LATE ONE NIGHT several years ago, I got out of my car on a dark midtown Atlanta street when a man standing fifteen feet away pointed a gun at me and threatened to “blow my head off.” I’d been parked outside my new apartment in a racially mixed but mostly white neighborhood which I didn’t consider a high-crime area. As the man repeated the threat, I suppressed my first instinct to run and fearfully raised my hands in helpless, terrifying submission to the barrel of a handgun. I tried to stay calm, begged the man not to shoot me, repeating over and over again, “It’s all right, it’s okay.”
As a young criminal defense attorney, I knew that my survival required careful, strategic thinking, I had to stay calm. I’d just returned home from my law office in a car filled with legal papers, but I knew the man holding the gun wasn’t targeting me because he thought I was a young professional. Since I was a young, bearded black man dressed casually in jeans, most people would not assume I was a lawyer with a Harvard Law School degree; I looked like most young black men in America. I had filled my head as a college philosophy major with the nonviolent teachings of King and Gandhi; I even thought of myself as “peace-loving.” But to the Atlanta police officer threatening to shoot me I looked like a criminal, someone dangerous and guilty.
There was no legitimate reason for a police officer to point a gun at my head and threaten to shoot me in front of my apartment. I had been sitting in my beat-up Honda Civic for over fifteen minutes listening to music which could not be heard outside the vehicle. There was a delicious Sly and the Family Stone retrospective playing on a local radio station that had so engaged me I couldn’t turn the radio off. It had been a long day at work. A neighbor must have been alarmed by the sight of a black man sitting in his car and called the police. My getting out of my car to explain to the police officer that this was my home and nothing criminal was taking place is what prompted the officer to pull his weapon and start making threats. Having drawn his weapon, the officer and his partner justified their threat of lethal force by dramatizing their fears and suspicions about me. They threw me on the back of the vehicle, they searched my car illegally, and they kept me on the street for fifteen humiliating minutes while neighbors gathered to view the dangerous criminal in their midst. When no crime was discovered and nothing incriminating turned up after a computerized background check on me, I was told by the police officers to consider myself lucky. While this was said as a taunt and threat, they were right: I was lucky.
People of color in the United States, particularly young black men, are burdened with a presumption of guilt and dangerousness. Some version of what happened to me has been experienced by millions of black people because of this racially biased presumption. In too many situations, black people are presumed to be offenders incapable of being victims themselves. As a consequence of this country’s historic failure to address effectively its legacy of racial inequality, this presumption of guilt and the racial narrative that created it have significantly shaped every institution in American society, especially our criminal justice system.
The issue of racially motivated police violence or racial disparities in sentencing can’t be viewed simply as a consequence of bad police officers or racially biased judges. There are deep historical forces that have created the problems so clearly seen in America’s criminal justice system.
There is a narrative of racial difference that contaminates the thinking of most Americans. We are burdened by our history of racial injustice in ways that shape the way we think, act, and enforce the law. Without understanding this narrative, confronting it truthfully and repairing the damage created by our history, we will never truly experience the equality and fairness we value so highly in our legal system. As in South Africa, Rwanda, and Germany, America desperately needs to commit itself to a process of truth and reparation. We need to own up to the way racial bias and legalized racial subordination have compromised our ability to implement criminal justice. In the wake of decades of our avoiding or minimizing our history of racial injustice, communities from Ferguson to Charleston to Baltimore now bear witness to what we have wrought.
From the moment white settlers reached this continent, color emerged as the defining feature that would shape the cultural, social, political, and economic development of the United States. The indigenous people that Europeans encountered in America were not white. White settlers viewed native people as inferior and unworthy of the wealth, resources, and opportunity this land possessed. The differences between white Europeans and Native Americans weren’t just geographic; they quickly became racial, resulting in decades of exploitation and violence. Over the course of two centuries, the native population of America was decimated by Europeans. This genocide reduced the population of more than ten million indigenous tribal people in America to less than 500,000.1 While disease spread by Europeans accounts for most of the deaths suffered by Native people, war, violence, and forced migration also played a part. The birth of the United States was defiled by the willingness to exploit people of color despite vaunted norms, values, and principles of equality.
