2000 Fairchild Lecture

– Good afternoon. (indistinct chatter) Waited a little bit longer
than usual to get started because of the worse than
usual traffic outside, but I think it’s time to start. Now, my name is Dave Schultz. I’m a member of the faculty
here at the law school, as well as associate dean for continuing education and outreach. And on behalf of the faulty
and staff of the law school, I welcome you to today’s event, which is the 12th Thomas
E. Fairchild lecture. I’m filling in today
for our dean, Ken Davis, who always does such a
good job in welcoming you to events like this. Ken is unable to be here
because he is in Asia meeting with some of the
university’s partners in that part of the world. He asked me to communicate his regrets. I wanna remind you that
immediately after the lecture a reception will be
held, to which everyone who can hear my voice in this
room and upstairs is invited. The reception will be in what
we call the Lubar Commons, which is room 7200 of the law school, seventh floor of the Hurst Faculty Tower, accessible by an elevator
on the floor here. We’ll have people outside
the room if you need help navigating our building
and help you get up there. I really welcome the opportunity
to fill in for Ken Davis today because our office, that is the outreach
office in the law school, has had the good fortune to
be able to staff and support the Fairchild lectures
since 1988, when they began. These lectures exist
because Judge Fairchild’s former law clerks and
interns wished to honor him by having events like this in his name. You have a program for the function today, and all of the judge’s
former law clerks and interns are listed there. For the benefit of the many students who are watching the lecture, either here or in one of the other rooms, I just might briefly note
that Judge Tom Fairchild is one of the very distinguished graduates of this law school. He served as a justice on
the Wisconsin Supreme Court from 1957 to 1966, when he was appointed to serve on the US Court of
Appeals for the Seventh Circuit. Again, your program has
a more complete summary of Judge Fairchild’s career. The high regard in which
the legal community holds Judge Fairchild is shown, I think, by the individuals who
have given this series of now 12 lectures. And again, a full list
of those prior speakers is also in your program, along with a citation
to the printed version of each of those talks,
which have all been published in the Wisconsin Law Review. I think today’s speaker will fit in well with the distinguished predecessors. To introduce him, I turn to my
faculty colleague and friend, who’s made impressive
contributions of his own in teaching, research, and service on criminal justice topics, and that’s Professor Walter Dickey. Walter. (audience applauds) – Thanks, Dave. Let me add my own words of welcome on behalf of the faculty,
staff, and students of the university to this
distinguished lecturer. And let me also add a
special word of welcome to Judge Fairchild, whose presence really honors us today. You have in the handout the
biography of Stephen Bright. And it’s a very impressive one. Given the fact that you’ve got it, it seems really not useful for
me to sort of go over it all, though I do wanna say that, knowing more about him and his work than is contained in
that little biography, I think it’s fair to say that
it really does not do justice to his contributions and
achievements in criminal justice, as well as in human rights matters. It might be useful to just
reflect very briefly, though, and to put in context some
of the work that he’s done. I think anybody who’s worked
in the criminal justice system, or who has observed it would find it very hard to
believe that it functions fairly, smartly, in any
sort of way that approaches what we would like a criminal
justice system to function in in a democratic society. We ask it to do all kinds of
jobs that it really cannot do, that I don’t think any system can do. In many ways we ask it to do
jobs that I sometimes think require the subtlety
and tools of a surgeon, a highly trained surgeon. And yet, we give it the tools
of a lumberjack to carry out those very important and
subtle kinds of functions. But the fact of the matter is, we have it. It’s not gonna go away, and basically, we’re responsible for it. And I think, if it’s in anything like the sort of condition I
suggest and it’s here to stay, then it is an institution and system badly in need of reform. I think recognition of that
prompts reflection on questions such as, What would have to
be true for reform to occur? And I think, quite honestly,
the list is quite a bit longer than we could even rattle off
in an evening such as this. Though I do think it’s worth
trying to note a couple of what I think would be the
most important qualities that would have to be brought to bear if the system were going to approach the kind of system I
think we should aspire to. If it’s going to be
changed, it seems to me we need new knowledge and
information and ideas. A sort of old way of doing
business, business as usual, clearly is not good enough. I think secondly, today we
need expression of those ideas. We need fearless expression, really that run against the sort of muddle of what I think of as the current thinking and the current river of
the criminal justice system. That expression, fearless expression, I think can come in a
lot of different forms. It can be reflective, it can
come in the form of advocacy, it could come in the form of teaching. There are a lot of different
forums in which we need it, and in which it really ought
to be available to all of us. I think, in conjunction
with both of those thoughts, new ideas and expression, we need new ways of doing
business, we need new approaches. One of the things that I
say to law students is, “We’re not here to make you critics, “we’re here to make you playwrights. “We want you to be problem solvers. “We don’t you simply to
be people who can observe “and tell us what’s wrong. “We need people who are
gonna help us make it right.” And so, it seems to me
ideas about redefinition, redeployment, are things
that we’re badly in need of if the system is gonna
be improved in the way that I think it should be. And finally, I think we need inspiration. We need inspiration,
and we need preparation. We need attention, not only to our peers, but attention to the young
people, law students and others. Because it seems to me the future is very much in their hands, and unless they have observed
the kind of qualities that I’ve just mentioned,
have been exposed to them and have been inspired by them, and have models that make
them want to be like that, it seems to me the sort of
long-term health of the system cannot be good, though if we
have it I think it can be. Because this is clearly a
job that’s gonna take time. My generation is certainly
not gonna fix it, though we have to have
hopes that the next one and the one after that will. I mention all of those qualities
because it seems to me, knowing what I do about
the work of Stephen Bright, he really in many ways exemplifies them. I think it’s fair to say from the biography that you’ve seen and from the work that
I know that he’s done, he is a person who is full of ideas. Those ideas are expressed
clearly and fearlessly in a variety of different settings, teaching, advocacy, expression
in meetings such as this. He’s not just a critic, he’s somebody who has made suggestions about how we can approach problems in ways that create greater value in our society. And I think there’s very
little doubt that his work has been an inspiration to
law students, to lawyers, to members of the public, and
to others who are concerned about these important problems. So, for me, someone who’s
devoted a lot of his life to the criminal justice system, inspired by Frank Remington as I was, I think it’s really a great honor to introduce Stephen Bright, because he really does
exemplify those qualities that I think we really need to see more of if the system is gonna be
of the kind that we want it. Thank you. (audience applauds) – I’m wired up here. Thank you. Thank you very much,
you’re very, very kind. (audience laughs) My voice carries pretty
well, I can tell you that. Thank you. I’m not sure that everyone
would agree that my advocacy has been as fearless as some
would probably say reckless, but I appreciate the
spin that you put on it, and I wanna say how
honored I am to be there, and thank you for inviting
me to give this lecture named for Judge Thomas
Fairchild, a great judge. When I looked at the other people that had given this lecture, and I don’t know that I really
do feel like it fit in there. Supreme Court justices and great scholars, and Lawrence Walsh and other people, I remember what Justice Brennan said when President Eisenhower
appointed him to Supreme Court, he said he felt like the
mule that had been entered in the Kentucky Derby. (audience laughs) And he said that he wasn’t sure
if he really belonged there, but he knew he’d benefit
from the association. (audience laughs) I’m not sure that I will acquit myself as well as Justice Brennan did,
but I have the same feeling. But I do wanna acknowledge Judge Fairchild and Mrs. Fairchild, and I know that was at a time when presidents of the United
States appointed great jurists to the courts, and the
courts were in the business of protecting people’s
constitutional rights. I practice law in the Deep South, and just about everything that’s
happened in the Deep South, it’s been an accomplishment
or a move forward, whether it’s in the schools, whether it’s in the
criminal justice system, whether it’s in the prisons, whether it’s in the mental
health institutions, it came about because
federal judges ordered it. Because Judge Tuttle,
or Judge Frank Johnson, or Judge Minor Wisdom, or some of the other great federal judges who are memorialized
in a book by Jack Bass called Unlikely Heroes. Stood up against the time
and protected the rights of people there. I saw Jack Bass the other day, I said, “If you wrote that book
