Cover Story: The anti-executioner’s song
Attorney Stephen Bright defends the damned
Stephen Bright once told the New York Times that representing prisoners on death row was “brutal, enormously difficult, emotionally draining.” Bright’s sober assessment of his practice went on: “There are no resources to do the job well, there’s a tremendous amount of public hostility, and it’s financially devastating to most lawyers. You have to be out of your head to take one of these cases.”
Crazy or not, Bright has been fighting from his Atlanta-based office to save death row inmates — and to oppose capital punishment — for more than two decades. Recently, death penalty issues have taken on new relevance. Al-Qaeda or domestic terrorists may face capital trials, and the U.S. Supreme Court has ruled twice in the past month to make it more difficult to execute criminals. Last year’s execution of Timothy McVeigh, the first federally sanctioned killing in 38 years, also focused renewed attention on the ultimate punishment. Likewise, DNA proof of wrongful convictions, capital cases involving the mentally retarded, issues of racial discrimination in the application of the death penalty, and questions about the quality of legal representation for death penalty defendants have all forced America to reconsider the wisdom of state-sponsored killing. As recently as eight years ago, 80 percent of Americans favored capital punishment; a recent ABC/Washington Post poll puts that number at 63 percent.
As the death penalty debate reignites in America, Bright stands as the leading voice of the damned. The son of a Kentucky farmer, Bright graduated from the University of Kentucky College of Law in 1974 and cut his teeth as a trial attorney in the Washington, D.C., public defender’s office. In 1979, he worked on a death penalty appeal for the American Civil Liberties Union, and three years later, he signed on as director of the Southern Center for Human Rights, a nonprofit law firm in Atlanta that represents disadvantaged inmates. Though he has moonlighted as a lecturer at Harvard, Yale and Emory law schools, Bright’s main focus is the Southern Center, where he’s written scholarly articles about the death penalty, won a key Supreme Court case regarding racial discrimination by jurors, and testified before Congress about death penalty issues. Bright recently spoke to David Wallis about everything from the morality of the death penalty to the triumphs and the failures of his own career. Crazy? You decide.
David Wallis: Make the case against the death penalty.
Stephen Bright: It’s morally wrong for people to kill, whether it’s the state killing people or whether it’s people killing each other. When the United States was a frontier society, we had few alternatives with regard to punishment. If somebody stole your horse, you could shoot them, you could hang them, you could put them in the stocks, you could whip them. Basically, we didn’t have the prisons that we have today. And it’s interesting that of all those rather primitive forms of punishment, the only one we still have is the death penalty. But even if one didn’t have moral objections to the death penalty, consider the fact that so many people get death because of the poor quality of their court-appointed lawyer. Consider the fact that race plays such a role in who’s sentenced to death. Or the fact that so many of those sentenced to death are mentally ill, some mentally retarded. Those factors, and the fact that we are surely killing innocent people — all of those are reasons we shouldn’t have an irrevocable punishment.
In 2000, Illinois Governor George Ryan stopped executions in his state after evidence emerged of false convictions. George W. Bush, then the governor of Texas, said he was confident that all Texas death row inmates were guilty as charged. Your reaction?
Governor Bush — now President Bush — has no idea. I mean, he’s been totally disengaged from the criminal justice process. He said that he spent 15 minutes to half-an-hour thinking about clemency or reprieves and the people who were executed — more than 150 people — over his six years as governor. George Bush has no more idea about the guilt or innocence of the people on death row than the average person does.
Lay out your strategy to oppose capital punishment.
My first hope is that other states will follow the lead of Governor Ryan and that we will see a moratorium declared while we look at this problem. Even some Texas legislators favor a moratorium bill. Second, we must reverse what has been a tremendous expansion of the death penalty over the past 20 years. If we are going to have the death penalty at all, it really should be restricted to the extraordinary cases — the “worst of the worst,” as the courts say. Third is the effort to try to insure that people get adequate legal representation. People should know that in Houston, Texas, for example, three people sentenced to death were represented by lawyers who slept through their capital trials, and that all three of those cases were later upheld on appeal by the Texas Court of Criminal Appeals. One of the men has since been executed. I doubt if George Bush knows that. But people should know that. That’s simply not justice.
How do you plan to up the pressure politically?
