Bryan Stevenson has spent most of his career challenging bias against minorities and the poor in the criminal justice system. He is the founder and executive director of the Equal Justice Initiative, based in Montgomery, Ala., an advocacy group that opposes mass incarceration and racial injustice. Stevenson is a member of The Marshall Project’s advisory board. He spoke with Corey Johnson. The interview has been edited for length and clarity.
CJ: When you saw the news about the Charleston shootings, what were your thoughts?
BS: Anytime I hear news of this kind of extreme violence targeting innocent people, I think immediately about the ready access to guns that so many people in this country have, and I mourn our nation’s failure to act more responsibly on limiting access to these weapons. I think it was pretty clear early on that a young white man going into a historic black church and slaughtering people in this way couldn’t be understood outside the context of our racial history of violence and terror directed at black people. And so, my thoughts about our failure to deal more effectively with that history were also right on the surface. And then, when more information came about the racially motivated character of this assault, it just confirmed all of my fears about what our failure to deal more honestly with our history of racial injustice, where that has left us.
CJ: Why do you think we keep failing on these fronts?
BS: I actually think we’ve never really tried to succeed. I really do believe that this country never committed itself to a conversation about the legacy of slavery. At EJI, we're really focused on what slavery did to America, what lynching and terrorism did to America, what segregation and Jim Crow did to America, and we're focused on these historical eras because we’ve just never had the conversation we needed to have. Very few people in this country have any awareness of just how expansive and how debilitating and destructive America’s history of slavery is.
The whole narrative of white supremacy was created during the era of slavery. It was a necessary theory to make white Christian people feel comfortable with their ownership of other human beings. And we created a narrative of racial difference in this country to sustain slavery, and even people who didn’t own slaves bought into that narrative, including people in the North. It was New York’s governor — in the 1860s — that was talking about the inferiority of the black person even as he was opposed to slavery. So this narrative of racial difference has done really destructive things in our society. Lots of countries had slaves, but they were mostly societies with slaves. We became something different, we became a slave society. We created a narrative of racial difference to maintain slavery. And our 13th amendment never dealt with that narrative. It didn’t talk about white supremacy. The Emancipation Proclamation doesn’t discuss the ideology of white supremacy or the narrative of racial difference, so I don’t believe slavery ended in 1865, I believe it just evolved. It turned into decades of racial hierarchy that was violently enforced — from the end of reconstruction until WWII — through acts of racial terror. And in the north, that was tolerated.
You don’t have to have owned a slave to be complicit in the institution of slavery, to have benefitted and have cheaper food to buy, cheaper materials, cheaper services, because the providers of the foods and services were using free slave labor. We were all complicit in the institution of slavery, and the same is true in the era of racial terror and lynching. The North and the Congress basically gave up on equality for African Americans, and that set us on a course that we have not yet recovered from. We’ve been really focused on redefining that era — at the beginning of the 20th century and the end of the 19th century — as an era shaped by terrorism1. Lynchings were not acts directed at particular individuals, they were acts directed at the entire African American community. And in that respect it was racial terror. A white person being hanged was not the same as an African American being lynched. The violence against African Americans was a message to the entire black community. I think we’ve got to deal with that a lot more honestly.
There are very few people who have an awareness of how widespread this terrorism and violence was, and the way it now shapes the geography of the United States. We’ve got majority black cities in Detroit, Chicago, large black populations in Oakland and Cleveland and Los Angeles and Boston, and other cities in the Northeast. And the African Americans in these communities did not come as immigrants looking for economic opportunities, they came as refugees, exiles from lands in the South where they were being terrorized. And those communities have particular needs we’ve never addressed, we’ve never talked about. We’ve got generational poverty in these cities and marginalization within black communities, and you cannot understand these present-day challenges without understanding the Great Migration, and the terror and violence that sent the African Americans to these cities where they’ve never really been afforded the care and assistance they needed to recover from the terror and trauma that were there.
