The Fear of Too Much Justice: Stephen Bright & James Kwak
September 28th, 2023
“The fundamental problem is that we do not have a level playing field between the prosecution and the defense.”
Stephen Bright and James Kwak are co-authors of The Fear of Too Much Justice: Race, Poverty, and the Persistence of Inequality in the Criminal Courts. Stephen Bright has been an advocate for death row inmates for four decades and was the long-time director of the Southern Center for Human Rights, where James Kwak is the immediate past chair.
We do not have a level playing field between the prosecution and the defense. Inequality and injustice in the criminal legal system is made worse by the widespread lack of capable defense attorneys for poor people. If you're accused of a crime, a good lawyer can tell you what your rights are and can conduct an investigation to uncover new facts that might show your innocence. Unsurprisingly, over 90% of convictions are acquired through plea bargains, instead of through trials.
Listen to our first conversation with Stephen:
https://www.futurehindsight.com/episode/stephen-bright
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Credits:
Host: Mila Atmos
Guest: Stephen Bright & James Kwak
Executive Producer: Mila Atmos
Producer: Zack Travis
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Bright & Kwak Transcript
Mila Atmos: [00:00:04] Welcome to Future Hindsight, a podcast that takes big ideas about civic life and democracy and turns them into action items for you and me. I'm Mila Atmos.
A theme we return to often on this show is how the health of our democracy, of our civic life, can be seen in how we treat our fellow citizens. How we, as a society, choose to deal with the most vulnerable among us, but also how we deal with the most despised among us. If we look at the American criminal justice system, it is hard to conclude that this is a healthy democracy. That was my abiding sense upon reading The Fear of Too Much Justice: Race, Poverty, and the Persistence of Inequality in the Criminal Courts. The authors of this thought-provoking and empathy-inducing book join us today.
Stephen Bright has been an advocate for death row inmates for four decades and has argued and won multiple capital cases before the Supreme Court. He was the longtime director of the Southern Center for Human Rights and currently teaches law at Yale and Georgetown Universities. Steve's co-author, James Kwak, is immediate past chair of the Southern Center for Human Rights and a former professor of law at the University of Connecticut.
We had Steve on in 2019 to talk about poverty and the death penalty, and I recommend everyone listening today to revisit that episode, which we'll link to in the show notes.
Welcome back, Steve, and welcome, James. Thank you both for joining us today. Stephen Bright: [00:01:44] Thank you so much for having us.
James Kwak: [00:01:46] Thank you. It's a pleasure.
Mila Atmos: [00:01:49] So I wanted to start with empathy because it's this quality that's so vital to justice and so lacking in our justice system. And I wanted to start there because when we're thinking about these systems, these machines of the state, it's hard to keep sight of humanity. It's also hard to keep sight of humanity when dealing with individuals who have perpetrated truly horrendous crimes. And yet each of you has
made a career out of finding the humanity and the empathy to do this work. And I wanted to ask, why is it so important to hold on to that? And what do we lose when we abandon it? Do you want to start, James?
James Kwak: [00:02:28] Yeah. So one thing that we say often at the Southern Center for Human Rights, which is probably something that Steve started saying first, was that every person is more than the worst thing they've ever done or more than the worst day of their life. We've all had days that we would like to forget. We've all had things that we've said we wish we hadn't said, and things that we've done that we would like a chance to do over. And I think, you know, the importance of empathy, as you say, is it exists along the entire spectrum of criminal cases. So in death penalty cases, which are some of the most high profile cases, often you're dealing with people who have done terrible things. But we have to realize that, again, they are more than the worst thing they've done, although it doesn't excuse the crime they may have committed. Often their acts are the long term product of decades of abuse and neglect. Often mental illness is involved. And so we have to be able to understand that every person accused of a crime is a person, and we want to be able to understand them and hopefully try to find a way to address the wrongs they may have committed, but also enable them to live a productive life. At the other end of the spectrum, the criminal courts process thousands of people in a very routine fashion. These are people accused of relatively minor crimes who may face small amounts of prison time or probation, and they are treated essentially like a machine. There will be days in court when dozens of people will plead guilty, essentially at the same time to crimes with very little legal representation. And in the eyes of the prosecutor, these may be small cases, they may be unimportant defendants, but it is for that person and their family at that moment, it's literally the most important thing in the world going on. And I think that it's important not to lose sight of that.
Mila Atmos: [00:04:11] Right. What about you, Steve?
