LEE v. WASHINGTON

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Argument of Nicholas S. Hare

Chief Justice Earl Warren: 75, Frank Lee, Commissioner of Corrections of Alabama, et al., appellants versus Washington, et al.

Mr. Hare.

Mr. Nicholas S. Hare: Mr. Chief Justice, and may it please the Court.

This case comes to you on direct appeal from a three-judge District Court and it involves alleged racial discrimination in prisons.

The plaintiffs below brought this action alleging racial discrimination in the Alabama prisons and state prisons in the Alabama jails.

And they alleged that the statutes requiring separation of the races were unconstitutional.

Now, I do not concede that those statutes are unconstitutional, but my argument before you gentlemen today is to show that even if you hold those statutes as unconstitutional, the case requires modification, the decree should be modified.

It's too rigid.

It destroys unnecessarily reasonable administrative discretion.

Now, the courts traditionally --

Justice Hugo L. Black: Mr. Hare, you say you do not concede that they are unconstitutional, do you contend that they are constitutional?

Mr. Nicholas S. Hare: No, sir.

I make no contentions to that, but I'm not in a position to concede that that they are unconstitutional.

I take the position that if you gentlemen do declare them unconstitutional, the case should be revised or that portion of the case should be reversed which destroys reasonable discretion on the part of prison officials.

And of course, this case is one of overriding importance, much more important than just the State of Alabama.

This is – this was set the pattern for prison administration throughout the country.

Now, there are two aspects of this appeal.

One is procedural and I'll try to dispose of that first.

The appellant Frank Lee is the Commissioner of the State Prisons.

The appellant, Robert Austin is Warden of the City Jail of Birmingham.

Now, this was begun in Handle as the class action as to all of the jails in the state, and all of the jailers and the appellees when they brought this case, they alleged that Austin as the warden of the City Jail was a representative of that class of jailers and we say that that is not correct, that cannot be correct.

That a class action the necessary elements for class action are missing.

Alabama is a rural state.

We've got 67 counties and many small communities that have their jails, some of them just have one cell caboose.

This -- this order which is directed towards af – Afro appellant, Austin, seeks to bind without these people ever been in the court at all with ever -- without having any opportunity to show that peculiar and unusual circumstances in that particular jails, tries to bind all of the jailers in Alabama.

We say that this is not truly a representative class.

That the defendant there could not represent all of the others and did not, and they were not before the Court and this order should not be binding on them.

They ought to have that day in court.

It's just elemental justice.

It's -- is that due process.

Well, so much for that aspect --

Justice Abe Fortas: You mean that the facts are different?

Mr. Nicholas S. Hare: Yes, sir.

The --

Justice Abe Fortas: And you comment –

Mr. Nicholas S. Hare: Now, here are the --

Justice Abe Fortas: Does the record show that they're different?

Mr. Nicholas S. Hare: No, sir.

The record doesn't show that they are the same.

Justice Abe Fortas: Well, on what basis -- on what basis did you arrive at that conclusion?

Mr. Nicholas S. Hare: Well, the City of Birmingham is a Metropolitan City.

It's the biggest City in the state.

It's all between three and four hundred thousand and it's got a modern, up to date jail and it's a prison, practically a prison.

It's like a well-run prison.

Whereas our rural jails just one man -- just one man operated and frequently not anybody there at all.

Frequently, there is no jailer around.

If there is any -- should be any trouble or any strike that would break out racial or otherwise it -- they have to anticipate it as best they can and separate the prisons as the judgment requires as best as they can.

Now, that's true though of the entire system, but what I'm -- the point I'm making is that the rural communities, their problems are not just saying as the problems in the well-run, well-organized, well-financed Birmingham City jail.

So, I don't want to take too much time on that procedural aspect because the heart of this matter is the merits, not that just procedural problem.

Now, there is one other procedural problem and I'll raise these though primarily because there's been no intervening hearing of this between the trial court and you gentlemen because it came on direct appeal.

Now, it had just been argued in the Court of Appeals, that is another appellate court, that issue would have been resolved there and we could just get to the merits.

But there is one further procedural thing that I want to point out and that is Commissioner Frank Lee, the Head of the State Prison System, under the court's order is required to supervise not only his prisoners, but the jails of Alabama, supervise the desegregation.

Now he has been given responsibility while he has no authority.

Justice Hugo L. Black: Does he have any jurisdiction at all over the jails?

Mr. Nicholas S. Hare: Only on those jails in cities above 10,000 and most of our -- well, I wouldn't say most of our jails, yes, I guess most of our jails though in cities under 10,000 a great number are anyway.

So, we seek to have the Commissioner of prisons relieved from that part of the order which requires him to supervise something that he's got no authority, they just ignore it.

Now, the importance of that though --

Justice Hugo L. Black: Do you concede that it should apply to him as to all jail as 10,000 --

Mr. Nicholas S. Hare: I concede that he can supervise those or that he can make reports as to those above 10,000, yes, sir.

But I do not concede that he should because I think as we get to that both to the merits.