I think the pressure is increasing just because of the concern that more and more people are having about the way in which the death penalty works in practice. DNA cases have gotten the attention of a lot of people in this country, and DNA has proven over and over and over again that the criminal justice system has convicted the wrong person. There’s no reason to think that’s happening any less in death penalty cases than it is in other cases. Quite to the contrary, the death penalty cases are usually tried with so much emotion. There’s so much political gain on the part of the prosecutors and the judges caught up in those cases that there’s actually a greater likelihood of mistakes.
Are you heartened by the Supreme Court’s decision, prohibiting the execution of the mentally retarded?
I thought Justice [Sandra Day] O’Connor might rule the way she did, but it was surprising and delightful that Justice Anthony Kennedy joined the majority, providing a solid six-vote decision. It’s remarkable that about 15 years ago, not a single state prohibited the execution of the sentencing to death of the mentally retarded. Now, according to the court, there’s a “national consensus” against the practice. What is scary is the dissent authored by Justice [Antonin] Scalia and joined by Justice [Clarence] Thomas and Justice [William H.] Rehnquist. George W. Bush says that Justice Scalia and Thomas are the justices he most admires. If he can appoint two more like them we will live in a different country than we do today.
In a ABC/Washington Post poll, support for capital punishment dropped below 50 percent when respondents considered an alternative sentence of life without parole. What do you make of that?
The death penalty has really been a result of the war on crime and the demagoguery and cynicism with regard to crime issues on the part of politicians. After Dukakis was so effectively beaten ...
Flayed.
Yes, flayed with the Willie Horton ads. After that, then-Governor Clinton came back to Arkansas and made a spectacle of putting to death a brain-damaged person right before the New Hampshire primary in 1992. I think, unfortunately, the message that many politicians read out of that was: To show that you’re tough on crime, you have to be for the death penalty. Not only do you have to be for the death penalty, you have to be for the death penalty in every conceivable crime.
What makes you think that politicians will ever roll back the death penalty?
Unfortunately, we live in a time when the politicians follow the people instead of leading them. What’s needed is leadership on this issue — people who will talk sense about crime and punishment.
On a scale of one to 10, with one being not likely and 10 being 100 percent likely, how would you rate the odds of accomplishing your death penalty goals?
I don’t know. Too much of the answer depends on things that are beyond our knowledge. We don’t know, for example, when there will be a highly publicized case of an innocent person who’s already been executed. I think what we have to do is be sort of like the people on the Underground Railroad, trying to get individuals across to safe passage one at a time by devoting our legal skills to that. At the same time, we have to raise these broader issues and hope that society will decide eventually to turn its back on this punishment.
Do you agree with those who said that televising Timothy McVeigh’s execution would have spurred revulsion to the death penalty?
When we had public executions, which we had in this country up until the 1930s, they were carnivals. Now we have private executions, and very often they’re carnivals, except that people don’t get the voyeuristic pleasure of actually watching the execution. But my personal view is that it wouldn’t have much effect. I think that this society has an interest in violence that is a bit unseemly. And if you look back at the pictures of people being lynched or look back at the public executions — like the one in Owensboro, Ky., where 20,000 people came — it’s disturbing to see people there with their whole families. You’ve got mom and dad and the children, and they’re all there smiling like they’re at a picnic. Americans see so much death and violence on television and in the movies every day that we’ve become totally desensitized.
Why do so many Americans support the death penalty?
One of the reasons for the use of the death penalty has a lot to do with the sad state of race relations in the United States throughout our history. The death penalty is a direct descendent of slavery and racial oppression. When the South was getting bad press for lynching people in the ’20s and ’30s and ’40s, the perfunctory death penalty trial became a way of accomplishing the same thing. You’d actually have cases where they would say, “Let the courts take care of it.” The understood message was that the person would be given a quick trial, would be appointed some incompetent lawyer, and after a very perfunctory trial would soon be taken out back and hung or shot.
What do you say to victims’ families and loved ones who say the death penalty brings them closure?
I’d defer to someone like Bud Welch, whose daughter was killed in the Oklahoma City bombing. He has pointed out that watching another human being put to death does not bring you closure. As one who has lost a loved one myself, I know that regardless of whether it’s because of disease, crime or accident, once someone is killed or dead, that person is never going to be restored. You’re going to have that pain and that loss for the rest of your life. What’s unfortunate is that the manipulation of victims of crime by politicians has resulted in people becoming obsessed with the legal cases involving the killers and not getting on with life.
You lost someone close to you?
My nephew, who was 18 years old, was killed in a car accident. When you’ve lost a member of your family, someone who was very close to you, there really is no such thing as closure. Closure is something you have in a real estate deal.