And even moving closer to the present day, even the era of the civil rights movement — in my judgment — has been recast as moments where great heroism and courage took place that we can all celebrate. Everybody gets to celebrate the courage that it took to cross the Edmund Pettus Bridge, everybody gets to celebrate the march on Washington, everybody gets to celebrate the legacy of Dr. King and Rosa Parks, and no one is accountable for all of the resistance to civil rights, all of the damage that was done by segregation. I hear people talking about the civil rights movement and it sounds like a three-day carnival. Day One: Rosa Parks gave up her seat on the bus. Day Two: Dr. King led a march on Washington, and Day Three: we just changed all these laws. And we tell our history as if it's the true history when in fact that’s not the true history. The true history is that for decades, we humiliated black people in this country every day. For decades we did not let them vote, we did not let them get full education, we did not let them work for pay, we did not let them live as full human beings with dignity and hopefulness, we denied all of these basic opportunities to African Americans, and we’ve never really talked about the consequences of that era of apartheid and segregation.
And so we are very confused when we start talking about race in this country because we think that things are “of the past” because we don’t understand what these things really are, that narrative of racial difference that was created during slavery that resulted in terrorism and lynching, that humiliated, belittled and burdened African Americans throughout most of the 20th century. The same narrative of racial difference that got Michael Brown killed, got Eric Garner killed and got Tamir Rice killed. That got these thousands of others — of African Americans — wrongly accused, convicted and condemned. It is the same narrative that has denied opportunities and fair treatment to millions of people of color, and it is the same narrative that supported and led to the executions in Charleston. And the South — to be honest — is a region where we are particularly vulnerable to the way in which this narrative of racial difference still haunts us, and infects our economic, social and political structures, because we have in the South done something worse than silence, we’ve actually created a counter-narrative and invited people to take pride in their southern heritage. We’ve basically minimized the hardships of slavery and extolled its virtues — as if there's any virtue at all to being owned by another human being. We’ve ignored the lynchings and the struggles and the violence and terror that kept people of color from having any opportunities for fairness and equality, and we haven’t really addressed all of the pain and injury that was created by decades of segregation. So, I think we're not going to make progress until that changes.
CJ: Help me understand how the narrative, as you say, could have influenced this young white man who was born long after the events you describe. This kid is just 21 years old.
BS: When did the narrative of racial difference end? What date did people fully embrace and accept, internalize, act on, believe that there is no difference between races? When did that happen? It did not happen when the Civil Rights Act was passed in 1964 because every state in the South has been fighting it until the present day. It did not happen in the 1970s when people were violently resisting the idea of integration in schools. It did not happen in the 1980s when some people were suggesting that there ought to be affirmative action for people who have been denied historic opportunities. It did not happen in the 1990s when we saw police violence being directed at blacks like Rodney King, and saw the rate of attacks on young men of color increase and we constructed this whole apparatus of mass incarceration that has targeted and menaced black and brown people in ways that are epidemic. It didn’t happen at the beginning of this 21st century when for the first time, one in three black males born in this country were destined for jail or prison because we think that your race makes you presumptively dangerous and guilty. So what date did it happen? This young man was born into the same country that has failed to deal with this narrative of racial difference, has failed to overcome a lie of racial difference and white supremacy that his foreparents were born into in the 19th and 20th centuries. The only difference is that we’ve had these little pockets of black achievement and success and people have learned to stop using the n-word in many situations, and we call that progress. The question I ask is not how could this young man be affected by these historic failures, by this ideology, the question is how could he not? We're all affected by it. I'm a 55 year old lawyer, went to Harvard Law School, all these degrees, had some success. I was sitting in a courtroom a couple of years ago in a suit and tie in the Midwest waiting for a hearing to start and the judge came out and said, “Hey, hey, hey, hey, you go back out there in the hallway and you wait until your defense lawyer gets here because I don’t want any defendants sitting in my courtroom without their lawyer.” And I stood and I said, “I'm sorry, Your Honor, my name is Bryan Stevenson, I am the attorney.” The judge started laughing, the prosecutor laughed, I made myself laugh because I didn’t want to disadvantage my client. My client comes in — a young white kid I was representing — and we had the hearing. Afterwards, I thought about it and I thought, what is it that when this judge sees a black man — middle aged black man — in a suit and tie in his courtroom at defense counsel’s table, it doesn’t occur to him that that’s the lawyer. What that is is this narrative of racial difference, this ideology that has burdened black people in this country since the first days we stepped ashore on this continent. And it's supported and enforced in lots of ways. So that young man in South Carolina sees the same Confederate flags that civil rights activists had to confront in the ‘50s when they were trying to ask for integration, he hears the same kinds of stories about black men raping white women and their criminal and carnal character and nature, that were spreading throughout the region in the early part of the 20th century, resulting in lynching and terror. It is the same ideology that was created during slavery. And no one should be shocked that those ideas are in his head when they are reinforced in countless ways day in and day out in our everyday living, including in the ways that the positions of power and influence are still largely owned and occupied disproportionately by people who are white.