Now, when we get to the merits we would see that but the two points I want to make of procedural – procedure, are these.

Number one, the warden of the City Jail of Birmingham is not representative sufficiently of that class for you -- for that Court to make an injunction so to speak, where that you could move directly against these other jailers without giving them their day in Court just doing the ordinary due process.

That's the first point of procedure.

The second part of procedure is we seek to have Commissioner Lee, who is the appellant in this case; we seek to have him relieved from this responsibility of seeing that all the jails are desegregated and we seek to have him relieved of the responsibility of making 90-day reports periodic.

Now, there are two aspects of the merits.

One relates to the statutes.

The Alabama statutes like many other southern states require racial separation of prisoners, just blank it arbitrarily racial segregation in prison.

Now that may or may not be constitutional, I make no point of it.

I'll say this that the point is if you void those statutes then Alabama -- the Alabama prison systems and Alabama jails are like those of all the other states and like the federal prisons.

They are -- that they are not hobbled, the prison officials are not hobbled by any arbitrary requirement of separations but now here is the real problem, the second aspect of this case.

The court in its effort to ensure desegregation went too far.

They destroyed reasonable, sensible, common sense discretion on the part of the prison officials.

Now, traditionally the Courts have never interfered with reasonable prison management.

That's just very, very sensitive area.

You're not talking about school children now.

You're talking about the most violent, the most vicious element of our society, the most dangerous.

Many of them are wanton killers.

Many of them are troublemakers.

Many of them are just looking for fight and trouble.

And then -- and most of them are extremely excitable in emotional.

Now, the weight of my argument to you gentlemen is this, not all is common sense.

You must at least imagine and argue.

You must leave reasonable discretion to the prison officials because we are talking about the safety of the prisoners themselves, the safety of the prison officials and the integrity of the system.

We're talking about it -- we -- all of us want the prisons run humanely.

Now, when I -- when I make this argument please don't think that I am urging that the Court cannot take a case of racial discrimination, invidious racial discrimination.

Of course, that's justiciable issue.

The point that I'm trying to make is, this Court must revise the lower court's opinion so that it is in line with the great body of law which allows reasonable, sensible, discretion in prison officials.

We separate that --

Justice Abe Fortas: Or it's a -- I think I understand that.

First, to the other appeal here, but when I consider it in light of the first point you made, I must say that I'm deeply troubled because your first point is either extremely technical one or it's a statement to us that Alabama, regardless of our ruling in the particular case would not apply our ruling in particular case beyond its technical limits.

Is that what you're telling us?

Mr. Nicholas S. Hare: No, sir.

No, sir.

As a matter of fact --

Justice Abe Fortas: You're not telling us -- you're not telling us that Alabama has to determine that it will not apply, I really know whatever it may be?

Mr. Nicholas S. Hare: Oh, no, sir.

Justice Abe Fortas: Generally.

Mr. Nicholas S. Hare: To the contrary the record shows that the prison -- the chief prison official stated that he would make every attempt to comply with whatever order was decided.

And --

Justice Abe Fortas: Is that on the state wide basis?

Mr. Nicholas S. Hare: Oh!

We see that he can't, but if you will make a clear determination of the law, a clear statement of the law, we say that that's enough because then each instance of invidious racial discrimination after that will have an opportunity for fair review and -- and the case can be handled by itself and that you will not be taking a precipitous step which will destroy the prison security.

Justice Thurgood Marshall: Mr. Hare, do you draw a line between “racial discrimination” and “racial segregation?”

Mr. Nicholas S. Hare: Yes, sir.

I think there can be.

Justice Thurgood Marshall: At this late date?

Mr. Nicholas S. Hare: Yes, sir.

I think that -- I think that that can be.

Now, I'll show you why.

Racial now this -- as far as the law is concerned, for the statutes there can be no such – just you recently decided this miscegenation case that the one last cases I think that you all decided.

There are some -- there is no such thing as statutory distinction as to race.

The only thing I'm saying is if you get a 20 Black Muslims and 20 violent Ku Klux Klan members in the same cell, you're going to have problems.

Justice John M. Harlan: You need a large cell.

Mr. Nicholas S. Hare: You need [Attempt to Laughter] a large cell with a lot -- a lot of room.

And along that point, there's as many as 50 -- ours prison system is so crowded right now, there are as many as 15 prisoners herded together at night in one cell, many as -- many as a 150 in one barracks.

Now, we ask for time as much as anything else.

We have let the contract where our prison system is being modified or being stricken.

The old one is the old prison, the main prison being destroyed and we are -- in July 1969, we will have a completely new prison system which would -- which there's no distinction.

There's no -- there's no distinction in areas or parts whether different prisoners will be -- they've already done as much as they can towards making it fair for individuals whether it'd be White or Black.

It doesn't -- that doesn't make bit different job presentations.

What we say is just the same as the courts have repeated like hell.

Now, I circulated to you gentlemen a case which was just decided and it came to my attention after the brief was printed, and I've given opposing in counsel copies.

