"Used Against The Poorest And Most Powerless"

Stephen Bright On The Reality Of The Death Penalty System

Stephen Bright

Stephen Bright is the director of the Southern Center for Human Rights in Atlanta and one of the best-known capital defense lawyers in the country. He has written extensively on the issue of the death penalty and is one of the abolitionist movement’s best spokespersons.

Stephen has agreed to be one of the Campaign’s keynote speakers at our upcoming national convention. We asked him to introduce himself and some of his ideas to Campaigners who may not know him.

How did you get involved in capital defense work? And what have been the highlights of your work with the Southern Center?

I was the director of a clinical program for five Washington, D.C., law schools in 1979, when I was asked to prepare a petition for certiorari to the U.S. Supreme Court for an 18-year-old Black youth who had been sentenced to death in Georgia.

I will never forget the record of that case. It was a little over an inch thick. That included everything--the motions, the voir dire, the trial and the sentencing phase. I called the person who had asked me to take the case and said, "Surely this cannot be the record of a capital trial."

Like most people, I had assumed that the imposition of the death penalty was surrounded by elaborate procedural protections; that no one could be sentenced to death in some perfunctory process; and that those facing the ultimate penalty received the best legal representation and the most careful trial procedure.

I read the record that night. I commented to a colleague the next day that the law students in our clinic tried shoplifting cases better than this capital case had been tried. However, I did not know everything then. I did not know from the record that my new client was schizophrenic, that he was out of touch with reality during his trial. The jury that sentenced him to die was never told that he was afflicted with this major mental illness. It was never told about other things that we learned later--such as the abuse he had suffered growing up disabled in a family of alcoholics.

The court-appointed defense lawyer in that case did a terrible job. He gave no opening statement, he did not ask many questions, he did not make many objections, and he did not put on evidence to seek to avoid the death penalty. But as I look back on what I have seen since, I realize that poor persons facing the death penalty often receive far worse representation.

A short time later, I took another case and was shocked by the blatant racial discrimination that was evident from just reading the transcript. There was nothing subtle about it. So I became more interested in what was happening with regard to the death penalty and more involved in representing people.

In 1982, I moved to Atlanta to become director of the Center. Over the course of the next 15 years, we won new trials for both of those first clients, and they are no longer under sentence of death. We have represented many others facing the death penalty in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi and South Carolina. We have defended people at trials, on appeals and in the later stages of review. We have proven constitutional violations in many cases that prevented executions; last year, we won an acquittal for a man who had been sentenced to death in Alabama when represented at his first trial by lawyers who usually handled collections and foreclosures. And despite all our efforts, some of our clients have been executed.

In the process of doing this work, we have learned a lot about the poor quality of legal representation provided to people who cannot afford lawyers; the racial discrimination that influences who is sentenced to death; the infliction of the death penalty on people who are particularly vulnerable, like children, the mentally retarded and the mentally ill; and the political considerations that influence the decisions of judges and prosecutors in capital cases.

Politicians exploit the death penalty for political gain. Yet today, there are two states with moratoriums--Maryland and Illinois. Why do you think these moratoriums were imposed?

Because there has been increasing recognition of the unfairness involved in the infliction of the death penalty and the impossibility of preventing the execution of innocent people. And with that has come increasing discomfort with the use of the death penalty.

In Illinois, since 1977, 13 people were exonerated and 12 executed before Gov. George Ryan declared a moratorium. One of those who was almost executed was Anthony Porter. A question arose as to whether Porter was mentally competent to be executed--that is, whether he understood that he was being put to death as punishment for the crime of which he had been convicted. Because there was a question about whether he could understand why he was being executed, a court stayed his execution.

After the stay was granted, the journalism class at Northwestern University and a private investigator examined the case and proved that Anthony Porter was innocent.

Some people say that the fact that Porter and others have been released shows that the system works. However, someone spending 16 years on death row for a crime he did not commit is not an example of the system working. When journalism students prove that police, prosecutors, judges, defense lawyers, and the entire legal system did not discover a man’s innocence and instead condemned him to die, the system is not working.

In Maryland, there were geographical and racial disparities that raised such questions that the governor finally declared a moratorium. Of 13 people on Maryland’s death row, nine are Black. Although 80 percent of the victims of murder in Maryland are Black, 90 percent of those on death row are there for crimes against white people. Baltimore County--the suburban area around Baltimore--has sent nine of the 13 people to death row.

You’ve written extensively about race, class, and the death penalty. What are the connections between them?

The death penalty is a direct descendent of slavery, lynching, and racial oppression that has been going on in this country since it was founded.

When the South was getting bad press for lynching people in the 1920s, ’30s, and ’40s, the perfunctory death penalty trial became a way of accomplishing the same thing. There are many examples where the authorities told the mob, "Let the courts take care of it." The understood message was that the person would be given a quick trial, appointed some incompetent lawyer and, after a perfunctory trial, sentenced to death and then hung, shot or electrocuted.

Race continues to be a major factor in determining who is sentenced to death, in part because of this history and in part because the courts are the part of society least affected by the civil rights movement. People of color are largely excluded from participating in the system as judges, jurors, prosecutors, and lawyers.

The two most important decisions in every death penalty case are made by the prosecutor. First, the prosecutor decides whether to seek the death penalty. The prosecutor always has discretion to seek or not to seek the death penalty. She is never required to seek death. Second, the prosecutor has complete discretion in deciding whether to offer a sentence less than death in exchange for a defendant’s guilty plea. The overwhelming majority of all criminal cases, including capital cases, are resolved not by trials, but by plea bargains. In the 38 states that have the death penalty, 97.5 percent of chief prosecutors are white. In 18 of the states, all of the prosecutors are white.

The primary connection between class and the death penalty is that those who cannot afford lawyers are often assigned lawyers who lack the skills, resources and often even the inclination to defend a death case.

The courts have held that the lawyer assigned to defend a poor person, even in a capital case, need not be aware of the governing law, be sober or even be awake. In Houston, three people have been sentenced to death at trials in which the defense lawyer fell asleep from time to time. A woman was sentenced to death in Alabama at a trial where her lawyer was so drunk that the trial had to be suspended for a day so the lawyer could sober up.

Beyond that, the death penalty is imposed mostly on people who grew up in debilitating poverty--who survived the most horrendous physical, emotional and sexual abuse during nightmarish childhoods that most people cannot even imagine. The death penalty has become the ultimate weapon in class warfare that is being fought top down against the poorest and the most powerless people in our society.

Do you think the death penalty can be reformed?

No. The courts will always be fallible and reversible; death will always be final and irreversible.

The courts make mistakes about guilt; the courts are incapable of deciding who should live and who should die. Beyond that, the courts lack any serious commitment to deal with issues like race and poverty. It would be immensely difficult--if not impossible--to eliminate the racial discrimination that occurs at every step.

But the courts aren’t even trying. And while Supreme Court Justices like Sandra Day O’Connor and Ruth Ginsberg give speeches about how bad the lawyers are in capital cases, the courts continue to tolerate a scandalous level of legal representation for poor people facing the death penalty.