Stephen Bright: [00:04:13] Well, I think too, a lot of times, a lot of anger, hatred and whatever is visited upon people for all the reasons James talked about. But the one thing we have to remember is a lot of times these people are not guilty of whatever it is they're accused of. And unfortunately, one of the things that we have seen over and over and over again is people who are arrested and prosecuted and sometimes
convicted of capital crimes, sentenced to death. And then we find out 30 years later, they were not the person who actually committed the crime. So knowing there's a person there and that, you know, our system is a very fallible system, it makes a lot of mistakes. And the actors in it don't have the humility that we ought to have with regard to that.
Mila Atmos: [00:04:55] Mm hmm. Yeah. We'll get to talking about people who are wrongly accused and convicted anyway, even though they're innocent. But I feel like I want to quote you here, Steve, from something you wrote back in 2004, in the volume "Debating the Death Penalty," because this really nailed for me why this is a conversation about criminal justice, but also about civic life and democracy. "It can be argued that rapists deserve to be raped, that mutilators deserve to be mutilated. Most societies, however, refrain from responding in this way because the punishment is not only degrading to those on whom it is imposed, but it is also degrading to the society that engages in the same behavior as the criminals." And from there, I felt like it might make sense to talk about the book's title. James, it's a quote from a dissent by Justice William Brennan in the 1986 Supreme Court case, McCleskey versus Kemp. What was Brennan describing as a fear of too much justice?
James Kwak: [00:06:03] So in this case, Warren McCleskey was a Black man who had been convicted and sentenced to death in Georgia for killing a white police officer. And in his defense, his defense team commissioned an exhaustive statistical study of homicides that had been committed in Georgia for the past couple of decades. Thousands of cases, literally. And they concluded essentially the following: that if you had killed a white person, you were more likely to be sentenced to death than if you killed a Black person. If you were a Black person, you were more likely to be sentenced to death than a white person. And if you were a Black person who killed a white person, you had the highest odds of being sentenced to death. So the defense argument was essentially "this is racially discriminatory and it's arbitrary because nobody would say that your race or your victim's race should be a factor that determines if you are sentenced to death." The majority of the Supreme Court, five justices ruled against McCleskey, and they did not particularly try to contest the findings. What they said was that it didn't matter because essentially McCleskey had committed a crime for which the death penalty was a possible sentence. And on this question of discrimination, the majority opinion said essentially, if we're going to interfere in death penalty sentencing
because of a disparate racial impact, we would also have to interfere in other kinds of sentencing long prison terms, for example. And we might have to listen to claims brought by other groups other than African-Americans, perhaps other minority groups, perhaps women. And essentially, the majority said this is kind of a slippery slope we don't want to go down. And in dissent, Justice Brennan said this sounds like a fear of too much justice because, you know, obviously if there's discrimination in long prison sentences, we should combat that. If there's discrimination against Latinos, discrimination against women, that is something the Supreme Court of the United States, of all the institutions in the world, should not be content to allow. But essentially that is what the Supreme Court said in that one case. And since then, in the Supreme Court, essentially, you cannot bring a case arguing that the death penalty was imposed in a racially discriminatory manner because that holding of the Supreme Court is still the law.
Mila Atmos: [00:08:16] Right. So, Steve, you know, this quote from Justice Brennan is from 1986, but you started this work well before then, and you have been working with people who are condemned to die on death row. Tell us when you first noticed this fear of too much justice and who are the people that you are normally helping?
Stephen Bright: [00:08:38] Well, I think that explains and that's why we titled the book with that statement by Justice Brennan. It explains so many other things. One of the first things that I noticed when I was asked in 1979 to represent somebody facing the death penalty, you know, why, why me? And the answer was because the person didn't have a lawyer, we'll take anybody we can get. And I took this case along with a couple of friends of mine and was just absolutely shocked by the quality of, or the lack of quality of, the lawyering at the trial. It was just abysmal. The trial is very short. It's very perfunctory. The lawyer just gave sort of a generic closing argument against the death penalty, which was not a very effective argument because all the people on the jury had to be agree to impose the death penalty. So they weren't going to buy that. And as I took other cases and got more involved, I kept seeing race playing such a role. Not only the role that James just described in terms of who's prosecuted and who the victims are, but jury discrimination. I was going around courtrooms and in communities that had a fairly substantial Black population. And yet you go in the courthouse and the judge is white, the prosecutors are white, the court appointed lawyers are white. All the 12 jurors in the box are white. Even though you're in a community that maybe 20%, 30% African-
American because of discrimination would continue to go on in jury selection. And every time we sort of talk about, "well, we shouldn't really tolerate this," there's this sort of, "Well, we really can't go that far. If we gave everybody good lawyers, well, you know, more people would be acquitted." Of course, that's the way the system is supposed to work. But so this fear of too much justice comes up in a lot of different areas where we really know what we ought to do, but we're just not willing to do it.
