The three judges, however, rejected the plaintiffs’ argument that the racial separation of prisoners violated the cruel and unusual punishment clause of the Eighth Amendment. “[It] is without merit,” Johnson wrote. That clause was adopted to prevent “inhuman, barbarous or torturous punishment[,] . . . and segregation of individuals, while incarcerated, solely by reason of their race does not, in the opinion of this court, constitute cruel and unusual punishment.”
Johnson, Rives, and Lynne recognized that the operation of a statewide prison or a local jail was a specialized endeavor that required the “sober judgment” of experienced individuals such as Frank Lee and Mel Bailey. (Bob Austin was not mentioned.) These were dangerous jobs with intense pressures. “In light of this recognition,” Johnson underscored, “this court will not at this time require an immediate and total desegregation of state, county and city penal facilities in the state of Alabama.” The judges mandated that Kilby, Atmore, and other maximum-security prisons integrate in one year. Minimum- and medium-security institutions—Draper and Julia Tutwiler Prisons—had six months to complete desegregation. The honor farms, educational facilities, the youth center, and the hospital must be integrated immediately.
Most likely, the judges used Frank Lee’s testimony during oral arguments as a basis for this timetable for integration. When asked by the court how long he would need to integrate, Lee answered, “I would hate to think that we would have to do it in less than a year’s time—even though if we get such an order, we would start tomorrow.” The court also ordered Lee to supervise the desegregation not only of state prisons but also of city and county jails. Every three months, Lee had to report to the court the progress of integration. Finally, the court declared unconstitutional seven state statutes of the Alabama Code that mandated racial segregation in Alabama’s prisons and jails.
With the legal victory in Washington v. Lee, Chuck Morgan and Orzell Billingsley conquered the last stronghold of state-mandated segregation in Alabama. Perhaps most surprising to Morgan was seeing Seybourn Lynne, who had so bitterly opposed Rives and Johnson a decade earlier, joining his fellow jurists in a unanimous decision. Avant-garde civil rights and civil liberties lawyers like Morgan could never afford to “write off” old-school segregationist judges. There were just too many. “Besides, it is not the nature of southern Protestants to write off people,” Morgan later wrote. “Without ‘sinners’ there would be no one to convert.”
16
SEGREGATION’S LAST STAND
Civil rights demonstrators sing during a protest at the Jefferson County Jail in Bessemer in 1967. Standing on the first step are Fred Shuttlesworth (left) and Asbury Howard (right).
IN THE ALABAMA Attorney General’s Office, Richmond Flowers took the news of another loss in Frank Johnson’s courtroom in stride. “I tried a world of lawsuits before Frank Johnson,” Flowers later recalled, “because we had a lot of civil rights suits. I lost them all. . . . You couldn’t defend what I was obligated by my position to defend.” When Governor George Wallace criticized the attorney general for not fighting hard enough, Flowers responded, “The fight’s over. We’ve lost the fight. Now we’ve got to live with the beast.”
For Flowers, an appeal of the Washington v. Lee decision would be “the beast” for the new attorney general, MacDonald “Mac” Gallion. Flowers returned to private law practice in Montgomery in January 1967 with hopes of running for governor again in 1970. Instead he found himself indicted, tried, convicted, disbarred, and imprisoned for a complicated stock issuance and sale in an insurance company and a scheme to extort funds from several companies through threats of investigations and closure suits. After sixteen months in jail, Flowers received a parole in 1973 and a full pardon from President Jimmy Carter in 1978. This provided the former attorney general, as many Alabama political observers believed, personal vindication over “trumped up” charges by the “Wallace machine.”
