In Germany, Bryan Stevenson, a public-interest lawyer and the founder of the Montgomery, Alabama-based Equal Justice Initiative (EJI), had just finished giving a presentation on the death penalty when a scholar in the audience stood up and said, “We don’t have the death penalty in Germany. And of course, we can never have the death penalty in Germany.” The room got very quiet before she added, “There’s no way, with our history, we could ever engage in the systematic killing of human beings. It would be unconscionable for us to, in an intentional and deliberate way, set about executing people.”
The experience made Stevenson, who has won cases before the Supreme Court and been awarded a MacArthur “genius” award for his work against capital punishment, wonder what it would feel like to be living in a world where the nation-state of Germany was executing people, especially if they were disproportionately Jewish. “I couldn’t bear it,” he said, after telling the story during a TED talk two years ago. “It would be unconscionable.”
“And yet,” he said recently, in the US, “in the states of the Old South…the very states where there are buried in the ground the bodies of people who were lynched,” the death penalty persists, and is irregularly administered. In homicide cases, he says, the death penalty is eleven times more likely to be applied if the victim is white than if the victim is black; it is twenty-two times likelier to be applied if a trial has both a black defendant and a white victim.
Stevenson believes that, unlike other countries with a history of segregation and racial terror, the United States has never publicly accounted for the legacy of segregation and Jim Crow, which has allowed that legacy to warp our understanding of race and shape some of our society’s most powerful structures. And now he and EJI, which provides legal representation and advocates for cases involving unfair sentencing, wrongful convictions, and prisoner abuse, have taken on a new project to address this injustice.
Stevenson and a team of researchers have begun to locate former slave markets and lynching sites across the American South and, for the first time, mark them publicly and officially, as worthy of historical significance and commemoration. The markers are an explicit attempt to enter into public history a part of the past that remains an active force in American politics and culture, but that is still largely repressed. (For example, although Montgomery has long been covered with monuments to figures of Southern history like Jefferson Davis and Rosa Parks, the Alabama Historical Association distanced itself from EJI’s project, fearing controversy.)
Stevenson unveiled his project’s first markers last December, not far from EJI’s offices, which stand between a river and a railroad that each brought thousands of slaves to the city only a few generations ago. Those offices, he learned, were built on a lot that formerly held a Montgomery slave warehouse.
I spoke with Stevenson at his office at NYU Law School, where he teaches, and on the phone from Montgomery, where he lives. Our initial meeting had to be rescheduled after the Supreme Court ruled for Stevenson’s client in Hinton v. Alabama, determining that death row inmate Anthony Ray Hinton had been sentenced without a fair trial. It’s a case Stevenson had been working on for fifteen years.
—Alex Carp for Guernica
Guernica: How did the idea to locate and mark these sites come out of legal work focused on things like capital punishment, and children sentenced to adult prisons?
Bryan Stevenson: We have, for twenty-five years, represented people on death row, people who have been unfairly sentenced, harshly sentenced, people who have been wrongly convicted. And what’s always been in the backdrop of these cases is the legacy of racial inequality, because an extremely high percentage of the clients we represent are people of color. And then poverty—all of the clients who are not people of color are poor, and marginalized by poverty.
In our litigation, we’ve tried to highlight how poverty and race have contributed to these wrongful convictions, these unfair sentences, these death sentences. And you do it in small ways: you challenge the funds that criminal defendants have available to them, you challenge their inability to get the legal help they needed, or the experts that they needed. You challenge the presumption of guilt that gets assigned to people of color, the ways in which we so quickly accepted the narrative offered by the police about their guilt, their dangerousness, even in the absence of any evidence. You do a little bit here, you do a little bit there. We did a lot of work on racial bias in jury selection, and the way that people of color are systemically excluded from juries throughout the South.
So we’ve always been talking about race and poverty, but we’ve been forced to talk about it through the lens of a particular case, through a particular crime. And sometimes the facts of the crime are so distracting—there’s been some tragic murder or horrific incident, and people aren’t required to think as carefully and thoughtfully, and directly, about this legacy of racial inequality and structural poverty. And what it’s contributing to these wrongful convictions.