Mila Atmos: [00:10:27] Yeah, well, reading the book, you know, the data and the evidence that you put forth are depressingly solid and that the outcomes for defendants based on race and wealth are pretty clear. You know, basically, if you're Black, you're poor, you're mentally disabled, you essentially don't have access to justice, which is what you said just now. But the book is also about the other participants in the system, lawyers -- some of them no good, terrible lawyers. Steve, your career started in reaction to hopelessly inadequate defense lawyers, which you again also just mentioned. And both of you have spent decades dealing with overzealous, unethical prosecutors who don't want to acquit anybody. So much of the power in the criminal justice system rests with prosecutors. Can you explain this imbalance of power between prosecutors and the defense?
James Kwak: [00:11:20] Yeah. So I think in the United States, one of the principles of our legal system is that it's an adversary system which we inherited from England. And the idea is that in any case, there are two sides and each side should have an opportunity to marshal evidence put on its evidence, test the other side's evidence and try to convince a jury that their side is correct. This is true in civil cases and in criminal cases. And I think that in principle, most Americans think this is a good thing. And this is an example of one little thing Steve said of things that we know we ought to do. We know there ought to be a level playing field in criminal cases between the prosecution and the defense, because to begin with, not everybody who's convicted of a crime is actually guilty. So as a starting point, we should want to find out what actually happened. Unfortunately, in this country, criminal courts are not a level playing field, and the prosecutors in general have much more power than defense attorneys, particularly if, as is the case in most cases, the defendant cannot afford their own lawyer. And the power of the prosecution stems from a few things. One is information. One is that the prosecution can draw on the investigations done by law enforcement agencies and has no obligation, with a very minimal exception, has no obligation to
share that information with the defense attorney. And on the other hand, defense attorneys for people who are poor, they range from overworked to incompetent. And that's a legacy of of the Supreme Court. So in the 1960s, the Supreme Court said that if you are accused of a crime and facing potential loss of liberty, you have the right to a lawyer. But there are two problems with that. One is that the Supreme Court didn't explain how to pay for this. So the mandate to provide lawyers to poor people fell upon states and local governments, counties and cities that didn't have the money and in many cases didn't want to provide effective lawyers for poor people. So what we have today is a patchwork of systems. Some states have public defender systems. In some places, though not very many, but in some places the public defenders are probably better than the private lawyers that you would be able to hire for yourself. But more often they are heavily overworked and underpaid and simply do not have the time and resources to do an effective job. And then there are many states that don't have public defender systems where attorneys are appointed by the judge and they may or may not be be competent. So you have this imbalance in the resources of the prosecution and the defense. And then on top of that, you have, you know, one thing we talk about in the book, for example, is jailhouse snitches. So prosecutors have the ability to essentially pay witnesses for their testimony by agreeing to drop charges against people if they will testify against a defendant. So these problems have been investigated in numerous jurisdictions where there's essentially a system whereby jail officials and prosecutors will cooperate to put a snitch in a position where he can say that he overheard a defendant confess to a crime and many, many people have been convicted on this basis. So there are more factors to this imbalance. But again, one of the fundamental problems is that we do not have a level playing field between the prosecution and the defense.
Mila Atmos: [00:14:35] Well, when I was reading your book about, you know, in the chapters about the prosecutors and the judges, and the courts for profit, and the probation for profit, all of these things, it reminded me of a book by Joanna Schwartz. It's called Shielded, and it's a book about the intricate web of laws and practices that shield bad police officers. And what you're describing is very similar, that it basically shields... I want to say it shields justice from being served. One question I have here is why is there so much evidence that is hidden by prosecutors? Does the system incentivize that behavior? Meaning like, is it because so many prosecutors are elected, or judges are elected, or what is the reason why they would want to do that?