Sometimes you must know that your client is guilty of heinous crimes. How do you balance adhering to your moral beliefs with doing your job as a defense attorney?
I think that what a lawyer does is try to understand. Because it’s never quite that simple. There’s always a story. People are always much more than the worst thing they ever did in their life.
Do you try to focus on that?
In most of the death penalty cases that I have, the real issue is not guilt or innocence. The issue is punishment. The person is going to be found guilty of capital murder. The question is, are they going to be punished with the death penalty, or with life in prison, or with life in prison without parole? My focus is on who is this person, what is their life and background, how did they get to this place in life that they committed this heinous crime. And how can I convince a jury — while acknowledging my client’s responsibility for the crime — that this person will be punished severely and the community will be protected by a sentence of life in prison.
What led you to practice human rights law?
I had the good fortune to grow up in the ’60s, when there was a lot of concern about civil rights, about human rights, about equality, and about making good on promises that are in our Constitution and in our Declaration of Independence that have never been realized. It seemed to me then, and it still seems to me today, that trying to realize those aspirations of equal justice — not discriminating, treating people fairly — is very much worthwhile.
Did you ever go on any interviews for, or pursue, a more typical mainstream legal career?
I never had any interest in working for a law firm. I never interviewed with one. I never sent a resume to one.
What’s your single proudest achievement as a lawyer?
Probably the day that I watched Tony Amadeo, who had been sentenced to death in Georgia when he was 18 years old, graduate summa cum laude from Mercer University while he was still in prison. I was one of a team of people who represented him; I argued his case before the Supreme Court.
And your most disillusioning day?
If you’re in the practice I’m in, there are many disillusioning days.
But tell me about your worst day.
Perhaps the most disillusioning was the day [in 1987] that McCleskey v. Kemp came down, when the Supreme Court said that, despite the patterns of racial discrimination, the death penalty in Georgia could still be carried out. I remember being with a number of civil rights leaders in Atlanta that day, and many of them were crying. Just the notion that the court would say, as it did in McCleskey, that these racial disparities are inevitable was extremely disheartening.
Some people refer to you as “the Saint.”
That’s totally inappropriate. I have had the tremendous privilege of being able to spend almost every day of my practice doing things I care about and believe in. I think one of the things [lawyers] lose sight of is just how privileged we are in this profession.
David Wallis is the founder and CEO of Featurewell, an electronic marketplace for magazine and newspaper articles.
Crazy or not, Bright has been fighting from his Atlanta-based office to save death row inmates — and to oppose capital punishment — for more than two decades. Recently, death penalty issues have taken on new relevance. Al-Qaeda or domestic terrorists may face capital trials, and the U.S. Supreme Court has ruled twice in the past month to make it more difficult to execute criminals. Last year’s execution of Timothy McVeigh, the first federally sanctioned killing in 38 years, also focused renewed attention on the ultimate punishment. Likewise, DNA proof of wrongful convictions, capital cases involving the mentally retarded, issues of racial discrimination in the application of the death penalty, and questions about the quality of legal representation for death penalty defendants have all forced America to reconsider the wisdom of state-sponsored killing. As recently as eight years ago, 80 percent of Americans favored capital punishment; a recent ABC/Washington Post poll puts that number at 63 percent.
As the death penalty debate reignites in America, Bright stands as the leading voice of the damned. The son of a Kentucky farmer, Bright graduated from the University of Kentucky College of Law in 1974 and cut his teeth as a trial attorney in the Washington, D.C., public defender’s office. In 1979, he worked on a death penalty appeal for the American Civil Liberties Union, and three years later, he signed on as director of the Southern Center for Human Rights, a nonprofit law firm in Atlanta that represents disadvantaged inmates. Though he has moonlighted as a lecturer at Harvard, Yale and Emory law schools, Bright’s main focus is the Southern Center, where he’s written scholarly articles about the death penalty, won a key Supreme Court case regarding racial discrimination by jurors, and testified before Congress about death penalty issues. Bright recently spoke to David Wallis about everything from the morality of the death penalty to the triumphs and the failures of his own career. Crazy? You decide.
David Wallis: Make the case against the death penalty.