Finally I got to the point where I said, I’d like to start a project where we can actually talk about race and poverty, not through the lens of a particular case, but much more broadly. But it’s certainly motivated by seeing the way the criminal justice system has exploited racial animosity, racial bias, racial inequality—and exploited poverty. I give these talks, and I tell people our system treats you better if you’re rich and guilty than if you’re poor and innocent, and we see that every day.
Right now it’s our priority, and I expect it will be for the next two years. Every lawyer on my staff is going to lynching sites and writing lynching memos, as well as the program staff. So we probably have twenty-five people—they also have other cases, and so it’s not the only thing they do, but, yeah, I’ve made this a commitment for everyone.
We have lionized these people, and we have romanticized their courage and their commitment and their tenacity, and we have completely eliminated the reality that created the Civil War.
More personally, I grew up in the rural South, in a community where black children couldn’t go to the public schools. My parents bore the burden of segregation, with all of that humiliation, with all of that stigma. And I saw that play out in their lives. My dad couldn’t go to high school because there was no black high school in our county. My grandmother was the daughter of people who were enslaved—she was born in the 1880s in Virginia, and she would talk to me about the things her father talked to her about, relating to slavery. And so, because my great-grandparents were enslaved people, the legacy of slavery was something that didn’t seem impersonal or disconnected. That’s what motivated me to get into law.
Guernica: Why start in Montgomery?
Bryan Stevenson: Living in Montgomery, I’ve been antagonized by the emergence of a narrative about our history that I believe is quite false and misleading, and actually dangerous. And the narrative that emerges when you spend time in the South—places likes Alabama, Georgia, Mississippi, Louisiana—is that we have always been a noble, wonderful, glorious region of the country, with wonderful, noble, glorious people doing wonderful, noble, glorious things. And there’s great pride in the Alabamians of the nineteenth century.
But it’s a very race-specific narrative. They’re not actually talking about Alabamians, they’re talking about white Alabamians. It’s a narrative that seems almost ignorant of all of the horrific inequality and injustice.
So when you come to Montgomery, you see fifty-nine monuments and memorials, all about the Civil War, all about Confederate leaders and generals. We have lionized these people, and we have romanticized their courage and their commitment and their tenacity, and we have completely eliminated the reality that created the Civil War. We have not been willing to acknowledge that these were the architects of slavery, the defenders of slavery. If we think slavery was bad, it was bad because these people created an institution with all of these horrific aspects.
All of the high schools are named after these folks. Even the state celebrates these people—Jefferson Davis’s birthday is a state holiday, Confederate Memorial Day is a state holiday. It’s not even Martin Luther King Day in Alabama, it’s Martin Luther King / Robert E. Lee Day.
And this accommodation is, I think, problematic. We have all these monuments to the founders of the Ku Klux Klan, these Confederate generals who used terror and violence to arrest power back from newly enfranchised former slaves.
In most places, when people hear about or see something that is a symbol or representation or evidence of slavery or the slave trade or lynching, the instinct is to cover it up, to get rid of it, to destroy it.
Guernica: Last fall, archaeological work at a museum on Long Island revealed the footprint of slave quarters next door. It turned out that the first occupants of the museum, who lived in the building until the early 1800s, had been slave owners—though knowledge of this had not been incorporated into the museum at all. The evidence of slavery had been literally buried.
Bryan Stevenson: I think that’s very familiar. In most places, when people hear about or see something that is a symbol or representation or evidence of slavery or the slave trade or lynching, the instinct is to cover it up, to get rid of it, to destroy it. As if somehow, if we do that, we can make it go away.
I hear a lot about slave cemeteries being destroyed—it’s especially true for native communities in this country, too. It’s, again, an impulse. If we want to be proud of our country, if we want to be proud as Americans, if we want to be proud of our history, then we can’t talk about the things that are inconsistent with pride, about which we can have no pride. We just bury that, we cover that up.