today, you’d have to call it ‘The Unlikely,’ and stop there.” Given who’s on the courts today. I know there are many
former clerks and admirers and other people of Judge Fairchild here. I wanna thank them, all
of you for coming, Judge. I wanna also thank John
Skilton for arranging this. But I particularly wanna
thank Frances Hurst, whose husband Willard Hurst of course was a great law professor here. But Frances Hurst herself has
been a great force for good in this community for her entire life. And I’m extremely fortunate
to in some small way be related to her, and
I’m honored to be here, and, Frances, I’m honored
that you’re here tonight. Thank you so much for this afternoon. And I wanna thank all of
you for taking time out of being wooed by the presidential
candidates to come here. (audience laughs) I know how tough it must
be living in a swing state. (audience laughs) I’m living in a write-off state. Nobody’s coming. And when they do come, everybody runs for another part of the state, every time the presidential
candidates come. So we don’t have the
problems that you have here, the attention you have here,
I guess they’re not problems. You might say Wisconsin
doesn’t have the death penalty, but of course you do
have the death penalty because of the federal death penalty. In 1988, the federal government
adopted the death penalty for so-called drug kingpins. The first person to get it was a fellow who dealt marijuana in
Alabama, not exactly the person we might have imagined
when the law was passed. And of course, in 1994,
Congress passed a crime bill which federalized a number
of crimes and provided for the federal death penalty, and I’ll come back to that in a moment. But let me start off just by
saying a couple of things. Justice Arthur Goldberg once said that “the deliberate institutionalized
taking of human life “by the state is the greatest
conceivable degradation “to the human personality imaginable.” And so I think even though
the state of Wisconsin doesn’t have the death penalty, it’s worth some of our
time to talk about it and talk about its use in our country, and to look at where we stand
in the rest of the world with regard to this irrevocable, extreme, and enormous punishment. About six months ago, the
Parliament of the Ukraine voted 229 to 15 to abolish the
death penalty in the Ukraine, and that brought to 38 the
number of countries since 1985 that have abandoned capital punishment. During that same time, only four countries that didn’t have capital
punishment have since adopted it, and one of those, Nepal,
has since abolished it. Only one other NATO country
has the death penalty today, and that’s Turkey, which hasn’t
executed anyone since 1984. And Turkey is expected to soon
abolish capital punishment so that it can join the Council of Europe, because you can’t be a member
of the Council of Europe if you have capital punishment. That’s why Russia, Poland, and
other Soviet Bloc countries no longer have capital punishment. If you had said to
somebody 25, 30 years ago when I was in law school, “Which three countries
will have the death penalty “at the start of the new millennium? “Russia, South Africa,
and the United States.” How many people would’ve
guessed 25 years ago that the only country
would be the United States? In fact, last year four
countries accounted for 80% of all the executions that
took place in the world. China, Iran, the Congo,
and the United States. Since 1990, only six
countries in the world have executed children, and that is people who were under 18 at the
time of their crimes. Iran, Nigeria, Pakistan,
Saudi Arabia, Yemen, and the United States. And in that rather
undistinguished company, the United States leads by
far in the number of people who were children at
the time of the crimes who it’s put to death. In fact, our country is
one of only two countries that has not ratified the International Covenant
on the Rights of the Child. The other country is Somalia, which not even sure has a government. And the United States has
not ratified that covenant because it would prohibit
the execution of people who were children at the
time of their crimes. While the rest of the world
is increasingly abandoning capital punishment, 38 states and the federal government haven’t. And increasingly, the
jurisdictions within our country that use capital punishment are becoming sources of curiosity and condemnation for the rest of the world. Our ambassador to France tells us that everywhere he goes in Europe, the thing he’s asked about the most and the thing the United
States is criticized the most, is its use of the death penalty. France abolished the
death penalty in 1981. Other countries complain when we execute their foreign nationals who are here. And particularly when we
execute their foreign nationals who were arrested and tried and convicted and sentenced to death in violation of the Vienna Convention
on Inter-Consular Affairs. The convention that protects
all of us when we travel around the world, that
says if we’re arrested, that country is to notify the
consul of the United States. And similarly, when foreign
nationals are arrested in our country, it’s the obligation of
the police and the states to notify their countries. And yet of the 17 Mexican
nationals on death row in Texas right now, not a single one, not a single one was the consul notified. Not a single one was
advised of their rights under the convention. And so it’s appropriate, I think, to ask, looking at what’s going on
in the rest of the world, and some of the questions
I wanna talk about that have been raised in our country, will the death penalty
survive the 21st century? When we once had a frontier society, we used a lot of fairly primitive
ways of punishing people because those were the
only options we had. We didn’t have the vast
prison industrial complex that we have today. And so our options were
whipping, the stocks, cutting off fingers, and executing people. And it’s interesting that today, of those primitive
punishments that were employed by a frontier society and by the world in more primitive times, the only one that has
survived is the death penalty. Even in Alabama, they don’t
cut off fingers anymore. They would like to go back to whipping, but so far that hasn’t been done. (audience laughs) We would say today, if you suggested that a
way of punishing someone would be to run an electric
current through them just enough to hurt them,
you’d say that’s barbaric. But if we run an electric
current through them enough to put them to
death, that’s acceptable. And yet there’s a growing uneasiness about the death penalty, even
here in the United States where it’s being used so much today. In 1977, the American
Bar Association called for a moratorium on capital
punishment, as many of you know. The reasons being the poor
quality of legal representation provided to poor people
facing the death penalty. The fact that race has
such an important role, or plays such an important role
in who’s sentenced to death. The fact that the mentally
retarded and the mentally ill are often condemned to
die and are put to death in our electric chairs
and in our gas chambers and in our lethal injection chambers. And the other thing that I mentioned, the fact that we still execute people who were children at
the time of the crime. Since that time, since 1977, when the American Bar Association said, “We’ve been calling upon
the states year after year, “time after time, improve
the quality of counsel. “Nothing’s been done. “Do something about race discrimination. “Nothing’s been done. “Do something about the mentally ill, “the mentally retarded, the children. “Some states have done
something but many have not.” But then we’ve had the
growing realization that a lot of the people
we’ve condemned to die, just as a lot of the people
we’ve convicted of crimes, are not even guilty of the
crimes they were convicted of. And Governor George Ryan
I guess fired the shot that was heard around
the world in this debate, the Republican governor of Illinois, when he declared a moratorium
on capital punishment earlier this year. Just two weeks ago,
Governor Ryan was in Atlanta at the Jimmy Carter Center, where we were having a
program on capital punishment. It was so fascinating to hear this man, a pharmacist from Kankakee, who got elected to the legislature, and he told the crowd there, he said, “I got elected and I was
for every tough crime bill “that came around. “I was for the death penalty. “I was for locking them up
and throwing away the key. “I was for doing away with the appeals. “And then I became the governor. “Then I became the person
responsible for deciding “who lives and who dies.” And he described the
first time a case came and came to his desk and he
had to make that decision about whether to grant
a commutation or not. And he said, “I had all these questions, “and nobody had the answer. “I asked the prosecutors, “I asked the people in the
Attorney General’s office, “I asked and “nobody could give me the
answer to these questions.” And we had executed 12 people, and then there was this
man named Anthony Porter, who was to be executed. He had been convicted
at a trial by a jury, he had been sentenced to death by a jury, he had gone all the way
through the appellate process, state and federal. He was about to be executed. As you may know, you
cannot be executed unless you can understand the
reason for your execution. You have to mentally competent. You have to understand that
you are being put to death in punishment for the crime you committed. If you can’t understand that, you go to a mental institution, and you’re treated it until such time as you can understand it,
and then you’re executed. (audience laughs) It’s one of the places
where capital punishment sort of catches up with the
logic of itself perhaps but. (audience laughs) Anthony Porter’s IQ was 51. He had some other mental problems, and there was a question
about whether this man could understand why
