Most people know that the violent Capone was taken down by that least likely of weapons—a group of accountants focused on his tax returns. Far fewer are aware that his career-ending federal prison sentence was preceded by a ten-month stint in a Philadelphia prison for toting an illegal handgun. Those who do know about the time Capone spent in the City of Brotherly Love probably accept the commonly held myth that the mob boss, feeling the heat from the St. Valentine’s Day Massacre he had engineered on the North Side of Chicago, set up his own arrest to remove himself from the public eye and the possibility of retaliation from other mobsters.The Chicago press had seized on this idea shortly after his Philadelphia arrest: surely a recognizable figure such as Capone wouldn’t have been foolish enough to be walking around with a loaded gun. Such a notion—that Al Capone was too smart or too connected or just too famous to get pinched on such a mundane charge—continues to find considerable support in modern biographies (though Jonathan Eig in Get Capone ridicules the idea that he would ever plan his own incarceration).
It is likely the Philadelphia district attorney knew this. His defense of the behavior of the detectives, written as an answer to a series of complaints by Capone’s attorneys, was purposely vague: the detectives were surprised to see the “national notorious character,” and “when going up to [Capone and his bodyguard] they found both men carrying concealed upon their person deadly weapons.” But an illegal search and seizure was only the beginning of Capone’s troubles; he was about to experience the wrath of a lawless justice system.Not everyone charged with a crime had the right to an attorney in 1929. It would be years until Gideon v. Wainwright gave citizens a lawyer if they could not afford one, and even then the right applied only for felonies. Capone was charged with a misdemeanor: carrying a concealed deadly weapon with the intent to “unlawfully and maliciously” do injury to some other person. But Capone could afford his own representation; and at 11 PM on the night of his arrest, not one but two high-profile lawyers, both associated with Philadelphia congressman Benjamin Golder (who took over the representation himself after Capone was sentenced), went to City Hall on his behalf. They were not treated in the manner to which they had become accustomed.The truth about Capone’s first night in a Philadelphia jail cell did not emerge for more than a month, when his lawyers went to court to challenge his conviction.
While $35,000 bail was exorbitant in 1929, Capone was a man of considerable means and could afford even that amount. Indeed, his lawyers were prepared for exactly this eventuality, and had brought a representative of the National Surety Company with them to post the bail. But the director was having none of it: “If you succeed in entering bail anywhere,” he said, “it will take me about 15 hours to examine the authority of the agent to enter the bail, and whether or not the National Surety Company is able to enter that amount.” Fifteen hours proved just enough time to turn Capone’s arrest into a conviction.Q: Have you any proof that Mr. Capone is a murderer?
A: Only the every-day writings in the newspapers, or general information as it appears, especially his home town newspapers.
Q: Did you have any information of your own as to that fact?
A: None.
Q: Do you have any information of Mr. Capone as to his general character?
A: Only what I just stated, from the newspapers and from gossip.
Rebuffed in their attempts to attend their client’s bail hearing, and then denied the opportunity to post bail for him, the attorneys had one final request before the night ended: might they at least meet with their client? The Director suggested that they remain at the police station, and he would let them know. At 1:30 AM the attorneys learned that permission to see their client had been refused. They would not have to wait long to see Capone, however; his trial was scheduled to take place the next day.Philadelphia’s City Hall is a sprawling structure in the dead center of town, the largest municipal building in the country and the tallest masonry building in the world. Courtroom 650 looks today just as it looked then, an ornate and spacious chamber with a high arched ceiling and portraits of retired judges on the walls. The space comfortably seats 100, but word had gotten out about the notorious gangster on trial, and that morning the courtroom was “crowded almost to the point of suffocation,” according to one of the lawyers. Many who had made it into the room were reading newspapers with Capone’s face and labels such as “notorious Chicago gang chief” and “underworld leader” on the front page. A large crowd had gathered in the hallway outside the courtroom, and repeatedly banged on the closed door in an attempt to gain admission.It was reported that he closely followed his own coverage in the newspapers, and that references to himself as a "killer" would "arouse his ire."