Slavery created an even deeper injury to America. Beginning in the seventeenth century, millions of African people were kidnapped, enslaved, and shipped across the Atlantic under horrific conditions: starvation and death were the rule. For the next two centuries the enslavement of black people created wealth, prosperity, and growth for free people of European descent while an elaborate and enduring mythology about the racial inferiority of black people took hold to legitimate, perpetuate, and defend slavery. The ideology of white supremacy survived the Civil War and endures in ways that are evident even today.
The racialized caste system of American slavery that originated in the British colonies was unique in many respects vis-à-vis forms of slavery that existed in other parts of the world.2 In the Spanish and Portuguese colonies, for example, slavery was a class category or form of indentured servitude—an “accident” of individual status that could befall anyone and could be overcome after a completed term of labor or assimilation into the dominant culture.3
American slavery began as such a system. When the first Africans were brought to the British colonies in 1619 on a ship that docked in Jamestown, Virginia, they held the legal status of “servant.”4 But as the region’s economic system became increasingly dependent on forced labor, and as racial prejudice became more ingrained in the social culture, the institution of American slavery developed as a permanent, hereditary status tied to race.5
Over the next two centuries, American slavery grew from and reinforced racial prejudice.6 Advocates of slavery argued that science and religion supported the fact of whites’ racial superiority: white people were smart, hardworking, and more intellectually and morally evolved, while black people were dumb, lazy, childlike, and in need of guidance and supervision. In 1857, for example, Mississippi governor William McWillie denounced anti-slavery critics and insisted:
“[T]he institution of slavery, per se, is as justifiable as the relation of husband and wife, parent and child, or any other civil institution of the State, and is most necessary to the well-being of the negro, being the only form of government or pupilage which can raise him from barbarism, or make him useful to himself or others; and I have no doubt but that the institution, thus far in our country, has resulted in the happiness and elevation of both races; that is, the negro and the white man. In no period of the world’s history have three millions of the negro race been so elevated in the scale of being, or so much civilized or Christianized, as those in the United States, as slaves. They are better clothed, better fed, better housed, and more cared for in sickness and in health, than has ever fallen to the lot of any similar number of the negro race in any age or nation; and as a Christian people, I feel that it is the duty of the South to keep them in their present position, at any cost and at every peril, even independently of the questions of interest and security.”7
Under this worldview, black people’s lifelong and nearly inescapable enslavement in the United States was defended not only as a justifiable necessity but also as a kindness through which whites exposed their less-evolved human chattel to discipline, hard work, and morality. Though American slavery was often brutal and barbaric, the myth of black people’s racial inferiority developed and persisted as the system’s very reason for being. This was so through the Civil War, the 1863 Emancipation Proclamation, and the adoption in 1865 of the Thirteenth Amendment.
The ending of slavery hardly did away with the racist ideology created to defend it.8 “Freeing” the nation’s masses of enslaved black people without undertaking the hard work of deconstructing the narrative of their inferiority doomed those freedmen and -women and their descendants to a fate of subordination and second-class citizenship. In place of slavery, belief in a racial hierarchy took virulent expression in newly defined social norms, including lynching and other forms of racial terrorism; segregation and Jim Crow; and unprecedented mass incarceration.
When eleven southern states seceded from the Union to form the Confederate States of America, sparking the Civil War in 1861, they made no secret of their ultimate aim to preserve the institution of slavery. As Confederate vice president Alexander H. Stephens explained, the ideological “cornerstone” of the new nation they sought to form was “that the negro is not equal to the white man,” and that “slavery—subordination to the superior race—is his natural and normal condition.”9
Slavery had been an increasingly divisive political issue for generations, and though United States president Abraham Lincoln personally opposed slavery, he had rejected abolitionists’ calls for immediate emancipation. Instead, Lincoln favored a gradual process of compensated emancipation and voluntary colonization that would encourage freed black people to immigrate to Africa.10 Once the nation was in the throes of civil war, Lincoln feared that any federal move toward emancipation would alienate border states that permitted slavery but had not seceded. Lincoln’s cabinet and other federal officials largely agreed, and shortly after the war’s start, the House of Representatives passed a resolution emphasizing that the purpose of the war was to preserve the Union, not to eliminate slavery.11
As the Civil War dragged on, however, increasing numbers of enslaved African Americans fled and relocated behind Union lines; the cause of emancipation now became more militarily and politically expedient. On January 1, 1863, President Lincoln issued the Emancipation Proclamation,12 which declared enslaved people residing in the rebelling Confederate states to be “then, thenceforward, and forever free.”13 The proclamation did not apply to the roughly 425,000 enslaved people living in Tennessee, Delaware, Kentucky, Missouri, and Maryland—states that had not seceded or were occupied by Union forces.