Flowers’s successor, fifty-four-year-old Mac Gallion, was also his predecessor. Elected in 1958, Gallion’s first term was marked by his “resistance within the framework of the law” to federal authority in civil rights matters and by his hostility to any efforts by blacks to end segregation or gain voting rights. Gallion, like many other red-baiting whites of his generation, saw civil rights activists as nothing more than Communist conspirators who were endangering the peace and security of America. In 1961, he told a White Citizens’ Council rally in Montgomery that the Freedom Riders were a “foolish group of meddlers, bleeding hearts, publicity seekers, and assorted misfits” who were not promoting freedom, democracy, religion, and America, but just the opposite. “It is a cold, calculated, deliberate attack upon America itself,” Gallion proclaimed, “upon the vital organs of our form of government, upon American prestige in the world and upon the very existence of America as the last bulwark across the path of atheist communism in the world.” Alabama was in grave peril, he added, and the citizens of Alabama had front-row seats to watch the American Communist front in action. Gallion emphasized:
We particularly in the South, have had set-back after set-back in our fight in this cause. I am firmly convinced that the South stands today as the last great bulwark of strength—the last bastion of defense—across this dangerous march to the left . . . this is no time to stop fighting; this is no time to become discouraged; it is no time to bow our head in abject defeat. On the contrary, it is the time to fight within the bounds of the law with all the determination and with all the heart and wisdom that we can muster at our command.
Gallion fought the federal government at every opportunity. When the U.S. Civil Rights Commission condemned “abuses of police power” in Alabama and recommended an investigation of police brutality and the misconduct of some court officials, Gallion called the charges unproven “gossip, old wives tales, and rumor.”
George MacDonald Gallion was born in Montgomery in 1913 and raised in Birmingham. He earned a law degree from the University of Alabama in 1937 and practiced law in Birmingham until joining the Marines at the beginning of World War II. While fighting in the South Pacific, he was wounded in Saipan and received the Purple Heart. Following the war, he moved to Montgomery, where he maintained a private practice and at times worked as an assistant attorney general for the state.
Following the Phenix City assassination of Alabama attorney general-elect Albert Patterson in 1954, Governor Gordon Persons appointed Gallion as a special counsel, and he participated in the murder investigation and the cleanup of Alabama’s “sin city.” From 1955 to 1959, he went on to work as the chief assistant attorney general for Albert’s son, John Patterson, who was elected in his father’s place. In 1958, Alabama voters elected Gallion attorney general in the same election that sent John Patterson to the governor’s office. The duo would emerge as symbols of white Alabama’s massive resistance to civil rights.
In 1962, Gallion finished fourth in the governor’s race that saw George Wallace elected to his first term. Four years later, following the tenure of the more moderate Richmond Flowers, voters returned segregationist MacDonald Gallion to the Alabama Attorney General’s Office by a two-to-one margin. This was disappointing news to blacks and liberal-minded whites in the state. “He’s the worst racist we have,” one hyperbolic Alabamian wrote. Soon after the election, a newspaper reporter observed that blacks now faced dealing with Wallace without the support of Flowers, who often fought the governor and his hardcore supporters.
Soon after taking office, Gallion received a memo, presumably from Gordon Madison, that outlined reasons not to appeal the Washington v. Lee case to the U.S. Supreme Court. Losing the appeal could result in prohibitive injunctions and sharply curtail the “wide range of discretion” the three judges had left to prison and jail officials. The Supreme Court could find error in allowing Frank Lee to supervise the desegregation of jails and order the work done under “some federal official appointed by the court.” If the high court affirmed the decision, then Washington v. Lee mandates would
be binding precedent on all states, not just Alabama, and those states would “not be so free to handle their own cases when and if they arise.” Most important, the author of the memo concluded, “legal study and consideration does not reveal any substantial grounds for reversal.”
Frank Lee and the board of corrections had other ideas. On February 3, 1967, Lee informed MacDonald Gallion that the board wanted the Washington v. Lee decision appealed to the U.S. Supreme Court. “I will appreciate your cooperation in seeing that this action is taken,” Lee wrote, “and followed through.” Gallion complied, and the state of Alabama would once again fight to hold on to the last bastion of legally sanctioned segregation.
