When Stephen Bright takes on a new death row client, he makes them a promise. He pledges to stick with them all the way. He means it. Five times now he has gone with a condemned man into the death chamber.
In 1985, he had to do it twice in a single month. The first was Joseph Carl Shaw, a former military policeman in South Carolina. Shaw was schizophrenic and had been in the throes of a psychotic episode when he sought urgent medical help on his army base. They told him to come back after the weekend. The next day, he committed murder. Bright was with Shaw as he was strapped to the electric chair, kissing him on the cheek as a final farewell. Then Shaw was hit with 2,300 volts.
Less than three weeks later, Bright was back in an execution chamber, this time in Florida. He sat with James David Raulerson, convicted of killing a police officer, as he was also electrocuted.
Outside the Florida state prison, a group of 50 police officers had gathered wearing T-shirts saying: “Crank Up Old Sparky.” More officers were crowded into the viewing area. After Raulerson was declared dead, they erupted in cheering. Bright was the only person in the room who did not rejoice.
“It’s the dark side of the human spirit,” he said. “Celebrating the death of any human being. I thought, ‘What are we doing here?’ Taking a human being, strapping them to the chair, putting them down. Then high-fiving. I still can’t believe it.”
Bright, 74, is the doyen of death penalty lawyers. For more than 40 years he has gone to battle for prisoners the US criminal justice system has abandoned, cases so tough no other lawyer would take them: mentally ill prisoners who have no idea what is happening to them, defendants so poor and poorly represented they were condemned before they entered the courtroom.
As for the number of death penalty cases he’s fought, Bright long ago lost count.
“I have no idea, I couldn’t begin to work it out,” he said.
Now Bright has written a book that draws together insights gained from four decades at the coalface of US criminal justice. It makes for profoundly disconcerting reading, as the title indicates – The Fear of Too Much Justice: Race, Poverty and the Persistence of Inequality in the Criminal Courts.
Written with one of Bright’s former Yale law students, James Kwak, the book chronicles the myriad ways poor defendants, disproportionately from Black and other minority communities, have the chips stacked against them. The title is a line drawn from a response to one of the US supreme court’s most notorious death penalty rulings, McCleskey v Kemp.
In that 1987 ruling, the majority declined to deal with the blatant racial biases that exist in capital punishment on grounds that they would then have to face up to similar disparities in all other areas of the legal system. That sounds like a “fear of too much justice”, thundered Justice William Brennan in a legendary dissent.
For someone at the forefront of the struggle against America’s fear of too much justice, Bright comes from surprising roots. He was brought up on a small family farm in bluegrass country, on the western edge of Appalachia in Kentucky. His father was a third-generation farmer. With its rolling hills and lush greenery, the rural idyll of his childhood was a world away from the brutal concrete and steel of death row.
Except the idyll wasn’t as idyllic as it looked. His Kentucky community was totally segregated. As a teenager, Bright watched his father speak out against racial injustice even though he got flack for it from neighbors and from within their own family.
The experience radicalised Bright. By the time he got to the University of Kentucky, he was ready to raise his own voice against Vietnam and Richard Nixon’s 1970 invasion of Cambodia, earning a reputation as a “rabble-rousing student body president”.
His father’s commitment to basic fair play, combined with his own tendencies, merged to produce one of America’s great justice warriors. In 1976, working as a public defender in Washington DC, Bright was asked to represent Donald Wayne Thomas, a death row inmate facing execution in Georgia.
Bright was at first skeptical. His skills were as a trial lawyer, not appealing death sentences. But when he learned Thomas had no recourse to counsel, his mind was made up.
“It was shocking – the idea that somebody could be on death row and not have a lawyer. So we said, ‘All right, we’ll take it.’”
The Thomas case sucked Bright into the judicial vortex of the deep south, where he was to remain as director then president of the Southern Center for Human Rights in Atlanta for 40 years. What he found only intensified his initial shock.
Supreme court justices have a unique way of talking about capital punishment. “Death is different,” they say, to denote that there is no coming back, no right to appeal, once your life has been snuffed out. You would have thought such finality would translate into the most strenuous and exacting legal standards – if nothing else, to prevent innocent people going to their deaths. When Bright landed in Georgia, he discovered the exact opposite.