he was being executed, and for that reason and that reason only, he was granted a stay of execution. And it was after that
that the journalism class, the undergraduate journalism
class at Northwestern became involved and
proved that Anthony Porter was innocent of the
crime for which he’d been sentenced to death, and
even got a confession from the person who did it. And what’s really remarkable
is this was the third person released from Illinois’s death
row because their innocence had been proven by the
undergraduate journalism class at Northwestern University. And I was in a debate not
long ago with somebody and they said, “Well the fact that these
people were released “shows that the system works.” (audience laughs) And I said, “Spending 16 years on
death row for a crime “you didn’t commit is not an
example of the system working.” When undergraduate
journalism students prove that lawyers, police, prosecutors, judges, and the entire legal system
didn’t detect the innocence of a person who’s condemned to die, you can’t say that system works. And Governor Ryan, with enormous courage after 13 people had been
exonerated, 12 had been executed, called a halt and said, “There
will be no more executions “in the state of Illinois on my watch “until we figure out why.” He said he was powerfully influenced by a Chicago Tribune series which probably some of you have seen, and if you haven’t, I recommend it to you highly, that looked at why this
was happening in Illinois. And I’d say that compared
to many of the states that have the death penalty, the so-called death belt where I practice, Alabama, Georgia, Texas, Arkansas, Illinois is the promised land. They actually have
lawyers for people there that stay awake during the trials. They have a public
defender office in Chicago that represents people in these cases. And I’ll talk about what we see down in our part of the country. It’s much different. But the Chicago Tribune
found that, of the lawyers who had represented people
sentenced to death in Illinois, a third had been disbarred, suspended, or convicted of crimes. One lawyer was appointed to a
capital case the day in which he was reinstated after
having been suspended from the practice of law for malpractice. 41 people on death row on the testimony of jailhouse snitches, people who traded their testimony for their freedom, for testimony. And it was one of those cases which was actually the 13th exoneration. Anthony Porter was the 12th. Prosecutorial and police misconduct, overzealousness of those who were trying to obtain convictions for
whatever reason it might be, to advance their political careers, or even because they just
honestly thought they were right, but they weren’t. And unreliable forensic evidence. There have now been across the country since the death penalty was reinstated by the Supreme Court in 1976, there have been 89 people
released from death row. That’s people who walked free, people who were once condemned
to die by juries or judges, who walked free because their
evidence was established. There have been other people whose sentences have been commuted to life imprisonment without
possibility of parole because of questions of their guilt. When Douglas Wilder was
the governor of Virginia, he commuted the sentence of
a man named Earl Washington, a mentally retarded man. And if you wanna see how
vulnerable people in the criminal, how vulnerable mentally retarded are in the criminal justice system, get the transcript of Earl
Washington’s interview with the police, where
they tell him what to say. “Oh, yes.” “Well no, it wasn’t that
way, Earl, it was this way.” “Oh, yes. “Oh, yes.” And so he commuted it. I didn’t think it was a very good way to treat an innocent man, to
give him life without parole, but that’s what Governor Wilder did, and it’s a good thing he did,
because now the DNA evidence just within the last few
weeks, has shown conclusively that Earl Washington was
innocent of the crime. And of course there have been some people that have been executed despite questions of whether they’re guilty or innocent. Earlier this year, the
New Hampshire legislature, responds to many of these developments, repealed the death penalty in that state. The governor vetoed it, but the legislature, both
houses, a Republican legislature, voted to repeal that
state’s death penalty law. This state’s senator, Senator Feingold, has introduced legislation into Congress calling for a moratorium
on federal executions. Senator Leahy has introduced
the Innocence Protection Act. It would do two things, provide for DNA testing, but more importantly,
would provide for competent legal representation for people
facing the death penalty. And increasingly, we’re
hearing unlikely voices, unlikely voices like that pharmacist from Kankakee, Governor Ryan, people who believed in this system. I was on the same program
at the Carter Center where Gerald Kogan, who was the head of the prosecutor’s office in
Dade County, Miami, Florida, a man who stood up and
asked for the death penalty as a prosecutor over and over. A man who supervised other prosecutors who asked for and obtained
the death penalty. A man who became a trial judge and presided over capital cases. Later became a justice of
the Florida Supreme Court. And finally became the
Chief Justice of Florida for a number of years, and upon retiring, said that the death penalty was corrupting and destroying our justice system, and it needed to be abandoned. Moses Harrison of
Illinois’s Supreme Court, it says very much the same sort of things, echoing the words we heard
before from two long-time people who supported the death penalty, Lewis Powell and Harry Blackmun, two Supreme Court justices, Justice Powell after he retired, and Justice Blackmun before he retired, in coming to the conclusion that capital punishment was ill-advised for our legal system. George Will wrote a column
saying that this was just another government program,
and it doesn’t work. (audience laughs) And even Pat Robertson, even Pat Robertson
called for a moratorium. When I read that, I started
to reconsider my own position (audience laughs) on the death penalty. And yet, and yet, despite all these caution
lights being raised, totally unheeded in many
parts of the country. You can go to Texas, and it’s assembly-line
executions in Texas. Children executed. Mentally retarded executed
and mentally ill executed. Born-again Christian executed. Grandmother with grandchildren executed. Even questions of innocence, this year two people, Odell
Barnes and Gary Graham, doesn’t slow down the
machinery of death in Texas. Both of them executed. I was startled. A lot of people say, “Well, can you prove “any of these people were innocent?” Gary Graham was tried in a
case where he was identified by one person who sees
him through a window pane. He’s represented by a
lawyer named Ron Mock, who had so many people sentenced to death that they literally have
the Mock Wing of death row. He’s an alcoholic who often came to court drunk and unprepared. He didn’t do any investigation
in the case whatsoever. And so the other witnesses who were there, the people who were there
at the scene of the crime and who later said, “No,
that’s not the guy who did it. “The guy was taller.” He never looked at the police report to show that the person
who identified Graham, the person who identified
him through this window, had given a completely
different description. Can you prove he’s innocent? No. Can you say beyond a
reasonable doubt he’s guilty? Of course not. Can you say he had a fair trial? Of course not. And in Virginia, even, they would’ve, there they would’ve commuted it to life without possibility of parole. They would’ve said, “We
may not know whether or not “he’s guilty or innocent, but by golly, “with these kinds of questions, “with a one-witness identification,
with a drunk lawyer, “with all of those things, “we’re not gonna let this
person be put to death.” No way in Texas. What’s not only troubling, it’s not only the volume,
but the cavalier way, some would say the routine way, in which death cases are treated, by the courts, by a
governor who’s presided over more than 140
executions in just six years. No other state in the union has
executed more than 80 people in the last 30 years. But one state, the Lone Star State, has executed well over 200. In fact, Houston, Texas,
has executed more people, more people have been
executed in the last 25 years out of Houston than
any state in the union, except for Texas itself, and Virginia. Houston has had more
executions even than Florida. And yet, no Texas case
gets more than 15 minutes of the governor’s consideration, and some people are even
taking him seriously as a candidate for President
of the United States. (audience murmurs) Earlier this year, Florida
threw caution to the wind in a rather frantic three-day
session in which it adopted, three days the legislature met. In fact, Justice Kogan
was telling me about it. He said what happened
was, all the legislatures were in New Orleans because Florida State was playing a football game. And they were all enjoying
it, I guess you would say. And they scheduled this
session of the legislature for immediately after whatever
it was, the Rose Bowl. What do they play there, the Sugar Bowl. And they all came back, they
hadn’t read the legislation, they had three days. They adopted the so-called Texas model, as if Texas was a place
to look for a model how to carry out capital punishment. They switched from electrocution
to lethal injection because they had botched
so many executions. They couldn’t wire them up right, and they kept catching people on fire, and they kept electrocuting
people, they couldn’t kill them, they’d try again, they couldn’t kill them. So they went to lethal injection. Be a little more acceptable. I think Governor Jeb Bush might have a case of penal envy,
I think, on terms of– (audience laughs) …what was happening. But remarkably, that session ended, the end of those first
three days of January, and by the end of
