He Calls Me by Lightning

by S Jonathan Bass

  In response, Nick Hare wrote and submitted a reply brief to the Supreme Court. He saw the brief as a vehicle to highlight the dangerous situation that would be created if the court upset the “honored, judicially recognized, principle” of allowing prison administrators wide discretion in dealing with safety and security. Taking that flexibility away through an “inflexible fiat” in an effort to stop “one alleged invidious practice,” the attorney supposed, would make racial separation under any circumstance impossible. The three-judge panel moved “too far and too fast,” and the state needed more time. With a nod to the second Brown decision, Hare emphasized that even schools were integrated with “deliberate speed.” However, the legal theory behind the original Brown decision, that separate facilities were unequal, could not be applied to prisons, the attorney argued. Separate cells for prisoners were not inherently unequal, and racial separation was not always discriminatory. “Prison officials still need reasonable discretion,” he wrote, “not because the prisoners are white or black, but because they are dangerous.” These were not schoolchildren but men who were “vicious, violent, rebellious and deadly.” To emphasize this point, he submitted several newspaper accounts of race-based prison riots in the fall of 1967.

  The nine justices of the U.S. Supreme Court heard the oral arguments in the appeal on Tuesday, November 7, 1967, in the daunting marble-laden court chamber with forty-one-foot-high ceilings. Sitting behind the raised mahogany bench were Chief Justice Earl Warren and the associate justices: Hugo Black, William O. Douglas, John M. Harlan, William Brennan, Potter Stewart, Byron White, Abe Fortas, and Thurgood Marshall (the high court’s first black member and newest justice). Nicholas Hare would argue the case on behalf of the state of Alabama, and Chuck Morgan would represent Caliph Washington and the other prisoners.

  Hare addressed the court first. As he spoke, his voice revealed a refined and unhurried Alabama Black Belt drawl that seemed to glide, not echo, throughout the chamber. Following a brief review of the history of the case, he explained to the justices that even if they held the Alabama statutes as unconstitutional, the case required modification. “It is too rigid,” he said. “It destroys unnecessarily reasonable administrative discretion on the part of prison officials.” This decision in the Caliph Washington case was of overriding importance and would set the pattern for prison administration throughout the country.

  Following a straight-shot introduction, Hare’s words poured forth like a politician’s filibuster as he wandered aimlessly through his key arguments like a lost hunter who keeps covering his same tracks again and again. Through the haze of his remarks, he emphasized a few key points. Robert Austin was not representative of all jail wardens because the Birmingham City Jail was modern and the size of a small prison. Alabama was a rural state, and most of the jails in its sixty-seven counties were nothing more than a “one-cell calaboose.” The order of the federal judges in Alabama could not be binding on those jailers. “They ought to have their day in court,” he added. “It is just elemental justice. It is a matter of due process.”

  Hare refused to concede that the Alabama statutes requiring racial separation in the state’s prisons and jails were unconstitutional. “I make no point of it,” he said. On the other hand, the court’s efforts to force integration went too far. “They destroyed,” he argued in a raised voice, “reasonable, sensible, common sense discretion on the part of prison officials.” With the fervor of a rural Baptist minister, he added that these were dangerous criminals who were looking to make more trouble. “The weight of my argument to you gentlemen is this,” he said, “It’s not law; it is common sense.” Prison officials must have the flexibility to segregate prisoners by race for safety. “This court must revise the lower court’s opinion,” he said, “so that it is in line with the great body of law which allows reasonable, sensible discretion in prison officials.” This was not discrimination, he supposed, but pragmatism.

  Justice Byron White interrupted and said he understood the thrust of Hare’s appeal but found it deeply troubling. White believed Hare was telling the justices that the state of Alabama, regardless of the ruling in the particular case, would not apply the will of the court—as it had in so many other cases. (Hare helped the state avoid compliance with the Brown decision.) The attorney rejected this interpretation: “No Sir. No Sir.” (With Hare’s accent, it sounded like No Suh. No Suh.) The state would “attempt to comply” with the decision of the court.

  Again, Hare asked the justices for more time because the state was revamping the prison system. Alabama’s prisons were overcrowded and outdated, but the state was closing down and destroying Kilby Prison and building a new facility at Atmore. By July 1969, he predicted, the state would have a new prison system where there would be no distinction based upon race. These new prisons were equipped to handle integration and would be fully integrated.

  Justice Marshall interrupted and asked, “So Alabama is going to abolish all segregation in these prisons?”

  Hare told the justice, “yes sir,” but insisted that the lower court’s decision needed to be revised so that “reasonable discretion” to maintain discipline and security would be left to prison officials without the fear of violating a court order. “You can’t wait until trouble happens,” Hare said. The way the order stood, he added, if there was a race riot, the warden’s hands would be tied, and if he tried to separate prisoners based on race, he would be in trouble with the court. But the lower court, in the opinion of one of the justices, already provided for exceptions and given one example, the drunk tanks. The three judges did not limit prison officials from segregating; they just used an instance to show that racial separation might be necessary. Marshall asked, “How much more assurance do you want than that?” Hare said the courts needed to “spell this out more positively” so that prison officials could anticipate problems and stop them before they occurred.