Three days later, on February 6, Gordon Madison submitted a “Notice of Appeal to the Supreme Court of the United States” in the federal district court in Montgomery. Madison raised five questions for appeal: (1) Do state statutes that require racial separation of black and white prisoners in state penal institutions and county and city jails violate the provisions of the Fourteenth Amendment? (2) Does a prisoner serving a penitentiary sentence have the constitutional right to question the validity of state laws that require racial separation of prisoners? (3) Does the federal district court have the “jurisdiction and authority” to compel Frank Lee to supervise the integration of all state prisons, including cities under ten thousand residents? (4) Do the sections of Title 45 of the Alabama Code violate the Fourteenth Amendment by requiring racial segregation in Alabama prisons and jails? (5) Does the federal district court have the authority to order Frank Lee to make reports to the court on the progress made to end segregation in prisons and jails in Alabama?
In addition, on February 13, 1967, Madison submitted to Judge Frank Johnson a motion for a stay in implementing the desegregation order until the Supreme Court ruled on the appeal. Two days later, Johnson, with the consent of judges Rives and Lynne, denied the stay but granted them twenty days to present a motion for a stay pending appeal before the U.S. Supreme Court. To handle the legal work for the state of Alabama before the nation’s high court, Gallion hired Nicholas Hare as a special assistant attorney general.
Born in Monroeville, Alabama, in 1911, Nicholas Stallworth “Nick” Hare was a member of one of the most respected legal families in the state. His father, Judge Francis Hare, was a long-serving circuit judge for the Twenty-first Judicial Circuit, comprised of the southern Alabama counties of Conecuh, Escambia, and Monroe. In 1914, the elder Hare took in his orphaned nephew, also named Francis, who would later become one of the state’s most celebrated personal injury attorneys and trial practitioners. The Hares were close friends with another family of attorneys who included A. C. Lee and his daughter Alice Finch Lee (who was the same age as Nick). The youngest daughter, Nelle Harper Lee, who for a time pursued a law degree, would later turn to writing and use her father as the model for lawyer Atticus Finch and a case tried in Judge Hare’s courtroom as the basis for her novel To Kill a Mockingbird.
Nick Hare earned his law degree at the University of Alabama in 1935 and practiced in Birmingham until 1950, when he returned to Monroeville. During the early civil rights era, he became one of the state’s leading defenders of segregation. In 1955, he sponsored several segregationist bills in the statehouse, including the “freedom of choice” act (future Birmingham mayor Albert Boutwell was the author and sponsor in the senate), which allowed parents to choose whether or not to send their children to segregated or integrated schools—this and other legislation allowed Alabama to effectively avoid compliance with the Brown decision for the next fifteen years. At the 1956 Democratic National Convention, Hare drafted, and the Alabama delegation adopted, the “Southern Declaration of Principle,” which expressed the state’s defiant position on segregation in words and emotions reminiscent of similar statements issued by southern Democrats at the 1948 convention, and one entitled “The Southern Manifesto” signed by eighty-two southern representatives and nineteen senators. Opposing lawyer Chuck Morgan described Hare as a “bespectacled, reasonable gentleman with the amorphously nice manners which typify Black Belt upbringing.”
In February 1967, Nick Hare’s first priority was to submit an application for a stay pending appeal to Justice Hugo Black, the supervising judge of the Fifth Circuit. The application included an affidavit from Frank Lee, who pleaded for the stay. “We must have more time,” he said, to accomplish orderly desegregation “without unduly upsetting or impairing prison discipline or security” and preventing a “serious and dangerous situation.” Lee emphasized that the existing prisons in the state were built for racial segregation, and the state needed more time to build new facilities. In addition, inmates needed time to adjust to integration, so “violent and incorrigible” prisoners would not use the change in prison routine as an opportunity to riot, escape, or conduct a violent blood feud. Prison guards also needed time to be trained, prepared, and oriented to integrated facilities. “After all,” Lee added, “our prison personnel are poorly paid and largely uneducated.” Other states had psychiatrists, psychologists, and counselors to help with this period of adjustment, but Alabama had none. “I am fearful,” Lee added, “that immediate integration will disrupt the relative calm of the Alabama prison system.” Lee suggested the gradual approach: take a few steps toward integration, then wait, evaluate, and take a few more steps.