It appeared in 36 law week on page 2235 and the case is Toles (ph) versus Katzenbach, a federal prisoner and it's very, very important, Toles (ph) versus Katzenbach, and it was decided in the Ninth Circuit, September 27th.

I'll read the head note in the law, this law week.

Federal prison officials acquiescence in white prisoners' desire to exclude Negro from all White cell.

This perpetuating previous policy of racial segregated cells is not forbidden by the Constitution.

And the first paragraph reads this way, “The practice is founded on interest of harmony, security and the compatibility of prisoners confined for long terms, all matters of vital concern in prison operation.

The practice in our judgment is a reasonable means of furthering these interests.

Under this practice the fact that the interests are directly involved in a particular case is not left to assumption based upon experienced gained in other cases, but it's assured by inquiry in each individual case.

” Now there was a decision --

Justice Byron R. White: Mr. Hare, you wouldn't or would you say that this Ninth Circuit case is wrong and so are you?

Mr. Nicholas S. Hare: No, sir.

Because they're not quite the same, the reasoning though is the same.

Justice Byron R. White: I don't think you would.

I don't think why this is so relevant to your case?

Mr. Nicholas S. Hare: Because -- now here -- now this -- read the one paragraph in the dissent that was a dissent, but he did not -- this judge did not dissent on the merits but dissented the -- because the case was summarily handled and he said that, “they should have had a full hearing.

”The majority quite properly states, the question “is not whether segregation results, but whether there's an acceptable reason for the practice.

” Now, that -- that's what I'm saying is --

Justice Thurgood Marshall: Mr. Hare, what was reason for the statute which is before us?

Mr. Nicholas S. Hare: Oh the statute, sir?

Justice Thurgood Marshall: The reason, “did the legislature have to pass had statute other than a firm belief in segregation.”

Mr. Nicholas S. Hare: You're 100% right.

I know – there's no question.

Justice Thurgood Marshall: That's the statute in form.

Mr. Nicholas S. Hare: The statute is about 100 years old.

The statute is about 100 years old and I have very little doubt but that if the --

Justice Thurgood Marshall: And they didn't have Muslims then, did they?

Mr. Nicholas S. Hare: No, sir, [Attempt to Laughter] they didn't.

The statute is very old and I have very little doubt, but that it will be that part of the lower court's decision will be affirmed.

But I urge the Court to revise that part of the lower court's opinion which is just an arbitrary as that legislative pronouncement.

It says that there shall be immediate and total.

Well, I don't mean to use the word immediate.

They gave us six months in certain fields and one year in the other, but the effect of it is total desegregation.

Now, all that we say is please rewrite that aspect of the decree in line with the -- the general body of law which commits reasonable, reasonable discretion and we separate prisoners now by age.

We separate them by sex.

We separate them by violence, tendency, tendency to violence, the nature of the crimes, and there will be occasions when we'll have to separate them by race.

Justice Abe Fortas: Since the decision of the Fifth Circuit in this case, has Alabama done anything along the lines of --

Mr. Nicholas S. Hare: Yes, sir.

They did take affirmed.

Practically every -- practically everybody now, the -- they – for it's physically possible, there is no distinction told and everybody eats together, find a place together, there are exercise period that sort of thing.

There's no -- there's no -- there's really no distinction made between the White and the Black except that in most areas still because of the state which permitted it, most area still in the smaller places they house them separately, if they want to be housed separately.

Justice Byron R. White: Mr. Hare, if the opinion below does that we recognize their merit and their potential and I may say against the present security, physical protection against segregation of the races for a limited period, it goes on, but how much more rooms in that --

Mr. Nicholas S. Hare: Now -- they – but if you read the rest of it, they just limit to what we call the drunk tank in the Birmingham Jail.

Now, if –-

Justice Byron R. White: So why do you say that this -- that this statement is someone you didn't care?

It is -- for example, the pay for the jail.

It doesn't unless they are have statement the prison discipline.

It might in some instances that to the extent necessary require segregation.

How much more of assurance do you want from that?

Mr. Nicholas S. Hare: We think it ought to be -- we think it should be spelled out a little bit more positively by the Court.

Now, we think this that the Court can achieve what it is after by a strong statement of the law.

Then with an explanation similar to this, now I found this wording yesterday in a – and it's not in the brief, it's -- I would like to call the Court's attention in the other side because I would – I -- it's just my argument, really.

It's a Federal Supp 263 page 630 particularly page 631 and its Ray versus Commonwealth of Pennsylvania.

Now that was a voting case, but it -- the law is what -- the principle of what I'm arguing.

Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.

A withdrawal which is justified by the consideration underlying our penal system.

To argue that incarcerated -- that the incarcerated person can only be incarcerated and not be deprived of the average person's ordinary rights as he would have them if the prisoner was not convicted and sentenced and confined is a matter of ordinary common logic absurd.

It is only where fundamental humane and necessary rights are breached that the constitutional protections become involved.

Now --

Justice William O. Douglas: What was the citation of that ranking?

