Steve Bright’s Vision

I have often said that I know of only two saints: John Rosenberg and Steve Bright. What criteria I used to reach that conclusion I’ll save for another day. John, a survivor of the Holocaust, was the founder of the Appalachian Research and Defense Fund, the legal services corporation that has since the early 1970’s served the poor people of Eastern Kentucky. After working with the Justice Department on voting rights in the early and mid-1960’s in Mississippi during the worst of times, John and his lovely wife Jean got in their Volkswagen Bus and drove from DC to Prestonsburg, Kentucky, where for over 30 years he worked tirelessly to bring light to a dark place. Since retirement, he has continued to serve on the Department of Public Advocacy’s Commission, advocate for the poor before the legislature, and work to bring justice to the moonscape of Eastern Kentucky caused by mountaintop removal. I was John’s law clerk in Prestonsburg in 1976 when I first moved to Kentucky. Steve Bright also worked for a time for John.

Which brings me to Saint #2. Steve has had a storied career known by most. He presently is the president and senior counsel at the Southern Center for Human Rights, a lecturer at Yale Law School, an author and professor and prophet. On Friday, November 15, 2013, Steve spoke at the University of Kentucky at the Second Annual Forum on Criminal Law Reform in the Commonwealth of Kentucky. This is the brainchild of Ed Monahan, Kentucky’s fine Public Advocate (and a candidate for sainthood in his own right). He brings together “stakeholders” to talk about serious criminal justice issues at one of Kentucky’s law schools. The first such forum focused on the results of a major piece of criminal justice reform that had taken place the previous year. This year’s forum was entitled “The Death Penalty in the Commonwealth: What the ABA Kentucky Death Penalty Assessment Team Report on the Administration of the Death Penalty in Kentucky Means.” Steve was the keynote speaker. Anyone who has ever heard Steve speak knows what happens: he sucked all the energy out of the room as he thundered in his prophetic voice about the injustices of our criminal justice system. While much of the impact comes from Steve’s person, you will get the content of his ideas from a brief summary below.

Steve’s primary point was that the demise of the death penalty is inevitable, both in Kentucky and throughout the United States. The backdrop for this hopeful position was the bleak state of the death penalty today. He noted that the assistant attorney general who had argued for Georgia in Furman and had crafted the statute that passed muster in Gregg now favored the abolition of the death penalty, calling guided discretion a failed effort. Steve had the previous week been at a forum in Atlanta at which he had heard former President Jimmy Carter advocate for the same thing. The importance of President Carter’s announcement was that as Governor of Georgia he had signed the bill that had been approved in Gregg. Steve recounted how the justices who had voted in the majority in Gregg, Stevens, Blackmun, and Powell (as well as Brennan and Marshall) had now expressed publicly that they no longer believed the death penalty to be constitutional. The Gregg “majority” no longer existed. The Attorney General of Virginia from 1998-2001, Mark Earley, was said to have advocated for the abolition of the death penalty in his state after having presided over fifteen executions in a short period of time.

Steve repeated that one could not understand the death penalty in America without seeing that it was “bound up” with our history of race. Capital punishment was essential to enforcing slavery throughout the South. When slavery ended, the death penalty remained important to a system first of convict leasing and then Jim Crow.

Steve noted that in the last few years, the death penalty had been abolished in Illinois, New York, New Jersey, New Mexico, Connecticut, and Maryland, and that it was likely to be abolished soon in New Hampshire. During this same period of time, no state has reversed its position and restored the death penalty.

Buttressing these trends is the fact that jurors are rejecting increasingly the death penalty in their individual decisions. Whereas in the mid-1990s, over 300 death penalty verdicts were being rendered annually, by 2012 this figure was down to only 78. 82|PERCENT| of all executions have occurred in the South. More significantly, 2|PERCENT| of all the counties in America account for the majority of executions since 1976, and 20|PERCENT| of the counties account for all of those executions.

The reasons for this? Steve attributed the trend primarily to the exonerations that have occurred during the past two decades, primarily as a result of innocence projects and DNA. He retold the story of Governor Ryan in Illinois who reduced the death sentences (almost 200 of them) of everyone on Illinois’ death row after realizing that there had been 12 such exonerations and 13 executions during the recent past. A second reason is the deplorable state of counsel in death penalty states. He told the audience of two Kentucky cases: the Gregory Wilson case, represented by a volunteer lawyer whose “law office” was Kelly’s Keg, and Gregory Leonard, whose lawyer didn’t know that his client was brain damaged nor did he even know his name, believing Mr. Leonard to be named “Slaughter.”

Steve finished asking “what kind of legal system do we have? How do we as lawyers and citizens tolerate this?” Better yet, “what kind of a society do we want to be?” Steve could only conclude based upon the weight of all this that the death penalty’s demise will occur soon. I heard a similar prediction many years ago when as a young lawyer I believed David Bruck when he predicted the same thing. I was disappointed when that did not occur over the next three decades. After hearing Steve on Friday, I have regained hope.