The lawyers met with their clients in a small room in the District Attorney’s office, in the presence of two detectives. As noon approached, one of the detectives interrupted the conversation to say, “We have you in a corner. You haven’t a chance. You better plead guilty.”When they re-entered the courtroom, ushered back in the same way they had left, Capone’s lawyer spoke again with the judge: “Judge, this is an outrage! These men are being denied every constitutional right to which they are entitled. I cannot understand that you would make yourself a party to such a proceeding. These men have an honest bona fide defense.”Lawyers tasked with representing clients often make such claims, particularly when seeking a continuance to present a defense. Had Al Capone been arrested in Philadelphia today in possession of a loaded revolver, he would in fact have no defense other than to deny that he had the gun at all. The law in 1929 was quite different, however. The crime he was charged with, “Carrying Concealed Deadly Weapon,” contained an additional clause: Capone had to possess the weapon “with the intent therewith unlawfully and maliciously to do injury to some other person.” He had often claimed to practically anyone who would listen that his life was in constant danger and that he had been shot at, and certainly the fact that he travelled with a bodyguard supported his assertion. Still the judge was unyielding:When the short recess was announced, the defendants were again surrounded by uniformed officers, county detectives, city detectives, and court officers and marched from the court room in the presence of the jury. Every action on the part of the court officers and the uniformed policemen and detectives was such as to indicate to the jury that the defendants, who were unarmed, were dangerous and had to be guarded by a great number of men.
Judge Walsh did not back away from his admission; rather, he saw nothing wrong with the way he had conducted the proceedings. “The Court still feels in its conscience that it made no error,” he declared.Capone’s attorneys attempted some further appeals, but no higher court ever addressed the circumstances of the arrest or guilty plea. It was reported that he closely followed his own coverage in the newspapers, and that references to himself as a "killer" would "arouse his ire." Although he was transferred to several different prisons to serve his sentence, his time passed without significant consequence. He suffered tonsillitis, he pitched for the prison baseball team, he minded his own business, and on March 17, 1930 he was released from custody. He had served exactly ten months in jail, saving himself two months incarceration by good behavior.Capone was in a hurry to leave Philadelphia, and a few days after his release he was back in Chicago. He told the press he wasn’t staying, however: “I need the sunshine for a month or two. I shall take a little trip to Florida after I get things straightened out here. You see, I haven’t had much sunshine for the last ten months.” This prompted the governor of Florida—who quite clearly had been paying attention to developments in Philadelphia—to telegraph all 67 sheriffs in the state that Capone was to be arrested and escorted to the state’s border should he attempt to return to his residence. But Capone’s lawyers had been paying attention as well. They sent an immediate telegram to the governor:But Your Honor cannot admit those facts to be true? He wants you to include the fact that everybody in the courtroom was pointing a finger at the defendant, calling him “murderer.” Your Honor certainly does not admit that to be true. This courtroom was regularly and properly conducted, and I heard nothing here detrimental to this defendant, nor was he accorded any other insults from the audience or anybody else that anybody could complain of. Certainly Your Honor does not admit those facts contained in the affidavit?
A federal judge agreed with his lawyers, and imposed a restraining order stopping the sheriffs from “transporting, banishing or expelling” Capone from Florida without the authority of the law. This did not stop Miami police from arresting him four times for vagrancy, a law that had been rewritten to allow anyone known or suspected of being a "crook [or] gangster" to be arrested on sight. Capone was harassed in this way until, a year and a half after leaving a Philadelphia jail, he was convicted of income tax evasion and went to federal prison. He eventually succumbed to syphilis, and died 71 years ago at the age of 48. In the end, Capone’s notoriety and larger-than-life status proved not to be his salvation, but his undoing.And of course, those men who besieged and incarcerated Capone—Deputy-Inspector Connelly, Magistrate Carney, his prosecutors, Judge John E. Walsh—are dead as well, as is the Florida governor. They rounded him up, denied him bail, pursued his prosecution in a forum that resembled less an American courtroom than a star chamber; and then barred him from entering a state because of who he was. Not exactly what the Founding Fathers had in mind.Almost 90 years later, two lessons are evident from the Philadelphia experience. The first—that we can bring down even the most powerful racketeer if we simply deprive him of his constitutional rights—is alive and well. In the past year, a former sheriff from Arizona, who had gained a certain amount of celebrity by conducting “sweeps” of random cars to find illegal immigrants, and was then found in contempt for his refusal to stop racial profiling of Latinos, has been pardoned by the president. The Attorney General of the United States has endorsed an aggressive stop-and-frisk policy that only five years ago a federal judge declared unconstitutional by endorsing this quote: "The idea of universal suspicion without individual evidence is what Americans find abhorrent." And the President has advocated the rough treatment of those accused of crime (“Please don’t be too nice”), condemned legal immigration to the United States from "shithole countries," and declared an Indiana-born federal judge unfair because he was a "Mexican." It is the world we now live in, and it is not so very far from 1929 as we might think.But the second lesson from the Capone case is more enduring; and justice, always a slow learner, would be well served to remember it: lawlessness is no way to combat lawlessness.A version of this article was originally published by the Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.We would respectfully request you to advise us under and by what authority you or the sheriffs of the state may seize and banish from this state a citizen of the United States who is not charged with any crime…Is constitutional government still in existence in Florida, and if it is, are you cognizant of the oath you have taken to support, protect and defend the constitutions of the United States and of Florida? Lawlessness is no way to combat lawlessness.