Stephen Bright: It’s morally wrong for people to kill, whether it’s the state killing people or whether it’s people killing each other. When the United States was a frontier society, we had few alternatives with regard to punishment. If somebody stole your horse, you could shoot them, you could hang them, you could put them in the stocks, you could whip them. Basically, we didn’t have the prisons that we have today. And it’s interesting that of all those rather primitive forms of punishment, the only one we still have is the death penalty. But even if one didn’t have moral objections to the death penalty, consider the fact that so many people get death because of the poor quality of their court-appointed lawyer. Consider the fact that race plays such a role in who’s sentenced to death. Or the fact that so many of those sentenced to death are mentally ill, some mentally retarded. Those factors, and the fact that we are surely killing innocent people — all of those are reasons we shouldn’t have an irrevocable punishment.
In 2000, Illinois Governor George Ryan stopped executions in his state after evidence emerged of false convictions. George W. Bush, then the governor of Texas, said he was confident that all Texas death row inmates were guilty as charged. Your reaction?
Governor Bush — now President Bush — has no idea. I mean, he’s been totally disengaged from the criminal justice process. He said that he spent 15 minutes to half-an-hour thinking about clemency or reprieves and the people who were executed — more than 150 people — over his six years as governor. George Bush has no more idea about the guilt or innocence of the people on death row than the average person does.
Lay out your strategy to oppose capital punishment.
My first hope is that other states will follow the lead of Governor Ryan and that we will see a moratorium declared while we look at this problem. Even some Texas legislators favor a moratorium bill. Second, we must reverse what has been a tremendous expansion of the death penalty over the past 20 years. If we are going to have the death penalty at all, it really should be restricted to the extraordinary cases — the “worst of the worst,” as the courts say. Third is the effort to try to insure that people get adequate legal representation. People should know that in Houston, Texas, for example, three people sentenced to death were represented by lawyers who slept through their capital trials, and that all three of those cases were later upheld on appeal by the Texas Court of Criminal Appeals. One of the men has since been executed. I doubt if George Bush knows that. But people should know that. That’s simply not justice.
How do you plan to up the pressure politically?
I think the pressure is increasing just because of the concern that more and more people are having about the way in which the death penalty works in practice. DNA cases have gotten the attention of a lot of people in this country, and DNA has proven over and over and over again that the criminal justice system has convicted the wrong person. There’s no reason to think that’s happening any less in death penalty cases than it is in other cases. Quite to the contrary, the death penalty cases are usually tried with so much emotion. There’s so much political gain on the part of the prosecutors and the judges caught up in those cases that there’s actually a greater likelihood of mistakes.
Are you heartened by the Supreme Court’s decision, prohibiting the execution of the mentally retarded?
I thought Justice [Sandra Day] O’Connor might rule the way she did, but it was surprising and delightful that Justice Anthony Kennedy joined the majority, providing a solid six-vote decision. It’s remarkable that about 15 years ago, not a single state prohibited the execution of the sentencing to death of the mentally retarded. Now, according to the court, there’s a “national consensus” against the practice. What is scary is the dissent authored by Justice [Antonin] Scalia and joined by Justice [Clarence] Thomas and Justice [William H.] Rehnquist. George W. Bush says that Justice Scalia and Thomas are the justices he most admires. If he can appoint two more like them we will live in a different country than we do today.
In a ABC/Washington Post poll, support for capital punishment dropped below 50 percent when respondents considered an alternative sentence of life without parole. What do you make of that?
The death penalty has really been a result of the war on crime and the demagoguery and cynicism with regard to crime issues on the part of politicians. After Dukakis was so effectively beaten ...
Flayed.
Yes, flayed with the Willie Horton ads. After that, then-Governor Clinton came back to Arkansas and made a spectacle of putting to death a brain-damaged person right before the New Hampshire primary in 1992. I think, unfortunately, the message that many politicians read out of that was: To show that you’re tough on crime, you have to be for the death penalty. Not only do you have to be for the death penalty, you have to be for the death penalty in every conceivable crime.
What makes you think that politicians will ever roll back the death penalty?
Unfortunately, we live in a time when the politicians follow the people instead of leading them. What’s needed is leadership on this issue — people who will talk sense about crime and punishment.
On a scale of one to 10, with one being not likely and 10 being 100 percent likely, how would you rate the odds of accomplishing your death penalty goals?
I don’t know. Too much of the answer depends on things that are beyond our knowledge. We don’t know, for example, when there will be a highly publicized case of an innocent person who’s already been executed. I think what we have to do is be sort of like the people on the Underground Railroad, trying to get individuals across to safe passage one at a time by devoting our legal skills to that. At the same time, we have to raise these broader issues and hope that society will decide eventually to turn its back on this punishment.