  By the time he stopped talking, Nicholas Hare stood before the justices for just over thirty-seven minutes. Chuck Morgan, by contrast, spoke with quick, precise, and powerful words that asked for speedy implementation of the court order. He reminded the nine justices that the prison segregation statute was just one in a long line of century-old discriminatory laws of the state of Alabama. The Lee v. Washington case must be understood in that context, he added, because it was another legal struggle to abolish the “dual system of justice” in Alabama, the South, and the nation. Morgan added: “This is the end of the system of justice for those who live, instead of die, in Alabama’s desegregated instrumentality of justice, which is its electric chair.”

  Morgan skillfully rebutted each of the state’s key arguments. He pointed out that judges Johnson, Rives, and Lynne were flexible and accommodating, made “appropriate use of judicial power,” and granted the state every concession imaginable in crafting the order. When the state asked for no injunction, the court issued no injunction. When Robert Austin expressed concern about the drunk tank, the court made an exception. Frank Lee asked for a year to desegregate, and the judges gave him a year. “The court went down the line and established a pattern and timetable for desegregation,” Morgan added. He believed that if the state went back to the three-judge panel and explained the difficulties they were having in implementing the order, the judges would say, “We will work it out.” But Frank Lee and the state had not done so. “This case was tried in 1966,” Morgan said, “and some of the problems that didn’t exist then are on the record now and I don’t know where they came from.”

  The state contended that the central problem was prison riots, but Morgan said that Alabama and the rest of the United States had more problems with disorder outside prisons than inside. One reason, he supposed, was because blacks did not feel that they could take their struggle out of the streets and into the courts. They felt this way because the “courthouse in the Deep South has always represented to them an instrumentality of oppression.” Jails and prisons were also oppressing and discriminating against blacks
through segregating them by race. Morgan said he had no doubt that the conclusion in the Brown decision that separate facilities were “inherently unequal” applied in a “constantly greater degree” in prisons and jails. “It is high-nigh time,” he added, “that the state of Alabama provided a prison system that is no longer packed and overcrowded, and provided one that is fair.”

  For Morgan, it seemed inconceivable that small-town jails in Alabama had the space to keep prisoners segregated by race. Laws mandating segregation in these facilities were exacerbating racial tensions, not quieting them. Walker County, a coal-mining county northwest of Birmingham, had no municipal jails with more than one room—it included the towns of Carbon Hill, Cordova, Dora, Nauvoo, Oakman, Parish, and Sipsey.

  Justice Hugo Black looked down and asked Morgan how the policemen in charge of these “calabooses” enforced segregation when they arrested black and white lawbreakers at the same time.

  Morgan quipped that he reckoned that the two races never got drunk on the same night. This answer brought forth an echoing laughter from those in the chamber. Years later, Morgan wrote that he and Justice Black both understood that poverty, ignorance, and segregation were the primary causes of racial tension and disorder. “We both knew,” he wrote, “that when we got the instruments of power straightened out and poor blacks and whites got an equal start, and a fair shake, they would get along all right, even in Walker County, even in a calaboose, even on Saturday night.”

  In his conclusion, Chuck Morgan explained that he made no contention that prison officials should be denied discretion to protect prisoners. He used civil rights leader Martin Luther King, Jr., as an example. The week before the oral arguments in the Lee v. Washington case, on October 30, 1967, King was incarcerated in the Jefferson County Jail in Bessemer, in a cell just a few feet away from Caliph Washington. Ironically, King’s imprisonment was the result of the June 12, 1967, ruling by the Supreme Court in Walker v. Birmingham that upheld his conviction for violating a lower court order and proceeding with a march in Birmingham four years earlier on April 12, 1963. To thwart any unwarranted publicity and civil unrest, Jefferson County officials decided to force King to serve his jail time in Bessemer, not in Birmingham. Chuck Morgan explained to the justices that there was no question that the jail in Bessemer contained “certain kinds of prisoners that you wouldn’t want Dr. King to be confined with” and that the federal court order before them that day did nothing to prevent Bessemer officials from using “responsible discretion . . . in a non-discriminatory manner” to protect the civil rights leader. Morgan emphasized this point because, as he told the court, he believed Justice Black was more familiar with the explosive nature of Bessemer’s culture of violence than “any man, at least historically.” In the end, he simply asked the justices to strike down racial discrimination in American prisons by affirming the lower court ruling. The oral arguments lasted almost fifty-five minutes.

  On November 8, 1967, James Free of the Birmingham News described the Lee v. Washington case as another in a long series of “last-ditch legal battles” between elected officials in Alabama and federal courts over integration. Free believed that George Wallace established this pattern of resisting federal authority and maintaining segregation through as many “legal maneuvers” as possible, although John Patterson and MacDonald Gallion embraced the same strategy before Wallace. Alabama officials fought legal battles to maintain segregation in elementary and secondary schools, colleges and universities, hospitals, public facilities, and welfare programs, and now jails and prisons. Free suggested that Gallion filed the appeal of this “rather weak case” only to garner support of segregationists in an apparent challenge to Alabama senator Lister Hill in the elections of 1968. (Ultimately Hill chose not to run for reelection, but Gallion did not run for the open seat.) “Once again,” Free wrote, “Alabama is pictured to the remainder of the country as the last bastion of segregation—as the state that will be the very last if possible in complying” with civil rights laws.

