Attorney-activist Bryan Stevenson

Guest interviews are usually available online within 24 hours of broadcast.

The Harvard-trained lawyer, who’s won exonerations for death row inmates, examines the issue of excessive sentencing.

Founder and executive director of the Alabama-based Equal Justice Initiative—a private, nonprofit organization that provides legal representation to indigent defendants and prisoners—Bryan Stevenson gained national acclaim for his work challenging bias against the poor and people of color in the criminal justice system. He's a graduate of Harvard Law School and the Harvard School of Government and has argued five times before the U.S. Supreme Court. The recipient of numerous awards, including the MacArthur Foundation "Genius" Grant, he's on the faculty of New York University School of Law and has written extensively on criminal justice, capital punishment and civil rights issues.


Tavis Smiley: Good evening from Los Angeles. I’m Tavis Smiley.

Tonight with the prison population at an estimated 2.4 million persons, a conversation about how for profit prisons are contributing to the excessive sentencing of so many in this nation and our efforts to convince corporations to divest from investments in those mega prisons may help to change.

We get an assessment from Bryan Stevenson, the founder and executive director of the Equal Justice Initiative which is dedicated to working on behalf of the poor and those wrongly incarcerated. Stevenson recently won the historic Supreme Court ruling that mandatory life without parole sentences for children 17 and under are indeed unconstitutional.

We’re glad you’ve joined us. A conversation with Bryan Stevenson about America’s prison population coming up right now.

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Tavis: The incarceration rate is one area in which this country shouldn’t be leading the world, but we are. It’s now at an estimated 2.4 million adults. Contributing to the problem is the privatization of prisons that’s putting profits over rehabilitation.

Joining us tonight to talk about, Bryan Stevenson, the founder and executive director of the Equal Justice Initiative which has won major challenges to unfair sentencing as well as exonerations for those on death row.

He is a MacArthur “Genius” and a graduate of Harvard Law. His new book, “Just Mercy,” will be out in October, also, of course, at NYU. Professor Stevenson, an honor — and I meant that — to have you on this program.

Bryan Stevenson: Thank you. Really delighted to be here.

Tavis: Thank you for your work, first of all. Let me jump right in and make the most of the time we have with a direct and forthright question. What is wrong with for profit prisons? Everything in America these days seems to be moving in the direction of privatization. What’s wrong with for profit prisons?

Stevenson: Well, I think it’s corrupted our criminal justice system. I mean, our incentive ought to be to keep people out of jail and prison. It’s not a good thing that we have the highest rate of incarceration in the world.

We’ve got 5% of the world’s population, 25% of the world’s incarcerated population, and that’s being fueled by things that have nothing to do with crime and have nothing to do with public safety.

And I think at the top of that list is this economic incentive to put people in prison for money and private prisons has led that charge. In 1980, we spent $6 billion dollars a year on prisons. Now we spend $80 billion.

That money has come from public education. It’s come from public safety. It’s come from highway and health and human services. And it’s largely been pushed by a small bowel of private correctional people who are spending millions of dollars to incentivize keeping people in jail or prison. And I think that’s very corruptive of our justice system.

Tavis: You said two or three things I want to jump into right now.

Stevenson: Sure.

Tavis: First of all, how does one “incentivize” crime?

Stevenson: Well, we’ve suffered from the politics of fear and anger. In 1972, we had 300,000 people in jails and prisons. Today, we have 2.4. That didn’t happen because crime increased. That happened because politicians use fear about crime and anger about crime to political benefits, Democrats and Republicans.

So we criminalize a bunch of things that weren’t really crimes. We decided to make drug addiction and drug dependency a crime issue rather than a healthcare issue and put hundreds and thousands of people in jails or prisons. We passed laws to actually put people who committed very minor crimes, shoplifting, writing bad checks, in prisons for a long time.

We’ve realized that that’s not good policy. It’s not good for communities. It’s not good for the country, but we’re stuck. And we remain stuck because there’s 245 lobbyists funded by private prisons working in 32 states who are actually spending money to fight against reforms, to fight for criminalizing more stuff.

And that kind of incentive to keep prisons high, I think, has undermined our justice system. It’s corrupted our kind of moral commitment to recovery and rehabilitation and, more than anything, it’s actually blocked healthy discourse about what we should be doing about crime and punishment.

Tavis: Well, would you suggest, though, professor, that crime has precious little to do with these dramatic increases — if I can borrow from Beretta or, more accurately, Sammy Davis, Jr. who sang the theme song — you can’t do the time if you didn’t do the crime.