February they were already lethally injecting people. They already had the system,
had it up and running, they had the poisonous chemicals flowing into people’s veins. Last year 98 people were
executed, the most since 1951. We have 3600 men, women,
and children waiting to be injected, electrocuted,
shot, or gassed. And yet the death penalty
in the United States remains today as it has
been throughout our history, very much a matter of race and place, and very much a matter
of inequity and iniquity. And I would like to talk just
briefly about each of those as we think about whether
this is a punishment we’ll retain in the future. Sadly, our legal system
is the part of our society that’s been least affected
by the civil rights movement. As I travel throughout the
Deep South, I see some changes. Almost all, as I said earlier, at the order of federal courts. I’ll never forget when the
first African-American lawyer to graduate from the University
of Mississippi Law School was showing me around a little town called Drew, Mississippi. And everything, there’s the school, we sued to integrate the school, there’s this, we sued to
integrate that, there’s this. The most remarkable story he told me was about the baseball field. He said, “We had to sue
to get to play baseball. “Judge Cady ordered it. “Then they took the
bleachers and the lights, “and they took them out to some farm, “some white farmer’s farm “and they started playing out there, “so then we had file a second lawsuit “to get the bleachers
and the lights back.” And I thought, isn’t that remarkable? He had to file two federal lawsuits to get to play softball. But there’s been changes. As I look around the south, I see African-Americans now serving on county commissions, state legislatures. I see them in the school system. But I go to the courthouse,
and nothing’s changed. I go to the courthouse, and I look, and case after case after case, and the only person of color up there in the front of the courtroom
is the person who’s on trial. We know now beyond dispute
that a person of color is more likely than a white person to be stopped by the police. It’s what we call driving while black. We know they’re more likely
to be abused by the police. They’re more likely to put in a chokehold or otherwise abused. They’re more likely to be arrested during that encounter with the police. They’re more likely to be
denied bail than a white person when they get down to the courthouse. They’re more likely than a white person to be charged with a serious crime. They’re more likely to be convicted, and they’re more likely to
receive the harsher sentence. In Georgia, if you’re talking
about probation or jail time, for first offenders you’re
three to six times more likely to be put on probation if you’re white than if you’re a person of color. And part of that, I think, is because the Georgia
judges unconsciously, people who are trying to
do their job in good faith, but when they see that young
white man in front of them, they see a troubled youth,
and they wanna help. And when they see that
African-American before them, they see a thug, and
they wanna lock him up. Because of the long history
of legalized oppression. That includes slavery, includes lynching, includes convict leasing. If you wanna see the role that
the criminal justice system has played, read David
Oshinsky’s excellent book, Worse than Slavery. It describes how after emancipation the criminal justice system
in the south was used, and when you needed to get into cotton, you needed labor for some other reason, you just went out and arrested a lot of African-American
people on vagrancy charges, and literally worked them to death, because the sheriff would
lease them to the plantations, and it was actually worse than slavery. The two most important decisions in every death penalty case is made by one person, the prosecutor. The decision whether to
seek the death penalty is never required. And the decision whether or
not to plea bargain the case. 99% of the prosecutors in
this country are white. And every study that has been done, and they were all compared a few years ago by the General Accounting Office, and there have been more since then, showed disparities in the way in which the death penalty is used. The most recent was by
the Department of Justice, which looked at its own record
in use of the death penalty, and found that 3/4 of the people, and it’s always discretionary. There are all these crimes for which the federal government can
seek the death penalty. It’s fairly rare when it does. But in 3/4 of the case
where the federal government sought the death penalty, where Janet Reno signed
off on the death penalty, the person who was the defendant was a member of a racial minority, and in over half the cases
it was an African-American. Nationally, African-Americans, remarkably, although only 12% of the population, are the victims of half the murders that are committed in this country. Half. And yet if you look at death row, the people that are there on death row, 80% are there for crimes
against white people. And if you look in the Deep South, where we have far more larger
African-American population, in Georgia and Alabama, for example, where African-Americans are
65% of the victims of homicide, you still find 80, 85%. Georgia’s carried out 23 executions since the death penalty
was reinstated in 1976, and 21 of the 23 people executed have been executed for
crimes against white victims. And I found out why
that was in my practice. I was representing a
young African-American in the community that
sends the most people to death row in Georgia,
Columbus, Georgia. And I had read in the
paper where the prosecutor had called a press conference, and he had said after my
client had been arrested, “We’ve met with the victim’s family “and they want the death penalty “and we’re going to seek the death penalty “and we’re gonna get the death penalty.” And as we started looking, we noticed that this was pretty typical behavior. At that time, there were
10 prosecutors in Columbus, all white men. This was in a community
35% African-American. William Brooks was tried the first time. I represented him at a second trial after getting it reversed by a jury that didn’t have a single
person of color in it. The judge who presided over his trial, Judge John Henry Land’s
father Brewster Land had been involved in two very well-known and highly-publicized
lynchings in the community. And as I looked at what
happened in that case, it was clear to me that
what Brewster Land had done out in the community with
a rope and with a gun, Judge Land was doing in a courtroom by manipulating the way in
which jurors were picked, and the way in which the case was tried, and the lawyers who were
appointed to defend William. But what I became interested
in was the fact that over and over again, in
cases where a white person, particularly a person of any
prominence had been killed, they would be called into
the prosecutor’s office and they’d be asked, what
sentence do you want in this case? I remember talking to one fellow
who was a contractor there, and he said, “Yeah, the
prosecutor called me, “said do you want the death penalty “in the case where your
daughter was killed? “And I said, yes I do. “And he said, that’s all I needed to know. “And he got the death penalty.” And in the next election, when that prosecutor ran for judge, the contractor rewarded him with a $5000 contribution to his campaign. But then we went to people in the African-American community. We got all the obituaries,
we got all the crime reports, and we started going to family
after family after family, “Did anybody ever come to you
and ask you what you wanted?” And of course, what we
heard over and over again was, “Not only did
nobody call us and ask us “whether we wanted the death penalty, “nobody called us and even told us “what was going on in the case.” And I’ll never forget
when we took a recess during that hearing,
after all these families had come in and talked about their spouse or their son or their daughter or whoever it was that was killed. And there was a young
African-American man, Morris Comer, I still remember, who was testifying against my client. He was an event witness,
he had seen my client fleeing from the scene after the crime, and he was there for other reasons. And we called the recess,
and Mr. Comer came up to me and he grabbed my shoulder and he said, “Mr. Bright, the guy that killed my sister “is already out on the streets.” And then, of course,
my own client’s father, William Brooks’s father John Brooks, a man who’d served his country, made a career in the military, was shot and killed on the
streets of Columbus, Georgia. And I asked the prosecutor,
who so vigorously prosecuted my client at the first
trial and was now a judge, I said, “Judge Smith, did
you know about the death ” of John Brooks on the
streets of Columbus?” He said, “No, I never, I
don’t know who that was.” The death of this black man
hadn’t registered at all in the prosecutor’s office. And the death penalty
is a matter of place, because it’s places like Columbus, and places like Houston. It’s the white flight suburban communities which are the places which send
the vastly disproportionate number of people to death row. People ask me, why is it that
Houston has so many people sentenced to death, and
so many people executed? And the answer is two
words: Johnny Holmes, the district attorney in Houston. You commit a crime in Houston, you’re gonna get the death penalty. You commit the same crime
in Dallas, you’re not. Commit a crime in Philadelphia, you’re gonna get the death penalty. Commit the same crime in
Pittsburgh, you’re not. Just simply because of
who the prosecutors are. And the same is true in New York, the same is true in
Mississippi, the same is true. And even this federal
study that just came out, where would you guess, if you’re going to have
