6.6.1 Deep South (1920-1965): The Slow Death of Jim Crow - Southern Blacks and Criminal Law

After Reconstruction ended, segregation laws proliferated rapidly throughout the South and remained in place for decades, despite repeated legal challenges and appeals to the U.S. Supreme Court  (§ ___).  The laws were hardy because they were important to white Southerners:  they placed an official seal of approval on whites’ centuries-old concept of racial hierarchy in an age when many parts of the country repudiated legal segregation.  But legal challenges to segregation never ceased.  The challenges came in several phases:
  • The heart of Jim Crow (1900-1935);  black jury service and coerced confessions.  Many Southern states gave accused criminals the right to have court-appointed attorneys if they could not afford their own.  Some appointed attorneys provided only a perfunctory defense, but others took their duties seriously:  a common tactic was to challenge all-white juries as products of unconstitutional discrimination.  Southern courts occasionally overturned verdicts on this basis, and beginning in the 1930s their scrutiny of jury selection sharpened under increasingly insistent prodding from the U.S. Supreme Court.  Defense attorneys also challenged many convictions as being based on confessions obtained through coercion.  Southern courts seldom threw out confessions unless there was overwhelming evidence of physical or mental abuse amounting to near-torture, but in the 1930s, the U.S. Supreme Court began to fashion a broader notion of coercion.

  • The “equal means equal” era (1935-1954).  Southern states paid lip service to Plessy, but the reality was that black facilities were seldom equal to those for whites.  In the 1930s, the National Association for the Advancement of Colored People (NAACP) decided to attack segregation by insisting that under the “separate but equal” rule of Plessy v. Ferguson (§ ___), black schools and “colored only” sections of train stations, restaurants, theaters and other public places must truly be equal.  The NAACP focused on access to colleges and graduate schools, believing that aspiring students would be more attractive to white judges than other black litigants.  Beginning in the late 1930s, the U.S. Supreme Court showed increasing sympathy for the NAACP’s position and began prodding state courts to do the same.

  • The post-Brown era (1954-1965).  In Brown v. Board of Education (1954), the U.S. Supreme Court, after long hesitation, overturned the Plessy rule and held that segregation in schools and other public places was unconstitutional.  Southern lawmakers rightly regarded Brown as a revolutionary decision.  Many Deep South legislatures dusted off the pre-Civil War doctrines of interposition and nullification (§ ___) and urged active resistance to Brown; some states met post-Brown integration efforts with violence – a violence which, sadly, defined the post-Brown civil rights movement led by Dr. Martin Luther King just as much as did Dr. King’s charisma and advocacy of non-violence. 

    •  In the early 1960s, a new legal battlefront opened when civil rights activists staged “sit-ins” across the South to integrate restaurants, movie theaters and other businesses open to the public.   Many Southern courts believed that Brown did not apply to these businesses because unlike the schools, they were not operated by the government.  The courts regularly upheld criminal convictions of sit-in participants until increasing pressure from the U.S. Supreme Court and the 1964 federal Civil Rights Act outlawed racial discrimination in all places of public accommodation.
  • The major legal battles over Jim Crow took place in the Deep South, particularly Mississippi and Alabama where segregation was most deeply entrenched.  Deep South state courts were uneasy mediators between their constituents and the U.S. Supreme Court; their decisions and their dialog with the U.S. Supreme Court shaped Jim Crow’s fate in important ways. 


    Jury cases:  bending under federal pressure

    State v. Pierre – Louisiana, 1938 (180 So. 630), reversed, 306 U.S. 365 (1939); Patton v. State (Patton I) – Mississippi, 1947 (29 So.2d 96), reversed, 332 U.S. 463 (1957); Patton II – Mississippi, 1949 (appeal after remand from U.S. Supreme Court, 40 So. 2d 592); Coleman v. State – Alabama, 1967 (195 So.2d 800), reversed, 389 U.S. 22 (1967) 

    • In the 1870s and 1880s the U.S. Supreme Court struck down Southern laws that excluded blacks from juries, holding that although states could limit eligibility for jury service they could not do so based on race.  Many Southern states then limited jury service in the same manner as voting rights (§ __).  Indeed, many explicitly limited jury service to eligible voters, which virtually ensured all-white juries even in “black belt” counties where blacks formed a large majority of the population. 
    • Jury challenges could be considered the first wave of the mid-20th century civil rights revolution, although they were typically made by white lawyers, appointed to represent penniless black criminal defendants, who acted more out of professional duty than any desire to advance civil rights.  Defense lawyers argued that the absence of blacks on grand juries and trial juries was due to systematic discrimination, but the effort they put into proving such charges varied widely – from no proof at all to anecdotal testimony and, in the 1950s and 1960s, statistical studies.  Some Deep South courts took the challenges seriously but others needed prodding from the U.S. Supreme Court – prodding that grew ever sharper after the 1920s.
    • The Pierre, Patton and Coleman cases, all from the heart of the Deep South, illustrate the evolving interaction between state and federal courts on this issue.  In Pierre, defendant relied on the fact that his Louisiana county was 50% black but had a grand jury list that was 1% black and that no black had served on a trial jury in 40 years.  Louisiana’s supreme court said that more direct evidence of intentional discrimination was necessary; the U.S. Supreme Court disagreed.  In Patton, a Mississippi defendant relied on similar statistics for his county.    Mississippi’s supreme court concluded that the discrepancy between black population and jury service could be explained by the state law, race-neutral on its face, which said that only eligible voters could serve.   The U.S. Supreme Court rejected this reasoning and warned that such laws could not be used to exclude blacks from jury service.  The Mississippi court’s ambivalent reaction was telling.  When the case was returned for a new trial it insisted that it was a genuine defender of fair trials, citing earlier cases in which it had found racial jury discrimination – but it continued to defend the state’s practice of tying jury service to voter eligibility. 
    • Twenty years later, at the height of the civil rights revolution, Alabama’s supreme court reiterated in Coleman that population and jury service discrepancies alone were not enough to show discrimination.  Once again, the U.S. Supreme Court reminded state courts that large discrepancies were enough to shift the burden to the states to show there was no discrimination, and that it would continue to uphold jury challenges unless it saw increased numbers of blacks actually sitting on Southern juries.          
    Criminal due process in the Deep South:  deferring to popular sensibility, fending off mob justice


