By Rahsaan Hall, Director of the Racial Justice Program at the ACLU of Massachusetts
This is the first in a series of blogs for Black History Month 2020, covering the ACLU's 100 years of racial justice advocacy.
Since its inception in 1915, Black History Month has been an opportunity to celebrate the achievements of Black people throughout the country. It is a time for everyone in America to recognize the contributions that Black people have made to this nation. It is also an opportunity to confront America’s dark history of oppression and injustice. In so doing it creates an opportunity for some people to recognize that the injustices of yesterday are not merely echoes of a distant past but the soundtrack of our contemporary existence.
For this Black History Month—in our centennial year—we will explore some of the ACLU’s advocacy on behalf of Black people over the last century. We’ll look at different cases we’ve litigated as a way to examine the injustices that created the need for the ACLU’s advocacy, and the resonance these issues continue to have today. Our local and national advocacy on due process, equal protection and fair trial claims show that the indignities of injustice that the ACLU fought back then have not disappeared—instead they are persistent.
The mere fact that there are more Black people under some form of correctional control now than were enslaved in 1850 makes it hard to deny that there is an undisturbed thread that runs through this nation’s history from slavery through mass incarceration. America’s history of racism didn’t end with the abolition of slavery; it continued through Jim Crow and manifests in what we now know as the criminal legal system. From emancipation to the post reconstruction era and up through convict leasing, the use of the criminal legal system and lynching as forms of social control crippled many Black communities. The theft of human capital from Black communities has persisted through the War on Crime and the War on Drugs, mass incarceration, and policing killings.
Some of the ACLU’s current racial justice work—both local and national—focuses on confronting racism within the criminal legal system. In addition to pushing for legislative reforms, there has been an effort to undo the impacts of a system scaffolded by structural racism and the legacy of white supremacy. This advocacy recalls some of the ACLU’s early advocacy and commitment to the constitutional demands of due process and equal protection of the laws.
The constitutional protections that seemed to evade Black existence in America came into full view when nine Black youth were charged with raping two white women in 1931. Later known as the Scottsboro Boys, Charlie Weems, Ozie Powell, Clarence Norris, Olen Montgomery, Willie Roberson, Haywood Patterson, Andrew (Andy) Wright, Leroy (Roy) Wright and Eugene Williams—ranging in age from 12 to 19—were tried, convicted, and (except one) sentenced to death within 12 days of arrest for the rape of Ruby Bates and Victoria Price. Despite the lack of physical evidence corroborating the allegations, the conflicting testimony of the women, and a subsequent recantation of one of the women, the young men were still convicted by an all-white jury and sentenced to be executed by the electric chair.
The initial defense team was comprised of two inept local lawyers who had little to no experience on capital cases and questionable experience as litigators. After they were convicted, the ACLU was part of the litigation team that defended the Scottsboro Boys during the appeal and subsequent retrials. Taking several appeals in state and federal court, the defense team ultimately won by arguing successfully that the Fourteenth Amendment’s due process clause was applicable to the states. The Supreme Court eventually ruled, in Powell v. Alabama, that due process prohibited a state from sentencing someone to death without ensuring that the defendant had adequate representation at trial.
Subsequent appeals by other Scottsboro Boys, Patterson v. Alabama and Norris v. Alabama, further established that the Sixth Amendment’s guarantee of a right to a fair trial and the Fourteenth Amendment’s equal protection clause prohibits the systematic exclusion of Black jurors. It would be another three decades before the ACLU litigated the landmark case Gideon v. Wainwright, which would establish the right to counsel that we’ve come to appreciate today. Even though the Scottsboro boys were ultimately acquitted, the duration of their confinement and the trauma of facing death for a crime they did not commit severely disrupted their lives.
Despite the distance from this horrific era of injustice, we cannot be lulled into a false sense of resolution by believing that things like this no longer happen. A passing glance at data that shows the racial disparities in wrongful convictions or the disparities in death sentences for people accused of killing or raping white victims are persistent strands dangling from the uninterrupted thread. Whether it’s challenging wrongful convictions achieved through misconduct or advocating for access to counsel, we must continue to dismantle the system of oppression that disproportionately disrupts Black communities under the guise of public safety but offers little in terms of healing and restoration.
Date
Tuesday, February 4, 2020 - 2:45pm
Featured image
The Scottsboro Boys
Show featured image
Hide banner image
Show related content
Tweet Text
Justice for the Scottsboro Boys: The ACLU and the fight for Black civil rights
By Rahsaan Hall, Director of the Racial Justice Program at the ACLU of Massachusetts
This year marks the 91st anniversary of Martin Luther King Jr.’s birth. We observe the occasion, as we always have, with equal parts celebration and solemnity, joyous rest and purposeful work—our shoulders to the wheel but our eyes on the horizon. Perhaps more than any other American, King prompted us to think, in profoundly human terms, of the passage of time—the distances between then and now, today and tomorrow—not as a dead procession of deterministic events, but a soulful, intentional march toward freedom.
MLK Day is an opportunity to reflect on King’s memory, but also his futurity. King understood that the past is neither dead nor even past, and so we honor his legacy by nurturing it, and letting it nourish us in turn for the work we have yet to do. For this reason, it’s customary on MLK Day to take stock, and to assess whether we have gotten any closer to realizing King’s prophecy of a promised land, whether we have loosened or even cast off the chains of hatred, repression, and inequity. Sadly, as is all too often the case, we find our institutions lacking, and our most naïve notions of steady, universal progress—sanitized versions of King’s radical manifesto—to be fantasies. In only the third week of 2020, we must admit that our new decade has had an inauspicious start.
