Our Justice System Stuck in the Past, As in Scottsboro Boys’ Case

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Elizabeth ClarkeIn the 1930s, nine black boys were arrested for a fight on a train in rural Alabama. The assault charges turned into rape when it turned out that two of the hobos were white women who were also riding the rails.

Despite their young age, all were speedily convicted in adult court trials and placed on death row. The speed of the prosecution and their ages brought their case into the national spotlight.

Eventually, their cases were championed by two national organizations, the NAACP and the International Labor Defense, with criminal defense attorney Samuel Leibowitz from New York stepping in to represent the boys on appeal.

Numerous retrials resulted. Despite factual inconsistencies and the withdrawal of one rape complaint, the Northern lawyer had a difficult time convincing Southern juries of the boys’ innocence. Eventually, after lengthy litigation including two U.S. Supreme Court opinions, most of the boys were exonerated or freed.

It’s impossible to imagine that this case could be turned into a musical — but that is just what Mark Stein and Harley White Jr. managed to do brilliantly in “Direct from Death Row.” The musical, directed by Michael Menendian, closed Nov. 14 in Chicago. Performances were followed by a thoughtful discussion of the, sadly, still relevant topics of race and injustice in America.

How is it possible that injustice on the scale depicted in the Scottsboro Boys’ case could still be relevant? We pride ourselves on being part of an interconnected world, yet as a nation we remain “exceptional,” with a system of policing and mass incarceration unparalleled in the modern world.

The U.S. is the only nation with laws allowing life sentences for juveniles. We are the only developed nation to sanction widespread trial of children in the adult court. Racial disparities are so entrenched that Chicago’s juvenile detention center is 98 percent black and brown children. And, with just 5 percent of the world’s population, we incarcerate 25 percent of the world’s prisoners.

As the National Academy of Sciences recently concluded, our heavy reliance on incarceration is costly and has profound negative consequences — without any demonstrable evidence that it keeps us safer. The NAS report urged the U.S. to dismantle mass incarceration as quickly as possible, especially eliminating mandatory minimum sentences and extended sentences.

There is some positive movement. Black Lives Matter is shining a light on racial disparities in our justice system. Bipartisan coalitions are forming in Congress and in the states to dismantle some of the most egregiously harsh sentences for low-level drug and nonviolent offenses.

But the most hopeful sign of change is the new book by Supreme Court Justice Stephen Breyer, “The Court and the World.” Breyer makes the case that the judicial isolationism of the Supreme Court (and all the lower-level federal and state courts, I might add) threatens our rule of law and our civil society.

[Related: Schools Need Restorative Justice to Keep Kids Safe, Out of Trouble]

Breyer’s concern stems in part from a juvenile case. In overturning the juvenile death penalty, Justice Anthony Kennedy dared to point out that the death penalty was prohibited under international human rights treaties, citing the Convention on the Rights of the Child (CRC).

As Kennedy noted, most of the rest of the world had ratified the CRC and had abolished the juvenile death penalty. Kennedy merely urged the court to take note of this worldwide consensus against the use of the death penalty in juvenile cases, but his comments were widely criticized by conservatives in the judiciary and in the political world.

The criticism did not deter Kennedy: He reiterated the need to look to international standard, practice and laws in a subsequent decision involving juvenile life without parole.

The criticism is unfounded, Breyer argues. In fact, he makes the case that to ignore international consensus on issues involving crime and punishment will push the U.S. further out of the international community and will put at risk our goal of spreading the rule of law and civil society, as well as jeopardizing rule of law within our nation.

The rapid growth of human rights standards and laws was the international response to the magnitude and horror of World War II. The U.S. was deeply involved in the development of a worldwide consensus of the fundamental value and dignity of every human — the right of every human to certain liberties and treatment. We expect the human rights of free speech and assembly to be respected both within and outside the U.S. But we are less eager to champion the human right of every child to trial in juvenile court in our own nation, and to deprivation of liberty as a last resort for as short a time as possible.

The Scottsboro Boys’ case reminds us that we have been stubbornly resistant to change in the juvenile justice arena for more than 80 years. Our neighbors to the north (Canada) and south (Mexico) have developed national laws incorporating the basic international standards that prohibit trial of children in adult court, that prohibit excessive sentences including life and that limit incarceration to a last resort for as short a time as possible.

It’s time to bring our state and national laws in line with our neighbors and with the rest of the developed world. As Justice Breyer so eloquently notes, failure to do so will jeopardize our own freedoms.

Elizabeth Clarke of Evanston, Ill., is founder and president of the Juvenile Justice Initiative, a coalition working to transform the juvenile justice system in Illinois.

More related articles:

Report: Incarcerated Youth Often Get Inadequate Education

Creating a More Equitable and Effective Juvenile Justice System

Philadelphia No. 2 Cop to Expand School Diversion Program Via Major Fellowship

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