Just Mercy (42 page)

When I would go over to Ms. Durr’s home to listen to these three formidable women, Rosa Parks was always very kind and generous with me. Years later, I would occasionally meet her at events in other states, and I ended up spending a little time with her. But mostly, I just loved hearing her and Ms. Carr and Ms. Durr talk. They would talk and talk and talk. Laughing, telling stories, and bearing witness about what could be done when people stood up (or sat down, in Ms. Parks’s case). They were always so spirited together. Even after all they’d done, their focus was always on what they still planned to do for civil rights.

The first time I met Ms. Parks, I sat on Ms. Durr’s front porch in Old Cloverdale, a residential neighborhood in Montgomery, and I listened to the three women talk for two hours. Finally, after watching me listen for all that time, Ms. Parks turned to me and sweetly asked, “Now, Bryan, tell me who you are and what you’re doing.” I looked at Ms. Carr to see if I had permission to speak, and she smiled and nodded at me. I then gave Ms. Parks my rap.

“Yes, ma’am. Well, I have a law project called the Equal Justice Initiative,
and we’re trying to help people on death row. We’re trying to stop the death penalty, actually. We’re trying to do something about prison conditions and excessive punishment. We want to free people who’ve been wrongly convicted. We want to end unfair sentences in criminal cases and stop racial bias in criminal justice. We’re trying to help the poor and do something about indigent defense and the fact that people don’t get the legal help they need. We’re trying to help people who are mentally ill. We’re trying to stop them from putting children in adult jails and prisons. We’re trying to do something about poverty and the hopelessness that dominates poor communities. We want to see more diversity in decision-making roles in the justice system. We’re trying to educate people about racial history and the need for racial justice. We’re trying to confront abuse of power by police and prosecutors—” I realized that I had gone on way too long, and I stopped abruptly. Ms. Parks, Ms. Carr, and Ms. Durr were all looking at me.

Ms. Parks leaned back, smiling. “Ooooh, honey, all that’s going to make you tired, tired, tired.” We all laughed. I looked down, a little embarrassed. Then Ms. Carr leaned forward and put her finger in my face and talked to me just like my grandmother used to talk to me. She said, “That’s why you’ve got to be brave, brave, brave.” All three women nodded in silent agreement and for just a little while they made me feel like a young prince.

I looked at the clock. It was 6:30
P.M.
Mr. Dill was dead by now. I was very tired, and it was time to stop all this foolishness about quitting. It was time to be brave. I turned to my computer, and there was an email inviting me to speak to students in a poor school district about remaining hopeful. The teacher told me that she had heard me speak and wanted me to be a role model for the students and inspire them to do great things. Sitting in my office, drying my tears, reflecting on my brokenness, it seemed like a laughable notion. But then I thought about those kids and the overwhelming and unfair challenges that too
many children in this country have to overcome, and I started typing a message saying that I would be honored to come.

On the drive home, I turned on the car radio, seeking news about Mr. Dill’s execution. I found a station airing a news report. It was a local religious station, but in their news broadcast there was no mention of the execution. I left the station on, and before long a preacher began a sermon. She started with scripture.

I turned off the radio station, and as I slowly made my way home I understood that even as we are caught in a web of hurt and brokenness, we’re also in a web of healing and mercy. I thought of the little boy who hugged me outside of church, creating reconciliation and love. I didn’t deserve reconciliation or love in that moment, but that’s how mercy works. 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.

I drove home broken and brokenhearted about Jimmy Dill. But I knew I would come back the next day. There was more work to do.

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. My staff and I jumped up and down in celebration. Moments later we were inundated with a flood of calls from media, clients, families, and children’s rights advocates. It was the first time the Court had issued a categorical ban on a punishment other than the death penalty. Joe Sullivan was entitled to relief. Scores of people, including Antonio Nuñez and Ian Manuel, were entitled to reduced sentences that would give them a “meaningful opportunity for release.”

Two years later, in June 2012, we won a constitutional ban on mandatory life-without-parole sentences imposed on children convicted of homicides. The Supreme Court had agreed to review Evan Miller’s case and the case of our client from Arkansas, Kuntrell Jackson. I argued both cases in March of that year and waited anxiously until we won a favorable ruling. The Court’s decision meant that no child accused of any crime could ever again be automatically sentenced to die
in prison. Over two thousand condemned people sentenced to life imprisonment without parole for crimes when they were children were now potentially eligible for relief and reduced sentences. Some states changed their statutes to create more hopeful sentences for child offenders. Prosecutors in many places resisted retroactive application of the Court’s decision in
Miller v. Alabama
, but everyone now had new hope, including Ashley Jones and Trina Garnett.

We continued our work on issues involving children by pursuing more cases. I believe there should be a total ban on housing children under the age of eighteen with adults in jails or prisons. We filed cases seeking to stop the practice. I am also convinced that very young children should never be tried in adult court. They’re vulnerable to all sorts of problems that increase the risk of a wrongful conviction. No child of twelve, thirteen, or fourteen can defend him- or herself in the adult criminal justice system. Wrongful convictions and illegal trials involving young children are very common.