  On November 15, 1967, Nicholas Hare filed a supplemental brief to “clarify certain matters” that arose during oral argument, primarily Chuck Morgan’s implication that Commissioner Frank Lee and the Alabama Board of Corrections served at the “pleasure of the governor” and were under such pressure that they could not use independent judgment; therefore a court order was needed to force compliance. Hare argued that Lee served as commissioner of “one of the most independent prison boards” in the country, with five members serving ten-year terms. The governor filled vacancies (with senate approval) from a list compiled by the chief justice of the Alabama Supreme Court, the presiding judge of the court of appeals, and the lieutenant governor.

  Chuck Morgan disagreed. In a reply to the supplemental brief, he wrote that his conclusions about the board of corrections were based in a clear understanding of fact, not some misunderstanding of the law, as Hare contended. He pointed to the board of trustees at his alma mater, the University of Alabama, as a supposed independent body that was immune from political manipulation. Nonetheless, that did not dissuade Governor George Wallace from standing in the schoolhouse door in 1963. That stand, Morgan wrote, symbolized the “reluctance or inability” of an independent board to stand in opposition to the governor. George and Lurleen Wallace dominated Alabama politics, he added, and a “stand-in-the-jailhouse door” might never happen. “But that the striking down of statutory racial bars in Alabama would result in voluntary state action taxes credulity.” Alabama would never integrate prisons unless forced to by the courts. “Thus Alabama’s recent, if not total history, clearly demonstrates that . . . a court order is not merely a legal means to a constitutional end; almost as importantly it sometimes serves as a mantle necessarily worn by state officials conscientiously attempting to comply with the requirements of law in a racially changing society.”

  On March 11, 1968, the nine justices issued a terse, unsigned three-sentence opinion affirming the ruling of the three-judge panel. The court rejected Alabama’s claim that Lee v. Washington was not a real class action suit and found nothing in the lower court ruling that prohibited segregation for prison security and discipline. They wrote, in the stilted language of the high court: “We do not so read the ‘Order, Judgment and Decree’ of the district court, which when read as a whole we find unexceptionable.” Justices Black, Harlan, and Stewart offered a concurring opinion to “make explicit something that is left to be gathered” through implication from the opinion of the court as a whole:

  This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails. We are unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court’s firm commitment to the Fourteenth Amendment’s prohibition of racial discrimination.

  With a sense of resignation, Nicholas Hare informed Frank Lee of the Supreme Court’s decision. “We are closing our file on the matter,” he wrote. “In spite of the disappointing outcome . . . I know that we fought a good fight and no apologies are due anyone.”

  The ACLU considered Washington v. Lee one of the top one-hundred legal victories (“greatest hits”) in the history of the organization, alongside such landmark cases as Brown v. Board (outlawing segregation), Engel v. Vitale (school prayer), Gideon v. Wainwright (right to an attorney), Reynolds v. Sims (one man, one vote), and Miranda v. Arizona (police must inform suspects of their rights). On a personal level, Chuck Morgan saw this victory as another validation of his own self-described greatness—a sense of self that would eclipse many of his legal causes. For Caliph Washington, there was the bitter irony of helping desegregate the jails and prisons of Alabama, just so he could continue to sit in one for years to come.

  17

  “SOJOURN IN THE SHADOW OF DEATH”

  Bessemer native Edward L. Ball served as the
judge in the Clark insurance trial, heard Caliph Washington’s habeas corpus proceedings, and served as trial judge in Caliph Washington’s third trial.

  LIKE CALIPH WASHINGTON, Johnnie “Big Time” Coleman was waiting for a new trial. Coleman, Caliph’s fellow death row inmate and plaintiff in the Washington v. Lee case, saw his murder conviction overturned because of the systematic exclusion of blacks from the grand jury that indicted him. In 1962, an all-white jury sentenced him to death for the murder of a white mechanic, John D. “Screwdriver” Johnson. Prosecutors claimed that Coleman stole a shotgun, shells, and clothes from a store in Eutaw, Alabama, and used them that night to murder and rob Johnson. At best, the prosecution had circumstantial evidence to tie the suspect to the crimes, including a button found near the store that the state argued came from Coleman’s shirt and specks on the shotguns shells that matched particles in the defendant’s pocket. During the appeal, the threads of Coleman’s story echoed Caliph Washington’s in several ways. After having Coleman’s murder conviction overturned by a higher court, Judge Frank Johnson ordered Coleman’s release from Kilby in January 1968, but Coleman was immediately rearrested by Greene County sheriff William “Big Bill” Lee (brother of Frank Lee) and placed in the county jail to await a new trial. Unlike Caliph Washington, however, Coleman waited just a few short weeks for the trial to begin.