Stevenson: Well, that’s right, but we’ve created a whole new category of crimes. Again, drugs is the perfect example. Half of the increase in our prison population comes from our so-called war on drugs and that’s criminalizing simple possession of marijuana, criminalizing simple possession of low-level narcotics, prescription drugs.

Hundreds of thousands of peoples are now spending decades, sometimes life in prison, behind these offenses. They weren’t crimes 40 years ago. They’re not being effectively managed by the criminal justice system. We’ve got good models. Other countries, Portugal, for example, have used a healthcare model.

We can reduce drug dependency. We can help families where someone is struggling with drug addiction and dependency, but we can’t do that if we put that person in prison for 10 or 20 years, give them no counseling or treatment, and then put them back on the street.

And so, my point is that all of these things that aren’t the kinds of crimes that require incapacitation are things that we should be trying to keep people out of prison for. There are people who threaten public safety and there’s no question that those folks have to be incapacitated, but that’s a small percentage of the people that we have in jails and prisons in this country.

And I’m particularly troubled by it because we’re not even enforcing those so-called crimes in a very fair way. We target poor communities. We target communities of color. The Bureau of Justice now reports that one in three Black babies born in this country is expected to go to jail or prison. That wasn’t true in the 20th century. It wasn’t true in the 19th century. It wasn’t true in the 18th century.

It’s true in the 21st century and that’s devastating. It’s disrupting hope in these communities. I hate the fact that I talk to young 13 and 14-year-old kids of color who tell me that they expect to be arrested and go to jail or prison.

Tavis: But is that the fault of the prison industrial complex or the fault of the breakdown in these communities?

Stevenson: I think it’s the fault — it’s no one single thing. I think everybody’s responsible. I think the prison industrial complex has created a financial incentive for legislators and politicians to look the other way when they see destruction in these communities resulting from mass incarceration.

I think politicians have contributed to this dynamic by preaching fear and anger, by embracing — everybody wants to be tough on crime and nobody wants to be responsible or smart on crime.

And then I think in communities, we’ve been silent too long. We’ve let a whole generation of young people have their lives just stolen by wrongful incarceration, by unnecessary incarceration.

We’ve disrupted communities in ways that will take a generation to recover from, so we’re all responsible. But I think we can start by focusing on the role that private prisons have played because it’s a complete theft from the public trust.

I mean, you know, this $3.2 billion dollars a year which are going to these private prisons or private companies is unnecessary. It’s not needed. We don’t need that kind of spending and it’s coming from our tax dollars that could be going to education.

Tavis: I suspect if those persons who are running these for profit prisons were here what they would present to you, me and the national viewing audience is data that suggests that what they’re doing is saving the taxpayer money. Is that not true?

Stevenson: I don’t think so. They’d have a hard time doing that. I mean, the way that they are making their profit is by creating contract with states where the states are required to maintain 80, 90, 100% capacity in their prisons.

And in many of these states, we’re actually paying them for empty beds. If the states have a reduction in the state prison population, we’re obligated contractually to keep paying these private prisons dollars for beds that are empty. So there’s no way in the world you could justify that as saving tax dollars.

More than that, they’re spending millions of dollars to prevent and block reform legislation from being passed in a bunch of states. They’ve got an incentive to make sure that we don’t reduce the penalties for drug crimes, to make sure that we don’t reduce the penalties for shoplifting and three strikes laws.

But I think that is ultimately hard to defend and hard to justify, and I doubt they’d come on and say much about it because the data don’t support them.

Tavis: If I were a cynic, I would take your point to its logical conclusion and arrive at this place which is for these for profit prisons to make money, they have to be in cahoots with law enforcement who are arresting the people that they need to lock up to make money. And I think that that argument would get a little tricky to…

Stevenson: I don’t actually think they have to be in cahoots with law enforcement. I think they have to be in cahoots with politicians who have the ability to take a simple crime that might have been punished by a year in jail and turn it into the outrage that we now insist requires a mandatory sentence of 15 years in prison.

That’s what’s happening. They don’t actually have to do anything on the arrest side. They don’t have to do anything on the prosecution side. They are focused on the punishment side.

I’ve represented people who are serving life in prison without parole for writing a bad check, for stealing a $30 bicycle. And we take that 20-year-old guy who stole that $30 bicycle and we commit to spend $30,000 a year to keep him in prison for the next 50 years.