Mr. Nicholas S. Hare: That's 263 federal supplement 630.

Justice John M. Harlan: Well, it is [Inaudible]?

Mr. Nicholas S. Hare: It is Ray versus Commonwealth of Pennsylvania.

Justice Hugo L. Black: Ray or Ray Black?

Mr. Nicholas S. Hare: Yes, sir.

Now --

Chief Justice Earl Warren: Mr. Hare, supposed -- suppose we just put down the statutes and let the -- let the rest of it to the administration of the prisoners, what would happen in those prisons where the judges are sending only Negroes to one institution and only White people to another institution.

How would you ever get at that situation?

Mr. Nicholas S. Hare: There are -- we don't have any longer --

Chief Justice Earl Warren: Well, if --

Mr. Nicholas S. Hare: -- under our new system.

Under our new prison system they won't be –-

Chief Justice Earl Warren: Well, there has been --

Mr. Nicholas S. Hare: Yes, sir.

There has been.

Chief Justice Earl Warren: -- they were at the time of this (Voice Overlap)

Mr. Nicholas S. Hare: That's right.

Chief Justice Earl Warren: -- this action and then of course you could go back to it very easily if we didn't prevented, isn't that, [Inaudible] in this case in this?

Mr. Nicholas S. Hare: I think -- and I don't think that never -- I've never heard that race before, never thought of it.

I don't (Voice Overlap) --

Chief Justice Earl Warren: -- (Voice Overlap) well isn't it an important question, if you --

Mr. Nicholas S. Hare: Yes, it is.

Chief Justice Earl Warren: -- throughout the State continue to send all Negroes to one institution and all Whites to another institution, what discretion would there be on the part of the administrator of the prison?

You couldn't defend at them the separation of them on the basis of prison on this one, could you?

Mr. Nicholas S. Hare: No, sir.

But really all that we seek to maintain, if all the prison officials in Alabama and throughout the nation the reasonable discretion to run that prisons for the safety of the inmates, safety of the officials, and protection of the public, that really holds it and I -- and I say that each one -- each situation must be viewed in it's own light at the time and if there's any invidious racial discrimination that should be corrected and can be corrected.

Justice John M. Harlan: How does -- how do you send it for [Inaudible].

Mr. Nicholas S. Hare: It is -- that is -- you can read that in to the case, but the order, the order itself requires that more is an opinion but the order require total desegregation.

Now, if that -- if at the end of that it had said, except in such instances where in the reasonable discretion of the -- of the prison officials the safety of the prisoner and the prison officials is impaired or in danger.

They would have the authority.

We -- what we really up to is modifying that part of the case, modifying that part of the order so that it'd be, everybody will understand that they do have reasonable discretion, but that is all they have.

They do not have any arbitrary right to separate this.

The stat -- if the statute is gone then Alabama would be just like -- like the federal prisons.

Justice Hugo L. Black: Do you mind pointing out the case on which that part of that order appear which you think is there that in the simple cases.

Mr. Nicholas S. Hare: Your Honor, if you -- if you -- you'll find it in the --

Unknown Speaker: [Inaudible]

Mr. Nicholas S. Hare: It's 132 of the record.

Yes, that in the last paragraph.

It is further ordered that defendant Frank Lee as Commissioner of the Board of Corrections for the State of Alabama, his successors in office, agents, servants, and employees take the necessary and appropriate steps to desegregate immediately the several honor forms, the educational programs, the youth centers, and hospitals in the state penal system -- penal system, that the said officials take the necessary and appropriate steps to effect complete desegregation in minimum and medium security institutions as operated by the State Penal System within six months from the date of this decree.

That said officials take the necessary and appropriate steps to effect complete desegregation of all other state penal facilities including the maximum security institutions within a period of one year from the date of this decree.

Justice Hugo L. Black: One year to speak through the [Inaudible]

Mr. Nicholas S. Hare: That --

Justice Hugo L. Black: [Inaudible]

Mr. Nicholas S. Hare: That we feel that that would unnecessarily robs prison officials of their right to separate when race is involved just like they have the right to do to separate as to sex, age, and that sort of thing whenever in that judgment it is necessary to call the prison security.

Justice Hugo L. Black: You're ignoring their distinction? I'd rather [Inaudible]

Mr. Nicholas S. Hare: Yes.

Justice Hugo L. Black: Determination is made by reason of race?

Mr. Nicholas S. Hare: Right.

Justice Hugo L. Black: However, in any station [Inaudible] made an request --

Mr. Nicholas S. Hare: That's correct.

Justice Hugo L. Black: And became the [Inaudible] of the prisoners.

Mr. Nicholas S. Hare: That is correct.

Chief Justice Earl Warren: Would you ask us to modify up to the extent that our warden could say in this community there are such tension between Blacks and Whites that as the policy of the administration we will keep them separate at all times.

Mr. Nicholas S. Hare: No sir, I wouldn't think that would be necessary to go that far.

