About

SecondClassJustice.com is about ending the unfair and discriminatory treatment of people in the criminal justice system by documenting that treatment.  Contrary to the constitutional guarantees of due process and equal protection of the laws and the etching “Equal Justice Under Law” on the Supreme Court building, the kind of justice people get in America’s courts depends very much upon the amount of money they have. Poor people are deprived of their liberty – and even their lives – because they cannot afford competent legal representation.  The rich and guilty often have a better chance of avoiding conviction than those who are poor and innocent.

Race matters too. The criminal justice system is the part of society least affected by the Civil Rights Movement. Race influences every aspect of the system from arrest and charging decisions to the exclusion of people of color from juries to sentencing disparities influenced by race of both victim and defendant.

Courts are failing in their fundamental purpose to protect the constitutional rights of the accused. Elected state court judges are often more concerned about the next election than the Bill of Rights. Federal courts apply technicalities – procedural rules made up by the Supreme Court and the Congress – to avoid enforcing the Constitution more often than they confront injustices presented to them.

This website documents examples of second class – and sometimes third world – “justice” for the poor and people of color in the hope that knowlege will someday overcome the indifference, hostility and racism that have affected the criminal justice system throughout America’s history, and bring about a just, fair, humane and reliable system.

The Banner

The website’s banner includes the “Scottsboro Boys” who were convicted of rape and sentenced to death in Alabama in the 1930s.  Their case resulted in two important Supreme Court decisions, Powell v. Alabama, 287 U.S. 45 (1932) (finding a denial of counsel in violation of the due process clause), and Norris v. Alabama, 294 U.S. 587 (1935) (finding racial discrimination in the selection of the jury pools).   In the background is the cemetery at the prison in Huntsville, Texas, where the victims of second class justice were buried after their executions, identified only by their prison numbers.

The banner also includes Clara S. Foltz, the first woman admitted to the California Bar, a leader of the women’s movement, and legal reformer, who tried cases before of all-male juries.  She was the first to propose the creation of a public defender to balance the public prosecutor.  Her story is told in Woman Lawyer: The Trials of Clara Foltz by Stanford Law Professor Barbara Babcock (Stanford University Press 2011).

Next is Thurgood Marshall, who not long after being admitted to the Maryland bar, took a train from Baltimore to Oklahoma City and then a bus to Hugo, Oklahoma, where he represented a man in a death penalty case.   He was a champion for fairness and racial equality throughout his career as a lawyer,  Soclicitor General, Judge and Justice of the Supreme Court.

Clarence Earl Gideon, also included on the banner, demanded a lawyer, but was denied one at his trial for breaking into a pool room in Panama City, Florida.  He wrote in pencil a petition to the Supreme Court that was granted and resulted in the landmark decision, Gideon v. Wainwright, 372 U.S. 335 (1963), guaranteeing the right to counsel for poor people accused of a crime.

Finally, there is Clarence Darrow, the tireless “attorney for the damned” who represented those accused of crimes throughout his career.  In pleading for the lives of Nathan Leopold and Richard Loeb in 1924, Darrow argued:

Your honor stands between the past and the future.  You may hang these boys; you may hang them by the neck until they are dead.  But in doing it you will turn your face toward the past * * *

I am pleading for the future; I am pleading for a time when hatred and cruelty will not control the hearts of men, when we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.

Attorney for the Damned (Arthur Weinberg, ed.; forward by Justice William O. Douglas) (University of Chicago Press 1989) at page 86-87.

Among many other cases was Darrow’s defense of Dr. Ossian Sweet, an African American doctor.  After the Sweets moved into an all-white neighborhood in Detroit, mobs gathered outside their home.  At some point during the evening, cries of “Nigger!” were heard from the crowd, rocks were thrown, and shots were fired from the window of the Sweet house.  A white man was killed and another white man was wounded.  All 11 blacks in the house were arrested and charged with murder.

