Just Mercy: A Story of Justice and Redemption

by Bryan Stevenson

“capital punishment means ‘them without the capital get the punishment.’

“You can’t understand most of the important things from a distance, Bryan. You have to get close,” she told me all the time.

This book is about getting closer to mass incarceration and extreme punishment in America. It is about how easily we condemn people in this country and the injustice we create when we allow fear, anger, and distance to shape the way we treat the most vulnerable among us.

The prison population has increased from 300,000 people in the early 1970s to 2.3 million people today. There are nearly six million people on probation or on parole. One in every fifteen people born in the United States in 2001 is expected to go to jail or prison; one in every three black male babies born in this century is expected to be incarcerated.

The privatization of prison health care, prison commerce, and a range of services has made mass incarceration a money-making windfall for a few and a costly nightmare for the rest of us.

the opposite of poverty is not wealth; the opposite of poverty is justice.

The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.

An absence of compassion can corrupt the decency of a community, a state, a nation. Fear and anger can make us vindictive and abusive, unjust and unfair, until we all suffer from the absence of mercy and we condemn ourselves as much as we victimize others. The closer we get to mass incarceration and extreme levels of punishment, the more I believe it’s necessary to recognize that we all need mercy, we all need justice, and—perhaps—we all need some measure of unmerited grace.

“Racial integrity” laws were part of a plan to replicate slavery’s racial hierarchy and reestablish the subordination of African Americans.

Tony Pace, an African American man, and Mary Cox, a white woman, fell in love in Alabama. They were arrested and convicted, and both were sentenced to two years in prison for violating Alabama’s racial integrity laws.

The U.S. Supreme Court reviewed the Alabama court’s decision. Using “separate but equal” language that previewed the Court’s infamous decision in Plessy v. Ferguson twenty years later, the Court unanimously upheld Alabama’s restrictions on interracial sex and marriage and affirmed the prison terms imposed on Tony Pace and Mary Cox. Following the Court’s decision, more states passed racial integrity laws that made it illegal for African Americans, and sometimes Native Americans and Asian Americans, to marry or have sex with whites.

It wasn’t until 1967 that the United States Supreme Court finally struck down anti-miscegenation statutes in Loving v. Virginia, but restrictions on interracial marriage persisted even after that landmark ruling.

Even though the restriction couldn’t be enforced under federal law, the state ban on interracial marriage in Alabama continued into the twenty-first century. In 2000, reformers finally had enough votes to get the issue on the statewide ballot, where a majority of voters chose to eliminate the ban, although 41 percent voted to keep it. A 2011 poll of Mississippi Republicans found that 46 percent support a legal ban on interracial marriage, 40 percent oppose such a ban, and 14 percent are undecided.

As far back as the 1880s, the Supreme Court ruled in Strauder v. West Virginia that excluding black people from jury service was unconstitutional, but juries remained all-white for decades afterward. In 1945, the Supreme Court upheld a Texas statute that limited the number of black jurors to exactly one per case. In Deep South states, jury rolls were pulled from voting rolls, which excluded African Americans. After the Voting Rights Act passed, court clerks and judges still kept the jury rolls mostly white through various tactics designed to undermine the law. Local jury commissions used statutory requirements that jurors be “intelligent and upright” to exclude African Americans and women. In the 1970s, the Supreme Court ruled that underrepresentation of racial minorities and women in jury pools was unconstitutional, which in some communities at least led to black people being summoned to the courthouse for possible selection as jurors (if not selected). The Court had repeatedly made clear, though, that the Constitution does not require that racial minorities and women actually serve on juries—it only forbids excluding jurors on the basis of race or gender. For many African Americans, the use of wholly discretionary peremptory strikes to select a jury of twelve remained a serious barrier to serving on a jury.

in 1986, the Supreme Court ruled in Batson v. Kentucky that prosecutors could be challenged more directly about using peremptory strikes in a racially discriminatory manner, giving hope to black defendants—and forcing prosecutors to find more creative ways to exclude black jurors.