And of course that’s dishonest. And I think it will set us up to replicate a lot of the abuses that we’ve historically perpetrated, because we’re not reflecting on it, we’re not thinking on it. But, yeah, I hear that all the time. I was just talking to somebody a couple weeks ago about something similar in Memphis, where slave auction sites have been destroyed, and renamed. And, you know, you see that quite a bit. Quite a bit.
Guernica: Once you knew you wanted a project to address racial inequality more broadly, how did you decide it would be researching and locating former slave markets and lynching sites?
Bryan Stevenson: In particular, the landscape in Montgomery and in the South is just saturated with imagery. Markers are everywhere. There’s a marker for the first Confederate post office, there’s a marker for a ball that Robert E. Lee hosted, there’s a marker for where Jefferson Davis had a meeting. We love reminding people about all that was going on in the mid-nineteenth century.
If there were no markers, then I’m not sure that slavery markers would’ve been the thing we chose to do. But in a landscape littered with all of this imagery about the nobility of the Civil War and the Confederate effort and struggle, the absence of markers says something really powerful. And so the reason why we wanted to put up markers was to create a mechanism for forcing people to talk more about slavery, especially if they’re already going to talk about the nineteenth century.
Now, a society might say, We’re never going to talk about anything that happened pre-civil rights. I don’t think that would be healthy, but it would be a way of coping with the ugliness of that era. And then I think we’d be talking about a different project.
But we love talking about the early part of the twentieth century. We love talking about the mid-nineteenth century. We do! And we love putting up all these images and symbols—but to not put up an image or symbol about the dominant issue of the day says something really troubling. It’s injurious to people of color with any consciousness about this. I actually think what we have done, in many parts of this country, by highlighting this, and ignoring that, is destructive. It’s actually creating tension and conflict, and contributing to racial inequality and racial injustice. So the idea was to begin to challenge that.
Also, the markers came with a report, which we created to introduce a narrative about slavery and slave history. And then the markers became a way of expressing what’s in the report in a visible way. You know, you could have a museum; we have a building, people come to our building, but the only people who come, typically, are people who are interested in racial history. And I love museums, and I think they’re fantastic, but they don’t touch the people who I frequently think need to be touched with at least some reminder of this legacy.
Guernica: What’s the process of getting this thing done, and has it set off the public conversation you were hoping for?
Bryan Stevenson: In the research, a narrative emerged about the centrality of Montgomery in the slave trade that was not previously known, or at least not previously discussed.
We always knew that our office was directly in the middle, between the Alabama River, where tens of thousands of enslaved people were brought to Montgomery by boat from New Orleans and Mobile, and the train station. Montgomery’s unique role in the domestic slave trade was that it was the first community that had a rail line that connected the Deep South to the mid-Atlantic region. Once we had a rail station in Montgomery that connected to Columbus and went all the way up to Virginia, slave traders could transport thousands of slaves at a fraction of the cost than they could transport by boat, and certainly by foot. And that’s how Montgomery became such an active slave-trading space. And we knew that the slave market was about 150 yards from our office.
So I was very interested in that part of the town. We did a lot of work at the archives and we did a lot of work looking at nineteenth-century newspapers, because that’s how you could get direct information about slave auctions and trades, and all of that. It was actually at the end that we thought we might find a way to get markers up. And in places like Alabama you have to go through a historic commission.
Guernica: Oh, the markers were not part of the plan from the beginning?
Bryan Stevenson: We started with the report. We needed to understand what the history was, but the goal wasn’t the marker per se. The goal was really the report. And then we wanted to find ways to make the report interactive, so the markers became one of the ways we hoped to do it.
We decided to put one down near the river, because that’s where the boats came, and that’s where we talk about the domestic slave trade, the Montgomery slave trade. The train station today has a functioning rail line, but it’s not a functioning train station. It was actually built after the Civil War. But we put the marker near where the current train station is, to reflect on the rail line.
