BREACHING THE WHITE WALL OF SOUTHERN JUSTICE

IN almost every area of life--in schooling, public accommodations, and above all voting--the Southern Negro has lately made enormous strides toward gaining the equality guaranteed him by the Constitution and reaffirmed in the recent massive wave of civil rights legislation. Ironically, it is in the field of law and administration of justice that he is most frequently foiled. All too often white segregationists go on killing civil rights workers without fear of conviction, and white police terrorize Negroes and arrest the victims as suspects. To the Southern Negro, it still seems that the whole system of law winks at nearly every lawless scheme to cow him and keep him from his rights.

The Supreme Court two weeks ago dealt with two notorious 1964 cases--the murder of three civil rights workers near Philadelphia, Miss., and the slaying of Negro Educator Lemuel Penn in Georgia--in both of which Southern courts had sidetracked attempts to bring the accused to justice. Basing itself on a 19th century anticonspiracy law, the Supreme Court not only ordered these cases tried but hinted that new federal legislation is needed. The Government is ready to oblige. In his State of the Union message President Johnson called for increased authority for federal courts to try "those who murder, attack or intimidate either civil rights workers or others exercising their constitutional rights." In the new civil rights bill, which the President will send to Congress this month, he is asking 1) stiffer penalties for threats of violence interfering with a series of broad civil rights; 2) more stringent criteria for the selection of Southern juries.

Federal pressure and Southern conscience are certainly having their effect. The great white wall of segregated Southern justice is finally being breached, as illustrated by some scattered but significant recent events: the nearly unprecedented life sentence for a white youth who raped a Negro girl in Mississippi; eleven Negroes serving on a jury trying the Negro killers of a white policeman in Georgia. Yet the South has a long way to go before Negroes will have gained "equal justice under law."

Rule of the Sheriff

From bottom to top, Southern justice is white. This fact shadows the Negro's every activity from driving a car to engaging in sexual intercourse; from borrowing money to suing for personal injury; from seeking police protection to defending against criminal charges. To Southern Negroes, the courthouse is not a citadel of justice. Instead, says Harvard Psychiatrist Robert Coles, who recently completed a six-year study of Southern racial attitudes, the courthouse is "the symbol of where the policemen, the sheriffs, the judges, the juries, the voting registrar, the registrar of deeds and the whole structure of society is weighted against Negroes. They are afraid of this building." Segregated justice, adds a Southern Regional Council report, "provokes desperation among Negroes and shakes their faith in democracy."

Segregated justice begins with white police and prosecutors, all of them beholden to the white world that appoints or elects them. The elected Southern sheriff is no professional policeman; he is a powerful politician and quite likely the most important man in his county. In Mississippi, for example, he is not only the top law-enforcement officer but also the official tax collector, a job that gives him a fee-income that sometimes raises his annual take to more than $30,000. Since the sheriff is personally responsible for crime-fighting expenses, he hires as few deputies as possible and commonly ignores the crimes his constituents commit in adjoining counties. Thus, white nightriders who terrorize Negroes in the next county sneak home to peace and quiet.

When it comes to Negroes, almost all Deep South states have on their books a catchall statute against disturbing the peace; Louisiana not only lists a number of acts that might "foreseeably" disturb the white public but also makes a crime out of the "commission of any other act" that might "unreasonably" alarm that public. Southern legislatures specialize in frankly discriminatory laws that may survive for months or years before federal courts strike them down. In 1964 the Mississippi legislature prescribed up to three months in prison and a $250 fine for anyone giving birth to a second illegitimate child (considerately, the lawmakers stipulated that twins count only as one). More than 93% of the state's illegitimate births are to Negroes, and a state representative candidly described the measure's purpose: "This is the only way to stop the black tide which threatens to engulf us."

J.P.s & Lawyers

The Negro accused even of a misdemeanor usually goes before a justice of the peace who not only may be unsympathetic but who has every incentive for throwing the book at him--the j.p. is paid per conviction. Virtually no Southern j.p. is a lawyer; one study of 90 North Carolina j.p.s showed that only six had gone to college. They hold court, as the study group discovered, in "country stores, private homes, motel offices, upstairs over the fire stations, and in one case, on the screened-in porch of an ice house." Not only does the justice of the peace have the final decision on fine or jail sentence in nearly all the cases he decides, but he gets to set bond if the case is scheduled for a higher court. The whole bail system, in fact, is used as a handy club against Negroes. While many white-owned bonding companies mulct Negro defendants in ordinary criminal cases, few touch the Negro involved in a civil rights matter. Unless he can put up unmortgaged property or raise cash from hard-pressed civil rights groups, he stays in jail.