A few years earlier, we won the release of Phillip Shaw, who was fourteen when he was improperly convicted and sentenced to life imprisonment without parole in Missouri.
His jury was illegally selected, excluding African Americans. I argued two cases at the Mississippi Supreme Court in which the Court ruled that the convictions and sentences of young children were illegal. Demarious Banyard was a thirteen-year-old who had been bullied into participating in a robbery that resulted in a fatal shooting in Jackson, Mississippi.
He was given a mandatory death-in-prison sentence after his jury was illegally told that he had to prove his innocence beyond a reasonable doubt and the State introduced impermissible evidence. He was resentenced to a finite term of years and now has hope for release.

Dante Evans was a fourteen-year-old child living in a FEMA trailer with his abusive father in Gulfport, Mississippi, after Hurricane Katrina. His dad, who had twice before nearly killed Dante’s mother, was shot by Dante while he slept in a chair. Dante had repeatedly told school officials about his father’s abuse, but no one ever intervened. I discussed Dante’s prior diagnosis of post-traumatic stress disorder following
the attempted murder of his mother in my oral argument before the Mississippi Supreme Court.
The Court emphasized the trial court’s refusal to permit introduction of this evidence and granted Dante a new trial.

Our death penalty work had also taken a hopeful turn. The number of death row prisoners in Alabama for whom we’d won relief reached one hundred. We had created a new community of formerly condemned prisoners in Alabama who had been illegally convicted or sentenced and received new trials or sentencing hearings. Most never returned to death row. Starting in 2012, we had eighteen months with no executions in Alabama. Continued litigation about lethal injection protocols and other questions about the reliability of the death penalty slowed the execution rate in Alabama dramatically. In 2013, Alabama recorded the lowest number of new death sentences since the resumption of capital punishment in the mid-1970s. These were very hopeful developments.

Of course, there were still challenges. I was losing sleep over another man on Alabama’s death row, a man who was clearly innocent. Anthony Ray Hinton was on death row when Walter McMillian arrived in the 1980s. Mr. Hinton was wrongly convicted of two robbery-murders outside Birmingham after state forensic employees mistakenly concluded that a gun recovered from his mother’s home had been used in the crimes. Mr. Hinton’s appointed defense lawyer got only $500 from the court to retain a gun expert to confront the state’s case, so he ended up with a mechanical engineer who was blind in one eye and who had almost no experience testifying as a gun expert.

The State’s primary evidence against Mr. Hinton involved a third crime where a witness identified him as the assailant. But we found a half-dozen people and security records that proved that Mr. Hinton was locked inside a secure supermarket warehouse working as a night laborer fifteen miles away at the time of the crime. We got some of the nation’s best experts to review the gun evidence, and they concluded
the Hinton weapon could not be matched to the murders. I had hopes that the State might reopen the case. Instead they persisted in moving toward execution. The media was not interested in the story, citing “innocence fatigue.” “We’ve done that story before,” we heard again and again. We kept getting very close decisions from appellate courts denying relief, and Mr. Hinton remained on death row facing execution. It would soon be thirty years. He was always upbeat and encouraging when I met with him, but I was increasingly desperate to find a way to get his case overturned.

I was encouraged by the fact that nationwide the rate of mass incarceration had finally slowed. For the first time in close to forty years, the country’s prison population did not increase in 2011. In 2012, the United States saw the first decline in its prison population in decades. I spent a lot of time in California that year supporting ballot initiatives and was encouraged that voters decided, by a huge margin, to end the state’s “three strikes” law that imposed mandatory sentences on nonviolent offenders. The initiative won majority support in every county in the state. California voters also came very close to banning the death penalty; the ballot initiative lost by only a couple of percentage points. Almost banning the death penalty through a popular referendum in an American state would have been unimaginable just a few years earlier.

We were able to finally launch the race and poverty initiative I’d long been hoping to start at EJI. For years I’d wanted to implement a project to change the way we talk about racial history and contextualize contemporary race issues. We published a racial history calendar for 2013 and 2014. We started working with poor children and families in Black Belt counties across the South. We brought hundreds of high school students to our office for supplemental education and discussion about rights and justice. Also, we worked on reports and materials that seek to deepen the national conversation about the legacy of slavery and lynching and our nation’s history of racial injustice.

I found the new race and poverty work extremely energizing. It closely connected to our work on criminal justice issues; I believe that
so much of our worst thinking about justice is steeped in the myths of racial difference that still plague us.
I believe that there are four institutions in American history that have shaped our approach to race and justice but remain poorly understood. The first, of course, is slavery. This was followed by the reign of terror that shaped the lives of people of color following the collapse of Reconstruction until World War II. Older people of color in the South would occasionally come up to me after speeches to complain about how antagonized they feel when they hear news commentators talking about how we were dealing with domestic terrorism for the first time in the United States after the 9/11 attacks.

An older African American man once said to me, “You make them stop saying that! We grew up with terrorism all the time. The police, the Klan, anybody who was white could terrorize you. We had to worry about bombings and lynchings, racial violence of all kinds.”