ALABAMA, UNITED STATES: “We still have a system that treats you better if you’re rich and guilty than if you’re poor and innocent,” American lawyer Bryan Stevenson tells me, his voice gentle and his eyes kind. “And as long as that’s true, there’s an effort that has to be made. There’s a call that has to be answered.”
Those words couldn’t ring truer than today, the day after George Floyd was murdered by white police officers in Minneapolis.
Stevenson’s 2015 revelatory and thought-provoking memoir, Just Mercy, is a #1 New York Times bestseller that forever sits deep within the psyche. Clear-sighted and compassionate, Stevenson has battled the echoes of the Jim Crow segregation era and its effects on the American criminal justice system his entire career as a defendant to the wrongfully condemned. In December 2019, the Delaware native and Harvard graduate’s most formative case was turned into a blockbuster film starring Michael B. Jordan and Jamie Foxx – and it was during the movie’s press tour that I came across Stevenson.
Directed by Destin Daniel Cretton (Short Term 12) and from a script written with Andrew Lanham, the true legal drama Just Mercy follows a young Stevenson (played by Jordan) as he arrives in Alabama in the late 1980s to lend his dissenting voice to the dispossessed inmates of death row. Here he meets a vanquished Walter McMillian, an Alabama pulpwood worker (played by Foxx) who was wrongfully convicted of murdering an 18-year-old girl and sentenced to death. McMillian initially didn’t want anything to do with the seemingly naïve lawyer, a moment that took place inside Holman State Prison in Atmore – and one Stevenson remembers well.
“It’s hard to stay hopeful in such a desperate situation. It just becomes easier to just kind of exist in that dark space,” he says. “I think Walter, having lived a life in the segregated South – having been marginalised his entire life – it was initially hard for me to recover that [hope]. I remember the moment [McMillian started to shift his perspective of Stevenson] and it was after I met his family. When you take an innocent person and you put them on death row, you’re not just convicting and condemning that person, you convict and condemn the entire family. They were so excited at the possibility that someone might fight.
“I think between their excitement and my persistence, he began to have this hope,” he continued, smiling. “And he was a remarkably committed man. We became not just friends but brothers.”
Watching the film, reading the book and then being in Stevenson’s presence – his grace, his kindness, his compassion, his power – I started to look more deeply into the work of his Alabama-based organisation, the Equal Justice Initiative. What I learnt was unfathomable.
We are now in an era of mass incarceration. There are more innocent people in American jails and prisons today than ever before – and the rate of exonerations continues to rise proving an unreliable system. The main reason for incorrect verdicts comes down to official misconduct, racial bias, faulty forensics and unreliable eyewitnesses. Since 1989, over 2500 people have been exonerated. On average, each exonerated person spent eight years and 10 months in prison for crimes they did not commit.
But what happens when a judge sentences somebody to death row? A flawed, expensive policy, defined by bias and error, capital punishment nonsensically sends innocent men and women to their graves every year. Alarmingly, for every nine people executed, one person on death row has been exonerated. The method of ending a prisoner’s life is by way of a lethal injection but if the crime being served took place prior to 1999, inmates can opt for the electric chair – an outdated and horrifically painful end.
Anthony Ray Hinton spent 30 years on Alabama’s death row before Stevenson and his colleagues – including EJI’s senior attorney Charlotte Morrison – won the case to have him exonerated and released in 2015. It took EJI 15 years to prove a faulty bullet match had resulted in their client being wrongfully charged with murder.
“It’s very affirming. It’s very gratifying,” Stevenson tells me, recounting the feeling of quite literally saving a man’s life. “It’s just challenging at the same time because I don’t have the ability to give back to people what they’ve lost. I can’t give Walter McMillian six years back. I can’t give Anthony Ray Hinton 30 years back. But what I can do is give them my ultimate effort and my best to make sure they are not wrongfully executed. What frustrates me is there’s still so many innocent people in our jails and prisons who need help and who need legal advocacy.”Here, I talk further with Morrison. Tragically, as we’re speaking, a man on death row in Tennessee has just eight hours to live. From the unfathomable practises of killing, and the mad dash to save somebody’s life in their final hours, to the number of innocent people waiting to die, Morrison explains the injustices in this legal labyrinth.