CJ: What then does this debate about taking down the Confederate flag mean?
BS: I think that it's just a small step in my mind. The topic that we have to talk about really is bigger and broader than that. In the South, we celebrate Confederate Memorial Day as a state holiday in several states. Several states make Jefferson Davis’s birthday a state holiday. Remember we don’t have Martin Luther King day, it's Martin Luther King/Robert E. Lee Day. If a country said we’re going to make Osama bin Laden’s birthday a holiday, we would be outraged. We’d be talking about economic sanctions, we’d be talking about not doing business with that country.
This desperate effort to honor and validate and romanticize the architects of slavery, the defenders of racial violence and terrorism, the perpetrators of this ideology of white supremacy and this narrative of racial difference, feeds the consciousness of everybody in the state and we are all affected by it. In the state of Alabama you get a license plate, each license plate has a little heart on it and the words “Heart of Dixie.” They make you — in effect — attest your love for Dixie. They're absolutely committed to resisting any effort to reengage with this history in a way that would make us mournful and concerned about how we do better. That’s the challenge. We love talking about mid 19th century history in the deep South. In some counties, you can’t go 100 meters without seeing a marker or a stone or something that honors some Confederate general or postmaster or nurse or hospital or teacher, and yet we don’t talk about slavery at all. Montgomery has 59 markers and monuments to the Confederacy, most of our streets are named after Confederate soldiers. The two largest public high schools are Robert E. Lee High and Jefferson Davis High – those are 90% black. And yet — until a couple of years ago — there wasn’t a word about slavery, not one word. We decided to put up markers about the domestic slave trade here. Montgomery was the portal that sent thousands of enslaved people throughout the Black Belt, and nobody knew anything it, and EJI wanted to put these markers up, and the Alabama Historical Association told us that it would be too controversial to put up markers about slavery in a city polluted with monuments about the Confederacy. Four thousand African Americans were lynched between 1870 and WWII and none of us know anything about it. We don’t mark these places where these lynchings took place. Most of them took place on courthouse lawns that are now adorned with monuments to the Confederacy. Older black Americans get angry when they hear people on TV talking about how we’re dealing with terrorists for the first time in the United States after 9/11. They grew up in terror.
So yes, the Confederate flag should come down. The Confederate flag as a symbol of resistance to integration – that really didn’t emerge in most of these states until the 1950s. This is not a holdover from the 1850s, this is really a symbol of resistance that was embraced and adopted in the 1950s to express hostility to civil rights. And people can say, “Well, I don’t feel that way, it's just part of being in the South,” but the fact that the Klan and every other hate group has used this symbol is all you need to hear to know that you don’t want to use it to symbolize something that’s important to you.
So yes, the Confederate flag should come down but more than that, we need to engage with this in a very different way. You can’t go to Germany, to Berlin, and walk 100 meters without seeing a marker or a stone or a monument to mark the places where Jewish families were abducted from their homes and taken to the concentration camps. Germans want you to go to the concentration camps and reflect soberly on the legacy of the Holocaust. We do the opposite here. We don’t want anybody talking about slavery, we don’t want anybody talking about lynching, we don’t want anybody talking about segregation. You say the word “race” and people immediately get nervous. You say the words “racial justice” and they're looking for the exits. If we're going to change the attitudes of the judges who are making sentencing decisions, and police officers who are unfairly suspecting young men of color, and employers and educators who are suspending and expelling kids of color at disproportionately high rates, if we're going to make a difference in overcoming the implicit bias that we all have, we're going to have to deal honestly with this history and have to consciously work on freeing ourselves from this history.
