The stationmaster sent word ahead to Paint Rock, Alabama, and a lynch mob/posse assembled with ropes and guns. They stopped the train and dragged all the riders off. They found nine black teenagers, but also two young white women wearing men’s caps and overalls. A serious situation turned very dangerous. In the Jim Crow-era South, blacks and whites were legally required to live separately, and black men and white women were never to be seen together. At first, the women chatted with several bystanders, but about twenty minutes later they told a deputy that the blacks had gang-raped them, offering little detail.
The black teens were fortunate to escape with their lives. They were bound and driven to the jail in nearby Scottsboro, Alabama. A lynch mob gathered in the night, and frenzied news coverage began calling for blood. Soon, the media dubbed them “the Scottsboro Boys.” To stave off the lynch mob, the sheriff had to move them to a sturdier jail in the next town, threaten to shoot to kill any lynchers, and call out the National Guard.
Officials also promised swift justice, and the public demanded it: Locals complained that it took all of five days to indict the teens. The state sought the death penalty for eight of the nine teens and life imprisonment for the youngest, who was thirteen. At arraignment, the court did not ask the defendants whether they wanted to hire counsel and did not give them time to do so. They had no lawyer to investigate or prepare before trial.
The first of the four trials began on April 6, a mere twelve days after the incident. As usual, blacks were systematically excluded from the jury pool. A mob of five to ten thousand gathered outside the courthouse, which had to be protected by National Guardsmen wielding machine guns. The judge appointed as defense counsel Stephen Roddy, a real estate lawyer who had been sent from Chattanooga by some of that town’s leading black citizens. Unfortunately, Roddy was an alcoholic who could hardly walk a straight line the morning of the first trial and who protested that he was unprepared and did not know Alabama law. To help him, the judge appointed local lawyer Milo Moody, who was nearly seventy, doddering, and senile. Roddy had less than half an hour with his clients before the trial began and effectively no time to investigate the facts. The appointment of counsel was largely a sham.
Despite inflammatory news coverage and the lynch mob, the court refused to move the trials. The medical evidence of gang rape was weak: While doctors found semen in both women’s vaginas, it was non-motile, almost ruling out intercourse in the previous few hours, and the amount found in one of them was far less than a gang rape would have produced. Neither woman was bruised, injured, or hysterical, and their clothes were not torn even though they had supposedly been gang-raped in a rail car full of jagged rocks. One of the two could not even identify which of the defendants had supposedly raped her. Yet the judge all but precluded defense counsel from cross-examining the victims about their history of prostitution and their sexual intercourse with their boyfriends the night before the incident. Neither defense lawyer offered an opening or closing argument, and they called no witnesses besides the defendants. Each trial lasted only a few hours and convicted all defendants; all but the youngest one were sentenced to death.
Southerners prided themselves on having let justice take its course as a substitute for lynching. Outsiders saw the trial as a travesty and a legal lynching. The Alabama Supreme Court affirmed the judgment in a brisk 6–1 ruling. The U.S. Supreme Court eventually reversed, and on retrial one of the two women recanted her entire story, but Alabama juries kept convicting the defendants. There were eventually three more retrials. Charges were dropped against four of the defendants, but five were eventually convicted and ended up serving substantial prison sentences.
The outcome of Powell seems painfully obvious today, but it presented a terrible dilemma to the U.S. Supreme Court. On the one hand, the trial transcript and circumstances were shocking and unacceptable to jurists. The evidence was shabby, the trial was rushed, the defense lawyers did almost nothing, and the jury was packed with white Southerners who would have convicted the Scottsboro Boys based on appearance alone.
On the other hand, the U.S. Supreme Court had previously refused to overturn state criminal convictions for violating a specific provision of the Bill of Rights. In the nineteenth century, the Supreme Court had treated the Bill of Rights as limiting only the federal government, as suggested by the First Amendment’s first word limiting only what “Congress,” not state governments, could do. After the Civil War, the Fourteenth Amendment explicitly required states to provide “due process of law,” which was later interpreted to forbid at least mob-dominated trials. But even after the Fourteenth Amendment, the Supreme Court had specifically declined to apply the Fifth Amendment’s guarantee of a grand jury indictment to state prosecutions, reasoning that the Fourteenth Amendment’s Due Process Clause did not list or require states to follow the specific guarantees of the Bill of Rights.2
Thus, until Powell, the Court had declined to specify any particular constitutional criminal procedure governing state prosecutions. Doing so would have required upsetting decades of precedent and starting to apply the Bill of Rights to the states. So Powell was a true “crossing the Rubicon” moment. Would the Court take responsibility for managing the unmanageable? Would it overturn a string of cases and tradition allowing states largely to handle their own business in criminal matters? But if it chose to let Powell stand, would it be a silent partner in Jim Crow–era “justice”?
The Court chose the path of justice and overturned the convictions. American criminal procedure and constitutional law have never been the same. Powell was the first step in the journey that led us to the system we have today. Our system is unquestionably a radical improvement over 1931-era justice, but it has not come without its own costs and wrong turns.3
Today, the constitutional right to criminal defense counsel is far broader than it was two centuries or even half a century ago. On its surface, criminal defense has grown much stronger, progressively marching toward a fair, level playing field. But this simple story of progress overlooks the costs and tradeoffs. While the Supreme Court has repeatedly expanded the right to criminal defense counsel, it has paid much less attention to funding and implementing it. As the right has broadened, it has also grown shallower. The Court began by responding well to high-stakes injustices in complex criminal trials. But as it kept expanding the right down the criminal justice pyramid, it also watered it down. Without legislative cooperation, courts by themselves cannot and will not guarantee defenders the salaries, support, and caseloads they need to represent their clients vigorously and effectively. In practice, poor criminal defendants have a right to a warm body with a law degree and not much more.
The Right to Hire One’s Own Defense Lawyer
Until almost three centuries ago, English defendants were forbidden to hire defense counsel in routine felony or treason cases. Defendants usually knew the facts of their own cases, and in defending themselves they would air their version of events. Trials were a bit like shouting matches among the victim, defendant, and witnesses, with few technical rules of law or evidence that would require a lawyer’s intervention. But then prosecuting attorneys began handling some prosecutions (in lieu of victims) and relying on dubious evidence by paid informants. Thus, in the mid-eighteenth century, English courts allowed defendants to hire defense lawyers to cross-examine prosecution witnesses and speak for their clients more generally. The goal was to level the playing field against public prosecutors.4
The American colonies likewise rejected the older ban on privately retained defense counsel. And after the Revolutionary War, the Bill of Rights ensured that defendants could hire their own lawyers to protect them from government oppression. The Sixth Amendment guarantees every criminal defendant the right “to have the Assistance of Counsel for his defense.” This was understood to mean a right to hire one’s own lawyer, not to have the government provide one for free.5 The colonies did not routinely appoint defense counsel.
Over the course of the nineteenth century, the American legal system grew much more professionalized. Professional police