Though the Supreme Court's Gideon ruling and recent elaborations by lower federal courts grant any indigent defendant the right to counsel paid for by the state, this means little in cases where Negroes are accused of crimes against whites, to say nothing of civil rights workers. The court-appointed white lawyer takes such cases with reluctance, generally urges the defendant to plead guilty and, if forced to a trial, rarely gives it adequate time or effort. Even if such defendants have money, few white lawyers would offer their services for fear of losing their regular clients.

Why don't Negro defendants hire Negro lawyers? One reason is that there are so few in the South. Of some 21,000 lawyers in Mississippi, only five are Negroes. Even relatively enlightened North Carolina has only 125 Negro lawyers in a Negro population of 1,500,000. The Negro lawyer is barred from judgeships, professorships, political appointments, big corporate firms and affluent clients. Even injured Negroes usually prefer white lawyers because they get more money from white juries. As a result, most important rights cases are directed by non-Southern lawyers, who for all their frequent zeal and skill, are often unfamiliar with the procedural obstacles thrown up by segregated justice.

Unable to make bail or hire a good lawyer, the Negro awaits his state court trial in a segregated jail; even the drunk tanks are generally separate, and the turnkeys are uniformly white. When he finally does go to trial, the Negro enters the courthouse that to him has become the symbol of all his afflictions. There may be a Negro janitor about the premises, but everyone else is white, from judges and prosecutors down to clerks. Though many Southern judges dispense justice with admirable evenhandedness, the judge the Negro faces may well be ruled by his own prejudice or, since he holds elective office, by community pressures. One demeaning custom, banned by federal decision but continued in many Southern courtrooms, is to call Negro witnesses either by their first names or merely "boy."

The most notorious part of segregated justice is the allwhite jury system. Since 1875 it has been a federal crime, punishable by a fine of up to $5,000, for a jury commissioner to exclude Negroes systematically from venires in either federal or state courts. Yet, not once in this century has a prosecution been brought under that law. One reason: a jury commissioner almost certainly would be tried before a white jury and acquitted. It is, therefore, with impunity that commissioners draw their venires from lists of registered voters (excluding, until recently at least, most Negroes), from personal-property-tax rolls or from membership rosters of local Junior Chambers of Commerce, Rotary Clubs and similar organizations. Almost all such lists naturally exclude large numbers of poor people, among whom Negroes most often find themselves. Sometimes prospective jurors are required to be of a certain "moral character" or "intelligence" or "uprightness." The highly subjective determination of such qualities is entirely up to the jury commissioners, and illiterate jurors are not unknown in the South.

Jury Problems

In theory, Negroes get a better deal from federal-court jurors, who are picked from a wider area and are less subject to local pressures. Actually, many Southern federal courts use a "key man" system of drawing up venire lists, the key man being a "good citizen" (a middle-class white) who suggests other "good citizens" for jury duty. The nation's 91 federal district courts have been free to pick juries in different ways, thus compounding the subjectivity of state courts. Many federal jury lists simply duplicate state lists.

By the thousands, Negroes exercising their rights nonetheless seek to remove their cases from state to federal courts. Federal judges no longer send these cases back to state courts so readily as they used to; the 1964 Civil Rights Act permits remand orders to be appealed. Negroes still face a major hurdle: Southern federal district judges. Many are scrupulously fair, notably Alabama's Frank Johnson, an Eisenhower appointee, and Florida's Bryan Simpson, a Truman appointee. But others are deeply segregationist, a problem largely attributable to the Kennedy Administration, which surprisingly named such men as Mississippi's William H. Cox, who once described the Negroes involved in a case before him as nothing but a bunch of "chimpanzees" who "ought to be in the movies rather than being registered to vote."

The typical all-white jury breeds injustice in three ways: 1) Negroes committing crimes against Negroes are likely to be let off too easily; 2) Negroes committing crimes against whites receive unduly harsh penalties; 3) whites committing crimes against Negroes either get off scot free or receive token sentences. Into the last category falls the breakneck acquittal last September in Hayneville, Ala., of Thomas Coleman, accused of killing an Episcopal seminarian and wounding a Catholic priest, both civil rights workers. It was at least slightly embarrassing to the state that Coleman, one of the local white courthouse-hangers-on who are so often available for jury duty in the South, was on the venire list for his own trial. Another all-white Alabama jury did convict Hubert Strange last December for murdering a Negro motorist near Anniston; compared with the almost certain death that a Negro defendant would have drawn had the motorist been white, Strange got ten years, a sentence that makes him eligible for parole in three years.

