Bryan Stevenson on the True Costs of Mass Incarceration

One of the Supreme Court rulings you may have missed in the din of its Affordable Care Act decision considered the constitutionality of mandatory sentencing to life in prison without parole for minors. Justice Elena Kagan, writing for the majority, determined that “requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes” is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.

The lawyer who argued the winning side of that case was Alabama lawyer Bryan Stevenson. For over 25 years, Stevenson has been an advocate for death row inmates in the Deep South. As the director of the Equal Justice Initiative (EJI), Stevenson works with clients who have been wrongly accused or denied proper legal representation, as well as those whose prosecutions and trials have been influenced by racial bias. A memorable guest of Bill Moyers Journal, Stevenson talked with us about issues of age and race in our justice system.

Riley: When did the trend toward mandatory sentencing begin, and what has it meant for juveniles?

Bryan Stevenson: There has been a general overall trend toward harsher sentencing in the United States and it’s one of the reasons why prison population has grown from about 300,000 in 1972 to 2.3 million people in prison today. The US now has the highest rate of incarceration in the world. Sadly, the people most directly impacted by the developments have been the vulnerable: poor people, people of color, the mentally disabled and children. In the late 1980s, a small number of criminologists began talking about juvenile crime and characterizing many of the youngest offenders as not really children but as this new word, “super-predators.”

This concept began shaping policy at the state legislative levels. We saw many states lower the minimum age for trying children as adults. We saw many states making it dramatically easier to transfer kids into the adult system. And several states mandated that kids convicted or accused of certain kinds of crimes be prosecuted as adults. This happened at the same time we were making sentencing for adults less discretionary and very harsh. Many states were abolishing parole and mandating these very extreme sentences for adult offenders. So for the first time there were a growing number of children being sentenced to die in prison.

I don’t believe that legislators actually ever discussed or considered what kind of sentences these kids should get, but by pushing them into the adult system at very young ages we now have nearly 3,000 children who have been sentenced to life in prison without parole and tens of thousands of kids serving sentences in adult jails and prisons.

Riley: Does the Supreme Court’s decision do anything to help these kids or does the ruling only apply to cases going forward?

Stevenson: It does. The Court’s ban on mandatory life without parole may invalidate over 2,000 of these life without parole sentences. So that is very hopeful. Because the Court didn’t absolutely bar life without parole for this population, there will be a lot of work to be done at the trial level in making sure that these kids get sentenced appropriately. So that will be a new challenge in meeting the legal needs of these people who are now entitled to review. But we do think the decision will have an impact on hundreds of cases.

Riley: An article in The New York Times mentioned that there were several amicus briefs filed by psychiatric associations in the case. Can you talk about some of the new research about adolescent development and how the Supreme Court factored it into their recent rulings?

Stevenson: Most parents have long understood that kids don’t have the judgment, the maturity, the impulse control and insight necessary to make complicated lifelong decisions. Brain science and psychologists have helped document these differences between children and adults and through imaging and other new developments have made the case even more conclusive. They can’t make the same kind of long-term judgments. They don’t evaluate choices as carefully. They have poor impulse control. They are biologically vulnerable to peers and acting out in some circumstances — and all of that relates directly to the question of culpability.

We protect kids from a whole range of things, from giving blood to getting tattoos to buying fireworks, because we recognize the challenges that youth creates when it comes to decisionmaking. It’s only in the criminal justice system that we’ve been indifferent to child status. But the Court invoked this new science in the Roper decision in 2005 [outlawing the death penalty for minors]. They revisited it in 2010 when they banned life without parole for children convicted of non-homicides. And it again played a role in the recent decision banning mandatory life without parole for kids.

Riley: The NPR-affiliated radio station in New York City recently reported on the NYC police department’s stop-and-frisk program. They found that one in five people stopped was a teenager between the ages of 14 and 18, and that 86 percent of those teens were Black or Latino. When historian Khalil Gibran Muhammad recently appeared on Moyers & Company, he told Bill that it was “an old and enduring form of surveillance and racial control.” What effect do you think profiling has on juveniles of color?

