Bryan Stevenson and a call to action

This past Thursday I had the great privilege of seeing Bryan Stevenson speak (and the even greater privilege of hosting him for a Q&A at the law school). Stevenson is a MacArthur “genius” grant recipient, NYU Law School professor, co-founder and ED of the Equal Justice Initiative (get one of their calendars now), and the author of the 2014 book Just Mercy. He is also one of the best public speakers I’ve ever seen. (You can check out his 20 minute TED talk for a brief example, but he spoke at Santa Clara for an hour without notes, and I will try to link to that if and when it becomes available)  [UPDATE: Here is the video.] Sometimes proximity to greatness takes the wind out of my sails and I spend time afterwards wondering why it is that I’ve wasted my life. But with Stevenson, I left energized. Perhaps it was his humility, or something about his demeanor, or the fact that he is someone who really focuses on other people. Perhaps it’s because I agree with him that criminal justice reform is civil rights work.

Or maybe it’s because he focuses not so much on the past, but on the present. We still have many challenges. Felon disenfranchisement laws threaten to roll back much of the progress of the Voting Rights Act. But even our relationship to the past needs work. EJI issued a report last year documenting nearly 4000 lynchings in 12 Southern states between the Civil War and WWII. Stevenson wants local memorials to those lynchings. As he put it, no one today should be able to walk past a location where someone was lynched without knowing about it. Stevenson even suggested that law enforcement come to the opening of such memorials and issue an apology and a promise: an apology that their predecessors who wore the uniform were unable or unwilling to stop the violence, and a promise that they themselves will never let it happen again. This is more than just a distant, bloodless reminder of what happened—an apology and a promise would tie the conditions of the present and policy for the future to the events of the past. It’s inspired me and some colleagues to begin looking into California’s extra-/non-judicial violence. (As a starting point for others who are interested, I’d suggest Clare McKanna’s excellent Race and Homicide in Nineteenth-Century California).

It’s this kind of linkage that’s exciting to me as an academic. One of the symptoms of post-tenure depression syndrome for me was feeling like there were plenty of good ideas out there already—that what I needed to do was not to write, but to do. (Frankly, it’s also the reason why I find it difficult to blog—that and a case of imposter syndrome so crippling that I actually think I’m not an imposter, I’m just really that bad.) It’s why I’m spending this semester teaching a class on bail with the goal of actually trying to move policy (much more on that later—though I’m often too busy meeting and teaching on it to reflect on it here). There, our answers and suggestions involve a “law on the ground” versus “law on the books” analysis of what’s actually going on in local counties, the kinds of research that involves much more minutiae and much less theorizing (see Mona Lynch’s excellent treatment of it here). But this, too, is a theme of Stevenson’s, what he calls proximity. We need to go where there is suffering, that we learn things from it that we can’t from a distance, and that, ultimately, it is more healing and instructive for the person doing the visiting than the person being visited.

So, with that in mind, it’s my hope for this MLK Day that some of you reading this find a place in which you can be “proximate” in a human and personal way to some kind of injustice and suffering, no matter what kind it is, no matter where it is. I can’t begin to say what will come of it, or what the solutions might be. But I think that if we are to really honor the legacy of our civil rights heroes, we have to do, not just remember.

Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

14 thoughts on “Bryan Stevenson and a call to action”

  1. "Felon disenfranchisement laws threaten to roll back much of the progress of the Voting Rights Act."

    It occurs to me that there are two ways you can look at this, leading to two approaches to solving it.

    From one perspective, the problem is felon disenfranchisement. (Which isn't really a violation of a right, in as much as it's explicitly constitutional.)

    From the competing perspective, the problem is people committing felonies.

    I favor the second perspective: Enfranchise a felon, and they're still a felon. Spending a good part of their life in prison, having great trouble getting employment, not part of the lives of their children. And, lest we forget, felonies typically have these things called "victims".

    If you can persuade them not to commit felonies, they don't end up disenfranchised, they stay out of prison, can get jobs, see their kids. And don't produce all those victims, either!

    So, why is the emphisis on enfranchising felons, rather than persuading them to not commit felonies?

    1. Or, you know, we could recognize that it's perfectly possible to work for two things at once, recognizing that there are multiple wrongs.

    2. Hi Brett!

      I know you don't get too many chances to talk on here, so I'll try not to take advantage. But… you do realize, I'm sure, that the main difference between you and me and many felons is… that the felons got investigated. There are so many laws now and so much mission creep in our justice system that I think there's a decent chance that a prosecutor could find either of us guilty of *some* felony, if s/he looked hard enough.

      Now, true, we probably haven't committed violent felonies, or even flashy ones. But I wouldn't want to bet against what I said above, in regard to just the term "felony." F.e. I use the internet, and I sign up for websites, and … uh oh!… I often do not tell the truth when they ask my birthday, f.e. That's probably some kind of federal crime right there! Ouch. I do it bc I don't trust their security. I stay close-ish to the real date, so their stats aren't messed up too bad. But, I am still *lying.* Sort of. And there's lots more.

      If there are crim lawyers here who have the time, I'd love to hear from you. What's the most trivial crime that can be a felony these days? And if someone ever comes after me bc of something I've said here… please help!!!

  2. Hi Brett–

    Thanks for your comment. A couple of things. You’re right that felon disenfranchisement is legal, but it's also not necessary. We have to ask what disenfranchising felons actually does for us–does it make us safer, protect democracy, what? And if we're going to disenfranchise, whom do we disenfranchise?