And it makes no sense, but if you’re tough on crime, you’re afraid to say I don’t want to vote for that. And it’s that political environment that they’ve helped sustain and they’re not the only ones that I think has created this reality.

And I think, you know, that the challenge for us is disrupting it which is why divestment as a strategy is an important one, why putting this information out there is a necessary one. And I should also say too, it’s not just the private prisons. It’s all the other private industries.

You’ve got private phone companies, you’ve got a private medical provider, you’ve got private security companies that are all benefiting from having these beds filled. It’s even hit immigration. Half of the people who are being detained for undocumented status are in private facilities.

They’re now investing in a strategy that makes it harder for us to get immigration reform because that would bring down the number of people who are being detained. So I think that’s why it’s so corruptive and so distorting of the way our system is intended to work.

Tavis: Let me put you on the spot and specifically and unapologetically ask you just to share a little bit, to brag a little bit, about the success you all have had, given this strategy.

You’ve done some pretty righteous works and some heaving lifting, some yeoman’s work. I saw these numbers and I was astounded at the success you all have had in convincing certain companies to divest in these institutions. Tell me what you’ve done.

Stevenson: Well, there’s a wonderful organization called the Color of Change that has really been out front trying to get companies to be responsible with these investments, and there are a bunch of companies that have responded.

DSM, which is a Dutch chemical company, has withdrawn its support of private prisons, Scopia Capital Management, Amica Mutual Insurance are some of them. That’s $60 million dollars were divested at the last quarter of 2013. And I think there will be more pressure put on more companies to do the same thing.

I think what mass incarceration has done to this country and the lives it has disrupted, the people who have been condemned fairly and unfairly, is a crisis. It is a human rights crisis and, like what was happening in South Africa in the 1980s, we’ve got to make private businesses and companies and corporations accountable for how they relate themselves to this crisis.

You go into poor communities and minority communities and you see all the young men of color gone. 50% of the young Black men between the ages of 18 and 30 in jail or prison, probation, parole. It’s a crisis and I think we should hold private businesses and corporations accountable to at least understand where their dollars are going and what those dollars are creating.

Tavis: Mark, my lighting guy, was all over you before you got in the chair asking you a question that I now want to ask. I could have done the lighting tonight and let Mark host the show [laugh], his question was so brilliant, which is whether or not you think that, in the coming months and years, we can get traction on this.

Let me just take Mark’s question and frame it just a little bit differently. My sense is — and I think you may agree with this. I don’t know — that sometimes politicians, sometimes the body politic does the right thing for the wrong reason, the right thing for the wrong reason.

That is my way of saying that it’s costing us so much money and costing society in so many other ways that we find ourselves forced to rethink this question not necessary for the right reasons, but we arrive at the right place. Does that make sense?

Stevenson: It does make sense and I think you’re absolutely right. You know, we have bankrupt many state governments behind our foolish investment in jails and prisons. And in some ways, the people have gotten ahead of the politicians.

Here in California, there was a referendum in 2012 to end the three strikes laws that were sending thousands of people to prison forever. And it was on the ballot and it passed. It won in every county in the State of California by a landslide and it wasn’t even close.

But you couldn’t get the legislature to do that through a statutory provision. So in that respect, the economics of over-incarceration are now catching up to us. It’s unsustainable what we’re doing. So I do think that that will be a big part of it, but I also think we’re making some progress on the moral and social arguments as well.

You know, when you begin to see the way in which we’ve like taken young children and prosecuted them as adults and we’re giving them life without parole, we’re the only country in the world that condemns children as young as 13 and 14 to die in prison for non-homicide offenses. And that was the argument we made before the United States Supreme Court and we won that case. The court said that’s cruel and unusual.

They said the same thing about mandatory life sentences for kids. They’ve said the same thing about the sentences we’re imposing on people with intellectual disabilities. Half the people we have in jails or prisons are severely disabled. They’re suffering from mental illness and we’ve used the prison system to replace the lack of mental health facilities and treatment. I think we’re making progress on those arguments as well.

And I actually am quite hopeful that we can reduce the prison population in this country by 50% in the next decade if we’re focused. The violent crime rate now is as low as it was in 1968. We’ve had a tremendous decrease in violent crime even though people don’t perceive it that way.

So the conditions are right for us to make progress with some very progressive groups and some very conservative groups that are kind of coming together, a group called Right on Crime and many people are talking about it.

