How to Reform Southern Justice

One of U.S. history's basic trends is the growing dominance of federal power over state power. And one of the major reasons for the trend is that Southern states have defied the U.S.

Constitution's command (Article 6) that federal law is "the supreme law of the land." By denying the constitutional rights of Negroes ever since the Civil War, the South itself has forced the enactment of more federal laws en forcing those rights, all leading to more federal intervention in areas traditionally left to the states.

The result poses a dilemma in U.S. state-federal relations: how to uphold civil rights without eroding states' rights, such as the right to conduct local elections, enforce local laws, select local juries and hold local trials. The irony is that Southern states are largely responsible for creating the dilemma--and the Federal Government is earnestly trying to avoid it.

The problem took on new urgency last week as Negro leaders announced the next great goal of the civil rights battle: federal laws reforming Southern "dual justice," or what Atlanta's Southern Regional Council calls "corruption of justice by racism." Time after time, all-white police forces in many Southern states have ignored vigilante beatings, bombings, church burnings--or arrested the victims as the suspects. All-white juries have steadfastly refused to believe the evidence in the trials of whites charged with murdering civil rights workers; only one assailant in 26 such murders since 1960 has been sentenced to prison.

Cautious Feds. Among "feasible" reforms, Martin Luther King calls for a new U.S. law making it a federal crime to intimidate or murder any person "in pursuit of constitutional rights." He seeks Negro employment "on every level of law enforcement agencies." To "abolish lynch law from Dixie juries," he thinks federal officials ought "to select and constitute jury panels in state as well as federal cases."

King's tall order would require massive federal intervention. The Justice Department, however, has long hesitated to exercise undue federal power -mainly, it says, because it is anxious to boost state responsibility and encourage Southern lawmen to discover the U.S. Constitution. Attorney General Robert F. Kennedy was so anxious on this score that in 1964 he pleaded "very limited power" to protect Mississippi Negroes. But as 29 top law professors quickly reminded him, the U.S. Code (Title 10, Section 333) fully empowers the President to use all necessary force on every foot of American soil to uphold the constitutional rights of "any part or class" of U.S. citizens whenever local officials fail to do so. Politics, the professors made clear, not weakness, dictated federal policy.

Though FBI agents have witnessed scores of Southern civil rights violations, they have rarely used their power (Title 18, Section 3052) to make on-the-spot arrests for any federal felony or misdemeanor committed in their presence. Though jury discrimination in all American courts has been a federal crime since 1875 (Title 18, Section 243), the Justice Department has prosecuted no one for the practice in this century. When an all-white jury recent ly acquitted Tom Coleman for killing a civil rights worker in Hayneville, Ala., Attorney General Nicholas Katzenbach could only swallow hard and say: "This is the price you have to pay for the jury system, and I don't think it is too high a price to pay. The situation has changed a great deal already."

No Right to Live. To curb criminal racists, the Government has relied on two weak 1870 laws. Originally drafted to support Negro rights, one law (Title 18, Section 242) is the main U.S. weapon against police or any other officials guilty of violating anyone's constitutional rights. Section 242 forbids any person "acting under color of any law" to so deprive any U.S. "inhabitant" or to persecute him by reason of his being "an alien, or by reason of his race or color." But conviction requires proof that the defendant had "specific intent" to deny constitutional rights, and the maximum sentence is only one year.

The other law (Section 241) is the main U.S. weapon against anti-civil-rights violence by civilians. Originally designed to encourage Negro voting, that law provides a ten-year rap if "two or more persons conspire" to deprive any person of his federal rights. In 1951, however, an evenly divided (4-4) Supreme Court affirmed a lower-court ruling that Section 241 protects only a limited class of federal rights, such as interstate travel. As a result, the U.S. could not use it to enforce a citizen's Fourteenth Amendment rights of due process and equal protection.

Even so, when Georgia and Mississippi failed to act in racial murders last year, the U.S. sought federal grand jury indictments under Section 241 against three lawmen, six Ku Klux Klansmen and 15 other private persons. Two federal judges tossed the indictments out, ruling that freedom from murder is not one of the rights protected by Section 241. On appeal to the Supreme Court last week, Solicitor General Thurgood Marshall argued that despite the 1951 ruling, the U.S. has power to "remove an obstruction interposed by a gang of toughs between Negroes and their constitutional rights." Speaking of Washington Negro Lemuel Penn, who was murdered while driving on a Georgia highway last year, Marshall argued that the court could rule that Section 241 protects the federal right to interstate travel. Even if Marshall's plea saves the indictment, the Government may have to prove that Penn's killers actually intended to deprive him of that right--not just gun down another Negro.

Call to Action. The odds are that the Government will now take tougher steps, though they may not be half as tough as some Negroes advocate. More states' rights will no doubt disappear, though not nearly as many as some Southerners will claim they have lost. Basically, the Government still hopes that Southern justice will so improve itself that drastic federal intervention will not be necessary. The hope is not entirely groundless.

In a precedent-setting verdict last week, for example, an all-white jury in Hattiesburg, Miss., found Norman Cannon, 19, guilty of raping a 15-year-old Negro girl. Cannon is white--and not in living memory has a white Mississippian been convicted of raping a Negro.

Nevertheless, in a chilling study of Southern "law enforcement" that was issued last week, the congressionally created U.S. Civil Rights Commission appointed by the President recounted case after case of excessive bail, deliberate court delays, harsh sentences and cruel jail conditions--all tactics that were used to cow Negroes long before the civil rights movement got started. Calling for federal action, the commission urged on-the-spot FBI arrests and injunctive relief against state prosecutions of citizens trying to exercise First Amendment rights, such as peaceful assembly.

In addition, the commission recommends a far stiffer federal personal-security law, based on congressional power to regulate interstate commerce and enforce the Fourteenth Amendment. Finally, when local officials fail to act, the commission urges federal trials of racial crimes that violate state laws--thus removing such cases to federal juries that are picked from wider geographical areas. If the past is any guide, the outlook for these reforms is bright. In the commission's eight-year history, 75% of its recommendations have been adopted.

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