Crime and Punishment in American History - Lawrence M. Friedman [190]
One landmark along the way was Powell v. Alabama, decided in 1932.15 This arose out of the notorious Scottsboro case (see chapter 16). Nine poor young black men had been sentenced to death after a trial in rural Alabama. They had been accused of gang-raping two white girls. The charge was a complete fabrication. The Scottsboro defendants were lucky to escape the lynch mob. The trial itself (the first of several) was a scandal; it was quick and slapdash; the air was thick with race prejudice. The jury, of course, was all white, and the defendants, practically speaking, had no help at all from their lawyers. Until the actual morning of the trial, in fact, no lawyer had been “named or definitely designated to represent the defendants.” And the actual defense was weak and flabby.
Justices of the Supreme Court read the newspapers; they must have known something about the background of this notorious case. In any event, the Court reversed the convictions. A trial without a lawyer, or without good legal help, in a case as serious as this just could not be fair. The due process clause, in other words, swallowed up or presupposed the right to counsel mentioned in the Sixth Amendment, at least under some conditions. The “Scottsboro boys” were young, illiterate, surrounded by a hostile public, far from home, and in “deadly peril of their lives.” In “light of the facts,” the “failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.”16bw
On the whole, though, the Supreme Court was fairly timid about “incorporation” in the thirties and forties. Yes, the due process clause meant a national right to a fair and decent trial. But the states had the right to decide for themselves, within limits, what fair and decent meant. The Court interfered only in egregious cases.
The decades of the fifties and sixties were dramatically different. Under Earl Warren, the Supreme Court moved boldly, using the incorporation doctrine as a sword to slash through state practices that the Court felt were retrograde and unfair. After all, the incorporation doctrine would have done very little in itself if the Supreme Court read the meaning of the Bill of Rights in the anemic fashion of the nineteenth century. But instead, the Court struck out on a new path. It condemned police practices and trial practices that once had been accepted and condoned. It showed a new, strong concern for the rights of men and women put on trial.
In form, the cases decided by the Supreme Court were often about procedures, due process, and so on; but on a deeper level they were about substance, content. They were, in form, interpretations of what the Fourteenth Amendment meant. But of course, what really decided these cases were the postulates of modem legal culture. In nineteenth-century legal culture, courts (and the public) cared very little for prisoners, criminal defendants, and the like. They accepted the idea of broad zones of immunity and discretion—zones of unquestioned authority. Wardens and police officers were the petty sovereigns of such zones. There were, to be sure, limits, but these were fairly elastic. This was emphatically no longer the case with the doctrines that emerged in the second half of the twentieth century.18
Very striking was the way the Supreme Court laid down rules to control police behavior: rules about arrests, interrogation, searches. The Bill of Rights forbids illegal searchs and seizures. One recurring, nasty issue was left unresolved: namely, if the police make an illegal search and find incriminating evidence, can the prosecution use it in a trial? In 1914, in Weeks v. United States, the Supreme Court said no as to federal trials.19 A U.S. Marshall had searched Weeks’s apartment, without a warrant, and discovered some incriminating documents. These documents were produced at the trial, and helped to convict Weeks of promoting an illegal lottery through