We can’t be tough on crime, but smart on crime and I think that environment makes it possible to imagine a host of reforms. You got the current U.S. Attorney General directing prosecutors to not charge certain kinds of drug crimes to get the prison population down.

That’s unprecedented, and I don’t think it’s controversial. I actually think most people, if they’re being honest, support that initiative and that’s what makes me hopeful. But like all things, it won’t happen by itself. You know, good people have got to continue to do good work if we’re going to actually see real reform.

Tavis: I couldn’t agree with you more on the decision that Attorney General Holder made in that regard, and there are a lot of us who celebrated that decision.

But he works for a president who, when he ran for that office, said that he thought that crack, the product cocaine discrepancy, that 100 to 1 discrepancy that Bill Clinton codified and signed into law — he wasn’t the first one to do it, but he signed off on that.

So Clinton agrees with 100 to 1 crack to product cocaine discrepancy and that crime bill that a lot of us had an issue with. Obama runs years later, says it ought to be 1 to 1 and campaigned on that. He gets in and the best they can do is get it down to 18 to 1, still not 1 to 1 when it comes to crack to product cocaine discrepancy.

And I raise that only because that is what you suggested earlier is driving so much of this incarceration. So is that the best we’re ever going to do on that particular issue?

Stevenson: I don’t think so. I think that the political environment is shifting. You’ve got people who are Tea Party Republicans and Libertarians who are as outraged by some of the sentences that are being imposed for drug crimes as Progressives have been.

It’s hard to get anything done in Washington these days, but if I had to rank three areas where we could do something, I’d put this on that list. And I actually think those disparities can be further reduced. We got to push, though.

The problem with people who are in jail and prison, the people who are directed affected by it, it’s mostly people who are poor, people who are marginalized, people who don’t have a lot of political power. And because of that, it’s going to require a little bit more of a moral commitment from everybody else to see the inequality, to see the injustice, of condemning so many people and then be willing to speak on that.

Tavis: I have a book about Dr. King coming out later this summer. I was making the point that every one of us has a political critique, a social critique, a cultural critique and an economic critique. What Martin also had was a moral critique and that, quite frankly, was the most powerful of all the critiques that he had.

Stevenson: That’s right.

Tavis: So I hear your optimism — if not optimism, certainly hope — that we are winning as we make this moral argument. But where do you think that moral authority, that moral voice and leadership, is coming from?

Stevenson: Well, I think it has to come from the places it came from before and we’ve got to push them to be more accountable. You know, the NAACP is a fantastic organization, but it took them a long time to actually start speaking about the policy implications of mass incarceration.

The Black churches, I think, have been in too many instances silent while its congregants were just disappearing. And we got caught up, you know, in being angry about crime and throwing people away and many of these communities are often much more likely to be the victims of crime and that’s confused us.

But I think the church has a role to play in this and I actually think we need to hold politicians accountable. I mean, you know, we don’t insist that anybody talk about mass imprisonment and that’s got to change. We don’t insist that anybody talk about over-incarceration.

That’s got to change and I think part of the problem we have in this country, it’s got the highest rate of incarceration in the world and we’re not ashamed of it. And I think somebody’s got to say we ought to be ashamed to be putting such a high percentage of our population in jails or prisons. That’s not the land of the free.

Tavis: I take your answer about how this has to be viewed, how it has to be approached and tackled by communities of color. But what about the good white folk, many of whom for obvious reasons don’t see that they have an interest or stake in this issue?

Stevenson: Well, I think one point is that increasingly all communities are being impacted by these issues. We saw a real reform on drug crimes when it started impacting middle income families and even affluent families in places where drug raids were catching up with all of these folks. And I do think there’s a growing awareness about that, but I also think that the economic implications obviously affect everybody.

But I don’t think this is just about race. I really don’t think that, you know, when you look at mass incarceration in this country, it’s disproportionately impacted communities of color as all kind of bad policies tend to, but it’s become an American problem and I think that all of us recognize that we can’t survive putting people in jails and prisons at the rate we’ve been putting them over the last 40 years, number one.

But, number two, I also think that, you know, we’re going to have to pay for this one way or the other and that’s where you see educational associations and teachers unions and home health providers and health and human service people becoming interested in spending on prisons because their budgets have been compromised and disrupted and undermined by this unnecessary investment in jails and prisons, and that’s everybody.

Tavis: Why do you think there is no shame in our game? I ask that because you look at the data. The data tell one story and yet so many of us, politicians included, continue to preach this notion of American exceptionalism.