Stephen Bright: [00:15:27] Well, one of the things I would just say quickly about Joanna Schwartz's excellent book, Shielded is, as she points out, this immunity which police officers have, which no matter what they do, seems like there's no way to sue them successfully, which is made up out of the whole cloth by the Supreme Court. Didn't have to be there. It just is. And it results in an awful lot of injustice. I think with regard to the question about why this happens, I think one part of it is, as James said, it's an adversary system. The nature of a very competitive system is that each side wants to, you know, have the advantage and wants to win its case. In some ways, that's the way it ought to be. But unfortunately, that sometimes creates a temptation to maybe hold your cards very close to the vest. We have this strange doctrine in the United States that if there's evidence of innocence, the prosecutor is supposed to turn it over to the defense. But the prosecutor who's convinced that this person is guilty may talk him or herself out of really thinking that this is evidence of innocence. And, of course, the prosecutor has no idea what the defense in the case is. The other thing is, in many jurisdictions, the police and prosecution files are, as James said, not available to the defense. But in some it is North Carolina after a number of cases were reversed after the prosecution files were disclosed. And it turned out that all sorts of information had not been presented to courts, you know, adopted a law where in the future, instead of prosecutors deciding what to disclose, all the police and prosecution files are turned over to the defense. And so you don't have a trial by ambush. You actually have you know, you have a trial about the facts and everybody has access to those facts. So that's one thing that, as we point out, would make a huge difference. And unfortunately, in a lot of places, there's a fear of making that sort of information available to the defense.
Mila Atmos: [00:17:26] Mm hmm.
Mila Atmos: [00:17:29] We're taking a short break to share about a podcast called
Doha Debates, and we'll continue with Stephen and James when we come back.
Joshua Johnson: [00:17:39] Hey there. I'm Joshua Johnson, one of the hosts of the Doha Debates podcast. In an increasingly polarized world, it's becoming harder and harder to have civil conversations on the Doha Debates podcast. We're finding a better way to talk about challenging topics. Join us every two weeks as we bring together people with different opinions on a pressing global issue for a spirited but respectful
discussion. Should we ban animal experiments? Are some sports too violent for children? Does artificial intelligence help or harm the creative community? Listen as our guests tackle these topics and others in an attempt to find common ground. The Doha Debates podcast is a production of Doha Debates and FP studios. Listen at Dohadebates.com/podcasts or wherever you get your podcasts. You can also watch on YouTube at Doha Debates.
Mila Atmos: [00:18:39] And now let's return to my conversation with Steve Bright and James Kwak.
So I wanted to turn back a little bit here about the fact that prosecutors are elected. I think it's in 45 states, almost all the states, prosecutors are elected. What effect does that have on the justice system and on outcomes?
James Kwak: [00:19:00] Well, I think in most cases, it has a very clear and easy to understand effect. In this country, many people are afraid of crime. I would say that in many communities that's essentially an irrational fear of violent crime that virtually does not exist. Prosecutors who are elected typically run on a platform of fighting crime, of locking up criminals. And what does that mean? It means that when they are in office, they have an incentive to try to win as many convictions as they can and try to lock people up for as long as they can so that they can then use that as their platform to run for re-election or eventually to run for being a judge, which is there's a considerable prosecutor to judge pipeline in many places in this country. And as Steve said, in an adversary system, the prosecutors are out to win at any costs and that that affects them in a lot of ways. As as Steve said, one is that once they have settled on a person whom they have accused of a crime, they get tunnel vision. They they have fixed in their minds that that person is guilty. That makes it difficult for them to evaluate the evidence impartially. And as a result, they do not turn over exculpatory evidence which they are supposed to. Another effect is that they can use special powers. They have to get as many convictions as possible. So the prosecutor has the power to decide what charges to bring against a defendant. And this matters because the prosecutor can say to a defendant, I'm going to charge you with several felonies, and if you go to trial, I'm going to win because I win most of the time for the reasons we've talked about. And you're going to go to jail for 25 years. But if you agree to plead guilty, I will reduce the charges against you and you will only go to jail for, say, two years and then you'll have probation
for four years. And the defendant doesn't know how strong the prosecutor's case is for reasons we've talked about, is legitimately afraid of going to prison for more than 20 years and typically will take the deal. And that's why over 90% of convictions are acquired through plea bargains, not through trials. And that's why prosecutors win so many times, because they've the ability to put pressure on the defendant that without a capable attorney, they have little chance of resisting.
