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Full resolution (TIFF) - On this page / på denna sida - VI. Justice - 26. Courts, Sentences and Prisons - 1. The Southern Courts
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548 An American Dilemma
the unsophisticated citizen who attempts to get his rights protected/
Technicalities and legal fictions are allowed to play a great role, to the
sacrifice of material justice. This is true of American justice in other part’s
of the country also,*^ but the very fact that the South after Reconstruction
had to build up large parts of its legal system of discrimination against
Negroes in evasion of the Constitution has particularly stamped Southern
justice with this trait.
Under these circumstances a clever attorney can work wonders, partic-
ularly in those rural districts where the judge feels that the attorney
knows more about law than he does himself.® The strength of the counsel
a man can provide depends in general upon his wealth, and Negroes, as
a poor group, suffer together with lower class whites. ^‘The root of the
evil is”—^writes a prominent Southern white lawyer after having expressed
his opinion that even the Negro can receive substantial justice in a Southern
court if he is properly represented by competent counsel—^‘that so often
his rights suffer because he cannot get into court in civil matters on account
of financial want, and most frequently in criminal cases he is without funds
to secure proper defense.”® It is true that, in criminal cases, the court will
appoint a lawyer for anybody who cannot afford to provide himself with
proper legal aid. The court-appointed lawyer, however, in many cases,
performs only perfunctory duties. Often the court will appoint some
young lawyer without much experience. ^‘Generally speaking, it is probably
true that these charity lawyers are not as efficient as privately employed
attorneys, but in many instances such is not the case.”^
The American bond and bail system works automatically against the
poor classes. The poor man, generally, cannot raise bail or bond himself
to secure his release from jail pending trial. As the privilege of bail is
discretionary, it is most often refused or made prohibitively high to
accused Negroes, particularly when the alleged crime is against whites.
Then there is what Raper calls ^‘the dynamics of the fee system.” Under
this system—still in use in more than half the South—^all the minor court
officials, and in some instances the prosecuting attorneys, get their pay out
of fines. This system . .
puts a premium upon making those arrests and
getting those convictions which will yield fees and costs without jeopard-
izing the political popularity of the fee-getting officials.”^ Equally bad
conditions may prevail where there is no fee system: the judge may decide
the punishment on the basis of a consideration as to the state’s profit.
Mississippi, for example, had a net profit of half a million dollars in 1939
from its penitentiaries^^ and judges were inclined to send criminals to the
penitentiary rather than fine them. Where the penitentiary system operates
* See Chapter 1, Section 10.
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