It is late in the afternoon in Montgomery. The banks of the Alabama River are largely deserted. Bryan Stevenson and I walk slowly up the cobblestones from the expanse of the river into the city. We pass through a small, gloomy tunnel beneath some railway tracks, climb a slight incline and stand at the head of Commerce Street, which runs into the heart of Alabama’s capital. The walk was one of the most notorious in the antebellum South.
“This street was the most active slave-trading space in America for almost a decade,” Stevenson says. Four slave depots stood nearby. “They would bring people off the boat. They would parade them up the street in chains. White plantation owners and local slave traders would get on the sidewalks. They’d watch them as they went up the street. Then they would follow behind up to the circle. And that is when they would have their slave auctions.
“Anybody they didn’t sell that day they would keep in these slave depots,” he continues.
We walk past a monument to the Confederate flag as we retrace the steps taken by tens of thousands of slaves who were chained together in coffles. The coffles could include 100 or more men, women and children, all herded by traders who carried guns and whips. Once they reached Court Square, the slaves were sold. We stand in the square. A bronze fountain with a statue of the Goddess of Liberty spews jets of water in the plaza.
“Montgomery was notorious for not having rules that required slave traders to prove that the person had been formally enslaved,” Stevenson says. “You could kidnap free black people, bring them to Montgomery and sell them. They also did not have rules that restricted the purchasing of partial families.”
We fall silent. It was here in this square—a square adorned with a historical marker celebrating the presence in Montgomery of Jefferson Davis, the president of the Confederacy—that men and women fell to their knees weeping and beseeched slave-holders not to separate them from their husbands, wives or children. It was here that girls and boys screamed as their fathers or mothers were taken from them.
“This whole street is rich with this history,” he says. “But nobody wants to talk about this slavery stuff. Nobody.” He wants to start a campaign to erect monuments to that history, on the sites of lynchings, slave auctions and slave depots. “When we start talking about it, people will be outraged. They will be provoked. They will be angry.”
Stevenson expects anger because he wants to discuss the explosive rise in inmate populations, the disproportionate use of the death penalty against people of color and the use of life sentences against minors as part of a continuum running through the South’s ugly history of racial inequality, from slavery to Jim Crow to lynching.
Equating the enslavement of innocents with the imprisonment of convicted criminals is apt to be widely resisted, but he sees it as a natural progression of his work. Over the past quarter-century, Stevenson has become perhaps the most important advocate for death-row inmates in the United States. But this year, his work on behalf of incarcerated minors thrust him into the spotlight. Marshaling scientific and criminological data, he has argued for a new understanding of adolescents and culpability. His efforts culminated this past June in a Supreme Court ruling effectively barring mandatory life sentences without parole for minors. As a result, approximately 2,000 such cases in the United States may be reviewed.
Stevenson’s effort began with detailed research: Among more than 2,000 juveniles (age 17 or younger) who had been sentenced to life in prison without parole, he and staff members at the Equal Justice Initiative (EJI), the nonprofit law firm he established in 1989, documented 73 involving defendants as young as 13 and 14. Children of color, he found, tended to be sentenced more harshly.
“The data made clear that the criminal justice system was not protecting children, as is done in every other area of the law,” he says. So he began developing legal arguments “that these condemned children were still children.”
Stevenson first made those arguments before the Supreme Court in 2009, in a case involving a 13-year-old who had been convicted in Florida of sexual battery and sentenced to life in prison without parole. The court declined to rule in that case—but upheld Stevenson’s reasoning in a similar case it had heard the same day, Graham v. Florida, ruling that sentencing a juvenile to life without parole for crimes other than murder violated the Eighth Amendment’s ban on cruel and unusual punishment.
Last June, in two cases brought by Stevenson, the court erased the exception for murder. Miller v. Alabama and Jackson v. Hobbs centered on defendants who were 14 when they were arrested. Evan Miller, from Alabama, used drugs and alcohol late into the night with his 52-year-old neighbor before beating him with a baseball bat in 2003 and setting his residence on fire. Kuntrell Jackson, from Arkansas, took part in a 1999 video-store robbery with two older boys, one of whom shot the clerk to death.
The states argued that children and adults are not so different that a mandatory sentence of life imprisonment without parole is inappropriate.
Stevenson’s approach was to argue that other areas of the law already recognized significant differences, noting that children’s brains and adults’ are physiologically distinct. This, he said, is why children are barred from buying alcohol, serving on juries or voting. He argued that the horrific abuse and neglect that drove many of these children to commit crimes were beyond their control. He said science, precedent and consensus among the majority of states confirmed that condemning a child to die in prison, without ever having a chance to prove that he or she had been rehabilitated, constituted cruel and unusual punishment. “It could be argued that every person is more than the worst thing they’ve ever done,” he told the court. “But what this court has said is that children are uniquely more than their worst act.”
The court agreed, 5 to 4, in a landmark decision.
“If ever a pathological background might have contributed to a 14-year-old’s commission of a crime, it is here,” wrote Justice Elena Kagan, author of the court’s opinion in Miller. “Miller’s stepfather abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten.” Children “are constitutionally different from adults for purposes of sentencing,” she added, because “juveniles have diminished culpability and greater prospects for reform.”