However clear the failures of Southern justice, it is far from clear what should be done about them without weakening the nation's legal structure. Certainly no one wants to destroy the jury system in order to correct its abuses. After the Hayneville acquittal, Attorney General Nicholas Katzenbach said: "This is the price you have to pay for the jury system, and I don't think it's too high a price. The situation has changed a great deal already."

To change it further, the President's forthcoming civil rights bill sets up detailed instructions for the selection of federal juries, composition of jury commissions, such technical matters as challenges by the defense. The jurors are to be drawn from voting rolls, but where there is evidence of racial discrimination, other methods are to be employed. Above all, the administration of the system is left to the Court of Appeals judges acting as the judicial council for each circuit, and not to individual, possibly segregationist judges. The bill also bars discrimination in state jury lists and puts federal courts in a watchdog position to ensure fairness, but it does not tell the states what procedures to follow.

Reforms & Solutions

Several other suggestions for improving the Southern jury system have been advanced. One idea: appointing federal jury registrars, like the new, federal voting registrars. Another: a population-sampling system designed to prevent subjective judgments in venire drawing; panels would be selected from among those in a community who are citizens, over 21, have no criminal convictions within a specified period, and can read, write and understand English.

Juries aside, the new civil rights bill also strengthens section 241 of Title 18 in the U.S. Code that prohibits conspiracy to deprive citizens of their federal rights. In the revised sections, conspiracy need no longer be proved--a single act will be sufficient. Nor will the act need to be carried out by an official--a private individual's act will be similarly punishable. Penalties are on a sliding scale from one year to life. Still not specifically covered are acts of violence unrelated to civil rights issues, and some Negro leaders feel that ways must be found to cover these too. Some advocate virtually automatic transfer of all cases involving Negroes from state to federal courts, but Melvin Wulf of the American Civil Liberties Union says: "This would not really solve anything. It wasn't what the federal courts were meant to do, sit on all local crimes. This would literally be making a federal case out of everything."

Two other areas in which civil rights leaders feel improvement can be made:

sb EMPLOYMENT. The Constitution already entitles Negroes to fair employment in state and federal courthouses and police forces; Congress could easily and properly pass new laws to enforce that right. Such measures would not guarantee the election or appointment of Negro judges. But they would give Negro lawyers a chance to be considered, and a fair appointment system would surely place some Negroes among the large numbers of other functionaries--cops, clerks, bailiffs, stenographers--who now shore up segregated white justice.

sb ENFORCEMENT. Nothing is more frustrating to Southern Negroes than to see FBI agents standing around taking copious notes while local white cops or hoodlums engage in large-scale civil rights violations. Actually, federal officers already are legally empowered to make on-the-spot arrests for any violation of federal laws; the only thing that stops them is Government policy. Criticism of this restraint has led to calls for a special police force to handle civil rights matters. The more reasonable alternative to such massive intervention would be stricter enforcement of existing laws.

Ideally, the South's own state courts should rediscover the U.S. Constitution and eliminate the need for overexpanding federal jurisdiction. Such hopes are not entirely groundless. With new courage, for example, the Mississippi Supreme Court last February voided the death sentence of a Negro convicted of raping a white woman, on the ground that his jury excluded Negroes. In Alabama, a federal court recently ordered Lowndes County to put Negroes on venire lists.

Ultimate solutions await the day when the Southern Negro has the voting power to elect Negro judges, sheriffs and prosecutors, or at least whites who get the message. Growing Negro registration has already begun to alter the political balance in the South, forcing certain politicians to be more responsive to Negro demands and resulting in the election of some Negro officials. The problem of segregated justice can no longer be avoided. It breeds contempt for law among the very Southern whites whom it seeks to favor; it goads the Southern Negro to take the law into his own hands, as in the case of the gun-toting Deacons for Defense and Justice. And in the Negro who flees the South, it reaps a harvest of hatred that explodes in the violence of Harlem and Watts. But above all, it is the inescapable moral imperative that demands "equal justice" for all citizens, in the South as elsewhere.

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