The Supreme Court as Protector of Civil Rights: Criminal Justice

• Author: Osmond K. Fraenkel
• DOI: 10.1177/000271625127500112
• Published date: 01 May 1951
• Date: 01 May 1951
• Subject Matter: Articles

The Supreme Court as Protector of Civil Rights:
Criminal Justice
By OSMOND K. FRAENKEL
THE United States Supreme Court
In addition to its role as shield in pro-
has wide power to review convic-
tecting civil rights, the Supreme Court
tions obtained in the federal courts-
functions also as final authority with re-
more limited power over state convic-
spect to the meaning and constitutional-
tions.
In the one case it lays down
ity of legislation Congress has from time
rules for the guidance of all lower fed-
to time enacted in using the criminal
eral courts; in the other it functions
law as a sword for the greater safeguard-
only as interpreter of the federal Con-
ing of civil rights.5
stitution.
This difference has often produced
view by the United States Supreme Court.
Darr
seemingly inconsistent results. Conduct
v. Burford, 339 U. S. 200 (1950)—Black,
Frankfurter, Jackson, JJ., dissenting, Douglas,
in the trial of a criminal case in a fed-
J., not participating; but see House v. Mayo,
eral -court may lead to reversal of con-
324 U. S. 42 (1945); White v. Ragen, 324
viction where identical conduct in a
U. S. 760 (1945); Wade v. Mayo, 334 U. S.
state court does not. Moreover, in re-
672 (1948)—Vinson, C.J., Reed, Jackson, Bur-
viewing federal convictions the Supreme
ton, JJ., dissenting. The difficulties which be-
Court is free to interpret Acts of C6n-
set a person who seeks to question a state
conviction collaterally are illustrated by the
gress or ordinances of the District of
Hawk case. After numerous futile attempts
Columbia as it deems wise; 1 in review
to get a hearing by the United States Supreme
of state convictions it accepts without
Court (see e.g. Hawk v. O’Grady, 311 U. S.
question the interpretation placed on a
645—1940) the Supreme Court first concluded
state law or constitution by they highest
that Hawk had not followed the correct state
court of that state.2
2
Even when
procedure (
Ex
grave
parte Hawk, 321 U. S. 114-
constitutional issues
1944) and then, when he adopted its sugges-
are involved in a
tion, ruled that he was entitled to a hearing
case which arises in a state, the Supreme
(Hawk v. Olson, 326 U. S. 271-1945). But
Court may refuse to consider them if
then the state court decided that Hawk had
the case has been decided on some &dquo;non-
invoked the wrong remedy, habeas corpus
federal&dquo; ground 3 or if all state remedies
(Hawk v. State, 146 Neb. 875-1946). So
have not been &dquo;exhausted.&dquo; 4
Hawk appealed to the federal courts, only to
be told he should invoke a different remedy
1
As in District of Columbia v. Little, 339
in the state courts, coram nobis (Hawk v.
U. S. 1 (1950)—Burton, Reed, JJ., dissenting,
Jones, 66 F. Supp. 195-D. Nebr. 1946, aff’d.
Douglas, J., not participating.
160 F. (2d) 807-8th C. 1947; cert. denied
2
Hebert v. Louisiana, 272 U. S. 312, 317
332 U. S. 779—1947). Finally Hawk did get
(1926) ; Skiriotes v. Florida, 313 U. S. 69, 79
a hearing on the merits at which his claims
(1941); Winters v. New York, 333 U. S. 507,
were rejected (Hawk v. State, 151 Nebr. 717
514 (1948) ; Paterno v. Lyons, 334 U. S. 314
-1949) and the Supreme Court denied certio-
(1948).
rari (Hawk v. Nebraska, 339 U. S. 923—1950).
3
White v. Ragen, 324 U. S. 760 (1945);
For the uncertainty as to the proper remedy
Woods v. Nierstheimer, 328 U. S. 211 (1946);
to be invoked in Illinois before 1949 see con-
Parker v. Illinois, 333 U. S. 571 (1948)—
curring opinion of Justice Rutledge in Marino
Black, Murphy, Rutledge, JJ., dissenting;
v. Ragen, 332 U. S. 561, 563-570 (1947) and
Phyle v. Duffy, 334 U. S. 410 (1948); Hedge-
see also Young v. Ragen, 337 U. S. 235, 238
beth v. North Carolina, 334 U. S. 806 (1948)
(1949). Illinois has now enacted legislation to
-Douglas, Rutledge, JJ., dissenting; Loftus v.
take care of this problem: Laws 1949, p. 722
Illinois, 337
U. S. 935 (1949).
(see Walker v. Ragen, 338 U. S. 833—1949).
4
This
5