Because, guilty or innocent, the question we need to ask ourselves about the death penalty isn’t whether someone deserves to die for a crime…but whether we deserve to kill.
ICON: The “tough on crime” policies introduced in the 80s and 90s – which has led to the mass incarceration of 2.3 million people today – are rooted in the belief that black and brown people are inherently guilty and dangerous. To what extent is this belief still driving excessive sentencing today?
Morrison: You see that on a daily basis; the number of unarmed African American men shot every year by a police officer reflects these deep assumptions which is part of the air that we breathe in America. We associate African American men with dangerousness. The presumption of guilt attaches to people of colour in this country. We haven’t addressed this narrative that washes over all of us – in our school books, in our news feeds – and it’s because of that that we have tried to lift that smog over racial bias in our country which would then allow us to see a change in the way the criminal justice system is administrated.
ICON: I want to talk about wrongful convictions. The rate of exonerations continues to rise proving an unreliable criminal system. Has there been a stand-out case for you? One that was so obviously the wrong person behind bars?
Morrison: The case of Anthony Ray Hinton. He was charged with two robbery murders that he did not commit. The investigator assigned to this case had been prosecuted in federal court just two years before being assigned to investigate these murders for chorusing confessions out of young African American suspects using cattle prods and hypodermic needles. That investigator wasn’t disciplined, he was instead promoted to being the lead investigator in capital murder cases. Race and poverty played major roles in Mr. Hinton’s prosecution. He could not afford a lawyer so he was appointed one who was paid only USD $1000 to represent him. Mr. Hinton’s conviction was based on a single piece of evidence – an assertion that the gun found under his mother’s bed matched the bullet from the crime scene. His attorney did not hire a competent expert to examine the evidence. When we got involved 15 years after he was convicted, we hired three of the nation’s top forensic experts and all three of them said a mistake had been made in this case: there was no match. The gun evidence was not re-tested by the state of Alabama until it was ordered to do so by the US Supreme Court in 2015. It took them only a couple of hours to confirm that the evidence that we presented in 1998 was true. Thirty year later, he was released from death row. He is the 152nd exoneree in America.
Three-hundred-thousand people were incarcerated in the United States in 1972. Today, that figure is 2.3 million.
ICON: Faulty forensics – or “junk science” – also lead to wrongful convictions. Non-validated techniques which have stood up in court include hair microscopy, bite and shoe mark comparisons and firearm tool analysis. Which is most common?
Morrison: Mr. Hinton’s is the rare case where there is scientific evidence supporting the conviction. Most murder convictions rely on eyewitness identification or circumstantial evidence. I think what is really alarming is that most exonerations happen through forensic evidence and yet forensic evidence only exists in a small portion of the cases. We believe we haven’t even begun to understand the unreliability of our system because it is so difficult to prove a wrongful conviction that is based on eyewitness identification. In most states, it’s the eyewitnesses who later come forward and say that they were not telling the truth at trial. That is not considered as new evidence that can re-open a case. That’s just somebody who changed their mind and you’re not going to get a new trial based on that.
ICON: When a prisoner is exonerated, why are police or prosecutors not held accountable for gross misconduct? And will immunity laws ever change?
Morrison: There is the case of John Thompson V Connick out of Louisiana that essentially put the nail in the coffin on this issue and held that it is virtually impossible to hold a prosecutor guilty of gross misconduct. In Thompson’s case, the prosecutor withheld exonerating blood-type evidence for 14 years. It was only discovered years later that they had withheld this evidence and Thompson was exonerated and a jury awarded him USD $14 million for the misconduct of the prosecutor’s office. The jury found this prosecutor’s office had done this in numerous other cases that had also been reversed but on appeal to the US Supreme court, the high court held that the prosecutor was immune from this challenge and reversed the jury’s award in that case.
ICON: Alabama is distinctive: It still is the only state to allow juries to recommend imposition of the death penalty on less than a unanimous vote of all 12 jurors. How does someone get sentenced to death row as opposed to life imprisonment? Where is the line?
