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Faculty Post: Civil Rights & Restorative Justice

by Professor Margaret A. Burnham

As of this writing, the Alabama Legislature is poised to adopt a measure that would illustrate perfectly the measures that states can take to address even remote miscarriages of justice.  On February 12, the legislature’s Judiciary Committee approved a bill to allow the Alabama Board of Pardons and Parole to grant posthumous pardons, paving the way to pardon the famous Scottsboro defendants, who were charged with capital rape in 1931 and who are now all deceased.  Alabama joins a number of other states excavating and redressing past racial harms.

Scottsboro was once just a small mountain town in the northeast corner of Alabama – until the arrest of nine youths on charges of interracial rape catapulted the place onto the international stage and linked its name with that of the accused youths, known universally as the “Scottsboro Boys.”  The Scottsboro case defined and reflected the politics of race, gender, class, and regional conflict of the interwar years. The legal case commenced in March 1931, but not until 1950 was the last of the accused paroled from an Alabama prison.  In the end the defendants served, collectively, more than 100 years in prison.  In the United States, the case was the most significant arena of interracial organizing since slavery.  Thousands of young Americans came to the cause of civil rights as a result of the movement protesting the treatment of the Scottsboro defendants. The case also broke new legal ground, for the Supreme Court addressed the Alabama prosecutions of the Scottsboro defendants in two landmark decisions, marking a rare departure from the Court’s practice of leaving state courts free from federal oversight.  In Powell v. Alabama, the Court established that a defendant in a capital case has a due process right to counsel, and in Norris v. Alabama, the Court held the exclusion of blacks from state grand and petit juries violated the Equal Protection Clause.

It all started when an Alabama sheriff removed nine youths, ranging in age from thirteen to twenty, from a train passing through northern Alabama headed to Memphis.  The hoboing youths were searching for work and food, as were several young white riders.  What began as a fight between the two groups led to the allegation that the black youths had raped two young white women, who were also hopping a ride on the train. The nine were speedily locked up in Scottsboro, where, a few days later, hoping to head off an ugly mob set on a lynching party, the authorities convened a grand jury to indict the group.  Within two weeks after the arrests, on evidence most observers thought to be weak, eight of the nine were tried, convicted, and sentenced to be executed in July 1931.

After the death sentences the Alabama county court prepared to return to its regular business, and nothing more might have come of the matter but for the involvement of civil rights lawyers and activists, who, having learned of the convictions and impending executions, rallied international support for the accused and successfully appealed the cases in the state and federal courts.  Protests across Europe and the United States focused fresh attention on southern justice and American race relations.  By most accounts the accused were innocent – one of the two alleged victims recanted – but they spent decades defending themselves and years in prison.  In 1950, nineteen years after the freight train stopped in Alabama, the last Scottsboro “Boy,” Andy Wright was released from prison in Alabama and paroled to New York City.  Then in 1976, Governor George Wallace pardoned another defendant, Clarence Norris, who, having violated his Alabama parole in 1947, was living in New York.  Hence the case came to a close, forty-five years after it started – or so we thought, until last week’s developments in Montgomery.

If the Alabama legislature gives the state’s parole board a green light to grant a pardon, it will be following in the footsteps of other states that have granted relief,  posthumously, to wrongfully convicted victims of race-infected criminal proceedings.  In 2006, a Mississippi judge exonerated a man falsely charged in 1961 with burglary because he sought to attend an all-white college.  Clyde Kennard was sentenced to seven years on the burglary charge, fell ill and died in 1963, shortly after his release from prison.  The exoneration restored his good name and set the record straight more than forty years after his death.  And in 2009, the South Carolina board of pardons granted posthumous relief – a first for that state – to two men who were wrongfully executed for the 1913 murder of a white farmer.

The Civil Rights and Restorative Justice Project at Northeastern University School of Law offers legal aid to public officials and communities seeking to render a truthful account of our country’s history of race-based criminal justice and to find appropriate remedies for these remote travesties.  We have compiled the most comprehensive archive on race-based homicides in the country and we have provided legal services to families and communities in over 100 such cases across the country.    While long overdue, this month’s developments in the Scottsboro case signal an important turn in our country’s encounter with past racial harms, suggesting that there are ample means and opportunities to make it right, even seventy two years after the harms.

To learn more about the work of the Civil Rights and Restorative Justice Project, please take a moment to view “The Trouble I’ve Seen,” which follows the investigations of three harrowing civil rights cold cases.