Only Florida and Alabama allowed the jury’s decision to be overridden by a judge—and Florida later put restrictions on the practice that severely curtailed it. It remains the law in Alabama, where judges almost exclusively use this power to turn life sentences into death sentences, although they’re also authorized to reduce death verdicts to life if they so choose. Since

The practice has been further complicated by the increasingly competitive nature of judicial elections in the state. Alabama elects all of its judges in highly competitive partisan elections, one of only six states to do so (thirty-two states have some form of nonpartisan judicial election process). The elections attract campaign contributions from business interests seeking tort reform or from trial lawyers who want to protect large civil verdicts, but since most voters are unschooled in these areas, the campaigns invariably focus on crime and punishment. Each judge competes to be the toughest on crime. The people financing these elections are largely unconcerned with whatever modest differences exist between candidates on crime, but punishment gets the votes. Judge overrides are an incredibly potent political tool. No judge wants to deal with attack ads that highlight the grisly details of a murder case in which the judge failed to impose the most severe punishment. Seen in that light, it’s not surprising that judge overrides tend to increase in election years.

the U.S. Supreme Court upheld judicial override in an earlier Florida case,

in Atkins v. Virginia, the Court recognized that executing people with intellectual disabilities is cruel and unusual punishment and banned the practice as unconstitutional.

We discovered that Bill Hooks had been paid by Sheriff Tate for his testimony against Walter—we found checks in the county’s financial records showing close to $5,000 in payments to Hooks in reward money and “expenses.” Sheriff Tate had also paid Hooks money to travel back and forth out of the county around the time of the trial. This information should have been disclosed to Walter’s counsel prior to trial so that they could have used it to cast doubt on the credibility of Hooks’s testimony. We also found out that Hooks had been released from jail immediately after giving the police his statement that he’d seen Walter’s “low-rider” truck at the cleaners on the day of the murder.

Under U.S. Supreme Court precedent, that Hooks had charges against him dismissed in exchange for cooperation with authorities was information that the State was obligated to reveal to the defense. But, of course, they hadn’t.

Fifty years ago, the prevailing concept in the American criminal justice system was that everyone in the community is the victim when an offender commits a violent crime. The party that prosecutes a criminal defendant is called the “State” or the “People” or the “Commonwealth” because when someone is murdered, raped, robbed, or assaulted, it is an offense against all of us. In the early 1980s, though, states started involving individual crime victims in the trial process and began “personalizing” crime victims in their presentation of cases. Some states authorized the family members of the victim to sit at the prosecutor’s table during trial. Thirty-six states enacted laws that gave victims specific rights to participate in the trial process or to make victim impact statements. In many places, prosecutors started introducing themselves as the lawyer representing a particular victim, rather than as a representative of the civic authorities.

In death penalty cases, the U.S. Supreme Court said in 1987 that introducing evidence about the status, character, reputation, or family of a homicide victim was unconstitutional. The prevailing idea for decades had been that “all victims are equal”—that is, the murder of a four-year-old child of a wealthy parent is no more serious an offense than the murder of a child whose parent is in prison or even than the murder of the parent in prison. The Court prohibited jurors from hearing “victim impact” statements because they were too inflammatory and introduced arbitrariness into the capital sentencing process. Many critics argued that such evidence would ultimately disempower poor victims, victims who were racial minorities, and family members who didn’t have the resources to advocate for their deceased loved ones. The Court agreed, striking down this kind of evidence in Booth v. Maryland. The Court’s decision was widely criticized by prosecutors and some politicians, and it seemed to energize the victims’ rights movement. Less than three years later, the Court reversed itself in Payne v. Tennessee and upheld the rights of states to present evidence about the character of the victim in a capital sentencing trial.

Instead of a faceless state or community, crime victims were featured at trial, and criminal cases took on the dynamics of a traditional civil trial, pitting the family of the victim against the offender. Press coverage hyped the personal nature of the conflict between the offender and specific victim.

The Supreme Court’s decision in Payne appeared shortly after the Court’s decision in McCleskey v. Kemp, a case that presented convincing empirical evidence that the race of the victim is the greatest predictor of who gets the death penalty in the United States. The study conducted for that case revealed that offenders in Georgia were eleven times more likely to get the death penalty if the victim was white than if the victim was black.

Many poor and minority victims complained that they were not getting calls or support from local police and prosecutors. Many weren’t included in the conversations about whether a plea bargain was acceptable or what sentence was appropriate.

By 2010, Florida had sentenced more than a hundred children to life imprisonment without parole for non-homicide offenses, several of whom were thirteen years old at the time of the crime. All of the youngest condemned children—thirteen or fourteen years of age—were black or Latino. Florida had the largest population in the world of children condemned to die in prison for non-homicides.

Today, over 50 percent of prison and jail inmates in the United States have a diagnosed mental illness, a rate nearly five times greater than that of the general adult population. Nearly one in five prison and jail inmates has a serious mental illness. In fact, there are more than three times the number of seriously mentally ill individuals in jail or prison than in hospitals; in some states that number is ten times. And prison is a terrible place for someone with mental illness or a neurological disorder that prison guards are not trained to understand.

