On Nov. 29, Stephen B. Bright delivered the 25th Annual Joseph L. Rauh, Jr. Lecture, titled “Race & Poverty in the Criminal Courts: The Death Penalty, Debtors’ Prisons, Mass Incarceration and Other Injustices,” to a packed house at the UDC David A. Clarke School of Law.
UDC Law Dean Shelley Broderick introduced Bright to the audience after brief welcoming remarks from DC School of Law Foundation Chair B. Michael Rauh and UDC President Ronald Mason. The interview-style conversation was facilitated by Wade Henderson, Joseph L. Rauh, Jr. Chair of Public Interest Law at UDC Law and Senior Advisor to The Leadership Conference on Civil and Human Rights. Bright and Henderson covered a range of criminal justice issues, including the impact of fines on citizens living in poverty, the arbitrary nature of death penalty application, and the trouble with attempting to predict future behavior.
“Basically debtors’ prisons”
Bright explained municipal courts are often “not about law enforcement” but “about revenue generation.” He provided examples of how seemingly small fines can add up over time, compounding the legal problems faced by people living in poverty. For someone with no income, he went on, even a fine of a few hundred dollars can be devastating. “It’s basically debtors’ prison,” Bright said, “Everything costs in the criminal justice system today.”
Before pivoting to the death penalty, Henderson and Bright outlined some measures that might improve the criminal justice system overall. Bright described a need to improve the quality of court-appointed representation, Henderson suggested better training of law enforcement personnel to help avoid implicit bias, and both men urged electing better representatives.
Henderson recalled September’s The Long Game: Why the 1957 Civil Rights Act Still Matters Today at UDC Law, at which Rashad Robinson, Executive Director of Color of Change, told the audience of his organization’s plans to remain involved in the election of prosecutors. In response, Bright said, “95% of elected top prosecutors are white. That’s remarkable in a court system that’s dealing with so many people of color.”
“The Capital of Capital Punishment”
In Harris County, Texas, 127 people who have been sentenced to death have been executed. Bright said, “Harris County is the capital of capital punishment,” before putting the numbers into perspective. “That’s more than any state except Texas itself,” which, as of a Nov. 9 update to the Death Penalty Information Center, has executed 545 people, followed by Virginia with 113 and Oklahoma with 112 (Bright cited numbers from before the recent update). Bright explained that, after electing three women in succession, including current District Attorney Kim Ogg, Harris County death penalty numbers are down “dramatically,” a trend he attributes to a prosecution that better represents the diversity of the county’s population.
“Closest we get to witchcraft”
In April, Bright argued before the Supreme Court in McWilliams v. Dunn that an indigent defendant is entitled to access to an independent expert witness. In June, the Court narrowly decided for the defense, but Bright said a case like this “shows what Congress and the courts are doing to make life difficult if not impossible” for defendants who are poor. “So much of what’s going on in these cases is about procedure,” Bright said, “It’s all about ways to trip people up to keep them out of court.”
Furthermore, Bright explained, the question of whether someone might be a future danger to society is “as close as we get in court to practicing witchcraft.”
Henderson remarked, “It’s a strange new world.”
“As arbitrary as getting struck by lightning”
Henderson then turned the conversation to the inherent racial bias in application of the death penalty, citing Justice Potter Stewart’s famous proclamation from Furman v. Georgia that “getting the death penalty is as arbitrary as getting struck by lightning.”
This analogy, Bright declared, illuminated not just the arbitrary nature of the death penalty but the tendency for its application to disproportionately affect poor people and people of color. “The reason for all the problems with the death penalty was racist, white supremacy” and “the terrible way in which poor people are dealt with in this system.”
“A matter of race and place”
The death penalty, then, according to Bright’s experience is a “matter of race and place.” To demonstrate his point, he offered the startling statistic that, of over 3,000 counties in the United States, only 30 jurisdictions account for the majority of death sentences. He reiterated much hinges on the prosecutor, a reminder to the audience of the importance of paying attention to elections.
“Withering on the vine”
Before opening the floor for questions, Bright discussed the trend toward fewer death sentences, some considerations about death penalty methods, and the legacy of Gideon v. Wainwright, in which the Court ruled defendants have a constitutional right to an attorney at the state level.
On how often the death penalty is applied, Bright shed some light on a trend away from its application, going from 315 sentences in 1995 to only 31 last year. “There is some chance,” he said, “it’s kind of going to wither on the vine.”
Henderson asked if the decision in Gideon is being upheld, to which Bright lamented, “I really wish I could say ‘yes,’ but the answer is ‘no.’” Gideon, he went on, was an unfunded mandate, but the decision did not indicate how it would be paid for. “Why would the state that wants to convict, imprison, and kill a person pay to defeat that very purpose?”
Regarding the use of lethal injection and other methods to administer the death penalty, Bright discussed a return to firing squads, which he indicated would likely “be the end of the death penalty.” In sum, he reminded the audience, “You are killing people; let’s be honest about what we’re doing here.”
Questions, asked by UDC Law students, UDC faculty, attorneys, and community members, ranged from what law students can do to address the issues presented in the lecture to historical developments that have led to current trends to what lessons the United States can provide to other countries in reforming their own criminal justice systems.
The lecture concluded with Dean Broderick presenting Stephen B. Bright with the Dean’s Cup, given each year to the Rauh Lecturer. A reception followed, offering guests an opportunity to speak with Bright and other members of the UDC Law community.
About Stephen B. Bright
Stephen B. Bright has tried capital cases before juries in Alabama, Georgia and Mississippi, and argued and won four capital cases before the Supreme Court. He spent 35 years with the Southern Center for Human Rights, first as director and then as president and senior counsel. He is now Professor of Practice at the Georgia State College of Law and teaches at the law schools at Yale and Georgetown. Subjects of his litigation, teaching and writing include capital punishment, legal representation for poor people accused of crimes, conditions and practices in prisons and jails, racial discrimination in the criminal justice system, judicial independence and sentencing. He received the American Bar Association’s Thurgood Marshall Award in 1998. The Daily Law Report, Georgia’s legal newspaper, named him “Newsmaker of the Year” in 2003 for his contribution to bringing about creation of a public defender system in Georgia and “Lawyer of the Year” in 2017 for his success in the Supreme Court and pursuit of justice. His curriculum vitae and publications are available at law.yale.edu/stephen-b-bright.
Watch the lecture in its entirety on the UDC Law Facebook page or below from Youtube.