CJ: Do you see the white supremacist as our – African Americans’ – equivalent of the Nazi in Germany?
BS: I think it's more complicated. I think when people talk about white supremacists we're making it too easy, and we mischaracterize this issue. You don’t have to be a white supremacist to be responsible for sustaining this narrative of racial difference, sustaining this narrative of white supremacy. You don’t have to say that I believe that white people are better than black people to be complicit in this problem. It wasn’t just the Nazis, it was the entire German government that is responsible for what happened during the Holocaust. And so, I think sometimes when we try to make it all seem like it was just a handful of bad and dangerous white people that are responsible for all of this, we miss the point. The lynching phenomenon was carried out by the entire community. It wasn’t the Klan. These were police officers and judges and lawyers and teachers and store owners and business people who came out and facilitated these acts of racial violence. It wasn’t the uneducated, white guy out in the field that was responsible for resistance to civil rights, it was the elected leadership of South Carolina, North Carolina, Georgia, Alabama and Mississippi, it was the governors and the lieutenant governors and the county probation officers that were the architects of all of that injury. The Klan didn’t come up with mass incarceration and police violence. People who were acculturated into seeing black and brown people differently are the people who created that problem. And so I think we kind of let too many people off the hook by demonizing the minority who most unashamedly expressed these thoughts. While they are absolutely a particular threat, the bigger challenge is getting the rest of us to own up to this. And yes, I do think that we have tried to avoid accountability — not because we're incapable of it — but just because we’ve never had to. Everybody has learned to mimic the behaviors of people who are not racially discriminatory. They don’t say certain things, they don’t tell certain jokes in front of other people, they use modern terms — African American — to describe people who are black, they try to adopt the habits and customs of the non-discriminatory in society. But in fact, we haven’t actually done the hard work of genuinely becoming non-discriminatory, which is why these police officers and these judges and these prosecutors and the political leaders from the last five decades don’t feel like they have to apologize for acting in a racially biased manner. Yes, I think we are all accountable for it, black and white. There are many people of color who have been able to shield themselves from the worst and most egregious forms of bigotry, and they're just as reluctant to talk about these issues as people who are white because it's uncomfortable, it's disruptive. But we are all going to be burdened until we deal more honestly with this legacy.
CJ: The president just got into some hot water yesterday because of a conversation about this legacy. What are your thoughts about his efforts? Could he do more?
BS: I appreciate the president’s efforts on this issue. What strikes me about his efforts is how extreme and irrational the response has been any time he tries to talk about race. So the narrative of racial difference in this country is so insidious that electing an African American president means that that president has to speak less about the challenges of African American people than someone white. There’s such profound suspicion and deep resentment that maybe he's going to be a president for the black people that he's constantly having to bend over backwards to make it clear that he's not prioritizing the needs of African Americans. So I've been fascinated by how extreme and irrational and emotional the responses have been anytime he touches on race. I think some of the contempt and the really out of bounds rhetoric that we’ve seen directed at the president can’t be disconnected from this history. Billboards across the state of Alabama: “put the white back in White House,” “Anti-racist equals anti-white,” all these are reactions to this perceived decrease in power and status for white people directly related to President Obama’s election. So rather than helping people move forward, in many ways it has intensified this need to protect this longstanding narrative. The efforts of the president may have been thwarted and frustrated in ways that cannot be disconnected from his own identity.
The manifestations of these problems are different in Alabama than they are in California. We still have a state constitution in Alabama that prohibits black and white kids from going to school together. It is still in there today, and nobody seems stressed by that, nobody seems worried about it. They tried to take it out twice through a statewide referendum and both times the majority of the people in the state voted to keep that language in, in 2004 and 2012. And why that’s not the shame of America — certainly the shame of Alabama — I can’t explain. That’s the kind stuff we're dealing with here. You don’t have those issues in New York and California, but you do have that presumption of dangerousness, and you’ve got to deal with that when you're talking about stop-and-frisk, you’ve got to deal with that when you're talking about the disproportionate sentencing that kids of color are experiencing in communities all over this country, and when you're talking about expulsion and suspension rates in elementary schools and middle schools for black and brown kids.