the federal death penalty for drug kingpins, you think, where are the drug kingpins in this world? Detroit, maybe, New York? Where would you think most of the federal prosecutions would be? Would you guess Norfolk, Virginia? (audience murmurs) But that, of the 94 federal districts, 40% of the cases in the
eastern district of Virginia, two in the New York districts, and Puerto Rico, whose
constitution provides that there will not be a death penalty, but they’re seeking,
just like they’ll do here in Wisconsin or maybe
you’re already doing, they go to Puerto Rico
and seek the death penalty in the courts there. When I talk about inequity,
I’m talking about poverty and the death penalty for poor people. The great Supreme Court Justice Hugo Black would say occasionally in
his opinions and his speeches that “the courts were
to be havens of refuge “for those who were
outnumbered, who were unpopular, “and who were despised.” Justice Black also said
there can be no equal justice when the kind of trial a person gets depends upon the amount
of money he or she has. And he said that in the case
of Gideon vs. Wainwright, in which a very close, I mean, excuse me, Griffin vs. Illinois, a very close case, five to four, in which the Supreme Court
held there was a right to transcripts, that
poor people had a right to a transcript of their
trial for purposes of appeal. As recently as just a few years ago, some members of the Supreme
Court of the United States, including Clarence Thomas
and Antonin Scalia, said they thought the Griffin
case was wrongly decided in giving poor people the
right to a transcript. That was in 1956. In 1963, in Gideon vs. Wainwright, the Supreme Court said that in our adversary system of justice, lawyers were necessities, not luxuries, and that a person can’t
be assured a fair trial unless counsel is provided. But we remain very far
short today of the guarantee of equal protection of the
law and due process of the law in the decisions of the
Supreme Court in Griffin, and Gideon vs. Wainwright. We all know, don’t we, that
the kind of trial a person gets depends upon the amount
of money they have. Anybody who’s suggested
otherwise would be laughed at. And in fact, Judge Alvin
Rubin of the Fifth Circuit, in upholding a death case,
was very candid about it. He said this, and I’m quoting from the case of Riles vs. McCotter, “The Constitution, as
interpreted by the Court, “does not require that the
accused, even in a capital case, “be represented by able
or effective counsel. “Consequently, accused
people who are represented “by, quote, not legally
ineffective, end-quote, lawyers “may be condemned to die. “When that same person if
represented by a competent lawyer “would at least receive a life sentence.” It doesn’t have the same
ring to it, does it, as Justice Black’s comment
that there can’t be justice when the kind of trial
a person gets depends upon the amount of money they have. Let me read it to you again. “The Constitution, as
interpreted by the courts, “does not require that the
accused, even in a capital case, “be represented by able
or effective counsel.” That’s in a decision
condemning a man to die, who was put to death
by the state of Texas. And there’s no question that it’s true. There’s no question about that. My client Judy Haney was
represented by a lawyer who stood up during her
trial to make an objection and fell over and couldn’t get up again ’cause he was too intoxicated. And Judge Jerry Fielding
there in Talladega just simply had the sheriffs pick him up, and he told the jury,
“We’re gonna dismiss court “for the day, we’ll be back tomorrow.” He sent Mr. Blair, the
lawyer, to the jail, along with Ms. Haney, my client. And the next morning he
produced both client and lawyer from the jail, and trial resumed. You might say, well,
that’s kind of dramatic, but what difference did it make? What difference did it make? That’s what everybody says to me. I’ll tell you what difference it made. Judy Haney killed her husband, a man who had abused her and
her children for 15 years. She testified that he had broken
her arm and broken her nose and abused the girl and abused the boy, that they had had it. And the prosecutor ridiculed and said, “Did you see any evidence
at all to support that? “She just made that up.” All you had to do was
go down to the hospital. The hospital records were right there, broken nose, broken arm,
other abuse to the children. It was never presented to the jury. Juries don’t know things
unless the lawyers tell them. The jurors that condemned
Horace Dunkins to die wrote to the governor of Alabama, said, “We would have never
voted to kill this kid “if we had known he was mentally retarded. “But we didn’t know because
no evidence was put on.” Because the lawyer never
bothered to go across the street to the school to see that he had been in special education classes. To see that he had an IQ of 56, that this was a profoundly
mentally retarded man that they had condemned
to die. It was too late. They had executed him. Three times it took. His father stood there and watched as the state of Alabama kept
trying and trying to kill him, and finally they did. Jack House, after he had been
condemned to die in Georgia, meets his lawyer in the jail, not because the lawyer’s
there to visit him, but because the lawyer’s there on state and federal drug charges. Two cases recently upheld, one in Missouri and one in Alabama, in which lawyers exploited their clients sexually. And I could go on with other stories, but let me take you to Houston, because that’s the capital
of capital punishment. And I wanna tell you about the trial of a man named George McFarland. This is the report of his
trial in the Houston Chronicle. “Seated beside his client
defense attorney John Benn “spent much of yesterday’s
trial in deep sleep. “His mouth kept falling open, “and his head lolled
back on his shoulders. “And then he’d wake up just
long enough to catch himself. “And it happened again,
and again, and again, “and each time he would catch himself “and he would sit upright,
and when he opened his eyes “there’d be a different
prosecution witness on the stand “describing another aspect of the case “against his client George McFarland. “And when the judge
finally called a recess, “Benn was asked, How could you sleep “when you were supposed
to be defending a man “in a capital murder case? “The 72-year-old longtime
Houston lawyer explained, “It’s boring.” Now, my students ask me, How does a judge preside
over a trial like that? How does a judge who’s taken an oath to uphold the Constitution
of the United States, including the sixth
amendment, right to counsel, sit in a case like that? Doug Shaver was the judge in that case, and Judge Shaver said,
“Well, the sixth amendment “guarantees your right to a lawyer, “but it doesn’t guarantee
you that the lawyer “has to be awake.” Now that’s what we call
a strict constructionist. (audience laughs) If ever there was one. And the sad thing about that is that this is one of only three
people in Houston, in one town, three people, George
McFarland, Carl Johnson, Calvin Burdine, all represented by lawyers who slept through their
death penalty trials. Just recently a federal
district judge in Houston, a fairly conservative
judge, Judge Hittner, granted Calvin Burdine relief, saying that the fact that his lawyer slept through long periods of time in his trial denied him his sixth
amendment right to counsel, and he made what I thought
was a fairly unremarkable observation in his opinion, he said, “A sleeping lawyer is the
equivalent to no lawyer at all.” The state of Texas appealed. Appealed to the United
States Court of Appeals for the Fifth Circuit, and I was there for the oral argument. So I’m giving you an
eyewitness account of this. But the Attorney General’s
Office for the state of Texas argued that they should
set aside that brand of habeas corpus relief,
that they should put Calvin Burdine to jail
because his lawyer put it, a lawyer who is sleeping is no different than a lawyer who is under
the influence of alcohol, a lawyer who is under
the influence of drugs, or a lawyer suffering from Alzheimer’s, and since the court had upheld cases in all of those instances. And believe it or not, the court engaged counsel on that issue. Judge Menaviste leaned
over the bench and said, “Well, counsel, don’t you
think there’s a difference “in a lawyer who’s intoxicated
and we can kinda see “how intoxicated he
is, and how bad he was, “there’s a difference
between an intoxicated lawyer “and a lawyer who’s completely
unconscious, isn’t there?” (audience laughs) And I must say, as a member
of the legal profession, I was embarrassed to be
there for this argument, and I was glad that a
group of fifth-graders didn’t come in there,
because I think the fact that the state of Texas
appealed that case, and the fact that they made that argument, and the fact that three federal
judges took it seriously, is a disgrace to our legal system. And I’ll tell you what’s gonna happen as soon as this election’s over. They’re gonna reverse that case because the other person represented by that same lawyer, Joe Frank Cannon, Carl Johnson, has
already been put to death by the state of Texas, and
there’s no relief for him, even though his lawyer
slept through the trial. It gives a whole new meaning to being represented by the Dream Team. (audience laughs) And yet, last year, when
the state of Texas adopted a indigent defense bill that was so modest it was an embarrassment how bad it was, the governor vetoed it. In the criminal justice system today, for reasons that I’ve
elaborated on elsewhere, and you can read the
details and the examples and the reasons, in the criminal justice system today, it is better to be rich and guilty than to be poor and innocent,
and that’s not equal justice. And at some stages of
the process of review, the Supreme Court has held that there is no right to counsel at all. In the state of Georgia,
a man named Xavius Gibson, whose IQ was found on
different tests to be 76 to 82, stood in front of a
judge at his very first state post-conviction hearing, and the judge says, “Mr.
