REASONS FOR SIMILARITIES IN DECISION MAKING

The Courts: A Quest for Justice during the Pretrial Process

[I]t is clear to me that if America ever is to eradicate racism, lawyers will have to lead. We must cleanse the justice system, because until the justice system is truly colorblind, we cannot have any genuine hope for the elimination of bias in the other segments of American life.

PHILIP S. ANDERSON, PRESIDENT, AMERICAN BAR ASSOCIATION¹

Goals of the Chapter

In this chapter and in Chapter 6, we discuss the treatment of racial minorities in court. The focus in this chapter is on pretrial decision making. Our goal is to determine whether people of color are more likely than whites to be tried without adequate counsel to represent them or to be denied bail or detained in jail prior to trial. In addition, we review research on prosecutors’ charging and plea bargaining decisions for evidence of differential treatment of racial minorities and whites. We argue that recent reforms adopted voluntarily by the states or mandated by court decisions have reduced, but not eliminated, racial discrimination in the pretrial process.

After you have read this chapter:

• You will be able to explain the concept of “double jeopardy” as it applies to racial minorities who appear in court as criminal defendants.
• You will be able to discuss the right to counsel and explain how the U.S. Supreme Court has interpreted the right.
• You will be able to evaluate arguments regarding the quality of legal representation provided to indigent defendants.
• You will be able to assess whether affirmative action has helped or hurt African American law students.
• You will be able to explain how decisions regarding bail and charging are affected by race/ethnicity and how these decisions, in turn, influence sentence severity.
• You will be able to evaluate arguments regarding selective prosecution of African American pregnant women who abuse drugs.

African Americans in Court: The Case of the Scottsboro Boys

In March 1931, nine African American teenage boys were accused of raping two white girls on a slow-moving freight train traveling through Alabama. They were arrested and taken to Scottsboro, Alabama, where they were indicted for rape, a capital offense. One week later, the first case was called for trial. When the defendant appeared without counsel, the judge hearing the case simply appointed all members of the local bar to represent him and his co-defendants. An out-of-state lawyer also volunteered to assist in the defendants’ defense, but the judge appointed no counsel of record.

The nine defendants were tried and convicted, and eight were sentenced to death. They appealed their convictions, arguing that their right to counsel had been denied. In 1932 the United States Supreme Court issued its ruling in the case of Powell v. Alabama,² one of the most famous Supreme Court cases in U.S. history. The Court reversed the defendants’ convictions and ruled that due process of law required the appointment of counsel for young, inexperienced, illiterate, and indigent defendants in capital cases.

The Supreme Court’s ruling in Powell provided the so-called Scottsboro Boys with only a short reprieve. They were quickly retried, reconvicted, and resentenced to death, despite the fact that one of the alleged victims had recanted and questions were raised about the credibility of the other victim’s testimony. Once again, the defendants appealed their convictions, this time contending that their right to a fair trial by an impartial jury had been denied. All of the defendants had been tried by all-white juries. They argued that the jury selection procedures used in Alabama were racially biased. Although African Americans who were registered to vote were eligible for jury service, they were excluded in practice because state officials refused to place their names on the lists from which jurors were chosen. In 1935, the Supreme Court, noting that the exclusion of all African Americans from jury service deprived African American defendants of their right to the equal protection of the laws guaranteed by the Fourteenth Amendment, again reversed the convictions.³

The Supreme Court’s decision was harshly criticized in the South. The Charleston News and Courier, for example, stated that racially mixed juries were “out of the question” and asserted that the Court’s decision “can and will be evaded.”⁴ Southern sentiment also strongly favored yet another round of trials. Thomas Knight, Jr., the attorney who prosecuted the Scottsboro cases the second time, noted that “Approximately ninety jurors have been found saying the defendants were guilty of the offense with which they are charged and for which the penalty is death.” Knight reported that he had been “retained by the State to prosecute the cases and [would] prosecute the same to their conclusion.”⁵