Mila Atmos: [00:21:10] Well, you said something interesting here that, you know, in order to win elections, they run on these platforms to be tough on crime. And you also mentioned that the American public is irrationally afraid of violent crime, but the American public is also really into severe punishment. I do think that the death penalty is popular with a lot of Americans, and that's why these tough on crime platforms are so popular. But there have been some progressive prosecutors who've been elected, although, of course, some have faced challenges from either recall elections or, in the case of Florida, being removed from office by the governor for endangering the public by being too lenient. So how can justice be served if justice is so political? And I know that you have some examples in the book about how we can have more justice-minded prosecutors and judges.
Stephen Bright: [00:22:05] Well, one thing you would say about prosecutors, of course, is there are 50 states and a lot of jurisdictions within those states. So there are differences and there certainly are some prosecutors are more careful, who are more conscientious, who disclose all the information in the process of getting ready for a trial. And as you point out, there have now been all over the country, a number of people who have run for office as prosecutors on a platform of not seeking the death penalty, not trying to hold people because they can't make bail on minor charges, using that tremendous discretion that prosecutors have, in a different way. And so we are seeing a completely different approach to prosecution, at least in some places like Philadelphia, where Larry Krasner was re-elected recently after serving one term. Chicago, Kim Foxx, who was the prosecutor. But as you point out, in Florida, Governor DeSantis has removed two prosecutors from office, one in Tampa and one in Orlando. Just sort of on a whim because he thought that he could say they weren't really doing what they should be doing. I mean, this is after these people have been elected by the voters, you know, in those two jurisdictions.
Mila Atmos: [00:23:15] I want to dig in a little bit deeper here on making justice accessible. Short of changing the system entirely, there are concrete things that you talk about, such as increasing the standard of representation, meaning the quality of lawyers, funding proper public defender programs, bail reform, mitigating for racism in jury selection. Of these, which one would you say is your top priority? Where would you start?
James Kwak: [00:23:43] Well, I think that the most fundamental problem when we talk about inequality and injustice in the criminal legal system is the widespread lack of capable defense attorneys for poor people. Because the right to a lawyer is the most important of all of your rights. First of all, if you're accused of a crime, you don't know what your rights are unless you have a good lawyer who can tell you what they are. And even if you have rights, for example, you have a right to a trial. Well, the right to a trial isn't worth very much if you don't have a lawyer who can actually conduct an investigation and, you know, uncover new facts that might show your innocence and so on. You have rights during a trial. You have a right, for example, not to have the prosecutor introduce irrelevant material in evidence or irrelevant statements in closing argument. Unless your defense attorney objects, essentially, you have waived those rights. So I think that the the quality of representation for poor people is is really the most important thing to be fixed in this country. Unfortunately, it's not a cheap fix. Again, there are a couple of reasons why the right to counsel is essentially nonexistent in many parts of the country. One of them is a Supreme Court that routinely overlooks examples of bad lawyering and essentially says that the lawyer was behaving strategically or something like that. But the other one is money. It costs money to provide competent attorneys to all people. But I will say it's not a lot of money. I mean, when we talk about the money it would take to provide competent representation to people accused of crimes in criminal courts, you know, we're not talking about aircraft carriers. If you look at the money... is there. It's a question of societal priorities. And as Robert F Kennedy said 60 years ago, the poor person accused of crime has no lobby. There are too many Americans, I think that, as you have said, are either afraid of violent crime or who believe in the merits of punishment or who think that, well, okay, we may be locking up some people who are innocent of the crimes they're charged of, but they're probably guilty of something. And that is, you know, that is racism and classism and all sorts of, you know, a lack of empathy about about other human beings. I think that, you know, if
this were actually an important priority, we could find the money. I mean, we're not talking about overhauling the health care system here.
Mila Atmos: [00:26:02] So what would an effective public defender program look like if we had the money? How would you roll this out?
Stephen Bright: [00:26:09] Well, you could look at a couple of states that provide a pretty good example: New Jersey, Colorado. In both of those states, you have statewide public defenders. You have enough lawyers that they can do the work. They have reasonable workloads so they can do the work that needs to be done on each case. They're paid competitive salaries, the same salary that you would get if you were a prosecutor. So you keep people in those systems. You build those systems. And so you not only have competent lawyers, you have recruitment of competent lawyers, You have training so that lawyers are competent, You have supervision of what lawyers do so that they improve, so that if they're making mistakes or if they're not doing a good job, you pull them out, replace them with somebody else. There are other more local programs like in Washington DC or the Bronx or Brooklyn, where we have very good public defender offices. So the models are there. It's clear what needs to be done. Unfortunately, in many places the funding is at the local level. So you've got a county commission, say in Pennsylvania, which you know really don't want to spend much money on much of anything. If it does spend money, want to spend it on paving roads. It may not be an appreciation of how important it is that there be effective lawyers for people accused of crimes.
