Tuesday, March 23, 2010

The Scales Commutation: Bravery? or Mere Bureaucracy?

Junius Scales was a native of Greensboro, North Carolina, a member of a prominent family and a graduate of the University of North Carolina. But he was also a Communist. That caused him some grief.

Scales found himself indicted on the charge that, from January 1946 to November 18, 1954, he was a member of the Communist Party with knowledge that it advocated violent overthrow of the government. On April 22, 1955, he was sentenced him to six years in prison. On March 26, 1956, the United States Supreme Court agreed to hear Scales’ appeal. As the case sat on the Court’s docket, Scales renounced his membership in the Party, observing that he was “shaken” by revelations of Stalin’s terror. The Court reversed Scales’ conviction on October 15, 1957, but did not rule on the constitutionality of the membership clause of the so-called Smith Act.

Scales’ striking victory was short-lived.

The Justice Department retried the case in February , 1958, before the same judge. Scales entered a plea of “not guilty,” but the jury convicted him again and another six year sentence was imposed. A unanimous Court of Appeals for the Fourth Circuit upheld Scales’ conviction and, on April 29, 1959, the Supreme Court once again heard arguments on the constitutionality of the membership clause of the Smith Act. In an unusual move, the Court called for a rehearing of the case on June 29, 1959, then postponed the third set of arguments on the Scales case until the following term. That put Scales on the Supreme Court’s docket for five successive terms! So, the Court did not get around to upholding Scales’ second conviction until June of 1961. The vote was five to four.

On February 7, 1962, a New York Times editorial informed its readers that a group of “prominent citizens” was lobbying the President for a pardon. Among those interested in clemency for Scales were socialist leader Norman Thomas, Robert F. Goheen (President of Princeton University), and theologian Reinhold Niebuhr. The Times also suggested the President would “enhance respect for American justice by commuting Scales” sentence. A letter by author Theodore Draper also appeared on the same page.On April 6, 1962, the Times followed up on its editorial with a report that Thomas had sent Kennedy a petition signed by five hundred and fifty “prominent Americans.” Two Federal Judges from North Carolina, nine of the twelve jurors who convicted him, and five senior partners of “leading” North Carolina law firms supported thepetition.

The major concern was that Scales would not identify individuals that he had known in the party. For that reason alone, J. Edgar Hoover vehemently opposed his release. But Byron White, Nicholas Katzenbach and other members of Congress also opposed clemency for Scales. Indeed, when President Kennedy finally granted a commutation of sentence, on Christmas Eve, 1962, the Times admitted the decision “could not have been an easy one politically.” The President was praised for his “courage and wisdom.”

But Attorney General Robert Kennedy had a somewhat less dramatic description of the Scales commutation. The Attorney General noted that “a lot” of people came to see him or wrote letters. Eventually, he asked them all to leave him alone for a while. Kennedy claimed that he then considered the severity of Scales’ sentence and the fact that he had a sick wife at home. The sentence was commuted and the Attorney General claimed that he “never discussed” the case with the President at all.

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