIM O’BRIEN: I think the proper answer would be, "If it were my wife and you were the defendant, would you want me on the jury?" The fact is you do have to divorce yourself. He would not be allowed to be on the jury. Yet, I do think juries in society must take retribution into consideration when assessing punishment.
BILL MOYERS: But take this a further step personally. If Mary D., your wife were the victim of a brutal murder like this, would you want retribution?
MARTIN CLANCY: Course I would.
TIM O’BRIEN: Would you want the death penalty?
MARTIN CLANCY: No.
BILL MOYERS: Why?
MARTIN CLANCY: I mean, I would instinctively feel that way and want that. But I have, I would have a hard time. Because I don't think, I don't, I mean, there's an argument that the ex the death penalty would be fairer if we had more executions, if we have a more streamlined system, if we had a system. The fact of the matter is that I don't think we've developed a way to administer it fairly.
TIM O’BRIEN: I don't know what I would do for a loved one of mine who was killed. I don't even want to think about it. I mean, your heart goes out to these victims. Every one of them in the book, the victim was somebody anonymous who had done nothing wrong, so other than to be in the wrong place at the wrong time. And every one of the perpetrators was someone who really you might have expected this from. That figures into the equation.
BILL MOYERS: Public opinion has shifted in the last few decades. Support for the death penalty I read is at the lowest level in the last 40 years and only nine states performed executions last year and your home state of Maryland just became the first state below the Mason-Dixon line to ban it. What's going on?
TIM O’BRIEN: Historically we found that when you don't have it people seem to want it and when you do have it people don't want it. But you also have a very important Supreme Court decision from South Carolina where the court said juries must be told if there's an option of life without parole if that is in fact an option. So once juries learn that you can sentence this person to death or life without parole and never, he'll never get out they're less likely to embrace capital punishment.
BILL MOYERS: But do you think public opinion has been affected by the continuing demonstration that the innocent are often…
TIM O’BRIEN: It has to be. That has to be
BILL MOYERS: Wrongly convicted? Think that's getting through to…
TIM O’BRIEN: Yeah, the DNA evidence has shown so many people convicted of crimes including murder to have not been involved at all. And that's always been an issue, but it's a much more powerful issue now that we're finding out about all these mistakes.
MARTIN CLANCY: There have been more than 140 exonerations in the past 30 years. Maybe all of those 140 weren't innocent, it's possible I mean, the it's possible they were exonerated for legal reasons but we know from DNA that there were at least 18 people in recent years who were released from death row because DNA proved they didn't do it.
BILL MOYERS: They would have been wrongly killed?
MARTIN CLANCY: Exactly right.
BILL MOYERS: Did your own opinion about the death penalty change as a direct consequence of your investigations and reporting on this?
MARTIN CLANCY: I think it, no, I think it reinforced it reinforced my own reservations about it. As you look back you discover that the smartest men in America, the most decent people in this country for 200 years in our legislatures, in the Congress, in our courts both lower courts and the Supreme Court, the smartest, most decent people in America have tried to figure out a fair and equitable way to administer capital punishment. And as far as I'm concerned they've failed.
TIM O’BRIEN: It didn't change my mind either. I don't think the book is, well, certainly it's not designed to change minds as it is to inform the debate. And we take no position on the morality of capital punishment. But we do reach a conclusion that if you have money you're not going to be executed. If the person who's executed, who if the person who's killed is a white person and the defendant is a black person you're many times more likely to get a death sentence. These are factors that should not figure into capital punishment at all. If you don't have any money and even if you do have any money it's very difficult to get a good lawyer to represent you. All these things lead us to believe that as a practical matter it doesn't work.
BILL MOYERS: Murder at the Supreme Court: Lethal Crimes and Landmark Cases, Martin Clancy and Tim O'Brien thanks for being with me.
TIM O’BRIEN: Thank you.
MARTIN CLANCY: Thank you for having us.
BILL MOYERS: The next time you say the Pledge of Allegiance – “I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all” – remember: it’s a lie. A whopper of a lie.
We coax it from the mouths of babes for the same reason our politicians wear those flag pins in their lapels – it makes the hypocrisy go down easier, the way aspirin helps a headache go away.
"Justice for all” is a mouthwash for the morning after governor Bill Clinton took time off from his presidential campaign to fly back to Arkansas to oversee execution of a fellow who was mentally deficient. "
“Justice for all” is a breath mint Governor George W. Bush popped into his mouth after that poor Bible-believing Christian pleaded vainly for mercy before they strapped her down to die in that anteroom of Heaven known as the Huntsville State Prison.
“Justice for all” is a line item in the budget – sequestered now by the Paul Ryans of Congress and the Fix the Debt gang of plutocratic CEOs who, with a wink-wink from our president, claim, “Oh, we can’t afford that!”
Of the $100 billion spent annually on criminal justice in this country, only two to three percent goes to defend the poor. Of 97 countries, we rank 68th in access to and affordability of civil legal service.
No, we can’t afford it, but just a decade ago we started shelling out $2.2 trillion for a war in Iraq born of fraud.
We can’t afford it, while Dick Cheney’s old outfit Halliburton raked in $40 billion worth of contracts because of that war.
We can’t afford it, while the State Department doles out three billion dollars over five years in private security contracts to protect its gargantuan new embassy in Baghdad.
We can’t afford it, in this golden age of corporate profits when companies pay below zero in taxes while hauling in tax breaks from Congress worth millions upon millions of dollars -- and, while, as we speak, the powerful business roundtable ratchets up a costly advertising campaign to cut corporate taxes even more.
We can’t afford to defend the poor.
Oh, Gideon -- fifty years ago your trumpet was a clear, piercing cry for justice, and we’ve turned a deaf ear.
At our website BillMoyers.com there’s more about the legacy of Gideon v. Wainwright and a state by state analyses of the death penalty in America. There’s also word of an encouraging development. The story of the Bronx Defenders a nonprofit organization of lawyers, advocates, and community volunteers that’s pioneering a more holistic approach to legal aide. You can find out more at BillMoyers.com. I’ll see you there and I’ll see you here next time.