    Powell v. State – Alabama, 1932 (141 So. 201), reversed, 287 U.S. 45 (1932);  Norris v. State – Alabama, 1934 (145 So. 556), reversed, 294 U.S. 587 (1935); Brown v. State – Mississippi, 1935 (161 So. 465), reversed, 297 U.S. 278 (1936)
    • The “Scottsboro Cases” of the early 1930s, which included Powell and Norris, brought the Southern criminal justice system to the nation’s attention.  It confirmed stereotypes many northerners held of the South and opened up old sectional wounds. 

    • Two white women rode a train to Scottsboro, Alabama as hoboes with three young black men and then accused them of rape.  The charges caused a frenzy among local whites:  the defendants were nearly lynched and in order to avoid further mob violence, local officials pressured them to give confessions which resulted in quick, perfunctory trials and death sentences. 
    • A divided Alabama supreme court upheld the convictions.  The majority, making a bow to Southern womanhood, stressed that once the jury had made its choice to believe the women’s story and no further analysis was necessary; but Justice John Anderson, who dissented, believed that the mobs who gathered at the trials and the haphazard, speedy nature of the trials had denied the defendants a fair chance to present their case.  The U.S. Supreme Court agreed with Anderson.  
    • The Brown case in neighboring Mississippi occurred at the same time and presented very similar facts except that in addition, the defendant’s confession was obtained by near-torture.  Brown resulted in a similarly rushed trial, another death sentence and another appeal.  Mississippi’s supreme court upheld Brown’s conviction over a vigorous dissent by Justice V.A. Griffith, but the U.S. Supreme Court, siding with Griffith, again warned Southern courts that black defendants must be given real procedural protections, including adequate legal representation and an orderly trial.   








         Rubin Stacey, lynched victim, hanging from a tree, surrounded by onlookers, including girls, Fort Lauderdale, Florida.

         Lynching, Fort Lauderdale, Florida (1935) - courtesy New York Public Library




























































        “The law makes it the duty of the jury commissioners to select men for jury service who are competent and intelligent.  … In selecting the names to be placed on the jury roll, the members of the jury comm. naturally select the names of those whom they know to be qualified or who they think possess the proper qualifications.  It is not their duty to search the parish for members of the colored race who possess the proper qualifications merely in order that there be the names of such persons on the roll.” – Justice Frederick Odom, in Pierre


        “When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.” – U.S. Supreme Court Justice Hugo Black in Patton I, reversing the Mississippi supreme court


        “[After remand, the elections board] combed the meager roster of qualified Negroes who had since seen fit to register under an awakened sense of their civil rights, and had been aroused from a lethargy which had theretofore brought the comfort of an absolution from civil duties.”  - Justice Julian Alexander, in Patton II









        “The character of the crime was such as to arouse the indignation of the people … everywhere where womanhood is revered, and the sanctity of their persons is respected.  That many should have been attracted to Scottsboro during the days covered by the trial, and the preliminaries incident thereto is no small wonder, considering the character of the crime charged against the defendants.” – Justice Thomas Knight, in Powell


        “When considered in connection with each other, [the mob atmosphere of the trial and the appointment of defense counsel who refused to defend because they would be unable to remain in their communities if they did] must collectively impress the judicial mind with the conclusion that these defendants did not get that fair and impartial trial that is required … these cases should be retried after some months of cooling time have elapsed and by their vigilant employed counsel.”  - Justice John Anderson (dissenting), in Powell


        “[I]t was never a legitimate proceeding from beginning to end; it was never anything but a fictitious continuation of the mob which originally instituted and engaged in the admitted tortures.  … [The] conviction [was] based solely upon testimony coerced by the barbarities of executive officers of the state, known to the prosecuting officers of the state as having been so coerced, when the testimony was introduced, and fully shown in all its nakedness to the trial judge before he closed the case and submitted it to the jury, and … all this is not only undisputed, but is expressly and openly admitted.  The Scottsboro Cases are models of correct constitutional procedure as compared with this now before the court.” – Justice V.A. Griffith (dissenting), in Brown