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Reaction Paper: Scottsboro Case and Total Incorporation

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Race-based discrimination is still found to be the norm in a society such as the United States where we find a diverse group of people from various parts of the world. I predict this will continue to challenge our criminal justice system for decades to come. It is human nature to classify people based on race and ethnicity. Traditionally, race has referred to the "major biological divisions of mankind," which are distinguished by color of skin, color and texture of hair, bodily proportions, and other physical features.1 But experts regard the concept as race as "primarily a social construct."2 The landmark cases from the Scottsboro, Alabama incident in 1931 dealt with racism and the right to a fair trial. This incident shed light on white peoples' hostility and maliciousness towards nine young black men and the miscarriage of the criminal justice process. The entire process lacked proper proceedings; from the beginning when the defendants were arrested to the end where the judge decided on a sentence. The young men were represented by a real estate lawyer who had no experience in criminal cases. The jury consisted of all-white people. The trials were rushed and did not leave adequate time for the police, the defense, and the prosecution to conduct their investigations surrounding the rape allegations. Angry mobs gathered inside and outside the courtroom. It was a public spectacle that no doubt influenced the court proceedings. The court threw out scientific evidence from Dr. Bridges4, but accepted testimonial evidence from two white girls, Ruby Bates and Victoria Price, who insisted they were raped by these young boys. Eight of the black men were convicted of rape and sentenced to death by electrocution. With the help of the legal arm of the American Communist Party - the International Labor Defense (ILD) - the ninth man, a juvenile, was granted a new trial by the Alabama Supreme Court4. Eventually, the case was appealed and went to the U.S. Supreme Court where the convictions were reversed on the grounds that the Procedural Due Process Clause of the United States Constitution was not followed. This clause guarantees the effective assistance of counsel at a criminal trial. Chief Justice Evans Hughes found that the defendants had been denied effective counsel and ruled that the court procedures violated the defendants' rights to due process under the Fourteenth Amendment. The case went back to the Alabama Supreme court for a retrial. Leibowitz, the defendants' attorney, conducted investigations and presented the court with testimonial evidence to strengthen the innocence of these nine men. He also presented a black jury member. The case was tried three times with a guilty verdict returned in each trial. At the third trial, four men were released while the remaining five were sent back to prison. In the end, one man was pardoned by then Governor George Wallace in 1976 and this was achieved out of mere political self-interest.

There was a great disparity in the criminal justice process in 1931 in terms of treatment and guarantee of equal rights to all people regardless of race. The first ten amendments were designed to restrict the powers of the federal government, but the amendments adopted after the Civil War were directed toward the protection of the rights of United States citizens against actions by the states. To understand the goal and function of the Fourteenth Amendment we need to understand the Civil Rights Acts of 1866 and 1875. The goal of both of these acts was to put an end to the criminal black codes under former rebel States. Former slaves were emancipated citizens of the United States and Congress felt it was vital to protect their fundamental rights as United States citizens wherever they traveled within the Union.5 The acts also affirmed the equality of all persons in the enjoyment of transportation facilities, in hotels and inns, and in theaters and places of public amusement.6 These fundamental rights were strictly defined as due process in criminal proceedings and for the equal administration of due process that included equal pains and penalties of law.5

The Fourteenth Amendment, adopted in 1868, declared that "no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law." The use of the words "due process of law" and "the right to equal protection of the laws" in the Fourteenth Amendment opened the door through which "many guarantees of the original federal Bill of Rights became enforceable in federal and state courts."7 States are prevented from making unreasonable, arbitrary distinctions between different persons as to their rights and privileges. According to the Criminal Procedure textbook, in order to analyze and discover the occurrence of mistreatment and misclassification of people in legal proceedings, states must apply the multi-step process known as the "standard of review" that congress enacted in the 1960s. Total incorporation holds that the Due Process Clause of the Fourteenth Amendment makes the entire federal Bill of Rights applicable to the states. This view never commanded a majority of the court and was rejected repeatedly in Twining



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