There is another marker that was up before, on the slave market, that we’ve now incorporated into our efforts. It was taken down for several years, but we got it back up. And then the third marker that we put up, but the fourth one overall, is over where several of the slave depots are. So we picked locations that are proximate to the sites that were significant to the slave trade.
At first, after we’d picked the locations but before anything went up, we went to talk to the Alabama Historic Commission. They told us they were no longer doing markers. They’d just put up a few—I have no way of evaluating how true that is, but I’m definitely looking to see if any new markers go up! And so we went to another group, the Alabama Historical Association—everyone who wants to put up a historical marker has to go through one of these two groups. And they just said they had to know that what we’re putting on there is true, that they’d check it. If it’s true, then it goes up. I asked, There’s no discretion? No no no no no. This is before they knew what the topic was.
I said great. And it seemed to be true, because there are some really silly markers up. You know, where the Freemasons met, one night, in 1871, or this family lived here in the 1870s. So it made sense to us that you just had to give them historically accurate information, and they would put it up.
We’re lawyers, mostly, so we had, you know, a sixty-page memo, hundreds of sources and footnotes, all of that. And we gave it to them. And the guy wrote us back and said, You know, well, yes, it’s accurate. But we’re not going to sponsor this because it would be “too controversial” to put up markers about slavery.
That’s when we went to this other group that hadn’t done markers before, the Black Heritage Council, and asked if they would be our partner. I think they were troubled by this rejection. And finally we got the marker-making company to accept a request from them.
And then, we had been told all along, if the markers are on public property, the city will just put them up. But we ultimately had to talk with the mayor, and had several meetings with city officials that were peculiar, because there were a lot of people who said, No, we should absolutely not put these up. Nobody wants to read about it. It’s too—nobody wants to see it. We’re trying to create a happy space. But ultimately the city got on board to cooperate, and then the markers went up.
Sometimes it’ll be a couple who will just start reading, and they’ll keep walking, and they’re reading, and then you see them stop. And then you see them come back.
They’ve only been up for three months now. But I’ve been encouraged by what I see. We’ve had a lot of interest from schools and black fraternities, and from the African-American community.
But I’m actually most impressed when I see people walking down the street and stopping. Sometimes it’ll be a couple who will just start reading, and they’ll keep walking, and they’re reading, and then you see them stop. And then you see them come back, and read—we’ve got information on both sides—and usually they’ll read it more than once. Sometimes you see families, which, by appearances, I’m going to suggest, haven’t talked a lot about racial history or slavery. But there’ll be a child, or somebody who will ask something like, What is slavery? What does that mean?
I’m really excited when I see that. Because for there to be an opportunity for people to talk about this, even if whatever the parents say is misinformed, it begins a conversation that gets people thinking about the legacy of slavery. And for me that’s really, really important.
Guernica: How exactly do you mark a lynching site so people like that will see it? I imagine many of them are a little further from the center of town.
Bryan Stevenson: Sometimes, if the lynching starts with a man being pulled from the county courthouse, where the jail is located, and then taken to a remote location, we’ll consider putting something at the courthouse, which is where the lynching commenced. But we have talked about having some recognition in places that are remote, because we like the idea of people having to go into these more distant places—to appreciate the experience of being dragged into a remote space and then being murdered like that.
But most of them have narratives where the person who gets lynched is retrieved, or abducted, or injured, at a site that tends to be more prominent before they’re taken to a remote location. And then we have lots of lynchings that actually take place on the courthouse lawn, on the main bridge, in the center of town.
Guernica: I heard a talk you gave to a group of teachers earlier this year, where you mentioned that you were doing some discussions around screenings of 12 Years a Slave and getting some pushback on your project.
Bryan Stevenson: Once we learned about that film, I was very interested in hosting a premiere and connecting it with the report and the conversation we tried to start. And we were just being told all kinds of things by our local movie theater. Finally we had to get the producers involved, to get authorization to have a screening of the film the week it was opening in most communities—it wasn’t going to open in Montgomery when it opened everyplace else. It wasn’t going to open anywhere in Alabama when it opened in most major cities.
