Bryan Stevenson, Just Mercy: A Story of Justice and Redemption, New York, Spiegel & Grau, an imprint of Random House, 2014, 336pp. Paperback 2015
Reviewed By Alan W. Clarke
Your Honor … It was far too easy to convict this wrongly accused man for murder and send him to death row for something he didn’t do and much too hard to win his freedom after proving his innocence. We have serious problems and important work that must be done …”
–Bryan Stevenson, in Walter McMillan’s case.1
It is no longer reasonably debatable that our inefficient, expensive, broken, racist, criminal justice bureaucracy wrongfully condemns and executes the wholly innocent. That in itself marks an astonishing reordering of opinion since the 1980s when nearly 8 people in 10 supported the death penalty2 and a gubernatorial candidate in Alabama ran for office vowing to “fry them until their eyeballs pop out.”3 Riddled with race and class biases, the U.S. prison–industrial complex also ruins the lives of millions more—mostly poor, despised and discriminated–against minorities, generating the second highest imprisonment rate in the world, second only to the Seychelles4 and by far the largest total prison population of any nation on earth, roundly beating the far more populous China for this dubious distinction.5
Since 1973 courts have been forced, over vigorous and sometimes vicious opposition from prosecutors and police, to free 156 patently innocent victims of America’s experiment with capital punishment.6 While we can never know precisely how many innocent people have been killed by the state, scholars identify 13 who were executed despite probable innocence. In the case of Carlos DeLuna, evidence that Texas killed—perhaps “judicially murdered” would be a better phrase—an innocent man approaches certainty.7 Beyond capital punishment, and in our name, the carceral complex deploys a variety of formally neutral, seemingly facilitative and supposedly disinterested, but in practice racist and classist, mechanisms to ensure quick, inexpensive, but fallible convictions with cruelly long imprisonment for those without money or resources. Justitia may wear a blindfold but she unerringly detects race and class.
Enter into this Stygian morass a very bright, determined, idealistic, nearly broke, and at first splendidly naïve, Harvard trained lawyer, Bryan Stevenson. Just Mercy shines the clearest spotlight yet on our Jim Crow-style judicial pipeline to prison or death. What did he do? His conversation with civil rights icon Rosa Parks summarizes his project nicely:
Ms. Parks turned to me sweetly and asked, ‘now, Bryan tell me who you are and what you’re doing.’ …
‘Yes, ma’am. Well, I have a law project called the Equal Justice Initiative, and we’re trying to help people on death row. We’re trying to stop the death penalty actually. We’re trying to do something about prison conditions and excessive punishment. We want to free people who’ve been wrongfully convicted. We want to end unfair sentences in criminal cases and stop racial bias in criminal justice. We’re trying to help the poor and do something about indigent defense and the fact that people don’t get the legal help they need. We’re trying to help children in adult jails and prisons. We’re trying to do something about poverty and the hopelessness that dominates poor communities. We want to see more diversity in decision-making roles in the justice system. We’re trying to educate people to confront abuse of power by police and prosecutors . . . .’
Ms. Parks leaned back, smiling. ‘Ooooh, honey, all that’s going to make you tired, tired, tired.’8
Walter McMillian’s wrongful conviction predicated on perjured testimony, and a law enforcement cover-up, arguably constitutes Bryan Stevenson’s most celebrated case. It exposed nearly everything wrong with our criminal injustice system—starting with a racist Alabama judge with the improbably appropriate name, Robert E. Lee Key, Jr.—a man who, unlike his namesake, never stopped fighting the civil war. Key’s racism reeked from his first telephone conversation with Stevenson, “This is Judge Key, and you don’t want to have anything to do with this McMillian case. No one really understands how depraved this situation truly is, including me, but I know it’s ugly. These men might even be Dixie Mafia.”9
And, what was McMillian’s sin? A married, successful black man, he outraged the white community by dating a white woman.