We have stood, once again, on the precipice of war—a danger that troubled King profoundly in his lifetime. In the years before he was murdered, King spoke frequently about the brutal intersections of racism, violence, and militaristic capitalism. He reminded us, for example, that when faced with the overwhelming and appalling spectacle of war, we must not forget its appurtenant maladies of greed and repression. Each of these evils, he concluded, entails and upholds the others: “[w]hen machines and computers, profit motives and property rights, are considered more important than people, the giant triplets of racism, extreme materialism, and militarism are incapable of being conquered.” There is no doubt: these triplets are sounding a triumphal march.
Just as we witness the rise of one evil, another follows in its wake. We have seen the increase in hate crimes buttressed by the racist, xenophobic rhetoric and policies of the current presidential administration. At the same time, corporate interests have commodified our existence, shredding the social fabric and replacing it with an impersonal network of data points. As people become easier to quantify and measure, they are more easily controlled, targeted, repressed by both ruthless privateers and government agents alike. In an age of pervasive data surveillance, just as King predicted, the giant triplets lumber forward, their steps tumbling and compounding in a fearful crescendo.
King spoke out against militarism and was condemned for his stance on the war in Vietnam. When King was admonished to limit his concerns and advocacy to local affairs he responded, “[America] can never be saved so long as it destroys the deepest hopes of men the world over.” King and his contemporaries believed that if America was to be redeemed it would have to ensure that the descendants of slaves had to be freed from the shackles that kept them bound. Within that mission was a recognition that the overall health of the nation was not only tied to granting particular rights to Black Americans but addressing the disease of militarism. King’s non-violence platform thus evolved to include more than peace for Black people in America, but also rooting out the militaristic violence and rapacity that drove conflicts throughout the world. The same militarism allied with racism and extreme materialism would lead to US intervention throughout the world under the guise of defending democracy.
King’s critique of militarism at the time was focused on traditional military involvement in global conflicts. But as the lines between the military and civilian law-enforcement blurred it became more important to speak out. Although King’s concern over militarism focused on US intervention in world conflicts and wars, it is not a stretch to suggest that those same concerns around militarism extend to police militarism. King would surely recognize that warlike action abroad inevitably lays the groundwork for warlike action directed inward—the targeting of “threats both foreign and domestic.” In this way, the War on Drugs and the War on Terror have created amorphous, nondescript enemies in a battlefield near you. The initiation of these wars is rooted in fears that stem from racist and xenophobic ideas, and the execution of these wars have led to countless casualties in oppressed communities—regardless of national borders.
We should not think of militarism as only local law enforcement acquiring military grade materials, but also their acquiring of military strategies and intelligence structures. Beyond accumulating military material—i.e. weapons and vehicles—militarism has transformed the culture, organization and operation of local policing. The culture of policing has changed when local police fight wars against drugs and terror. The organization of policing has changed with the creation of SWAT teams and other tactical units with specialized training and weaponry. Finally, the operation of policing has changed with the use of military intelligence analysis methods being used to address issues of community disruption and crime.
Militarism within police departments is a threat to our civil rights. The strategies and tactics include crime data analysis and strategy councils where police use data sets collected from police interactions and crime statistics, using facial recognition technology, location tracking programs, and social media monitoring. If we are truly to be a free nation, we must be one that does not offload the decision-making responsibilities of addressing crime and disruption in society to algorithms. We must not submit to what seems like the impartial, impersonal, inevitable logic of trial-by-computer. We must have the fortitude to build our communities together, face to face, side by side.
The counterinsurgency strategies and tactics that our government deployed in global theatres of conflict should not be used in our communities—but they are. Local law enforcement disproportionately deploys these strategies in Black and Latinx communities as well as other oppressed communities. Shrouded in a lack of transparency, police intelligence units mine data and crime statistics to develop crime suppression strategies that have questionable value and often come at the expense of vulnerable people. For instance, the Boston Regional Intelligence Center maintains a “gang database” that has dubious selection criteria, lacks audits and has no observable measures of accountability. In a digital age where every aspect of our day-to-day lives is a data point to be curated for corporate marketers and government surveillance, it’s all the more important that we resist encroachments on our privacy and civil rights.
In “Beyond Vietnam,” the same speech where King critiqued the giant triplets of racism, extreme materialism, and militarism, he makes a bold demand for people to put themselves at risk for the sake of peace. We are facing very dark and perilous times and the threat of the potentially unconquerable giant triplets loom large. Now is the time for people of conviction and valor to stand in opposition, at whatever risk to themselves, to advance the causes of justice by resisting the spread of militarism with every fiber of our souls.
The machinery of repression is always evolving, always being upgraded. It may have received a few new coats of paint since the 1960s, but the core remains the same. Just as King worked to dismantle the machine before us, we must do everything we can to hinder its insidious functions today. We must call for an end to gang databases and other civilian intelligence gathering strategies that can be used to further oppress Black, Latinx, and poor people, immigrants and religious minorities. We must call for a moratorium on the unregulated use of governmental facial recognition technology and other remote surveillance technologies. And we must call for limits on risk assessment tools in the criminal legal system that have been shown to further exacerbate racial disparities under the guise of technological sophistry.
Even in death, King was not conquered. The brash militarism of the state is no match for the conviction of the soul. King’s vision of resistance and hope lives in us today, as a thing of everlasting potential. Justice, King teaches us, will not thrive on its own; it will prevail if only we have the will—and the courage—to work for it. When we’re united in resistance and hope we are the unconquerable ones.