Guernica: Was it going to come eventually?
Bryan Stevenson: You know, it depends on who you talk to. The local people said they weren’t sure whether they were going to show it. We know that it didn’t show at a lot of movie theaters in Alabama, ever. I think during the Oscar buzz, it may have gotten pulled back in. It screened in Atlanta, but I’m not aware of it screening—it wasn’t clearly being advertised anyplace else.
Guernica: In The New Jim Crow, Michelle Alexander mentions that in a number of American cities—I think she names Chicago and Baltimore specifically—more than half of young men of color are what she calls “under correctional control,” in jail or they’ve spent time there, but still dealing with parole, the mark of a felony conviction, things like that.
Data like this is really striking, but doesn’t always reach people who aren’t already looking for it, which I’m sure is a challenge you’ve encountered. How are you thinking of expanding your project, not only to new cities but so that it gets to new groups of people?
Bryan Stevenson: We’re in communication with other communities about replicating what we’ve done in Montgomery around the slave markers. Memphis and New Orleans and Mississippi and other places have an interest in trying to do something similar, because they are also places where the narrative about the legacy of slavery is very absent. You don’t see it and you don’t encounter it. So we’re going to continue doing that.
But we’re also, now, moving into work about the second era of racial history, after slavery, where we’re trying to create some visual recognition of the terror that people of color experienced between the end of Reconstruction and World War II. And we’re doing that mostly through work on lynching. Lynching is an important aspect of racial history and racial inequality in America, because it was visible, it was so public, it was so dramatic, and it was so violent. We’ve now researched basically every [publicly documented] lynching in the country. We’ve spent hundreds of hours pulling information, and we’ve also been visiting lynching sites, with the hope that we can create monuments at several lynching sites across the country.
This narrative emerges that makes the civil rights movement this three-day struggle. Rosa Parks didn’t give up her seat on day one, on the second day Dr. King led a march on Washington, on the third day Congress passed all these laws and aren’t we glad they did.
It’s in some ways going to be more controversial because it’s more recent. But that’s an important part of what we’re hoping to do. We have other projects that are aimed at changing the narrative of the third era, civil rights and the civil rights movement. I’ve started to hear these narratives emerging about how wonderful the civil rights movement was, and how great it was that Rosa Parks didn’t give up her seat, and how we all rallied behind her, black and white, and isn’t it great that Martin King went and gave that great talk—this narrative emerges that makes the civil rights movement this three-day struggle. Rosa Parks didn’t give up her seat on day one, on the second day Dr. King led a march on Washington, on the third day Congress passed all these laws and aren’t we glad they did—and nobody was against it.
Some of the literature that we’re producing—we have a film that we’re working on, and we use short films—is really trying to push back against the celebratory, happy, comfortable transformation frame that some people are imposing on the civil rights struggle. That’s important for us, because we think that the truth of all that segregation represents, and all the damage that it did, has not been voiced. And then we talk about mass incarceration through that lens. If you accept that racial bias is still alive, then you’re trying to say, Where is it? And how is it manifesting itself now?
Then you begin to see what’s happened over the last forty years through a different light. And how comfortable we’ve become with this large warehousing of young people of color. The Bureau of Justice reports that one in three black male babies born this century will go to jail or prison—that is an absolutely astonishing statistic. And it ought to be terrorizing to not just to people of color, but to all of us. And that’s the part that we’re hoping to achieve by building, systematically, on this history, until we get to the present.
Guernica: American slavery, or slavery in the land that became the US, existed for four hundred years or so, but in many of the countries whose truth and reconciliation processes you are looking to, the period they’re looking to bring out of the shadows lasted for only a generation or two. Is it a completely different project to try to present such a vast chunk of time?
There were people in the South who were ardently opposed to slavery. And maybe, if we get into truth and reconciliation, those will be the people we want to name schools and streets after.