Mila Atmos: [00:27:26] Well, one of the other things that really struck me in the book is how unfair juries are and how easy it is to manipulate jury selection. In your mind, how could jury selection be improved to at least take into account the racist outcomes of our current system?
Stephen Bright: [00:27:43] I mean, one of the things is I was talking about earlier that we see is, juries that don't at all reflect their communities. And this is not just in one case, this is in case after case after case. And for throughout the history of the United States, people of color have been excluded from juries. At one time, they weren't even allowed to register to vote after the Civil War. In many places there were jury commissions that then decided even of the people who were on the voting rolls, which
ones got in the jury pool. But then the one thing that's still here today is the power in every state, except one, of a prosecutor to exercise jury strikes, to eliminate people from jury service. As most people know, if you've ever been called to the courthouse for jury service, a number of people are called in. The people that have some conflict, they have hardship or for whatever reason, they can't serve. But if the people that are left each side exercises a number of peremptory strikes, usually, let's say ten, it's different in every jurisdiction and different in different kinds of cases. But from the group of people that are there, the the parties strike until there are 12 people left to be the jury. And unfortunately, we continue to see this practice of striking people based on color. And at one time there was a lot of criticism of it. And the Supreme Court about 30 years ago said, "well, we'll do something about it. It shouldn't happen." And if the defense lawyer objects, which goes to James's earlier point, if the lawyer doesn't object, nothing happens. Go right ahead. But if the lawyer objects, the prosecutor has to give reasons for the strikes of, let's say in this example, Black people. And you can see that probably is not going to work because the judge has to decide, is that the real reason or is that a pretext the prosecutor is giving? And the judge is probably going to be pretty reluctant to call. The prosecutor is probably his friend and who he may work with at one time, when the judge was a prosecutor. Very reluctant to say you intentionally discriminated on the basis of race and the Supreme Court has said that very trivial reasons, like the fact that a person had a goatee or an earring, that these kind of trivial reasons are sufficient to justify the strikes. And what prosecutors offices have done since that case was decided is circulated lists of reasons. So you don't even have to have a reason. You just look down at the list and you say the reason you struck the person was because they didn't maintain eye contact, or they roll their eyes, or they had a goatee, or whatever it may be. So we still have juries that don't represent the community. And the result of that is that, you know, for a jury to work as well as possible, you want to have a lot of different people, a lot of different life experiences, a lot of different perspectives. That's the beauty of the jury system of these 12 people deciding these important matters. But if you exclude a portion of the community, it's not going to work the way it's supposed to.
Mila Atmos: [00:30:37] Well, Steve, you just mentioned about the Supreme Court basically saying that these trivial reasons are acceptable and one thing I also came away with is that the Supreme Court in many ways is complicit in this injustice or maybe complicit is the wrong word, but that dissenting voices on the Supreme Court are basically only dissenting voices, and it has no power in rectifying the injustice that is
meted out at the state or local level, especially when it comes to the death penalty or when it comes to people with mental illness. So what in your mind, should justice look like for people with mental illness?