Morrison: A jury makes that decision but in Alabama, a judge can override that. One out of four people on Alabama’s death row actually had a life verdict from the jury and the judge then overrode the jury’s decision. We have issued a report that finds that politics is involved in a decision – judges who have retired have conceded that it is largely a political decision. We see a rise in those kind of overrides during election years.
African Americans make up 42% of the people on death row and 34% of those executed – but only 13% of the population is black.
ICON: How do you select a jury when they have the power to recommend death?
Morrison: Jury selection is a pivotal process but when you give that power to the judge, you undermine the ability to have a jury determine these outcomes. So in a state like Alabama, the most powerful decision makers are the prosecutor – who decides which cases to prosecute as capital cases – and the judge.
ICON: As we speak, Tennessee man Nicholas Sutton is gearing up to be executed in eight hours. He shockingly has chosen the electric chair over the lethal injection. What would he be going through today in the lead up to his death tonight
Morrison: We are still hopeful that he will have a reprieve. Electrocution has long been challenged as a horrific process susceptible to gross errors and is a terrifying process. It is one Mr. Hinton witnessed the process of 53 times. For anyone in the [prison] building, it’s a process that affects you through the smell. It has been well documented to be excruciating and a long and unpredictable process.
ICON: How intense is the mad rush to get a prisoner off death row in their final hours?
Morrison: It is unacceptable for us and definitely attorneys to allow the state to execute someone without a protest. There is going to be a very deliberate and coordinated effort by Mr. Sutton’s attorneys to stop the execution. And it does go down to the last minute. There are many issues that you cannot litigate until the process is known. In Alabama, we’ve had executions where the prison would inform us at the last minute that the religious person that our client has wanted to be present is not allowed to witness the process based on their religion. They would allow a Christian witness and not a Muslim witness. Prisons often inform you on the day. We had a client who was on the gurney and he had everything set up for a lethal injection but we were still waiting to hear from the US Supreme court over whether we could stop the execution. The US Supreme court asked the Attorney General to delay the execution because they hadn’t decided it yet, the state refused, and our client essentially went through a mock execution before the US Supreme court issued an emergency stay. The stay was in place for five hours before they decided to lift the stay and then he was killed. One of the challenges was we could not get a phone line into him while he was strapped to the gurney so he had no idea what was happening during those hours before his death.
Each exonerated person spent on average of more than eight years and 10 months in prison for crimes they did not commit.
ICON: There’s a beautiful image of you hugging Mr. Hinton moments after his release. Can you tell me about that moment?
Morrison: That was just both an incredibly joyful and incredibly painful day. He had lost 30 years of his life sitting in 5 X 7 cell, awaiting his execution, witnessing 53 other executions, and not knowing if he would ever get out. His mother died during that time and so while he was released, you never come back from that. He will never get those 30 years back.
ICON: Mr. Hinton wrote in his book The Sun Does Shine: “We are all slowly dying from our own fear, our minds killing us quicker than the state of Alabama ever could.” What does death row do to somebody – particularly someone like Mr. Hinton who shouldn’t have been behind bars?
Morrison: I think what Mr. Hinton does a beautiful job with in his book is questioning, “Who should be on death row?” That is the question. This process of housing somebody only to kill them and whether human beings should be involved in that process is a very serious one. As someone who lived with these men, I think Mr. Hinton has an extraordinarily powerful voice on that question and what it does to the soul and why any human being or government would be part of that process. He calls for the end of that.
For every nine people executed, one person on death row has been exonerated.
ICON: Do you agree that death row is the evolution of slavery? That is, slavery becomes lynching and lynching becomes codified segregation and now we’re in an era of mass incarceration?
Morrison: There is no way that you can understand America’s history without coming to the conclusion that the criminal justice system is evolved from centuries of enslavement of African American people and telling this narrative that someone’s worth depends on their skin colour. The willingness to tolerate the extraordinary error rate that we see in the death penalty – for every nine people executed, one person is exonerated – rests on this narrative of racial difference. Why do we tolerate this? The bureau of statistics put out this statistic in 2010 that said one out of three African American boys born this generation will go to jail or prison. We haven’t called a national emergency on that.