Gibson, are you ready to go?” “Judge, I need a lawyer.” “You’re not entitled to a lawyer. “Are you ready to go?” “I don’t know what we’re doing. “I don’t know what’s going on.” “Well, you can call some witnesses.” “I don’t know who to call.” Here’s a man, mentally retarded
man, totally bewildered, standing in front of a
superior court judge, state represented of course
by an expert litigator that does nothing but
capital habeas corpus. And they let the state put on its case. And the judge would ask, “Mr. Gibson, do you wanna cross-examine?” “Cross-examine? I don’t
(mumbles) cross-examine.” “You ask questions.” “I don’t know what to ask.” “Well, then sit down.” That’s the way we decide
whether a human being is gonna live or die, a man
who’s mentally retarded, whose transcript of his trial
runs a full 400 pages long, the trial where he was condemned to die. In Texas, although somebody will tell you that people in Texas all get
complete review of their cases, I’m gonna tell you, and
I’ll cite you the case of Albert Cantu, whose
lawyer missed a deadline for state post-conviction,
missed the deadline for federal, and he was put to death without any state or federal review of his case, just simply because his
lawyer never came to see him and wasn’t aware of the
statutes of limitations that affected this case. In Alabama right now, there are 30 people that don’t have lawyers, condemned to die, have a right to go to court,
and don’t have lawyers, and there’s a one year
statute of limitations that’s already run on some of them. And they’re just sitting ducks and they’re gonna be executed. And that’s not equal justice. Not when Frank Keating can get a lawyer and go in and get habeas corpus relief, but the poor person convicted
and sentenced to die cannot. And the death penalty
is a matter of iniquity. The mentally ill, our
client Varnell Weeks, executed a few years ago, who
would stand in his cell naked and smeared in his own feces, talking to people that
no one else could see and hearing voices none of
the rest of us could hear. Charles Rumbaugh, who was only 17, who self-mutilated himself, and was given the right
by the state of Texas to withdraw his appeals and be executed. Pernell Ford, the most
recent person executed by the state of Alabama, who came to court dressed only in a sheet
wrapped around himself, waived his right to a lawyer,
turned over a counsel table, tried to call people who were dead as witnesses and put them on, and was allowed again
to withdraw his appeals and be executed. We are putting to death the
delusional, the paranoid, the brain-damaged, the
chemically imbalanced, the abused and neglected,
the mentally retarded, people who through no fault of their own have been punished and
tormented all their life. People that we sent to
Vietnam and subjected to the most awful trauma imaginable, who came back with post
traumatic stress syndrome, who came back addicted to drugs, who came back with various problems. There is a shocking
inequality in my opinion, that we would have such a
severe and extraordinary punishment for the poorest and
the most powerless among us, while those who sit in boardrooms
and plot the addictions of our children and a
whole generation of people, fraud, deceit, and lies, with the help of the power
lawyers that they can afford, pay no criminal penalties
whatsoever and live in luxury. We’re in a cynical time when people don’t believe in redemption, but I am here to tell
you that I have seen it in representing people. I represented a young
man named Tony Amadeo and had the privilege of arguing his case before the Supreme Court
of the United States, and I’ll just tell you real briefly. He wasn’t innocent. He was guilty at age 18 of
going AWOL with two other people from the Marines and going
to a little county in Georgia and killing a man for his wallet. No question he did it. He got the death penalty. We found out later that the prosecutor had rigged the juries
on the basis of race. He had told the jury
commissioners to under-represent African-Americans, so we got a new trial. And ultimately, through
a lot of hard work, we got Tony a life sentence. He called me a couple years ago to ask me to come to his graduation
from Mercer University. Here is a kid who, at age 18, just a little after his 18th birthday, the state of Georgia says
is so beyond redemption that he should be eliminated
from the human community. I saw him graduate summa cum
laude from Mercer University. And I know that people are
much more than the worse thing that they ever did in their lives. This punishment is corrupting our courts in the states where we have it. The governor of California
announced that he would campaign against justices of that
state’s Supreme Court unless they changed their
votes on the death penalty. They didn’t, and he did,
and he got Rose Bird and two of her colleagues
voted off the court. In Texas a man named Stephen Mansfield ran for the Texas Court of
Criminal Appeals after the court, one of the most conservative
courts in the country, and one of the most conservative
judges on that court, wrote an opinion setting
aside a death case, ’cause you can’t affirm every single case. I mean, the California Supreme
Court, after the purge, actually did affirm 100 consecutive cases, but most courts occasionally
find a case that for one reason or another has to reversed. And this particular case
had clear legal error. Judge Hamill wrote the
opinion setting it aside. This fellow named Stephen
Mansfield ran against him. Before the election it came out that Mansfield had lied
about where he’d been born. Most people know where they’ve been born. Lied about, said he’d never
run for public office before, he actually had. He said he had extensive
criminal law experience. He had none. He had been fined for
practicing law without a license in Florida, which was a misdemeanor. He owed $100,000 in back child support. All this comes out before the election, that the fellow has no
experience as a judge, no experience in criminal law. He’s running for the
highest court in the state. And the day after the election,
he had 54% of the vote. Judge Stephen Mansfield. The Texas Lawyer said he
was an unqualified success, which I suppose he was. (audience laughs) During a somewhat less
than distinguished career on the court, he has so far
been cited by the Humane Society for locking his dogs in
the car, windows rolled up, and arrested for scalping his
complimentary football tickets at the University of Texas football game. (audience laughs) Penny White was voted off
the Tennessee Supreme Court. Campaigned against her
for one death penalty case decided unanimously. We have been willing to
sacrifice the independence and the integrity of
our courts for results. And we are even willing, I understand, to sacrifice the innocent. I was in a discussion with
Congressman McCollum from Florida and he said at one point, “Well, you know we’re
fighting a war on crime, “and when you fight a war on crime, “there are gonna be some casualties, “some innocent casualties, “that’s just what you have to do.” When I went to law school,
they taught us that it was better for 10
guilty people to go free than for an innocent
person to be convicted, but today the poor, the black, the brown, it’s okay to execute a few innocent people to fight this war on crime. And increasingly, there is this
effort in the federal courts to reassert states’ rights, to go back to that era
before the federal courts came in and played such an important role in changing things, to
go back to that era, and we probably will decide
in the next few years whether we are going to take
a complete hands-off stance to what Texas, Georgia,
and all these states do, or whether we will continue to have some federal intervention, some supervision by life-tenured courts, as opposed to the elected courts. All these, our commitment
to racial equality, our commitment to fairness,
our commitment to decency, our commitment to the rule of law, have been sacrificed as
part of this war on crime and the death penalty has been the ultimate weapon in this war. There is a need to reexamine this war. There is a need to reexamine
a war that we’re fighting against our own people, that we’re fighting
against our own children, that we’re fighting
against the mentally ill and the mentally retarded. A war that has literally
become class warfare fought top-down against the poorest and the most powerless
people in our society. And we should be grateful to
the American Bar Association, to Governor Ryan and others, who have sparked this discussion. I hope those of you who
are at this law school, either have graduated or will graduate, will provide the leadership
that has so often been missing in the discussion of crime. I hope, if nothing else,
that you will refrain from the demagoguery that
has been so much a part of the crime debate, the
demeaning of the Bill of Rights, that’s nothing more than a
collection of technicalities. I hope you will refrain from
taking cheap shots at judges who abide by their oath
and uphold the Constitution even in controversial cases. But you can do so much more. You can help build
indigent defense programs in places that don’t have them, and in the Deep South states
we don’t have indigent defense. There is no public defender
in Georgia, in Alabama, in Mississippi, in Arkansas, in Texas. Often the indigent defense
business is just bid out to the lowest bidder, any lawyer who enters a
bid gets the business. Lawyers are appointed individually and are given token amounts of money. You can respond individually
by providing your services to the people who most
desperately need them. There are lots of desperate needs, and I’ve only talked about one of them. But I would urge you to think about this, because what I see in my practice is increasingly, the legal
profession becoming irrelevant and the courts becoming irrelevant to so many people in our society. If you’re Delta Airlines and you’re suing the bank, it’s great. You can get Griffin Bell and
you can get the big law firms, and you can get justice in our courts. But if you’re a poor person in prison, legal services lawyers can’t even represent prisoners anymore. If you’re a poor person like
Xavius Gibson on death row, without a lawyer, there’s no access to the courts whatsoever. If you’re a poor person
like Gregory Wilson facing the death penalty in Kentucky, who’s represented by a lawyer
who doesn’t have an office, who has inability to speak coherently, who has a big Budweiser
sign over his desk, who gives his client a card and tells his client,
“Call me at this number”, and when the client calls,
they answer “Kelly’s Keg.” It’s a bar. And the guy over and over again says, “Please, Judge, give me a real lawyer. “My life is at stake.” And the judge says,
“No, that’s your lawyer. “If you can get somebody else, great.” The money that’s available to be made in the legal profession today is obscene and an embarrassment to our profession, and it will make it more
irrelevant I’m afraid as time goes by, but I would urge you, those
of you who are students, to remember that it’s no sacrifice to receive the same income
as is received by teachers, farmers, people on the assembly line, and other good, decent,
hard-working men and women who give their lives every