Thomas had been put on death row after the most flimsy of trials. The jury was not told the defendant was mentally ill and had no sense of date or time.
“When we read the trial transcript, I couldn’t believe that somebody could be sentenced to death in such a perfunctory process,” Bright said. “I mean, my law students try misdemeanors better than this case was tried.”
Time and again Bright was to be horrified by the paltry level of legal representation in capital cases. Across Georgia, Mississippi, Alabama and Texas he would take on clients who had been sentenced to death having had counsel who had fallen asleep at trial or presented next to no evidence.
Judy Haney, on trial for murder, had a lawyer so drunk he collapsed in the courtroom. “The judge had the sheriff’s men pick him up and take him to jail. The next day both Judy and her lawyer were produced from jail and the trial resumed as if nothing had happened.”
Bright recalled another case where the defense counsel apologised during his closing argument for having represented the defendant.
“I’m only doing this because the judge appointed me and I have no choice,” he told the jury.
The Fear of Too Much Justice is packed with examples of men and women being sentenced with barely any effort made to ensure a fair outcome. He and Kwak describe the spectacle of watching “McJustice” at work – “meet ’em and plead ’em” as it is also known – where a conveyor belt of defendants are processed in quick succession having spent all of five minutes with counsel.
The surreality of American justice is chilling when the stakes are as high as life and death. Between 1973 and 2020, 185 death row inmates were exonerated, having been found to be innocent.
“We really should have a lot more humility about these draconian punishments like the death penalty or life without parole given that we know that a lot of mistakes are made and innocent people are convicted,” Bright said.
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Through all the forms of injustice outlined in the book, race runs like a river. The authors point out that racial discrimination is tolerated in the courts to a degree that would not be acceptable in any other area of American life. In at least five cases in Georgia, defense lawyers referred to their own clients in front of the jury with racial slurs. All-white juries of the sort featured in To Kill a Mockingbird remained prevalent across the south.
Of four capital cases Bright argued – and won – before the US supreme court, three involved racial discrimination in the selection of all-white juries. In the case of Timothy Foster, Bright uncovered notes kept by prosecutors in which they marked each Black potential juror with a “B”, then struck them all out.
Such egregious discrimination has led Bright to conclude that capital punishment in the US is a direct appendage of slavery.
“The death penalty is concentrated in the south,” he said, “because that’s where slavery was. You have to have the death penalty because slaves are already in prison and you have to have something to terrify them. And so we have Texas and Florida and Georgia and Alabama leading executions – all of them Confederate states.
“If Germany had the death penalty and most of the people being sentenced to death were Jewish, we would recoil in horror. But that’s exactly what we have in the US, with people who are the descendants of slaves filling death row.”
In the past few years, Bright has stepped back from the punishing pace of death penalty defending. He has returned to the rolling hills of Kentucky, combining that with teaching stints at Yale and Georgetown. He finds himself haunted by those cases that ended in the death chamber. But he is also careful to make the most of the positives of so many years in the cauldron of capital punishment.
He thinks about Donald Wayne Thomas, his first capital case in Georgia, who he represented for 15 years. Thomas is alive today, still imprisoned but off death row.
He remembers too Tony Amadeo, his first case before the supreme court. Amadeo was convicted of murder and put on death row aged 18 in a trial that lasted just two days. Bright convinced the justices prosecutors had manipulated the jury pool and his sentence was switched to life.
After 38 years, Amadeo was released in 2015. “The Georgia legal machinery decided that at 18 Tony was beyond redemption and should be eliminated from the human community,” Bright said. “After we got the death sentence reversed, he took courses and graduated magna cum laude from Mercer University.”
Last summer Bright went to visit his former client in Texas, where Amadeo now runs a ranch. The visit was like a balm.
“This is somebody I used to see through bullet-proof glass in the maximum security prison in Georgia,” the lawyer said. “Now we’re riding around in a four-wheeler, looking at the cattle.”
The Fear of Too Much Justice is published in the US by New Press