We get angry when people fail to recognize the need for thoughtful and compassionate assistance when it comes to the physically disabled, but because mental disabilities aren’t visible in the same way, we tend to be dismissive of the needs of the disabled and quick to judge their deficits and failures.

In 1960, The New York Times printed an advertisement titled “Heed Their Rising Voices” that attempted to raise money to defend Dr. Martin Luther King Jr. against perjury charges in Alabama. Southern officials responded by going on the offensive and suing the newspaper. Public Safety Commissioner L. B. Sullivan and Governor Patterson claimed defamation. A local jury awarded them half a million dollars, and the case was appealed to the U.S. Supreme Court. In a landmark ruling, New York Times v. Sullivan changed the standard for defamation and libel by requiring plaintiffs to prove malice—that is, evidence of actual knowledge on the part of the publisher that a statement is false. The ruling marked a significant victory for freedom of the press, and it liberated media outlets and publishers to talk more honestly about civil rights protests and activism.

I’d grown fond of quoting Václav Havel, the great Czech leader who had said that “hope” was the one thing that people struggling in Eastern Europe needed during the era of Soviet domination. Havel had said that people struggling for independence wanted money and recognition from other countries; they wanted more criticism of the Soviet empire from the West and more diplomatic pressure. But Havel had said that these were things they wanted; the only thing they needed was hope. Not that pie in the sky stuff, not a preference for optimism over pessimism, but rather “an orientation of the spirit.” The kind of hope that creates a willingness to position oneself in a hopeless place and be a witness, that allows one to believe in a better future, even in the face of abusive power. That kind of hope makes one strong.

Following her, I couldn’t think of what to say. “We need more hope. We need more mercy. We need more justice.”

Most people released from prison after being proved innocent receive no money, no assistance, no counseling—nothing from the state that wrongly imprisoned them. At the time of Walter’s release, only ten states and the District of Columbia had laws authorizing compensation to people who have been wrongly incarcerated. The number has since grown, but even today almost half of all states (twenty-two) offer no compensation to the wrongly imprisoned. Many of the states that do authorize some monetary aid severely limit the amount of compensation. No matter how many years an innocent person has been wrongly incarcerated, New Hampshire caps compensation at $20,000; Wisconsin has a $25,000 cap; Oklahoma and Illinois limit the total amount an innocent person can recover to under $200,000, even if the person has spent decades in prison. While other states have caps of more than a million dollars, and many have no cap at all, several states impose onerous eligibility requirements. In some jurisdictions, if the person lacks the support of the prosecuting attorney who wrongly convicted him, compensation will be denied.

Our civil suit ran up against laws that give police, prosecutors, and judges special immunity from civil liability in criminal justice matters.

The immunity from civil liability given to prosecutors and judges is even greater than the protections provided to law enforcement officers.

In 2011, the U.S. Supreme Court again reinforced the protections that shield prosecutors from accountability. A month before an inmate named John Thompson was scheduled to be executed in Louisiana, a crime lab report was uncovered that contradicted the State’s case against him for a robbery-murder that had taken place fourteen years earlier. State courts overturned his conviction and death sentence, and he was subsequently acquitted of all charges and released. He filed a civil suit, and a New Orleans jury awarded Thompson $14 million. The jury found that the district attorney, Harry Connick Sr., had illegally suppressed evidence of Thompson’s innocence and had allowed him to spend fourteen years in prison for a crime he had not committed. Connick appealed the judgment, and the U.S. Supreme Court overturned the award in a bitterly divided 5–4 decision. As a result of immunity law, the Court held that a prosecutor cannot be held liable for misconduct in a criminal case, even if he intentionally and illegally withheld evidence of innocence. The Court’s decision was strongly criticized by scholars and Court observers, and Justice Ruth Bader Ginsburg wrote a compelling dissent, but Thompson did not get any money.

State governments are broadly shielded from recovery for their employees’ misconduct unless the employee works for an agency that can be sued. If Tate was a state officer, Monroe County would have no liability for his misconduct and no recovery would be possible from the State of Alabama. Unfortunately for Walter, the Supreme Court ruled that county sheriffs in Alabama are state officers, again in a close 5–4 decision, which limited our ability to recover damages for the most egregious misconduct in Walter’s case. We ultimately reached settlement with all parties, but I was disappointed that we couldn’t get more for Walter. Adding insult to injury, Tate went on to be re-elected sheriff, and he remains in office today; he has been sheriff continuously for more than twenty-five years.