Stevenson: The reality is that when you take an offense like, say, simple drug possession, the possession of marijuana, young black men are not illegally in possession of marijuana and other drugs more than young white men. It’s a myth that for that kind of a sentence, people of color are more likely to offend than whites. However, our enforcement strategies and protocols have made young men of color disproportionately more likely to be arrested for these kinds of offenses. And then they are dramatically more likely to be convicted of these kinds of offenses.

We’ve created a narrative in this country that young people of color are more dangerous than young white folks, that if a young black or brown man or boy is someplace where others believe he doesn’t belong, then he is likely a criminal. And this presumption of guilt or criminality is what is contributing to this enforcement approach, which then stigmatizes young people of color and alienates them in ways that I think have been quite tragic. My communities and clients all feel harassed, marginalized, stigmatized and victimized by their interactions with the police. And it becomes their burden to have the skills, the ability, the resources to manage some of these interactions safely and to distinguish themselves from these presumptions of guilt, which is, I think, completely unfair and unreasonable.

Riley: When you were on Bill Moyers Journal in 2010, you talked about how a lot of your clients basically expect to go to prison.

Stevenson: Yes, the degree of criminal justice control in poor communities, and particularly poor minority communities, has been so significant, when you’re talking about 50 to 60 percent of young men of color being in jail or prison or under criminal justice control, it’s very difficult for young kids who live in these communities to not have an expectation of arrest and incarceration. And it’s quite tragic, because once you have an expectation, once you believe that arrest and imprisonment is inevitable, your ability to cope and overcome a range of challenges and barriers that the poor and people of color already have to overcome becomes that much more difficult.

I think one of the great tragedies of contemporary America is that we have all of this talent, all of this energy, all of this capacity in poor rural communities and poor urban communities that we are squandering by not engaging in a hopeful, thoughtful and appropriate way with young people who are thrown away because of the perception of their dangerousness or their criminality. And what’s sad to me is how much I see in the client community that I represent, in terms of potential talent and ability. You know, some of the most amazing people are former offenders now doing extraordinary things. And I think one of the great challenges we have is how we recover from decades of prosecuting, accusing, punishing these whole communities instead of engaging them, employing them, inspiring them to use these talents and energies in constructive and productive ways.

Riley: How do you see these issues of race and social inequality playing out in the upcoming election?

Stevenson: I don’t know that it will be a dominant issue, at least at the presidential level. I think at the local level, it’s been forced higher on the agenda, just because the economic costs of mass incarceration have been so destructive. Many states can no longer afford to support public education, public benefits, public services without doing something about the exorbitant costs that mass incarceration have created. California is one example, but there are other states where the economic crisis has made the excess of our punishment policies over the last forty years no longer feasible. And I’m hoping that these economic realities inspire more thoughtful, more careful, more informed decision making around sentencing and criminal justice policies. We’ve got hundreds of thousands of people in jails and prisons for nonviolent offenses, for low-level property crimes. They are not a threat to public safety, they are a burden on public resources and there’s just no good justification for that. Yet, everybody still wants to be perceived as tough on crime. And so it’s going to be important in the political arena that the rhetoric around tough on crime gets changed to smart on crime or right on crime or whatever mantra that will allow us to make better decisions on these issues.

Riley: Another big issue, in terms of the election, is the percentage of the population that has lost the right to vote because of these felony convictions, right?

Stevenson: Yes. There are many states where people are permanently barred from voting as a result of a criminal conviction — in my state of Alabama, about 34 percent of the black male population has permanently lost the right to vote — and that does have implications in these elections. Florida is another state where felon disenfranchisement has been extremely influential in election outcomes, and that’s I think regrettable. Whenever you exclude a growing percentage of the population from participating in the most important choices that we make in a democracy, you feed the kind of discontent, the kind of disengagement that I think actually is a threat to public safety and public health that we really need to reconsider.

I do think that with regard to the public, there has been an absence of leadership about the consequences of these policy choices over the last 40 years, and there is a need for more public education and information, because I think most voters don’t want eight- and ten-year-old children housed in adult prisons, which is the law in too many states, or people serving 40 years for writing a bad check, or life in prison for stealing a bicycle, or even for simple possession of drugs. I don’t think that these policies actually reflect public will or public support in the way that they’re sometimes portrayed, and so one of the challenges is getting the public to understand what we’re doing a little more carefully.