day to their communities and to their families. And regardless of what the
national government does, and regardless of what
the Supreme Court does, and regardless of what the states do, you can show your commitment
by representing people, by going to communities
all over this country, where there has never been a lawyer who would question the status quo, never been a lawyer who would
give an African-American the same quality of
representation as white people, never been a lawyer
who would give the poor the same quality of
representation as the rich. You have, if you’re willing to
live modestly and work hard, what we do at my little office. Sometimes people say, “You
know, you’ve been practicing law “for 25 years and you’re
only making $25,000 a year.” And I say, “Well you’d
rather be doing something “and get nothing for it,
than be doing nothing “and getting something for it.” And some of us have the privilege of spending our whole lives
doing what Holmes talked about, wearing our hearts out in
pursuit of the unattainable, and very few people get to
spend their lives doing that. You have the opportunity to
become what Martin Luther King in one of his many great sermons called drum majors for justice,
people who would stand up and speak the truth no matter
how unwelcome it may be, and how uncomfortably it
may make the listener, and one who gives his or
her life to serving others, to feeding the hungry,
to clothing the naked, and particularly important for lawyers, to visiting those who are jail. And I encourage you to adopt his goal: “I just want to be there
in love and justice “and in truth and in commitment to others “so that we can make of
this old world a new one.” Don’t forget what one
lawyer can do in one case. Just like the Underground Railroad, moving people to safe
passage by giving them the consultation, the
investigation, the representation that they’re entitled to. And bearing witness to
the injustices that go on in the courts until we
do something about them. And raising larger questions, which I wanna leave you with as I close, that must be raised about
what kind of society do we wanna have? What kind of people do we wanna be? Do we have the courage to wrestle
with the moral ambiguities and the fact that some
people are much more than the worse thing that
they’ve ever done in their life? Do we have the humility to
recognize the fallibility of our court system? Do we have the courage to recognize the dignity of every person, even those who have
offended us most grievously? Do we want a vengeful society,
do we want a hateful society, a society that turns
its back on its children and then executes them,
that denies its mentally ill the medicine and the treatment they need, and then puts them to death when demons are no longer kept at bay? That gives nothing to the
survivors of the victims of crime than a chance to ask
for the maximum sentence and to witness an execution? The Constitutional Court
of South Africa addressed some of these questions
in deciding whether the death penalty was
appropriate for that country. And it unanimously concluded, in the words of one member of the court, that South Africa was
moving to a new time, it was a society in
transition, from one of hatred to understanding, from one of
vengeance to reconciliation. And that there was not a
place for capital punishment in that society, despite the crime rate, despite the violence,
and despite a history of racial violence and oppression. I think if we ask these questions
and examine these things and think about what kind
of people we wanna be, and wrestle with the
answers to those questions, I think we’ll conclude ultimately that, like slavery and segregation,
the death penalty is a relic of another era. And that we will finally join the rest of the civilized world in
making permanent, absolute, and unequivocal the injunction,
Thou shall not kill. Thank you very much. (audience applauds) You’re very nice, thank you very much. – Thank you very, very much, Mr. Bright. I’m sure I’m not speaking just for myself when I say that I had
very high expectations for this talk tonight, and
they were greatly exceeded. Thank you very much. Steve has agreed to respond to
questions for a few minutes. What I would like to do is, if you have a question
from the floor here, if you can speak, announce
it as loudly as you can. I’ll repeat it so the people
listening in the other rooms know what the question is, and then we’ll get the response. Then, before we completely disband, I have few final closing remarks to make. But anyone have any questions
for our speaker, please? Alta? – Political action often
follows a single dramatic scandal associated with
a known individual. In the death penalty area, it’s
always seemed like the proof that somebody who is
definitively shown to be innocent and yet was executed, is what will finally turn the tide politically. I’m wondering if you could
describe the likelihood of that occurring. I don’t know what the
state is of the evidence that’s retained after
execution for the possibility of using DNA evidence and
other kinds of technologies to look back on people who
have already been executed. – [Dave] I can’t short circuit phrase it– – I can paraphrase it real
quick, which is how likely is it that we might show that some of the people that have been executed
are actually innocent? As I said in so many cases,
in the Ninth Circuit, one of the dissenting judges
said this in the case of, a very dubious case in Tommy
Thompson’s case in California, said, “There are only two
people who are ever gonna know “what happened in this case. “One, the man we’re putting to death, “and one, the informant
who testified against him.” Same thing is true in
the Ronald Chandler case, the first federal death penalty case that is out of Alabama. Somebody kills somebody, they
get caught by the police, and they say, “Chandler put me up to it. “And Chandler wanted me to kill this guy “because he was gonna expose
his marijuana growing.” Now, Chandler says, “I didn’t
tell the guy anything.” And in fact, the evidence
was, this fellow had tried to kill the same person
on another occasion when clearly Chandler had
nothing to do with it. We’ll never know the
answer in those cases, in the misidentification cases. I was on a program just recently with a woman named Jennifer Thompson, a very remarkable woman
who identified a man. She lives in Winston-Salem,
North Carolina, and she identified a man,
and he was convicted of rape. And she told about, the crime
took a long time, 20 minutes, how carefully she studied
the face of the assailant while it was going on,
how convinced she was that he was the right man,
how when the case was reversed later on by the courts, there
was a rumor going around that another man had bragged
that he had done the crime. So at the trial, they brought
him in, she looked at him, she said, “No way, I never saw
this man before in my life.” She identified the other fellow again. He’s convicted a second time. And after 11 years, the
police come and say, “Jennifer, it wasn’t that
guy, it was the other guy “that bragged about it.” And she told her story, it’s been made into a Frontline program called What Jennifer Saw, about how convinced she was
absolutely to a moral certainty. Seldom do we have biological evidence that makes it clear that we’re wrong. One of the things that
she explained so well is the fact that you’re sure
has no relation whatsoever to the accuracy of the identification. But back to your main question. One of the things that’s
been very disturbing to me has been that in some cases where there has been some DNA evidence,
particularly in Virginia, the state has gone to great
lengths to destroy the evidence so that it couldn’t be tested. In the Joe O’Dell case the
state destroyed the evidence. Roger Keith Coleman, there’s
actually a book called May God Have Mercy, about
the Roger Keith Coleman case in Virginia that makes
the case that Coleman may very well be innocent of that crime. Turned out just recently,
within the last few weeks, they found out that a
crime lab in California actually still has the
biological evidence in that case. And the Richmond newspaper and some other people want to test it. And the state of Virginia
wants it back and is arguing that they’re entitled to
destroy that evidence. Now, it’s awfully hard. The state has possession of the evidence, and one of the things that’s
been extremely disturbing to me has been that, now that
DNA evidence has cleared a lot of people, and that’s the other
place that’s shown us, not just the 89 people
freed from death row, but the fact that the Innocence Project at Cardozo Law School has gone, I mean we had a fellow in
Atlanta who spent 16 years in prison for a crime he
clearly didn’t commit. The DNA evidence proved
conclusively he was not the person. So we know that the system
is making these mistakes, but it’s only a very small number of cases that have biological evidence. Usually it’s an identification, it’s circumstantial
evidence, often a confession. A lot of people think, well, surely somebody
that confessed to a crime would be guilty of it. Earl Washington is of
course a perfect example of a person who confessed to
a crime that he didn’t do. He was mentally retarded,
it was fairly easy to get him to confess. There was just recently a case in Texas where the DNA evidence proved
that a fellow who confessed because he was told if he didn’t confess and point to the other guy
he’d get the death penalty. So he did point to the other
guy, they both got convicted. It turned out both of them were innocent. But we often don’t have cases like that. I still think there may be, there’s a case in Georgia
called Wayne Felker who was executed. Medical examiner first said
the person had been dead a certain amount of time. Turned out Felker had an alibi. Changed it by two weeks, which
is a rather dramatic change. And the Atlanta Constitution
got the evidence, but I was just talking
with the reporter yesterday and she said they kept
the evidence so poorly that they’re not sure
they’ll ever be able to actually do the DNA test to
prove it, but they’re trying. They did get it and it’s in some lab. So that may prove that Mr. Felker was not guilty of the crime. So. I promise, it’s very hard
to prove you’re innocent. That’s why the requirement at trial is that you’re proved guilty
beyond a reasonable doubt. It’s very hard to prove a negative. Yes? – How do you explain the
fact that so many people in this country are in
favor of the death penalty? – Question was, oh excuse me. – (crosstalk) other Western cultures. Why is that? – Question was, how can this
country have so many people who are in favor of the death penalty? – Well, I would trace that to the emergence of crime as an issue. For a long time, the
favorite issue, of course, as you well know in Wisconsin, communism was a great
issue for people to use. Richard Nixon used it very effectively in getting elected to Congress
and moving his career along. Richard Nixon also realized in 1968 that that wasn’t working anymore, and when he accepted the
Republican nomination for President, he promised
to fire Ramsey Clark, the Attorney General of the United States. Of course, obviously it’d change if there was a change in administrations. Lee Atwater coached the Republicans on how to effectively use the crime issue. And of course, the Willie Horton ads were the icing on that cake