James Kwak: [00:31:16] Yeah. So I think that, you know, what you said about the Supreme Court is quite accurate. As I said earlier, the fear of too much justice was a criticism of the Supreme Court from within by a dissenting justice. And in many of the issues we talk about in the book, you know, as we said earlier, it's clear what justice demands. Justice demands that everyone accused of a crime have a capable lawyer. And the Supreme Court has refused to follow through on these ideals. You know, when we talk about mental illness, this is often a particularly tragic topic. We're talking about at one extreme, people convicted of murder, sentenced to death, who are clearly deeply mentally ill, schizophrenic. They essentially do not understand the world that they live in and and often do not understand the meaning of their own actions, who are still facing execution, on down to, you know, the tens or hundreds of thousands of people in jails right now who suffer from severe mental illness, many of whom cycle in and out of the jails because our society simply doesn't have a place to put people who need treatment. We have a shortage of essentially all kinds of mental health treatment. We have a shortage of inpatient beds. We have a shortage of outpatient services, and so on. You know, there are two kinds of cases here. There are people who are severely mentally ill who have committed crimes, and perhaps those people need to be confined. However, I think that in many cases, prosecutors essentially want to convict them, want to sentence them to death and simply claim that these people are faking it. So it's very common that somebody accused of a serious crime will be found incompetent to stand trial, meaning the judge says this person is not mentally able to participate in his defense. These people get sent to a psychiatric hospital and essentially get trained up to a point at which they can be found capable to stand trial and then they go ahead and get convicted and sentenced. But in terms of numbers, most of the people with mental illness who cycle in and out of the system are not committing serious crimes. They're being arrested for things like public drunkenness or urination or being loud and boisterous in a way that makes people uncomfortable. They're being taken to jails. They're being sentenced to probation. They're going back on the streets and they're being arrested again. And what we need is we need more treatment. So as a society, we need more capacity to treat people with mental illness in the criminal courts. We could follow the example in Miami Dade County that was pioneered by one visionary
judge. And I won't go into all of the aspects of the system, but essentially, you know, police officers have all been trained to deal with people who show signs of mental illness, and the vast majority are being sent not into the criminal courts, but instead are getting treatment and they're building a new mental health facility to provide inpatient services and outpatient services for people with mental illness who have been cycling in and out of the system. And this has been shown to reduce the number of people who get arrested multiple times, reduce the amount of money that the state has to spend on on jail, and so on. So housing people in jail is not cheap. It's certainly not the best way to treat mental illness, and it's not the right way we should be dealing with this societal problem.
Mila Atmos: [00:34:32] Yeah, I mean, I will say that there were parts of your book where I was almost tearing my hair out with frustration over this combination of petty and devastating in the ways the system handled so many crimes. You know, there was this example in the book about somebody being incarcerated for walking while drunk. Well, he had a citation and he had a, he had a ticket basically that he couldn't pay and then was incarcerated. But actually, it costs taxpayers money, to your point, if we incarcerate somebody. And so it's good to hear that Miami is giving us an example of how a healthy society can address these minor infractions. So given that most listeners are not lawyers, what are two things an everyday person can do to lean toward, if not too much justice, perhaps even just a bit more justice than is currently being served?
Stephen Bright: [00:35:20] Oh, I think there are a number of things. I mean, one thing that we've talked about already are the elections of prosecutors and judges. These are down ballot elections. Usually nobody pays any attention to them. One thing people can do is pay attention. Sometimes these elections are important. Sometimes they should be important. Other things that people can do: go to court. Just watch what's happening in the courts. They're public institutions, but very few people actually go to court and watch what happens. But it has a very positive effect when they do. People also can support funding for things like public defender offices, for mental health programs and things like that with their local or state representatives if they're in touch with them. As I said earlier, you know, this is an issue that has no constituency. But people have to say to elected officials, "we understand that it's important that people be represented." So the court can most basically sort out the guilty from the innocent, but also after that, deal with people fairly and sentence people appropriately and not with these extraordinarily
severe punishments that there are. The other thing people might think about is that there are organizations in a lot of communities, Archcity defenders in Saint Louis, the Atlantic Center in Philadelphia, and others, that people become involved in working these organizations with regard to these issues and maybe volunteering in ways that can approach them.
Mila Atmos: [00:36:43] James, do you have anything to add?
James Kwak: [00:36:46] What I say when I get this question is not everybody can be like Stephen Bright. So not everybody can argue before the Supreme Court and literally save people's lives, but everybody can do something. So, you know, one issue that's been big recently that we haven't talked about much is fines and fees. You know, this person you mentioned who got a ticket for walking while drunk. The problem was he couldn't pay his fees, including private probation fees, and so on. And, you know, he fell into a hole of debt he couldn't get out of. There are advocacy organizations dedicated to fines and fees, to the problem of cash bail in some cities. Sometimes there will be bail funds. For example, Mothers Out for Mother's Day was one initiative that's been done. So there are ways to get involved in these kinds of issues. And finally, you know, there are many worthy organizations that people can contribute to. There's the Southern Center for Human Rights where Steve worked for so many years. So everybody can do something.
Mila Atmos: [00:37:38] Thank you. Circling back to where we began, it's really hard to keep sight of humanity and empathy in all this. And what's more, it's also really hard to keep sight of hope. So how do you to stay hopeful? Steve, why don't you go first?