By the late 1990s, the evolution of DNA evidence had helped expose dozens of wrongful convictions. In many states, the number of exonerations exceeded the number of executions. The problem was so significant in Illinois that in 2003, Governor George Ryan, a Republican, citing the unreliability of capital punishment, commuted the death sentences of all 167 people on death row.

Between 1990 and 2005, a new prison opened in the United States every ten days. Prison growth and the resulting “prison-industrial complex”—the business interests that capitalize on prison construction—made imprisonment so profitable that millions of dollars were spent lobbying state legislators to keep expanding the use of incarceration to respond to just about any problem. Incarceration became the answer to everything—health care problems like drug addiction, poverty that had led someone to write a bad check, child behavioral disorders, managing the mentally disabled poor, even immigration issues generated responses from legislators that involved sending people to prison.

Contemporary neurological, psychological, and sociological evidence has established that children are impaired by immature judgment, an underdeveloped capacity for self-regulation and responsibility, vulnerability to negative influences and outside pressures, and a lack of control over their own impulses and their environment.

“A rapid and dramatic increase in dopaminergic activity within the socioemotional system around the time of puberty” drives the young adolescent toward increased sensation-seeking and risk-taking; “this increase in reward seeking precedes the structural maturation of the cognitive control system and its connections to areas of the socioemotional system. A maturational process that is gradual, unfolds over the course of adolescence, and permits more advanced self-regulation and impulse control … The temporal gap between the arousal of the socioemotional system, which is an early adolescent development, and the full maturation of the cognitive control system, which occurs later, creates a period of heightened vulnerability to risk taking during middle adolescence.”

We argued that neuroscience and new information about brain chemistry help explain the impaired judgment that teens often display. When these basic deficits that burden all children are combined with the environments that some poor children experience—environments marked by abuse, violence, dysfunction, neglect, and the absence of loving caretakers—adolescence can leave kids vulnerable to the sort of extremely poor decision making that results in tragic violence.

We emphasized the incongruity of not allowing children to smoke, drink, vote, drive without restrictions, give blood, buy guns, and a range of other behaviors because of their well-recognized lack of maturity and judgment while simultaneously treating some of the most at-risk, neglected, and impaired children exactly the same as full-grown adults in the criminal justice system.

You can’t effectively fight abusive power, poverty, inequality, illness, oppression, or injustice and not be broken by it. We are all broken by something. We have all hurt someone and have been hurt. We all share the condition of brokenness even if our brokenness is not equivalent. I

But our brokenness is also the source of our common humanity, the basis for our shared search for comfort, meaning, and healing. Our shared vulnerability and imperfection nurtures and sustains our capacity for compassion. We have a choice. We can embrace our humanness, which means embracing our broken natures and the compassion that remains our best hope for healing. Or we can deny our brokenness, forswear compassion, and, as a result, deny our own humanity.

We’ve submitted to the harsh instinct to crush those among us whose brokenness is most visible. But simply punishing the broken—walking away from them or hiding them from sight—only ensures that they remain broken and we do, too. There is no wholeness outside of our reciprocal humanity.

Whenever things got really bad, and they were questioning the value of their lives, I would remind them that each of us is more than the worst thing we’ve ever done. I told them that if someone tells a lie, that person is not just a liar. If you take something that doesn’t belong to you, you are not just a thief. Even if you kill someone, you’re not just a killer. I told myself that evening what I had been telling my clients for years. I am more than broken. In fact, there is a strength, a power even, in understanding brokenness, because embracing our brokenness creates a need and desire for mercy, and perhaps a corresponding need to show mercy. When you experience mercy, you learn things that are hard to learn otherwise. You see things you can’t otherwise see; you hear things you can’t otherwise hear. You begin to recognize the humanity that resides in each of us.

The power of just mercy is that it belongs to the undeserving. It’s when mercy is least expected that it’s most potent—strong enough to break the cycle of victimization and victimhood, retribution and suffering. It has the power to heal the psychic harm and injuries that lead to aggression and violence, abuse of power, mass incarceration.

On May 17, 2010, I was sitting in my office waiting anxiously when the U.S. Supreme Court announced its decision: Life imprisonment without parole sentences imposed on children convicted of non-homicide crimes is cruel and unusual punishment and constitutionally impermissible.

Two years later, in June 2012, we won a constitutional ban on mandatory life-without-parole sentences imposed on children convicted of homicides.