Darrow contended that the people in the house had acted in self defense in response to a mob motivated by race.  Again, he argued that the choice was between the future and the past:

There are persons * * * who say a black man is inferior to a white and should be controlled by the whites.  There are those who recognize his rights and say he should try and enjoy them.  To me this case is a cross-section of human history.  It involves the future, and the hope of some of us that the future shall be better than the past.

The jury was out for 46 hours. It was unable to reach a verdict.  Judge Frank Murphy, who would later be governor of Michigan and a Justice of the U.S. Supreme Court, declared a mistrial and dismissed the jury on November 27, 1925.   It was then agreed that each person would be tried individually.   The first and only one to go to trial was Dr. Sweet’s brother, Henry, a college student.

At both trials, Darrow confronted all-white, all-male juries with the issue of race.  At the trial of Henry Sweet, he said in closing argument which lasted seven hours:

I insist that there is nothing but prejudice in this case; that if it was reversed and eleven white men had shot and killed a black while protecting their home and their lives against a mob of blacks, nobody would have dreamed of having them indicted. I know what I am talking about, and so do you. They would have been given medals instead.

* * *

* * * Would this case be in this court if these defendants were not black? Would we be standing in front of you if these defendants were not black? Would anybody be asking you to send a boy to prison for life for defending his brother’s home and protecting his own life, if his face wasn’t black?

* * *

Imagine yourselves colored, gentlemen. Imagine yourselves back in the Sweet house on that fatal night. That is the only right way to treat this case, and the court will tell you so. Would you move there?  Where would you move? * * *

* * *

So, gentlemen, I am justified in saying that this boy is as kindly, as well disposed, as decent a man as any one of you twelve.  Do you think he ought to be taken out of his school and sent to the penitentiary?  All right, gentlemen, if you think so, do it. It is your job, not mine.  If you think so, do it.  But if you do, gentlemen, if you should ever look into the face of your own boy, or your own brother, or look into your own heart, you will regret it in sack cloth and ashes.  You know, if he committed any offense, it was being loyal and true to his brother whom he loved.  `I know where you will send him, and it will not be to the penitentiary.

* * *

* * * I would like to see a time when man loves his fellow man, and forgets his color or his creed.  We will never be civilized until that time comes.

I know the Negro race has a long road to go.  I believe the life of the Negro race has been a life of tragedy, of injustice, of oppression.  The law has made him equal, but man has not.  And, after all, the last analysis is, what has man done – and not what has the law done?  I know there is a long road ahead of him, before he can take the place which I believe he should take.  I know that before him there is suffering, sorrow, tribulation and death among the blacks, and perhaps the whites. I am sorry.  * * *

Gentlemen, what do you think is your duty in this case?  I have watched, day after day, these black, tense faces that have crowded this court.  These black faces that now are looking to you twelve whites, feeling that the hopes and fears of a race are in your keeping.

This case is about to end, gentlemen.  To them, it is life.  Not one of their color sits on this jury.  Their fate is in the hands of twelve whites.  Their eyes are fixed on you, their hearts go out to you, and their hopes hang on your verdict.

This is all.  I ask you, on behalf of this defendant, on behalf of these helpless ones who turn to you, and more than that – on behalf of this great state, and this great city which must face this problem, and face it fairly – I ask you, in the name of progress and of the human race, to return a verdict of not guilty in this case.

The jury returned its verdict the following day, May 19, 1926: Not Guilty.  The other cases were not tried.  Darrow’s closing argument is a landmark in the Civil Rights movement and is included in the book ‘Speeches that Changed the World

A full account of the Sweet trials, including Darrow’s entire arguments at both trials, can be found at www.law.umkc.edu/faculty/projects/ftrials/sweet/sweet.html.  An excellent account of the case is provided in Kevin Boyle, Arc of Justice: A Saga of Race, Rights, and Murder in the Jazz Age (Holt 2004).

– Stephen Bright

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