So part of what we're interested in doing is facilitating conversations around some of these issues. We want to continue putting up markers and monuments to identify the parts of this country where the slave trade was most active. We have a project to put up monuments and markers in spots where lynchings took place. We're about to issue a report on the civil rights era that documents the resistance to civil rights rather than simply celebrating the heroism of those courageous African Americans. Because you need to know where the resistance came from to know why we're still dealing with these issues in 2015. We're going to these communities and trying to create a different story, tell a different narrative about our history in hopes that people won’t be confused and burdened in the way that this young man in Charleston was confused and burdened. So that people will confront people like him. This is not the first time he said crazy things like he said, and my hunch is that very few people confronted him. They might have said they didn’t agree with him, but they didn’t think that they had to confront him. We tolerate so much bigotry in our thinking and in our expression in this country and that has to change.
CJ: You’ve spent many years dealing with inequality in the courts, especially the disproportionate number of blacks on death row. Has there ever been a white person who was put to death for acts of racial terror?
BS: During the era before WWII, no. Acts of racial terror were almost never prosecuted, let alone did they result in convictions and sentences of death. In the more recent era, we’ve gotten more comfortable with imposing death sentences on poor white people who act so far out of bounds that they disrupt the status quo.. And so, there have been instances where someone has committed a horrific crime that was racially motivated where they got a death sentence. There was a case in Mississippi, we had Henry Hays here in Alabama. You'll see lots of people talking enthusiastically about imposing the death penalty on this young man in South Carolina. But that’s a distraction from the larger issue, which is that we’ve used the death penalty to sustain racial hierarchy by making it primarily a tool to reinforce the victimization of white people. The greatest racial disparity of the death penalty is the way in which the death penalty is largely reserved for cases where the victims are white. In Alabama, 65% of all murder victims are black, but 80% of all death sentences are imposed against [defendants whose] victims are white. And that’s true throughout this country. We’ve used it particularly aggressively when minority defendants are accused of killing white people. And history is replete with defendants being described with the n- word, cases just saturated with racial bigotry, and the courts have largely tolerated that. McCleskey was a Supreme Court decision in 1987 that basically said racial bias in the administration of the death penalty is inevitable, an unconscionable statement for a court that has inscribed on its exterior: “Equal justice under law.” And so it continues. We’ve gotten sophisticated enough that people will happily impose a death sentence on Dylann Roof or Henry Hays, the klansmen who participated in a 1980s hanging of a black man in Alabama, or the murderers of James Byrd. We can’t be distracted by thinking that if they execute one person who committed mass violence that’s some sign of progress. That’s a sign of tactical misdirection to preserve a system that is inherently corrupted by a narrative of racial difference.
CJ: Does that mean Dylann Roof should not get the death penalty?
BS: I don’t think anybody should get the death penalty. I'm against the death penalty. Not because I believe people don’t deserve to die for the crimes that they commit. I think that we don’t deserve to kill. The system of justice in South Carolina is not going to be better or more racially just based on whether this kid gets executed or not. If I were the governor of South Carolina, I’d say: “We’re going to abolish the death penalty, because we have a history of lynching and terror that has demonized and burdened people of color in this state since we’ve became a state. I'm not gonna end the death penalty because there are innocent people on death row, I'm not gonna end the death penalty because I think it's unreliable or it's too expensive, I'm gonna end it because in South Carolina, we have a history of bias and terror and violence and segregation, and the death penalty has been a tool for sustaining that, and I’m gonna say we're not gonna have that.” And most African Americans in South Carolina would celebrate that. That actually would be the first time somebody has done something responsive to this history of racial hierarchy and bigotry. And I think every southern governor should do the same. That’s when you’d get the different conversations starting in this country. Then you might get some progress.