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Identity politics drive criminal justice systems, from South Africa to America

October 21st, 2014
02:49 PM ET

By Mick Krever, CNN

The trial of Oscar Pistorius highlights the power of identity politics, an American civil rights lawyer who defends the disenfranchised told CNN’s Christiane Amanpour on Tuesday, as Pistorius was sentenced to five years in prison.

“It's a dynamic that we see frequently,” Bryan Stevenson said. “When people come into the criminal courts with another identity, with another status, they tend to fare much better.”

“This young man was a respected Olympian, an athlete who was well respected and adored and that meant that he was going to get the presumption of innocence that we offer, that we say we give to everybody but that not everybody gets.”

That is particularly true of the many disenfranchised and often innocent people Stevenson represents in the U.S., a country with its own very troubled relationship to race and justice.

The organization he founded, the Equal Justice Initiative, is headquartered in the heart of the American South – Montgomery, Alabama. His new book, “Just Mercy,” is a memoir told through the stories of the cases he has fought.

“Our system treats you better if you're rich and guilty than if you're poor and innocent, and that's because wealth, not culpability, tends to shape outcomes."

The American justice system may be based on the idea that two sides argue their case on equal footing before a judge and jury, but the reality is that that is not possible without money, he said.

“I talk about in my book a man who was wrongly convicted, sentenced to death, put on death row for fifteen months before the trial took place, had no evidence to support his conviction but he didn't have the wealth and resources to make the people in that community respond to his innocence.”

“And that's the difficulty with our system.”

The man he referred to, Walter McMillan, was falsely accused of murdering a young white woman. In a high-profile appeals process, Stevenson got the man off death row and out of prison.

“For me the question of the death penalty isn't do people deserve to die for the crimes that they commit. I think you have to ask a different question. I think the question is do we deserve to kill?”

“When we have a system where for every ten people who've been executed, we've identified one innocent person. That's a shocking error rate. It's an error rate that we would not tolerate in most aspects of public life.”

“If for every ten planes that took off one crashed, we would not fly. We would demand a change, a radical change in aviation. But in our criminal justice system, we continue to tolerate that kind of error.”

Stevenson also spends much of his time defending children who have been sentenced to prison.

In an odd quirk of the American justice system, courts often decide to treat juveniles as adults, exposing them to much harsher sentences.

“We don't let kids drink; we don't let them smoke; we don't let them vote. We protect child status in virtually every area of life. But in our criminal courts, we act as if there are no difference between children and adults. And for me, this is a kind of fantasy.”

So frustrated was Stevenson by this system that, he said, he once tried, in his own way, to change how the justice system viewed his underage client.

“I did have a case where I filed a motion, where I was saying to the judge, you know, if you've got the magical ability to turn my young child into an adult client, then maybe I should ask you to give that child the identity that I think he would have and I did file this motion asking the court to try this young fourteen-year-old poor black child as a seventy-five-year-old privileged white corporate adult.”

The judge, not surprisingly, denied his request.

“The U.S. is the only country in the world that has condemned thirteen- and fourteen-year-old children to die in prison. We have three thousand kids that have been sentenced to life without parole. We have ten thousand children on any given day that are in adult jails or prisons, where they might be assaulted or abused.”

“The United States and Somalia are the only two countries that have refused to sign a Covenant on the Rights of the Child. And I think that's shameful.”

America’s troubled justice system, particularly when it comes to race, was put into stark focus this summer when an unarmed black teenager, Michael Brown, was shot and killed in Ferguson, Missouri. Protests in that town continue to this day.

“I think we've got to be more honest about our history. There is a legacy of racial inequality in this country that we've never confronted, that we've never talked about.”

“I live in Montgomery, Alabama, where you see all kinds of markers and monuments to the Confederacy. We romanticize that era. We don't talk about the legacy of slavery. We don't talk about the decades of terrorism that shaped the lives of African-Americans between Reconstruction and World War II.”

“We're dismissive when it comes to civil rights; we just want to celebrate that era without dealing with the trauma and humiliation that African-Americans experienced in this country.”

“I grew up in a community where black children couldn't go to the public schools. I started my education in the colored school. And we haven't talked about it. We didn't do what South Africa did and commit ourselves to a process of truth and reconciliation.”

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