Do you agree with those who said that televising Timothy McVeigh’s execution would have spurred revulsion to the death penalty?
When we had public executions, which we had in this country up until the 1930s, they were carnivals. Now we have private executions, and very often they’re carnivals, except that people don’t get the voyeuristic pleasure of actually watching the execution. But my personal view is that it wouldn’t have much effect. I think that this society has an interest in violence that is a bit unseemly. And if you look back at the pictures of people being lynched or look back at the public executions — like the one in Owensboro, Ky., where 20,000 people came — it’s disturbing to see people there with their whole families. You’ve got mom and dad and the children, and they’re all there smiling like they’re at a picnic. Americans see so much death and violence on television and in the movies every day that we’ve become totally desensitized.
Why do so many Americans support the death penalty?
One of the reasons for the use of the death penalty has a lot to do with the sad state of race relations in the United States throughout our history. The death penalty is a direct descendent of slavery and racial oppression. When the South was getting bad press for lynching people in the ’20s and ’30s and ’40s, the perfunctory death penalty trial became a way of accomplishing the same thing. You’d actually have cases where they would say, “Let the courts take care of it.” The understood message was that the person would be given a quick trial, would be appointed some incompetent lawyer, and after a very perfunctory trial would soon be taken out back and hung or shot.
What do you say to victims’ families and loved ones who say the death penalty brings them closure?
I’d defer to someone like Bud Welch, whose daughter was killed in the Oklahoma City bombing. He has pointed out that watching another human being put to death does not bring you closure. As one who has lost a loved one myself, I know that regardless of whether it’s because of disease, crime or accident, once someone is killed or dead, that person is never going to be restored. You’re going to have that pain and that loss for the rest of your life. What’s unfortunate is that the manipulation of victims of crime by politicians has resulted in people becoming obsessed with the legal cases involving the killers and not getting on with life.
You lost someone close to you?
My nephew, who was 18 years old, was killed in a car accident. When you’ve lost a member of your family, someone who was very close to you, there really is no such thing as closure. Closure is something you have in a real estate deal.
Sometimes you must know that your client is guilty of heinous crimes. How do you balance adhering to your moral beliefs with doing your job as a defense attorney?
I think that what a lawyer does is try to understand. Because it’s never quite that simple. There’s always a story. People are always much more than the worst thing they ever did in their life.
Do you try to focus on that?
In most of the death penalty cases that I have, the real issue is not guilt or innocence. The issue is punishment. The person is going to be found guilty of capital murder. The question is, are they going to be punished with the death penalty, or with life in prison, or with life in prison without parole? My focus is on who is this person, what is their life and background, how did they get to this place in life that they committed this heinous crime. And how can I convince a jury — while acknowledging my client’s responsibility for the crime — that this person will be punished severely and the community will be protected by a sentence of life in prison.
What led you to practice human rights law?
I had the good fortune to grow up in the ’60s, when there was a lot of concern about civil rights, about human rights, about equality, and about making good on promises that are in our Constitution and in our Declaration of Independence that have never been realized. It seemed to me then, and it still seems to me today, that trying to realize those aspirations of equal justice — not discriminating, treating people fairly — is very much worthwhile.
Did you ever go on any interviews for, or pursue, a more typical mainstream legal career?
I never had any interest in working for a law firm. I never interviewed with one. I never sent a resume to one.
What’s your single proudest achievement as a lawyer?
Probably the day that I watched Tony Amadeo, who had been sentenced to death in Georgia when he was 18 years old, graduate summa cum laude from Mercer University while he was still in prison. I was one of a team of people who represented him; I argued his case before the Supreme Court.
And your most disillusioning day?
If you’re in the practice I’m in, there are many disillusioning days.
But tell me about your worst day.
Perhaps the most disillusioning was the day [in 1987] that McCleskey v. Kemp came down, when the Supreme Court said that, despite the patterns of racial discrimination, the death penalty in Georgia could still be carried out. I remember being with a number of civil rights leaders in Atlanta that day, and many of them were crying. Just the notion that the court would say, as it did in McCleskey, that these racial disparities are inevitable was extremely disheartening.
Some people refer to you as “the Saint.”
That’s totally inappropriate. I have had the tremendous privilege of being able to spend almost every day of my practice doing things I care about and believe in. I think one of the things [lawyers] lose sight of is just how privileged we are in this profession.
David Wallis is the founder and CEO of Featurewell, an electronic marketplace for magazine and newspaper articles.