On March 1, 1967, Nicholas Hare traveled to Washington, D.C., and hand-delivered the application to Justice Hugo Black, who two days before celebrated his eighty-first birthday. Black was the anchor of the court’s liberal wing and a tireless advocate of individual rights. Over fifty years earlier, Black served as Jefferson County’s circuit solicitor and gained a reputation as a crusading prosecutor who fought to end rampant police brutality in Bessemer and restore the “fundamental rights and constitutional privileges of its citizens.” On March 4, 1967, Justice Black issued an order that stayed the ruling of the three-judge panel, but ultimately the application would have to be considered by the full court. Black made special note that counsel for the appellee filed “no opposition.”
In response, Chuck Morgan filed a hastily written opposition brief. Morgan argued that the state’s request was just another ruse to preserve racial segregation, which, in turn, would further injure Caliph Washington and the other appellees. “The threat of racial violence,” he wrote, “cannot justify the denial of constitutional rights.” Nonetheless, the full Supreme Court granted the stay while the justices heard the appeal.
On September 12, 1967, the state filed its appellant’s brief to the high court. It reiterated its central argument from the Fifth Circuit brief, that maintaining segregation in Alabama’s prisons and jails was a matter of “prison discipline and internal security.” This was the first case to come before the U.S. Supreme Court, Nicholas Hare argued, that dealt with the authority of federal courts to “direct particulars of prison management.” Hare believed that the justices’ decision in the appealed Lee v. Washington turned on whether the Fourteenth Amendment favored the opinions of federal judges over the opinions of prison administrators on how best to maintain prison discipline and security. The attorney emphasized that even if the justices affirmed the unconstitutionality of the Alabama statutes mandating prison segregation, they should not follow the mandate of the district court, which would “inflexibly force the racial integration of every state prison, county jail, city jail and small town calaboose in the State of Alabama . . . without regard to . . . other valid considerations.”
In short, Hare asked the Supreme Court justices to consider three points: (1) Bob Austin, warden of the Birmingham Jail, was not representative of all other wardens and jailers in the state, and this suit should not be considered a true class action suit; (2) state statutes requiring the separation of prisoners by race in state, county, city and town jails in the state of Alabama did not violate the Fourteenth Amendment; and (3) the single most important issue in the case was giving prison administrators the flexibility to maintain discipline and
security without being hampered by “inflexible judicial orders” even if that flexible discretion included racial segregation. After reading the brief, Hugh Maddox, legal adviser to the governor, wrote Hare and proclaimed, “I believe that we ought to win this case hands down.”
A month after Hare submitted his brief to the high court, Chuck Morgan presented his on behalf of Caliph Washington and the other appellees, carefully and factually restating the arguments from his brief submitted to the district court months before. He asked the Supreme Court justices to affirm the decision and questioned the justification and merit of the state’s appeal. He argued that the three-judge panel accommodated the wishes of the state. The lower court did not require Frank Lee and jailers throughout the state to submit a desegregation plan, nor did it mandate immediate integration of all penal facilities in Alabama. “The district court allowed them literally every concession they requested,” Morgan added, and Frank Lee and Robert Austin were given such flexibility that they essentially wrote their own desegregation order. When Birmingham Jail warden Austin saw no problems with integration other than the drunk tank, the judges “specifically excepted” from its decree “in very exceptional instances” the drunk tanks or bullpens about which appellant expressed some concern. “The decree of the court is thus an effectuation of appellants’ own judgment,” Morgan concluded. “Plainly, the argument that the courts have usurped the discretion of prison officials is without merit.”
He Calls Me by Lightning Page 28