    I also think the history is fairly clear that this was racial in origin. Quoting from Daniel Goldman's article "The Modern-Day Literacy Test" (Stanford Law Review, no free link), "The Mississippi disenfranchising convention of 1890 altered the 1869 disenfranchising provision from one that included "any crime" to one affecting only those convicted of certain offenses more likely to be committed by blacks. Other Southern states pinpointed "furtive offenses," such as petty larceny, wife-beating, and "similar offenses peculiar to the Negro's low economic and social status."88 Furthermore, Georgia and Alabama disenfranchised those who committed crimes of "moral turpitude,"regardless of whether such a crime resulted in a prison sentence. Yet the impact of the felon disenfranchisement laws at the time of their enactment appears to be minimal because other methods of political exclusion were not only easier to implement, but were largely ignored by the federal government and federal courts. It was not until after literacy tests were permanently prohibited in 1975, and the incarceration boom commenced, that felon disenfranchisement laws began to disenfranchise a disproportionately large number of African Americans."

    Chris Uggen's work has really influenced me, and it turns out that restoring voting rights is correlated with reductions in subsequent arrest (http://www.soc.umn.edu/~uggen/FD_summary.htm). For some background, I'd look at a 2003 study (http://www.socsci.umn.edu/~uggen/Behrens_Uggen_Manza_ajs.pdf) summarized in this New York Times article, which I will now quote (http://www.nytimes.com/2014/11/19/opinion/the-racist-origins-of-felon-disenfranchisement.html):

    The history of disenfranchisement was laid out in a fascinating 2003 study by Angela Behrens, Christopher Uggen and Jeff Manza. They found that state felony bans exploded in number during the late 1860s and 1870s, particularly in the wake of the Fifteenth Amendment, which ostensibly guaranteed black Americans the right to vote.

    They also found that the larger the state’s black population, the more likely the state was to pass the most stringent laws that permanently denied people convicted of crimes the right to vote.

    These bans were subsequently strengthened as the Jim Crow era began to take hold.

    The white supremacists who championed such measures were very clear on their reasons. In 1894, a white South Carolina newspaper argued that voting laws needed to be amended, lest whites be swept away at the polls by the black vote. In 1901 Alabama amended its Constitution to expand disenfranchisement to all crimes involving “moral turpitude” — a vague term that was applied to misdemeanors and even acts not punishable by law. The president of the constitutional convention argued that manipulating the ballot to exclude blacks was warranted, because they were inferior to whites and because the state needed to avert the “menace of Negro domination.”

    The official who introduced the new provision at the convention said, “The crime of wife-beating alone would disqualify 60 percent of the Negroes.” This did not mean that only black men committed spousal abuse; it meant that whites were less likely to be prosecuted for this and several other offenses that could lead to disenfranchisement.

  3. Wow. Thank you, David Ball. No one who can construct so conclusive a rejoinder to a Brett Bellmore comment could possibly be an impostor.

  4. There's a long-running panel game on BBC radio called "Just a minute". The participants are asked to speak on a topic supplied by the moderator (say "dinosaurs") for 60 seconds without repetition, without hesitation, and without deviating from the subject. The other panelists may challenge for rule breaches. It is very rare for anyone to achieve the full minute; and these are not laypeople but professional entertainers and sometimes public figures. Bryan Stevenson managed 20 minutes. That's an extraordinary achievement, even leaving out the terrific content.

    BTW, why does his organisation not campaign for restorative justice?

    1. I'm not sure of the organizational reason they don't campaign for restorative justice (though my guess is lack of resources), but, from what I was able to see, it's certainly consonant with everything he has worked for and believes.

      1. On reflection, restorative justice would certainly not be immune from racism: a white victim might be readier to pardon a white than a black perpetrator. The converse may also be true. But the limited effects of such biases are surely outweighed by the gains to both perpetrators (a chance at reparation and a reduced sentence) and victims (recognition and empowerment, whatever they decide), whatever their race.

        It's strange that in the USA, SFIK victims get the strongest formal recognition by the criminal justice system in the death penalty, where relatives of the murder victim are often invited to attend the execution. Which assumes that what they want is condemnation, surely often true but not universally.

  5. You seem much too earnest to be an imposter. I think as an academic, you should mostly worry about becoming complacent. As long as you are trying to dooo things though, not an issue. Good thing you have tenure. I was in school when the righties in California were making war on integrating admissions, which they call affirmative action (I sometimes do too, but I'm cranky today), and I remember being a bit disgusted with most professors, who stood by and did nothing. Like, if they signed a letter, they thought that actually meant they did something. Nooooooot an impressive bunch.

    I will try to check out this Stevenson guy. I am all for markers, but I'm not sure what he means with this apology business. Maybe I can find a transcript. I despise watching online video or listening to podcasts most of the time. Probably because it takes so much longer than reading.

    1. I would usually agree with you on transcripts of interviews and chats. But watching Stevenson is watching a master orator at work.

      1. Well, if both of you recommend watching, then I'll go do that right now. I could use some inspiration, heaven knows.

        Prof. Ball, you might already be working on this, but I saw a good letter in the LAT today,* by one Nancy Rimsha, on the subject of how hard it is for people getting aid to stay on it. Talk about needless suffering. Anyway, put it on the lengthy To Do list I guess.

        *The LAT has the best letters section, imho. Even though the paper itself is basically withering now. People are pithier and less buttoned-up than when they write to the NYT.

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