Chief Justice Earl Warren: It might not be necessary, but would you want us to modify it --

Mr. Nicholas S. Hare: No, sir.

Chief Justice Earl Warren: -- where they could say that?

Mr. Nicholas S. Hare: I couldn't in – on a state request that they go that far.

Chief Justice Earl Warren: Would you tell us -- would you tell us to what extent do you think the modification should be made?

Mr. Nicholas S. Hare: Without conceding the unconstitutionally statute of the criticizing --

Chief Justice Earl Warren: Yeah—yes, that's all --

Mr. Nicholas S. Hare: I would say that that part of the order should be or could be conceivably affirmed.

The rest of the decision should be reversed and rewritten by this Court, so that there's a strong and clear pronouncement of what the law of the nation is about the separation of the races merely hold that purpose.

But leave it with sufficient discretion so that you do not handcuff prison officials, jailers, all of the country.

But if they don't do what the law -- what as you pronounce it, if they don't follow that law, that rule, well then each one of those cases can be immediately taken care off.

You can see that our District Courts in Alabama have certainly have forced the law as you pronounced it.

Justice Byron R. White: And you want the whole order [Inaudible]

Mr. Nicholas S. Hare: In a strong --

Justice Byron R. White: You don't want -- you don't want to submit [Inaudible] order?

Mr. Nicholas S. Hare: That would -- no order like this.

Yes sir.

No order like this.

Justice Byron R. White: Well how about [Inaudible]

Mr. Nicholas S. Hare: Well, we would prefer to be relieved from that and let -- if -- then any if they do practice any discrimination, it can be stopped.

Justice Byron R. White: One of your lawsuits [Inaudible]

Mr. Nicholas S. Hare: That's right.

That's right.

Because the condition is maybe different.

Justice Abe Fortas: On page 129 of the record as I read it the Court record said – that if the Court said as we recognize that there's merit in the contention in some isolated instances, prison security and discipline necessitates segregation on the race for a limited period.

Now, I think you're asked about and I thought you limited it to just the growth thing but as I look at the footnote to that statement it says for example, the term used, you see that's the bottom, page 129.

Mr. Nicholas S. Hare: Well –-

Justice Abe Fortas: My point here is that the Court recognized, it seems to me, in this passage the Court recognize in general terms than maybe some isolated instances where segregation is required and then it cited the growth bank as an example of certain situation that as the sole brief here?

Mr. Nicholas S. Hare: Except in order of (Voice Overlap)

Chief Justice Earl Warren: Could you step -- can you step back to the lectern so we can hear you.

Mr. Nicholas S. Hare: Except -- except in their order they go so much further than that and we feel too that we've got here more time because our -- our prison facilities are not adequate for this, but we have let the contracts and the new plans for the prisons make no -- no distinction as to race whatsoever.

It -- it --they're completely in a agreed prisons.

Justice Thurgood Marshall: When will these prisons be in effect?

Mr. Nicholas S. Hare: June 1969.

Justice Thurgood Marshall: And so Alabama has abolished old segregation in schools by 1969?

Mr. Nicholas S. Hare: And it all -- yes sir, except in the --

Justice Thurgood Marshall: And why are you here arguing this case?

Mr. Nicholas S. Hare: Because we feel that the -- that the order -- that the order --

Justice Thurgood Marshall: The order says 1968, doesn't it?

Mr. Nicholas S. Hare: I beg you sir?

Justice Thurgood Marshall: Doesn't the order say 1968?

Mr. Nicholas S. Hare: One year from December 1966.

Justice Thurgood Marshall: My point is if it's so good why not go back to the District Court ask them to give you another year on your proven word that you will desegregate by 1969?

Mr. Nicholas S. Hare: Quite frankly, we've never -- we've never considered that and if we don't get relief here we'll have to but --

Justice Thurgood Marshall: What I mean is you are sure that segregation will be abolished in all prisons in Alabama by 1969?

Mr. Nicholas S. Hare: Well, that is -- that is the program.

Yes, sir.

All we --

Chief Justice Earl Warren: Is there anything in the order that could prevent the District Court from banning your extension of time in which to do this?

Mr. Nicholas S. Hare: No, sir.

Except that we feel that from the tenure of the -- of the order itself --

Justice Mr. Justice Bernnan: Well, actually Mr. Hare it's a very explicit sentence.

Jurisdiction of the case will be specifically retained through all prisons.

Mr. Nicholas S. Hare: Yes, sir.

Justice Mr. Justice Bernnan: Surely if you can go back there?

Mr. Nicholas S. Hare: Oh, I don't think of that but we have the right to go back to that.

But I think that it's very clear that this particular order needs some modification so that those judges will see that reasonable discretion must be left and I think more emphasis needs to be made in that except in unusual circumstances because that's not carried over to that order.

That's just a part of the opinion.

Justice Hugo L. Black: Suppose you are right about that, if you decide to use that on that and let the order means but that unless you judge him in the part of [Inaudible]?

Suppose the opinion was [Inaudible] procedural internal every minute is [Inaudible]?

