The backstory to Alabama v. Shelton

You remember Alabama v. Shelton, 535 U.S. 654 (2002) don’t you? That’s the case where the US Supreme Court continued its slow march toward fully realizing the right to counsel promised in Gideon v. Wainwright. That’s the case where the Court held that a person has a right to counsel even if the judge has no intention of incarcerating the defendant. In some ways Shelton implicitly reversed Scott v. Illinois, 440 U.S. 367 (1979), which had relied upon whether a person actually went to jail to determine whether he had a right to appointed counsel for a misdemeanor. The Court said that because Shelton could end up incarcerated, that met the “actual incarceration” standard of Argersinger and Scott.

Shelton is interesting upon re-reading. First, LeReed Shelton represented himself during the proceedings despite being warned of the dangers of that decision by the trial judge, resulting in a 30 day sentence suspended for two years. Second, the Alabama Supreme Court held that the suspended two-year sentence given to Shelton could not be imposed because he had not been appointed counsel. Third, the Court opinion, written by Justice Ginsberg, notes that in Alabama, the practice was routinely to revoke a person’s probation at an informal hearing where the rules of evidence were not followed and where the conviction on the underlying misdemeanor could not be challenged. The practice then was to look the other way when the poor person charged with a misdemeanor was brought before a judge. Alabama chose to process misdemeanants without lawyers rather than creating a system that would provide lawyers.

One hundred years before Shelton, John Davis jumped off a train in Goodwater, Alabama. He was there to visit his wife, who was ill. Like many African-Americans and other poor persons at the time, Davis used the train as a means to move from one place to another. He was met by one Robert Franklin, a constable and store owner, who first uttered a racial epithet and then demanded to know whether Davis had any money or not. After initially denying that he did, Davis eventually said he had money but not any for Franklin. After going home that night, Davis was again met by Franklin, who appeared at his door demanding that Davis pay him money he owed. Davis replied, “I don’t owe you anything.” Later that night, Francis Pruitt came to his house and said he had a warrant for Davis’ arrest. If Davis wanted to see the warrant, he had to go downtown. Once downtown, Pruitt locked him in a jail cell with four other African Americans seized by Franklin and Pruitt in the previous two days. Shortly thereafter, Jess London, the “justice of the peace,” ordered Davis to pay a fine and costs of his arrest and trial. When Davis could not pay “the fine”, Pruitt took Davis and the other four and put them onto a train for Birmingham to a place where John Pace would work them like slaves for a year or more. Many such “arrests” resulted in death in the mines in Birmingham or years on a cotton plantation. “John Davis had been snared in the web. In the section of Alabama where Davis traveled that fall, at least two dozen local white men were actively involved in a circuit of traffic in human labor orbiting a seventy-five mile stretch of the Central of Georgia rail line, with the town of Goodwater at its epicenter…To give the arrests an imprimatur of judicial propriety, Franklin, Pruitt, and others relied on the judges of what were called Alabama’s ‘inferior’ courts.” No lawyer was involved in John Davis’ case, or in the cases of tens of thousands of other former slaves and children of former slaves in Alabama and other states in the South. This is one of many stories told in Slavery by Another Name, by Douglas Blackmon, a book that reveals much about what happened in the South after 1876. It is a story of the re-enslavement of former slaves that lasted until the civil rights movement in the 1950’s and 1960’s.

It is in the context of John Davis that Alabama v. Shelton must be understood. When it comes to a misdemeanor charge in Alabama and elsewhere, all too often a lawyer is nowhere to be found. The “imprimatur of judicial propriety” has been the norm in the South and much of our country when it has come to taking away the liberty of persons charged with low level crimes. For too long, the powers that be have been allowed to create informal, quasi-judicial “systems” that process persons into jail and other forms of constraint without the inconvenience or cost of appointing a lawyer. Anyone who believes public defenders don’t make a difference needs to think about Shelton…and John Davis.