may include an attempt to get re-
See notes 121-124 infra.
86

---

87
tion ; 11 the right to trial by jury 12 and
ISSUES WHICH ARISE ON THEIR MERITS
to counsel; 13 the right to baill4 and
In reviewing convictions in criminal
freedom from cruel and unusual punish-
cases the Suprmee Court is concerned
ments.15
with two kinds of problems: (1) the
Under the second head come the
claim that some specific guarantee of
various concepts embraced within the
the Constitution or of an Act of Con-
phrase &dquo;due process of law.&dquo; This con-
gress was ignored; (2) the claim that
trols both state and federal action. Due
the proceedings were unfair.
process requires that laws which create
Under the first head come the pro-
presumptions in criminal cases be rea-
hibitions (binding on both states and
sonable,16 that laws creating crimes be
federal government) of the original Con-
532 (1947)—Rutledge, J., dissenting; Sealfon
stitution against ex post facto laws 6 and
v. United States, 332 U. S. 575 (1947); Wade
bills of attainder,7 and the guarantees
v. Hunter, 336 U. S. 684 (1949)—Murphy,
of the Bill of Rights. While the guar-
Douglas, Rutledge, JJ., dissenting; United
States
antees of the Bill of Rights
v. Williams, 1950 Term, No. 134, await-
are explicitly
ing decision.
binding only on the federal government,
11
Amendment V. This is not binding on
they have been extended to the states in
the states: Twining v. New Jersey, 211 U. S.
part through the due process clause of
78 (1908); Adamson v. California, 332 U. S.
the Fourteenth Amendment.
These
46 (1947)—Black, Douglas, Murphy, Rutledge,
include freedom from unreasonable
JJ., dissenting. For federal cases see United
States v. Monia, 317 U. S. 424 (1943)—
searches; $ the requirement of indict-
Frankfurter, Douglas, JJ., dissenting; Feld-
ment by a grand jury; 9 freedom from
man v. United States, 322 U. S. 487 (1944)—
double jeopardy 10 and self-incrimina-
Black, Douglas, Rutledge, JJ., dissenting,
Murphy, Jackson, JJ., not participating;
6
Art. I, Sec. 9 as to Congress; Art. I, Sec.
United States v. White, 322 U. S. 694 (1944);
10 as to the states.
For applications of the
Shapiro v. United States, 335 U. S. 1 (1948)—
principle see Thompson v. Utah, 170 U. S.
Frankfurter, Jackson, Murphy, Rutledge, JJ.,
343 (1898); Lindsey v. Washington, 301 U. S.
dissenting; Smith v. United States, 337 U. S.
397 (1937).
137 (1949); Blau v. United States, 340 U. S.
7
Art. I, Sec. 9 as to Congress; Art. I, Sec.
159 (1950); Rogers v. United States, 340 U. S.
10 as to the states. There have been no mod-
—
(1951)—Black, Frankfurter, Douglas,
ern instances of the true bill of attainder; but
JJ., dissenting; Clark, J., not participating.
see United States v. Lovett, 328 U. S. 303
12
Amendment VI. This is not binding on
(1946).
the states: Jordan v. Massachusetts, 225 U. S.
8
Amendment IV. See notes 32-42 infra.
167, 176 (1912) ; nor on the insular posses-
For the analogous subject of wire tapping see
sions : see note 9 supra. But if there is a trial
notes 43-49 infra.
by jury there must be no discrimination in
9
Amendment V-not binding on the states:
selection-see notes 66-69 infra. For some
Hurtado v. California, 110 U. S. 516 (1884);
federal cases see notes 63-65, 71-73 infra.
nor on the insular possessions: Hawaii v.
13
Amendment VI-see notes 50-59 infra.
Mankichi, 190 U. S. 197 (1903). For federal
14
Amendment VI. While the right to bail
cases see Ex parte Wilson, 114 U. S. 417
pending appeal is not covered by this pro-
(1885); United States v. Moreland, 258 U. S.
vision, it should not be withheld where the
433 (1922).
appeal presents a
substantial
question:
10
Amendment V-not completely binding on
D’Aquino v. United States, 180 F. (2d) 271
the states: Palko v. Connecticut, 302 U. S. 319
(Douglas, J.) ; Williamson v. United States,
(1937). For federal cases see Thompson v.
185 F. (2d) 280 (Jackson, J., 1950). Cf.
United States, 155 U. S. 271 (1894); United
Bridges v. United States, 184 F. (2d) 181 (9th
States v. Lanza, 260 U. S. 377 (1922); In re
1950).
Bradley, 318 U. S. 50 (1943)—Stone, C.J.,
15
Amendment VIII. See Louisiana ex rel.
dissenting; Pinkerton v. United
States, 328
Francis v. Resweber, 329 U. S. 459 (1947)—
U. S. 640 (1946)-Frankfurter, Rutledge, JJ.,
Douglas, Murphy, Rutledge, Burton, JJ., dis-
dissenting; Bozza v. United States, 330 U. S.
senting.
160 (1947) ; United States v. Bayer, 331 U. S.
16
See notes 89-93 infra.

---

88
sufficiently definite, 17 that improperly
Bill of Rights to state convictions found-
obtained confessions 18 or known per-
ered on the obvious fact that these first
jured testimony 19 be not used as evi-
ten amendments were intended as re-
dence, that judges be not interested
strictions on federal power only.25 And
parties,2° that trials be free from mob
despite strong evidence that the framers
domination.21
Improper summations
of the Fourteenth Amendment intended
have resulted in reversal of federal con-
to change this,26 the Supreme Court has
victions 22-SO far, not of any in the
never accepted the view that all the
states.23 And in various other respects,
guarantees of the Bill of Rights bind
the Supreme Court supervises convic-
state courts, whether, as lawyers first
tions in federal courts. 24
attempted, within the concept of &dquo;priv-
Before discussing some of the specific
ileges and immunities&dquo; 27 or, more re-
guarantees, it may be useful to point out
cently, as part of &dquo;due process.&dquo; 28 As
the limited effect of the guarantees of
Justice Cardozo said...