Certainly, you must have defended questions that the judge, why wouldn't be effective for your present [Inaudible]?

Mr. Nicholas S. Hare: It would be --

Justice Hugo L. Black: -- at the same time fail a good part as decided part of the order?

Mr. Nicholas S. Hare: It would be -- It would be – really all we want is that we want the administrative officials in charge of jails or prisons when they are of the opinion that separation at a time will aid and maintain discipline in prison security that they're not violating any judicial order.

Then, we can't wait until a trouble happens or you can't -- the prison officials must the best as he can –

Justice Hugo L. Black: Do you point to your time when you might be a say after five between the Whites and the Blacks in the prisons.

Mr. Nicholas S. Hare: It happened in California.

Justice Hugo L. Black: Is that what you're talking about?

Mr. Nicholas S. Hare: Yes, sir.

It happened in California.

Justice Hugo L. Black: And you are careful on that one, more than ten were [Inaudible] in need of that situation – a separation temporarily?

Mr. Nicholas S. Hare: Yes, sir.

If he's one the -- if this is not explained he might really take the chance then killing one another and him getting in trouble with the judge.

He'd be in no trouble then, but that certainly is not a humane thing.

I do want to point out one thing in the -- my reply brief, I have cited a number of illustrations of just newspaper articles that have common knowledge so that the Court will have before it the recollection of how violent these people are and the prison officials must anticipate these things and stop them before they occur.

That's really -- that's really what is the focus of my argument.

Chief Justice Earl Warren: Well, very well.

Mr. Morgan.

Argument of Charles Morgan, Jr.

Mr. Charles Morgan, Jr.: Mr. Chief Justice, may it please the Court.

This case of course arises from the District Court in the middle District of Alabama.

I know of no case where the District Court has exercised its discretion more soundly and has relied more upon the testimony of the witnesses before it, who were the defendants in the case.

In fact, the defendants in this case wrote their own order.

The District Court participated in questioning at some length to a great extent of the witnesses in the case bu both Judge Reeves and Judge Johnson.

The witnesses in the case responded that there would be no problem.

As a matter of fact Robert Austin testified in Birmingham, he said that the warden of the Birmingham jail said, his only problem with the drunk tank.

It was only his word, the Court gave him the drunk tank.

The Court went down the line and established a pattern and a time table for desegregation.

They answered if they're not be placed under injunction the Court issued no injunction.

The Court simply issued an order and sent to the Commissioner of Correction.

It said, would you please report to the Court every three months and tell us what progress you're making.

Of course, the Commissioner of Correction's can do this, in all towns of over 10,000 but he cannot do it in towns of other 10,000, he says, unless ordered by the Government.

The Government of Alabama appoints the Board of Corrections.

Mr. Lee is the responsible state official, responsible for administering state law that over 100 years have discriminated these Negroes.

And what this case is, is simply one more case in a long series of cases to abolish a dual system of justice in the south and to a degree in the nation.

This is the end of the system of justice.

For those who live instead of die in Alabama be segregated instrumentality of justice which is of electric chair.

Prior to this time, Negroes to a greater and greater degree are becoming able to participate in a color blind system of justice and a color blind court house.

That day has not yet come.

Now, may I refer the Court to page 183 and 184 of the record?

Justice Mr. Justice Bernnan: I didn't understand what you meant Mr. Morgan that the officials wrote this order, what do you mean by that?

Mr. Charles Morgan, Jr.: Yes, sir.

I'm -- that's exactly the point I'm trying to make now from the record itself.

Page 183 and 184, Judge Reeves said, who would look – who would we look to for reports from the county in city jails?

Could your department make these reports?

This is to Commissioner Lee.

Witness: Yes, sir.

Judge Reeves: Who would we -- then he goes on.

Yes, sir.

This is some of the planning that we have been doing in anticipation of something like this.

I see, says Judge Reeves.

Witness: We can do that sir.

Now, we can move over now in the record to page 1 --

Justice Hugo L. Black: That doesn't tell what the idea about that on the others should do that because the towns like you [Inaudible] with Judge Reeves [Inaudible]

Mr. Charles Morgan, Jr.: Well, I -- what is say is Judge Reeves and Judge Johnson in recognition of the discretion that must be vested in prison officials.

Justice Hugo L. Black: Well, like habeas corpus.

Mr. Charles Morgan, Jr.: Have – yes, has relied upon their discretion.

They exercise the discretion, the suggestion that they made to the Court, more explicitly on page 166 to 160 of the record.

Question: Judge Reeves, Mr. Madison will you bring out from Mr. Lee to what extent his conduct this commissioner brief is influenced by statutes waiting segregation of prevalence.

And followed down there and a question comes up and he says, in that event, how long in your judgment would you need to follow the direction of the Court in that respect?

Answer: This would be most difficult for me to answer but I would.

We -- we might do it a month.

We might do it in two months.

It could, it might take a year.

It all depends on when.

I don't know just how this will be received.

I will be quite frankly, you got some who will like, some will dislike.