Bryan Stevenson: Part of the reason why we’re only now reaching a point in American society where we can talk about the need for truth and reconciliation and the legacy of slavery is that it was such a dominant part of our history. We’re just in the early days of the post-slavery, post-terror, post-civil rights era of our history. And that makes it appropriate in the ways it’s been appropriate in South Africa and Rwanda, places with more formalized truth and reconciliation processes.
You’re right that these long-standing problems are quite difficult, but there’s a narrative about that, too. There was an abolitionist movement in this country that was very active and vocal, and ultimately effective. And that’s part of the truth-telling that we want to elevate. There were people in the South who were ardently opposed to slavery. And maybe, if we get into truth and reconciliation, those will be the people we want to name schools and streets after.
Guernica: Have you been able to notice, in the time you’ve been working as a lawyer and doing this kind of work, any sort of structural change, or been able to pick up an idea of what that might look like?
Bryan Stevenson: Well, I think that we created a little more room to talk about these issues—because people don’t feel so directly implicated that they just leave as soon as you say the word “race.” They want to leave when they hear the word “race” [laughs], but they actually don’t immediately leave. So you can say a few things before they’re actually gone! And that means you can create a little bit of thinking.
But, no, I think there still are structural problems that have to be addressed. Again, I use my state of Alabama—we have nineteen appellate court judges, none of whom are people of color. We still have counties where people of color almost never serve on juries, because they’re excluded, in critical cases. The decision-makers are not people of color. You can get away with excluding people with impunity. And all of those things are like the old things, right? So we have to do something about that.
But at the same time, you can sometimes create a narrative that gets a community or someone to get past that indifference to racial inequality, and see the humanity that’s being destroyed by these structures.
We do that in individual cases, where we’re sometimes able to get relief for a client, despite a racialized prosecution. Or you sometimes do that with individuals, when you create a space where you can engage them in a fully human way, and they recognize how fairness requires something other than what history teaches them to do. But we need to do both. We can’t actually get to reconciliation until people hear truth, and are motivated by the hearing of it to want to do something. You can’t demand truth and reconciliation. You have to demand truth—people have to hear it, and then they have to want to reconcile themselves to that truth.
Guernica: A lot of this work—the legal work, but the things you must encounter in the historical research as well—is really difficult. How have you learned to deal with the frustrations that come with the job?
Bryan Stevenson: Well, I think it is a relationship you create to struggle, to work, to challenges, to resistance. Intuitively we all like to seek the things that are comfortable rather than uncomfortable. But I do think there is a way of saying that if I believe in justice and I believe that justice is a constant struggle, and if I want to create justice, then I have to get comfortable with struggle. And I have to get comfortable with resistance, and even sometimes with hostility.
I do talk and think a lot about the legacy before me. I feel like if I didn’t know that people had been in Montgomery sixty years ago trying to do similar things that I’m trying to do, with a lot less, with fewer resources, with less security, with less encouragement, with less opportunity—if I didn’t know that, then I think doing what I do would be much, much harder. It would be almost overwhelming. I’d probably be tempted to stop. I might have stopped, actually.
But knowing what I know about the people who have come before me, and the people who came before them, and what they had to do, it changes my capacity to stay engaged, to stay productive. And that’s the rich legacy of the civil rights movement, and of those people who survived terror, those people who survived slavery. I talk about my grandmother a lot, because she’s an amazing person—not in some dramatic, distinct, unique way, but anybody who is the daughter of enslaved people and who has found a way to be hopeful and create love and value justice and seek peace is a remarkable person. And my parents, who grew up in terror and dealt with segregation and humiliation, nonetheless taught us to be hopeful and open and loving and not hateful toward anyone.
That’s a remarkable gift, a remarkable legacy, and so I feel like, well, I can struggle toward justice in the face of some of these things, and I have so much more to work with. That really changes it for me.
I say this thing about how I’ve never had to say my head is bloodied but not bowed, like everybody who came before me had to say. And that tells me that I can do a lot more than I think I can.