in destroying Michael Dukakis. And then of course,
Governor Clinton came back from Arkansas to make a big
deal out of putting to death a brain-damaged man named Ricky Rector when he was running in 1992, and was seen as having insulated himself from being accused of being soft on crime. I think the crime debate, when I referred to the
demagoguery on the crime debate, we haven’t really had a debate. We haven’t had a thoughtful
discussion about crime. What we’ve had is a sort
of ridiculous oneupsmanship about who can be the toughest on crime, who can be most in favor
of the death penalty, who can be most in favor of doing away with the review process, who can be most in favor
of life without parole. All of this sort of, how do
you show how tough you are, I think the death penalty
is a great sound bite for people to prove how tough they are. And nobody looks at
what’s actually going on in the courts of this land. I think George Will hit
it right on the head. People who don’t think the
post office works very well ought to go down and see
how the court system works. Particularly the criminal court system, where poor people are involved. I go to courthouses all
over the south and I watch, and I’m talking about just regular, this is something we ought
to be very concerned about, because people in these
communities see this. I go to a courthouse, it
looks like a slave ship has docked outside the courthouse. And this group of
African-American men are herded into the courtroom, literally herded in. And then they call the docket. We were just up in Green
County the other day, they called the docket,
and many of the people plead guilty even in felony
cases without a lawyer. They’ll come up, “You have a lawyer?” “No, I don’t have a
lawyer, I’ve been jail, “how would I have a lawyer?” “Well, talk to this guy,
who’s the prosecutor.” Other people, they appoint
one of two contract lawyers who’ve never talked to
these people before. They whisper around for a little while. Whisper around for a little while. And then they plead guilty,
and then they’re sentenced. And the other day, Monday,
as they were leaving, one of the mothers of
one of the clients says, they’re going downstairs, said, “Gosh dern, that’s a railroad in there!” And interestingly, we
came back after lunch and the judge took the bench,
who hadn’t heard that comment, and the judge banged the gavel and said, “Alright, let’s get this train running.” (audience laughs) And you know, Clarence Darrow said the criminal justice system
was the only railroad in America that worked. (audience laughs) But I think that the fact
that the people are poor, the fact that we’re dealing
with mostly minority people, we’re destroying the black community with criminal justice
policies that we have, not just the death penalty,
but the fact that we’re locking so many people
up, locking people up on all these drug charges. I don’t think those policies
would ever be acceptable to the American people if
they applied to white people the way they apply to black people. I don’t think they’d ever be acceptable to the American people if they applied to middle-class people or other people. But I think most people, I
think when Congressman McCollum says that it’s okay to
execute an innocent person, I don’t think he’s thinking about himself or a member of his family. It’s the Other, it’s
these people I didn’t, and the crime debate is
very much like the debate that we have over war. We’re conditioned to believe
that people that we kill in war are not really human beings. That they’re demons, that
they’re gooks, that they’re Japs, that they’re dehumanized in some way. That’s exactly what we’ve
done with the crime debate, that these people are animals, that they’re predators, super-predators. You know, I’ve practiced
criminal law now for 25 years. If there were any
super-predators out there, I would think I’d have
met at least one by now, because I’ve done nothing but capital work for the last 20 years. And I’ve yet to meet the monsters. I read, the picture of a child, after one of these school
shootings, it says, Monsters. I’ve never met a monster in the people that I’ve represented. I’ve met some people that
have had some hard times and done some hard things,
and certainly some people that ought to be punished, people the community needs protection from and ought to be punished severely. But this whole notion that there are these disposable people,
these animals and predators, I think has contributed
immensely to the popularity. And I think now what’s happening is that when you see a Karla Faye Tucker, and when you see an Anthony
Porter, and all that, and you realize the human cost of this, that maybe, maybe that will, Tap, my real worry about
what’s gonna happen is that after this
election, that nobody’ll pay any attention anymore. Because while everybody’s
paid a lot of attention to Texas this year, just two years ago Koppel had a program on
Nightline where his theme was, we’re killing all these people down here and nobody even knows about it. Even the people in Hunstville, where the executions are taking place, don’t know what’s going on. There just (snaps fingers) You know, people are coming through, it’s not even in the
local newspaper anymore. And that’s what’s most worrisome, because when the death
penalty become routine, as it has in the south, I mean, now the judges don’t
even give an oral argument in a lot of cases. I mean, they decide them on a phone call. And that would’ve been
unheard of 25 years ago. And now it’s just, it’s a
death case, get it out of here, let’s get to something really important, like some corporate
law thing or something, a bread and butter case, not a death case. And we’ve got a lot of judges now that never have ever voted, Judge Luttig, mentioned often as a
Supreme Court possibility, he’s never voted in his life
to reverse a death case, in his career on the Fourth Circuit. He’s been on there for a long time, ever since President Bush appointed him. Edith Jones never reversed
a death case, never will. I mean, that’s only half the
story, they’re never going to. And if they get on the Supreme Court, they’re never going to. But at any rate, I’ve gone beyond. You had a question. Yes, ma’am? – I was wondering what, do you think that the
changing demographics of this country is going to affect this issue politically eventually? For example (room noises obscure speech) …the constituents out of there (room noises obscure speech) – [Stephen] I hope so– – Question was whether
the changing demographics of the country will eventually
have an impact on this issue. – Well, I hope so. I think Texas is an interesting state to look at in that regard. Before long, Texas will be
roughly a third Hispanic, a third black, a third white. The Texas Court of Criminal
Appeals, all white. No Hispanic, no African-American, they’re deciding the lives of thousands of brown and black people every day, I mean every year, on that court. I think if the courts
don’t, at some point, begin to reflect the society more, and I’m talking about
trial judges, juries, appellate judges,
prosecutors, all of that, I think our courts are not
gonna have much legitimacy or respect in the public. But we have so far to go to catch up, because we’ve discriminated
for so long on people of color becoming members of the legal profession. I mean, in Georgia, you couldn’t
even go to the law schools in the state if you were a person of color until just a short time ago, I mean short in the
great scheme of things. And now, after the Hopwood decision, we have a lot of law schools
that have very, very small racial minority enrollments. And I think that’s a real
problem for the legal system, and I don’t understand
this resistance to it, because it seems to me that
it just makes common sense that if you’ve got a very diverse society, that diversity can be a
strength if you have it there. I mean, if you read the tributes
that some of the justices, particularly O’Connor, wrote
about Thurgood Marshall, it was like, “Holy mackerel! “I didn’t know they did things like that! “They discriminated against
black people in the south!” You know, because here
was a guy who had actually been told, “You better be
out of town by sundown.” And you read that piece that she wrote in the Stanford Law Review
about Thurgood Marshall, and it’s like a whole world
that she’s never known, being told by this fellow
justice on the Supreme Court. I mean, that diversity is
valuable for our courts. We don’t have that on most of our courts. And I think, as I said, I think that hurts their credibility and so forth. So politically, it may be. I think this year we’ll see
what happens in two weeks. I mean, it will be interesting, although that’s probably
not the major issue in this campaign, or maybe
it’s not an issue at all. But I thought it would be
interesting if a candidate, I guess we’ll know something is changing if a person loses an election because they’re too tough on crime, as opposed to being soft on crime. But if the governor of Texas
can get elected to office, not to, with what’s going on in Texas, and with the sort of charade that goes on in those courts there, I don’t know what that says about our commitment to
fairness and due process. – I’m very reluctant to cut this off, but I think I need to
close the formal portion of the program before too
many people have to leave us. Again, there will be a
reception beginning in a moment. I have one final order of
business to take care of. On behalf of the law school
and university, Steve, I wanna thank you very much for your fine presentation today. It is a tradition at this law school to offer a very modest but heartfelt token of our appreciation for
speakers in your position. And if I could be tolerated
about three sentences of background so people
know what you’re getting. – Me too. (audience laughs) – This current law school
building is about the fourth version that has been on
this site over the course of 100 years or so. The original law school
building was a red brick semi-gothic structure
that had the old-fashioned gargoyles up on the
corners of the building. One of those gargoyles survives, and is in all his or her
glory out near the glass doors on the second floor of this building. Several years ago, we cast
some of those gargoyles in miniature, and it has
been our custom to provide those to speakers who
have done such a fine job. So. (audience murmurs) This will be yours. (audience laughs) – [Stephen] I don’t know what
to say! (audience applauds) – The gargoyle says, “University
of Wisconsin Law School, “to Stephen B. Bright, “the 2000 Thomas E. Fairchild Lecturer.” – Thank you very much. Thank you, thank all of you for coming, I appreciate it. (audience applauds) – Thank you. It’s heavy. (words obscured by applause) – Okay, alright, thank you. – The reception will follow. As I mentioned, it is
the Sheldon Lubar Commons on the seventh floor of the
Faculty Tower, room 7200. We have some people outside the doorway if you need some help getting pointed in the right direction. They will be happy to do that. Thank y’all very much.

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