Stevenson: Yeah. You know, it’s a great question. I think the lack of political diversity on this issue is part of the problem. You’re right. The 1990s were a terrible decade.

President Clinton’s tenure was the worst really, frankly, for the mass incarceration. He signed into law a bunch of laws in 1996 that were horrible. So I think the absence of critique, moral critique as you’ve pointed out, while these really immoral things were taking place, has been part of the problem.

And I also think, you know, we tolerate unreliability, wrong convictions, all these innocent people being exonerated and we don’t really get to exercise about that. It is a shame and we’ve got to kind of create some moral outrage, it seems to me, about those realities.

Tavis: For those of us who care about these issues, we have not yet come to understand that sometimes we have to fight with our friends. We have to fight with our friends. We may love Bill Clinton, but he was wrong on a number of those policy choices. We may love Barack Obama, but as I’ve said many times, great presidents aren’t born, they’re made. They got to be pushed into their greatness.

The question is, how, when these issues, life and death issues, are on the front burner, do we find the courage, the conviction, the commitment, to even have to fight with our friends if these issues mean that much to us?

Stevenson: Well, I think, you know, it’s interesting. If you look at the life of Dr. King, as you have, and you look at the life of civil rights leaders, they were always being pushed by their friends in the White House, in the white church, even in the Black community, to be quiet, to give it more time and all of that stuff.

And there was this kind of — they were tactical, they were strategic. They didn’t always do what they wanted to do and we can’t do that either. But there was a sense that there were certain things that you have to stand up for.

I grew up in a community where we were so excluded. You know, public schools weren’t open. I started in a colored school because public school wasn’t open to me. And we understood that we could not get where we were trying to go until we had that kind of integration. And that meant people taught me that sometimes you’ve got to stand even when everybody else is sitting, including your friends.

Sometimes you’ve got to speak even when everybody else is quiet, and that idea that you do it because you have to do it, because it’s the right thing to do, even if you have to do it by yourself, that was the Montgomery bus boycott, right? That idea has to be internalized by us because, without that push, our politicians are going to go where the power is.

They’re gonna go where the votes are and we’ve got to hold them accountable by insisting we can do better in this country than put 2.4 million people in jails or prisons. We can do better than that. And we can do better than put our children and throw them away. We’ve got some really horrible policies in this country.

We got 10,000 kids right now in adult jails and prisons where they’re being sexually assaulted. Their suicide risk is about eight times greater than it would be otherwise and no one can really defend it. We just haven’t gotten our act together enough to insist on getting those kids out of those prisons.

Tavis: I wish I had two or three nights to talk about this. My time is up, but I want to close this conversation where I could have started the conversation. And that is with this — irony isn’t a strong enough word, but I’m struggling to find the right word for how your life begins, given what happened to your grandfather. And yet you’ve dedicated your life, have dedicated your life, to do this work anyway.

Just tell me quickly what happened to your grandfather and how you still found a way to dedicate your life to fighting for these precious children.

Stevenson: Sure. Well, like a lot of people, I haven’t been insulated from the problems of violent crime. My grandfather was murdered when I was 16. I’ve had other family members suffer violence and victimization. And yet I’m persuaded that we are all more than the worst thing we’ve ever done.

That’s been my orientation. That’s what I kind of absorbed from my elders and the people around me. I think if somebody tells a lie, they’re not just a liar. If you steal something, you’re not just a thief. And even if you kill somebody, you’re not just a killer.

There’s this basic human dignity that we all have to protect and fight for. And even when I have suffered, I’ve recognized that there’s a need to stop the things that create suffering, not just beat up on the person who caused me to suffer. And it’s a very short myopic view to say I’m going to put all of my energy in beating up on this person who’s hurt me.

I want to find ways to actually reduce violence. I don’t want anybody to be killed. I don’t want anybody to suffer through a rape, an assault and all of that stuff. But that means creating a healthier community for all of us, including the people who are living in the margins.

Tavis: He’s my hero and now you see why. Bryan Stevenson is the head of the Equal Justice Initiative and professor at NYU, one of America’s unsung heroes for a lot of us who know the work he is doing, as I said, celebrate him and love him for it. Professor Stevenson, good to have you on this program.

Stevenson: Thank you very much.

Tavis: That’s our show for tonight. Thanks for watching and, as always, keep the faith.

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Last modified: August 4, 2014 at 11:23 pm