We would make every effort to make it -- make it function, but I would hate to think that we -- we would have to do it for less than a years time even though if we would get such an order where we would start tomorrow.

They asked for a year and the Court gave them a year as far as its maximum security institution was concerned.

The Court gave six months as far as minimum and medium security institutions were concerned.

The Court said, in your honor forms and honor camps and your educational institutions immediate desegregation.

The Court said for the county jails and the party who were sued as representative of the class of sheriffs, Eldon Bailey is not the appellant in this case.

These are 67 county jails.

Commissioner Lee has no jail and his county had seven county jails.

There are some as we say one room calabooses in -- in some of these towns.

We don't know the number because we've attempt ascertain that for purpose of argument.

We have some figures but I doubt if they are accurate.

But what's happened here is in the country jails?

Justice Hugo L. Black: Right.

Mr. Charles Morgan, Jr.: Mr. Bailey had a month consider the -- rather six months as to the other county sheriffs.

And the jobs in county jail, we'll turn to page 196 of the record, you'll find Judge Reeves asking a question of the following questions.

Mr. Austin, the warden of the Birmingham City Jail, he says, Mr. Austin, as I understand your whole chief concerned about integrating is this to your drunk tank.

Witness: Yes, sir, definitely sir.

Judge Reeves: And you, you don't have much problem except as to that?

Witness: Any foreseeable problem, I think I could work the other out at a given time.

Now, the posed problem is a problem of riots in prisons.

We've had far fewer riots in prisons than we've had out of prisons.

One of the reasons perhaps that we do have riots maybe the Negroes do not feel that they can take their struggle out to the streets and into the Courts.

And one of the reasons that's wrong predicament is because that court house in the deep south is always represented to them and an instrumentality of regression.

All we're asking this Court to do is to affirm the lower court decision and this is the lower court, the middle district of Alabama about which this Court said in Reynolds versus Sims that they had exercised an appropriate well-considered exercise of judicial power.

This Court has been as flexible as any court has been.

I have no doubt that if the wardens of these jails come back to the Court and they say we have this particular problem, the Court would say, fine, we'll work it out.

Commissioner Lee had done it so.

This case was tried in 1966, and some of the problems that didn't exist in the record in 1966 when the record was made apparently exist now.

I don't know where they come from.

Justice Byron R. White: How does this -- does this judgment is on this page?

Mr. Charles Morgan, Jr.: Yes, it has.

Application for the State of the District of Court was made.

The District Court gave 20 days in order for this Court to grant stay with this --

Justice Byron R. White: So this -- this system of recording or anything has never gone in the defense.

Mr. Charles Morgan, Jr.: No, sir.

Not to my knowledge.

It has not gone into the effect if didn't strike court jury.

Justice Hugo L. Black: Had there been any -- any noticeable change in convictions in the jail?

Mr. Charles Morgan, Jr.: Not to my knowledge but I could represent either way on that Your Honor.

Justice Hugo L. Black: Did they state it – have we stayed that?

Mr. Charles Morgan, Jr.: Yes, you did.

You state – the District Court denied the state in giving 20 days, Mr. Justice Black referred to the full court as I recall it.

The court stayed that and again except that fourth petition here.

I want to point out this, when you talked about conditions in jail and it represented the state so too.

I have no doubt that what was stated in -- in Brown v. Board

About separate being inherently only applies to a consummately greater degree in a prison system.

In a prison system there may well be packed and overcrowded than it's high time in the State of Alabama provided a -- provided a prison system that is not over packed and overcrowded and provided one that is fair and equal across the board.

Well --

Justice Hugo L. Black: [Inaudible] is that right?

Mr. Charles Morgan, Jr.: Yes sir.

I -- I --

Justice Hugo L. Black: [Inaudible]

Mr. Charles Morgan, Jr.: I made a little study of that as best we could.

It's sort of a telephone survey over a couple of places there and one of them was Walker County --

Justice Hugo L. Black: Walker?

Mr. Charles Morgan, Jr.: Walker County, yes.

In Walker County, you don't have a municipal jail as I understand they have over two rooms, most of them with one room.

The -- most of the prisoners of course go to the county jail in Jasper.

You have municipal jails of Walker County in Carbon Hill, Cordova, Dora, Nauvoo, Oakland, Parish and Simpson.

Each of those jails almost all of those towns, they have one room.

It would be very difficult to segregate when you have only one cell.

Justice Hugo L. Black: They're the ones to be called calabooses?

Mr. Charles Morgan, Jr.: They are the ones they call calabooses, yes, sir.

I I want to make --

Justice Hugo L. Black: What had they been doing in those places, do they have a Black and White jail?

Mr. Charles Morgan, Jr.: Well, he could put this way but I record to those – in those small town but I guess they just haven't had a Negro and White man dropped on the same time, but that I don't know.[Laughter]

We -- we make no contention here if the prison officials should be in that discretion to protect prisoners.

As Dr. King went back to the [Inaudible] jail with which Mr. Justice Black is probably more familiar with many men at least historically.