Mr. McMillian, … did not have a history of violence, but he was well known in town for something else. Mr. McMillian, … was dating a white woman. … And one of his sons had married a white woman. Roots of suspicion.10
McMillian was arrested, tried, convicted and sentenced to death in Monroeville, Alabama, the natal county of favorite daughter Harper Lee. Her 1960 classic To Kill a Mockingbird eerily foreshadows this case. The film version of Lee’s novel was shot in Monroeville and Gregory Peck, as defense lawyer Atticus Finch, argued his fictional case in the old county courthouse. Brock Peters played the part of Tom Robinson, a black man wrongly charged with and convicted of raping a white woman. Adding to the irony, the community proudly stages a yearly production of the story with the Mockingbird Players.11 The book, the film, the annually staged play, and a museum commemorating the trial, are the town’s main tourist attractions thus intertwining self-congratulatory civic vainglory with racism and dollops of rancid hypocrisy. 12
For Walter McMillian, as for the fictional Tom Robinson, Monroeville seethed with racism. “The intense rage of the arresting officers and the racist taunts and threats from uniformed police officers who did not know him were shocking.”13 McMillian’s arresting officer unleashed such a torrent of invective that all Walter heard was “‘[n]igger this,’ ‘nigger that,’ followed by insults and threats of lynching.” 14
That law enforcement somehow housed him on death row even before he was tried, much less convicted, speaks volumes about the cozy relationship between police, prosecutor and judge. Stevenson and the reader are left perplexed. How did they manage to put a presumptively innocent man onto death row before trial, verdict, sentence, or even the ordinary prison processes?15
One can only imagine McMillian’s horror at his precipitate and confused change in circumstances, one day innocent and free, and then in a bewildering instant transformed into an innocent man on death row. Sinking into deep despair, 16
[h]is body reacted to the shock of the situation. A lifelong smoker, Walter tried to smoke to calm his nerves, but at Holman [the prison housing Alabama’s death row] he found the experience of smoking nauseating and quit immediately. For days he couldn’t taste anything he ate. He couldn’t orient or calm himself. When he woke each morning, he would feel normal for a few minutes and then sink into terror upon remembering where he was. Prison officials had shaved his head and all the hair from his face. Looking into a mirror he didn’t recognize himself. 17
This is no ordinary case of the wrongful conviction of a black man on death row (the fact that such cases remain all too ordinary is a penetrating indictment of our criminal justice system). It was not even a typical case of wrongful conviction resisted at every level notwithstanding clear evidence of actual innocence, although this too occurs often enough as defensive prosecutors invent ever-nuttier hypotheses of guilt thus compounding their initial error. Far worse than mere incompetence tinged with racism, this capital case exposed the downright framing of an innocent black man, using perjured testimony, for having the audacity to date a white woman.
It is also a tale of perseverance. One follows in awe as Stevenson overcomes one obstacle after another in his improbable untangling of the web of deceit thrown up by law enforcement officers, the prosecutor and judge. Indeed, this is the part that any death penalty post-conviction lawyer will appreciate. Few lawyers harbor the talent, intellect and diligence to, with meager resources, untangle such a deceitful web as the one that ensnared Walter McMillian. This leads to a regrettable conclusion. He was lucky in two respects. First, he had one of the most effective and caring lawyers imaginable. How many others languish in our prisons who, if they have a lawyer at all, have one who isn’t up to such a daunting task?. Second, he had the good fortune, if good fortune it can be called, to draw a foolish judge, who over-rode the jury’s recommendation and sentenced him to death, thus inviting more attention to his case. “If the jury’s sentence of life in prison without parole had been left in place, Mr. McMillian might have been another forgotten black inmate in an Alabama prison.” 18
While working on multiple death row cases, Bryan Stevenson somehow found time to tackle the even more widespread problem of children as young as thirteen or fourteen years old increasingly sentenced in adult courts to life without the possibility of parole. In 2010, as a result of Stevenson’s advocacy, the Supreme Court invalidated “Life imprisonment without parole sentences imposed on children convicted of non-homicide crimes” holding such to be “cruel and unusual punishment and constitutionally impermissible.”19 Then in 2012, also as a result of his efforts, the Supreme Court held that, even in cases of homicide, life without the possibility of parole is unconstitutional.20 These two cases likely had a broader impact in the numbers of people affected than any other case he had handled.
For most lawyers, these achievements alone would mark a successful career in social justice advocacy. Stevenson, always pressed for time, nonetheless also turned his attention to wrongfully convicted “bad moms” whose children were stillborn, or suffered an unexplained death, or who were “criminally prosecuted and sent to prison for decades if there was any evidence that they had used drugs at any point during the pregnancy.” 21
In the process, he exposed an incompetent forensic pathologist “with a history of prematurely and incorrectly declaring deaths to be homicides without adequate supporting evidence.” 22 His work also helped start a movement to assist the “thousands of women—particularly poor women in difficult circumstances—whose children die unexpectedly” countering the wrongful “criminalization … and the persecution of poor women whose children die.” 23 In one case, the “discredited pathologist left Alabama but continues to serve as a practicing medical examiner in Texas.” 24
Stevenson has not only fought racism; he has experienced it. Late one night, exhausted from a hectic day, and while sitting for a few minutes in his car outside his apartment, listening to Sly and the Family Stone on the radio, a police SWAT team accosted him. Systematically humiliated and illegally searched before a growing crowd, he could hear people “talking about all the burglaries in the neighborhood. . . . There was a particularly vocal older white woman who loudly demanded that I be questioned about items she was missing.” 25
“’Ask him about my radio and my vacuum cleaner!’ Another lady asked about her cat who had been absent for three days.”26 Repeated complaints to the Atlanta Police Department’s administrative review process yielded the consistent response that the police had done no wrong. With a crushing caseload, and like so many young black men who have been harassed and stopped and illegally searched, Stevenson eventually dropped the matter. However, unlike those similarly situated young black men, Stevenson did get one last minor victory. Just Mercy exposes all the racism, bigotry and sheer incompetence of Atlanta’s police. It also reveals a callous administrative indifference all the way up the chain of command. Just Mercy shines a penetrating light on entrenched racism in our police and judicial systems. Given Ferguson, Black Lives Matter, and a host of recent incidents, this exposure of indecent, systemic failure is essential reading.