Stephen Bright: [00:37:55] Well, last summer I went out and spent some time with the client of mine and Tony Amadeo. When he was 18 years of age, the legal system in Georgia decided that he was so beyond redemption, he ought to be eliminated from the human community, and he was sentenced to death. And after a long time and a lot of legal arguments and so forth, the Supreme Court threw out his death sentence, but he ended up serving 38 years. And yet eventually he was paroled. And today he runs a ranch in Texas, which again, just shows that some people have a certain amount of resilience and that some people there is such a thing as redemption and that somebody who has offended us grievously can still be a useful and productive citizen. And I have
many other clients similar to that. And so the question and the challenge is to make it possible for those people to continue to live their lives.
Mila Atmos: [00:38:47] And James, what gives you hope?
James Kwak: [00:38:50] Yeah. So I'll mention two things. One is that the death penalty, which, you know, is the focus of a lot of the book and a lot of efforts to fight injustice in the criminal courts. The death penalty is in a long, slow decline. Since the late 1990s, the number of people being sentenced to death each year has fallen by a factor of about ten. And the number of executions is also much down from the peak years. There are a number of reasons for this. The main reason is that what we found is that if you provide competent defense to people accused of capital crimes, very, very few of them will actually be sentenced to death by a jury. The best example is Virginia. So Virginia was once one of the leaders in the country in sentencing people to death and executing them. More than 100 people were executed in Virginia a couple decades ago. The state created a network of capital defender offices dedicated to handling capital crimes. The number of death sentences imposed by juries essentially fell to zero, to the point where the legislature eventually decided to appeal the death penalty altogether. So this is, you know, this has been a stain on our country for a long time. And I think, you know, it will take more decades, but that's going in the right direction. The other thing I'll say more generally is just that, you know, in the past decade, we've had a partial reckoning with some of the structural injustices in our country, particularly as it relates to race, but to a lesser extent as it relates to wealth and poverty. You know, most Americans are well aware that police officers shoot Black people disproportionately as compared to white people. One of the things we talk about in our book is that, you know, these injustices don't stop when people are arrested and locked up in jail. They persist throughout the criminal legal system. But I think there's certainly a greater awareness, particularly among young people, of the extent of the injustices that plague our country. And that has created energy for reforms in some areas, like I mentioned cash bail, fines and fees, treatment of juveniles in the criminal courts. These are all issues that have improved significantly in many states and not just the blue states, some of the purple states as well. You know, we're not making progress on every issue, but I think that on some of these issues of unfairness and injustice, there is greater consciousness and we are making progress.
Stephen Bright: [00:41:06] I think another thing just to mention is that there are people graduating from law schools who are going out and becoming public defenders and public interest lawyers and who are determined to try to change this. And there are more of those people every year and they're making a difference.
Mila Atmos: [00:41:22] Excellent. This is all good news. Is there anything else you'd like to add?
Stephen Bright: [00:41:27] Oh, well, there are many things.
Mila Atmos: [00:41:30] Short of well, short of asking people to read the whole book.
James Kwak: [00:41:33] Start all over again!
Mila Atmos: [00:41:36] Well, thank you very much, both of you, for joining me on Future Hindsight. It was really a pleasure to have you on the show.
Stephen Bright: [00:41:43] It's great to be here. Thank you again. James Kwak: [00:41:45] Thank you very much.
Mila Atmos: [00:41:47] Stephen B Bright currently teaches law at Yale and Georgetown University's. He was a longtime director of the Southern Center for Human Rights and has argued and won multiple capital cases before the Supreme Court. James Kwak is immediate past chair of the Southern Center for Human Rights and a former professor of law at the University of Connecticut. Together, they are co-authors of The Fear of Too Much Justice.
Next week on Future Hindsight, we're joined by Jocelyn Simonson. Jocelyn is a leading authority on bail reform and social movements and the author of Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration. We discuss the collective action it's going to take to challenge the carceral system and reimagine justice.
Jocelyn Simonson: [00:42:39] When a community bail fund or a community bond fund or a group of people come together and they pay bail or bond for a stranger, they are
showing the system that it cannot declare that the entire community wants somebody in jail. It cannot declare that it represents "the" people when it's doing that work.
Mila Atmos: [00:42:59] That's next time on Future Hindsight.
And before I go, first of all, thanks for listening. You must really like the show if you're still here. We have an ask of you. Could you rate us or leave a review on Apple Podcasts? It seems like a small thing, but it can make a huge difference for an independent show like ours. It's the main way other people can find out about the show. We really appreciate your help. Thank you.
This episode was produced by Zack Travis and me. Until next time, stay engaged. The Democracy Group: [00:43:40] This podcast is part of the Democracy Group.