There's no question in my mind, there are certain kinds of prisoners that you wouldn't want Dr. King to be confined with and there's not a thing in this decree of this Court that prevents the exercise of responsible discretion by responsible officials in a nondiscriminatory manner.

I want to point out the same discretion that prison officials want today was the discretion denied to them by law and made a misdemeanor for almost a hundred years.

We ask this Court to strike down self-fulfilling prophecy.

We ask this Court to strike down racial discrimination in the prisons of the United States and affirm the judgment of the court below.

Justice John M. Harlan: I have to do [Inaudible]

Mr. Charles Morgan, Jr.: So the principle difference we have I think is this --

Justice John M. Harlan: [Inaudible]

Mr. Charles Morgan, Jr.: Well, not really because I think my -- the opposition adapts a position and since the opposition used the word I think just playing common sense judge.

Now, the plain common sense judgment says this case could not arise [Inaudible] out of Alabama.

The prison commissioner is appointed by the Governor of Alabama.

The Governor of Alabama has stood in school house doors but not yet jail house doors.

And the fact remains that I don't believe that a man in Alabama in public office subject to appointees of the Government, can in fact exercise his discretion and his duty without an order of the Court.

I think we get to that --

Justice Hugo L. Black: I suppose you'll use that [Inaudible] out of the order, assuming that the [Inaudible] , the order is [Inaudible] rather than make a demand [Inaudible]

Mr. Charles Morgan, Jr.: Oh, yes, if -- if the order stated that.

I -- I --

Justice Hugo L. Black: If it did?

Mr. Charles Morgan, Jr.: Yes.

It's rather conceivable that it does but we referred -- very open to me and this District Court is you know it's in the same city with Commissioner Lee.

They're not far away.

They know the condition and the circumstances there, it's totally reasonable court.

Justice Abe Fortas: Mr. Morgan, why did the court put its mandate in the form of order rather than an injunction to the various member of the record, of course, you made something in the point of that, that it is not issuing an injunction.

Mr. Charles Morgan, Jr.: In the record I think I can find that Commissioner Lee is not to be put under an injunction.

Justice Hugo L. Black: What is this record?

Mr. Charles Morgan, Jr.: And I think the Court just put --

Justice Byron R. White: What is this – the commissioner's injunction?

Mr. Charles Morgan, Jr.: Well, I'm -- I think it's a declaratory judgment of course to begin with.

I think it's an explicitly stated declaratory judgment with an order.

Justice Byron R. White: But an order [Inaudible] to be segregated.

Mr. Charles Morgan, Jr.: An order for him to segregate, Yes, I think --

Justice Byron R. White: Orders him to file of the Court?

Mr. Charles Morgan, Jr.: It orders him to file in Courts, and if they did not desegregated or if a city jail or city prison did not file reports with Mr. Lee, I think we go back in the Court to seek more --

Justice Mr. Justice Bernnan: How would you get back to this suppose first claim [Inaudible] to back proceed from period of action against the [Inaudible]

Mr. Charles Morgan, Jr.: I think we go back to place him under an injunction first.

Justice Mr. Justice Bernnan: Oh, you would go first?

Mr. Charles Morgan, Jr.: Yes.

Justice Mr. Justice Bernnan: You would not regard this as a basis to contempt proceeding?

Mr. Charles Morgan, Jr.: I might, I haven't gone that far yet, but I might try to but I think that probably have to go back to injunction.

Justice Abe Fortas: Does the implication to your mind there is apparently drawn an inference that the Court wanted to obtain a little more flexibility before issuing sort of definitive mandate and they use this form, this technique for doing it.

I don't know --

Mr. Charles Morgan, Jr.: Yes, sir.

Justice Abe Fortas: -- I'm just giving you something in return to this as I read the last and entirely clear words in the record.

Mr. Charles Morgan, Jr.: I -- I think that's exactly.

And I think courts are of course worried about exercise the discretion of the prison officials.

I think all the courts are and I think this Court felt that this was the proper way to first write down a statute.

Number two; order the erasure of the vestiges of the statutes and then move forward affirmatively to eliminate the segregation which is vested under Louisiana versus United States.

I think it was an admirable exercise of traditional discretion.

Chief Justice Earl Warren: Mr. Hare.

Rebuttal of Nicholas S. Hare

Mr. Nicholas S. Hare: May it please the Court.

I think Justice Stewart asked the question I found the answer.

With reference to class representation of the defendant, the warden of the Birmingham City Jail on page 179, the testimony is, “In your opinion would you say in your opinion there's a substantial difference between the smaller town jails in Alabama and the city jails and the Birmingham City Jail in facility supervision and the type of control between these?

” Answer: Yes, sir.

So, I say that the record itself shows that there's not a proper class action.

And I just want to -- want to in passing just remember – remind of the Court of the tragedy in Florida when 37 prisoners burned to death this last July that it followed the fight between Colored men and White men.

It just seems that –-

Chief Justice Earl Warren: I -- I think that – I think your time expired so long ago.