The racial origins of modern criminal procedure.

• Date: 01 October 2000
• Author: Klarman, Michael J.

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection.(1) By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses.(2) In addition, the Court had broadened its earlier decisions forbidding race discrimination in jury selection in ways that made it practically as well as theoretically possible to establish equal protection violations in that context.(3)

Altogether, the Supreme Court decided six landmark state criminal procedure cases during the interwar period. Four of these cases involved black defendants from southern states. This Article contends that the linkage between the birth of modern criminal procedure and southern black defendants is no fortuity. For the Court to assume the function of superintending the state criminal process required a departure from a century and a half of tradition and legal precedent, both grounded in federalism concerns. The Justices were not prepared to embark on such a novel enterprise in cases of marginal unfairness -- where the police had interrogated a suspect a bit too vigorously or permitted defense counsel a little less time than optimal for preparing a case. On the contrary, the Court was willing to take this leap only when confronted with cases in which defendants were brutally tortured into confessing or the appointment of defense counsel in a capital case was a complete sham. Such flagrant injustices were not frequent occurrences in the United States during the 1920s and 1930s -- except in the South, in cases involving black defendants charged with serious interracial crimes, usually rape or murder.

Part I of this Article makes three related points about these egregious exemplars of Jim Crow justice, which provided the occasion for the birth of modern criminal procedure. First, the southern state appellate courts and the United States Supreme Court were operating on the basis of different paradigms when they evaluated the fairness of these criminal trials. For the southern courts, the simple fact that these defendants enjoyed the formalities of a criminal trial, rather than being lynched, represented a significant advance over what likely would have transpired in the pre-World War I era. For the United States Supreme Court, on the other hand, criminal trials were supposed to be about adjudicating guilt or innocence, not simply avoiding a lynching. Second, because these southern criminal trials were so egregiously unfair, public opinion in the nation generally supported the Supreme Court's interventions. Thus, these early criminal procedure cases hardly represent the sort of countermajoritarian judicial decision-making one often associates with landmark criminal procedure decisions such as Mapp or Miranda.(4) Third and finally, it is possible that the southern state courts themselves would have intervened to rectify the obvious injustices involved in these cases had the circumstances been a little different. Southern courts in the post-World War I period were becoming more committed to norms of procedural fairness, even in cases involving black defendants charged with serious interracial crimes. Yet, in cases that aroused outside criticism of the South or that posed broader challenges to the system of white supremacy, the southern state courts regressed. Cases that might never have reached the United States Supreme Court a decade or two earlier slipped through the state system uncorrected, thus providing the occasion for landmark criminal procedure rulings.

Part II evaluates the impact of these Supreme Court decisions, in terms of both the precise issues involved (e.g., black service on juries) and the general treatment of blacks in the southern criminal justice system. It turns out that none of these rulings had a very significant direct impact on Jim Crow justice. For example, few blacks sat on southern juries as a result of Norris v. Alabama, and black defendants continued to be tortured into confessing, notwithstanding Brown v. Mississippi. This Part explores some of the factors that explain the general failure of these Supreme Court decisions to affect the actual treatment of black criminal defendants in the South. Yet, Court decisions also can have more intangible consequences. This Part suggests that these criminal procedure rulings may have indirectly contributed to the modern civil rights movement by educating blacks about their rights, mobilizing protest in the black community, and rallying support among sympathetic whites who were horrified by revelations of Jim Crow practices at their worst.

Part III connects these criminal procedure decisions to broader themes in constitutional and civil rights history, identifying some tentative lessons regarding the nature and consequences of Supreme Court constitutional decisionmaking and the dynamics through which American race relations have changed over time.

1. FOUR LANDMARK CRIMINAL PROCEDURE CASES

   Four of the landmark criminal procedure cases of the interwar period involved southern black criminal defendants convicted and sentenced to death after egregiously unfair trials. In Moore v. Dempsey,(5) the Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to forbid criminal convictions obtained through mob-dominated trials. In Powell v. Alabama,(6) the Court ruled that the Due Process Clause requires state appointment of counsel in capital cases and overturned convictions where defense counsel had been appointed the morning of trial. In Norris v. Alabama,(7) the Court reversed a conviction under the Equal Protection Clause where blacks had been intentionally excluded from juries. To reach that result, the Court had to revise the critical "subconstitutional"(8) rules that previously had made such claims nearly impossible to prove. In Brown v. Mississippi,(9) the Court construed the Due Process Clause to forbid criminal convictions based on confessions extracted through torture.

   These four decisions arose from three distinct episodes. In Moore, six black defendants appealed death sentences imposed for a murder allegedly committed in connection with the infamous race riot in Phillips County, Arkansas in the fall of 1919.(10) Phillips was a typical deep South cotton county with a black majority of approximately three-to-one. According to the local black community, the cause of the racial altercation that culminated in the Moore litigation was the brutal suppression by whites of an effort by black sharecroppers after World War I to form a tenant farmers' union and to seek legal redress for their landlords' peonage practices. The white community, on the contrary, charged that the cause of the conflagration was a black conspiracy to murder white planters throughout the county. An initial altercation in which whites shot into a black union meeting at a church and blacks returned the gunfire, killing a white man, quickly escalated into mayhem. Marauding whites, some of whom flocked to Phillips County from adjoining states and enjoyed the assistance of federal troops ostensibly employed to quell the disturbance, went on a rampage against blacks, tracking them down through the rural county, and killing (on one estimate) as many as 250 of them. Seventy-nine blacks (and no whites) were prosecuted as a result of the riot; twelve received the death penalty for murder; and six were involved in the appeal to the United States Supreme Court in Moore v. Dempsey. The Court reversed their convictions on the ground that mob-dominated trial proceedings violated the Due Process Clause.

   The second and third race-based criminal procedure cases of the interwar period, Powell v. Alabama and Norris v. Alabama, both arose out of the famous Scottsboro Boys episode.(11) Nine black youths, ranging in age from thirteen to twenty, impoverished, illiterate, and transient, were charged with raping two young white women, alleged to be prostitutes, on a freight train in northern Alabama in the spring of 1931. They were tried in a mob-dominated atmosphere, and eight of the defendants received the death penalty. The state supreme court reversed one of these death sentences on the ground that the defendant was too young to be executed under state law and affirmed the other seven. The United States Supreme Court twice reversed the Scottsboro Boys' convictions -- the first time on the ground that they had been denied the right to counsel, and the second time on the ground that blacks had been intentionally excluded from the grand jury that indicted them and the trial jury that convicted them.

   Fourth and finally, in Brown v. Mississippi the Supreme Court reversed the death sentences of three black sharecroppers convicted of murdering their white landlord.(12) The principal evidence against the defendants was their own confessions, extracted through torture. The Supreme Court ruled that convictions so obtained violated the Due Process Clause of the Fourteenth Amendment.

   These four cases arose out of three quite similar episodes. Southern black defendants were charged with serious crimes against whites -- either rape or murder. All three sets of defendants nearly were lynched before their cases could be brought to trial. In all three episodes, mobs comprised of hundreds or even thousands of whites surrounded the courthouse during the trial, demanding that the defendants be turned over for a swift execution. No change of venue was granted in these cases (except in the retrial of the Scottsboro Boys). Lynchings were avoided only through the...