On September 11, 2013, after struggling for years with disabilities and dementia, Walter McMillan died. At his funeral Bryan Stevenson told the congregation at Limestone Faulk A.M.E. Zion Church:
Walter made me understand why we have to reform a system of criminal justice that continues to treat people better if they are rich and guilty than if they are poor and innocent . . . . Walter’s case taught me that fear and anger are a threat to justice; they can infect a community, a state, or a nation and make us blind, irrational, and dangerous . . . . mass imprisonment has littered the national landscape with carceral monuments of reckless and excessive punishment and ravaged communities with our hopeless willingness to condemn and discard the most vulnerable among us . . . . Walter’s case had taught me that the death penalty is not about whether people deserve to die for the crimes they commit, the real question of capital punishment in this country is, Do we deserve to kill?27
Archbishop Desmond Tutu calls Bryan Stevenson “America’s young Nelson Mandela.” Indeed.
- Bryan Stevenson, Just Mercy: A Story of Justice and Redemption, (2014) at 225.
- Alan W. Clarke, Procedural Labyrinths and the Injustice of Death: A Critique of Death Penalty Habeas Corpus (Part Two), 30 U. Rich. L. Rev. 303, 355 (1996).
- World Prison Brief, Institute for Criminal Policy Research, available at http://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All
- Id. http://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All
- Death Penalty Information Center, Innocence and the Death Penalty (April 18, 2016) http://www.deathpenaltyinfo.org/innocence-and-death-penalty.
- Robert Weisburg, Executing Justice: Anatomy of a Wrongful Execution by James Liebman & the Columbia DeLuna Project, 93 Tex. L. Rev. 1179 (2014).
- Stevenson, supra note 1 at 293.
- Peter Applebome, Alabama Releases Man Held on Death Row for Six Years, N.Y. Times, Mar. 3, 1993, available at http://www.nytimes.com/1993/03/03/us/alabama-releases-man-held-on-death-row-for-six-years.html.
- Jennifer Crossley Howard & Serge F. Kovaleski, ‘Mockingbird’ Reopens in Alabama, 11. Jennifer Crossley Howard & Serge F. Kovaleski, ‘Mockingbird’ Reopens in Alabama, and Drama Plays Out, N.Y, Times, April 17, 2016, http://www.nytimes.com/2016/04/18/books/a-mockingbird-reopens-in-alabama-and-drama-plays-out.html?_r=0.
- Peter Applebome, supra note 10, writes,
. Mr. McMillian’s case, which was given national attention last fall on the CBS News program “60 Minutes,” played out in Monroeville, Ala., best known as the home of the Harper Lee, whose “To Kill a Mockingbird,” told a painful story of race and justice in the small-town Jim Crow South. To many of his defenders, Mr. McMillian’s conviction for the killing seemed like an updated version of the book, in which a black man was accused of raping a white woman.”
- Stevenson, supra note 1, at 55.
- Id. at 50.
- Stevenson writes, “It’s unclear how Tate was able to persuade Holman’s warden to house two pretrial detainees on death row, although Tate knew people at the prison from his days as a probation officer.” Id. at 53.
- Id. at 55–56.
- Stevenson, supra note 1, at 295.
- Miller v. Alabama, 567 U.S. ___ ; 132 S. Ct. 2455 (2012) held that life imprisonment for juveniles without the possibility of parole was unconstitutional. Bryan Stevenson argued the case for the juveniles. Stevenson, supra note 1, at 295-96.
- Stevenson, supra note 1, at 234.
- Id. at 230.
- Id.. at 233.
- Id. at 41.
Alan W. Clarke is a professor of Integrated Studies at Utah Valley University in Orem, Utah and a contributing editor to National Lawyers Guild Review. His most recent book is Rendition to Torture, published by Rutgers University Press in 2012.