The Scottsboro Boys

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.