In most Confederate states where the proclamation did apply, resistance to emancipation was inevitable, and there was almost no federal effort to enforce the grant of freedom.14 Southern planters attempted to hide news about Lincoln’s proclamation from their slaves, and in many areas where federal troops were not present, slavery remained the status quo well after 1863.15 Even as the Confederacy faced increasingly certain defeat in the war, southern whites insisted that Lincoln’s wartime executive order was illegal and that slavery could only be formally banned by a legislature or a court. Many used deception and violence to keep slaves from leaving the plantation.16
Formal nationwide codification of emancipation came in December 1865 with ratification of the Thirteenth Amendment, which prohibited slavery throughout the United States “except as punishment for crime.” Several states continued symbolically to resist into the twentieth century: Delaware did not ratify the Thirteenth Amendment until 1901; Kentucky until 1976; and Mississippi until 1995.17
The legal instruments that led to the formal end of racialized chattel slavery in America did nothing to address the racial hierarchy that sustained slavery, nor did they establish a national commitment to the alternative ideology of racial equality. Black people might be free from involuntary labor, under the law, but that did not mean white people across the nation recognized them as fully human. In many parts of this country, white identity was grounded in a belief that whites were inherently superior to African Americans; following the war, whites in the South reacted violently to the notion that they would now have to treat their erstwhile property as equals and pay for their labor. In numerous recorded incidents, plantation owners attacked black people simply for claiming their freedom.18 This contempt for black people was not confined to the South. New York governor Horatio Seymour openly campaigned for president of the United States as the “white man’s candidate.” At the New York Democratic Convention, Seymour argued that black people “are in form, color, and character unlike the whites…an ignorant and degraded race.” Frontier western states like Idaho passed racial integrity laws making it illegal for a white person to marry or have sex with a black person even though the state was 99.8 percent white.
At the Civil War’s end, black autonomy expanded but white supremacy remained deeply rooted. The failure to unearth those roots would leave black Americans exposed to terrorism and racial subordination for more than a century. Two incidents in 1866 foretold terrifying days to come for African Americans. On May 1, 1866, in Memphis, Tennessee, white police officers began firing into a crowd of African American men, women, and children that had gathered on South Street, and afterward white mobs rampaged through black neighborhoods with the intent to “kill every Negro and drive the last one from the city.” Over three days of violence, forty-six African Americans were killed (two whites were killed by friendly fire); ninety-one houses, four churches, and twelve schools were burned to the ground; at least five women were raped; and many black people fled the city permanently.19
Less than three months later, in New Orleans, a group of African Americans—many of whom had been free before the Civil War—attempted to convene a state constitutional convention to extend voting rights to black men and repeal the racially discriminatory laws known as the Black Codes. When the delegates convened at the Mechanics’ Institute on July 30, 1866, groups of black supporters and white opponents clashed in the streets. The white mob began firing on black marchers, indiscriminately killing convention supporters and unaffiliated black bystanders. Instead of maintaining order, white police officers attacked black residents with guns, axes, and clubs, arresting many and killing several. By the time federal troops arrived to suppress the white insurgency, as many as forty-eight black people were dead and two hundred had been wounded.20
Before the end of the nineteenth century, states looked to the criminal justice system to construct policies and strategies to maintain white supremacy and racial subordination. Law enforcement officers were tasked with menacing and controlling black people in ways that would shape policing and the criminal justice system in America for the next century.
Convict leasing, the practice of “selling” the labor of state and local prisoners to private interests for state profit, utilized the criminal justice system for the economic exploitation and political disempowerment of black people. State legislatures passed discriminatory criminal laws, or “Black Codes,” which created new criminal offenses such as “vagrancy” and “loitering.” This led to the mass arrest and incarceration of black people. Then, relying on language in the Thirteenth Amendment that prohibits slavery and involuntary servitude “except as punishment for crime,” lawmakers empowered white-controlled governments to extract black labor in private lease contracts or on state-owned farms.21 “While a Black prisoner was a rarity during the slavery era (when slave masters were individually empowered to administer ‘discipline’ to their human property) the solution to the free black population had become criminalization. In turn, the most common fate facing black convicts was to be sold into forced labor for the profit of the state.”22
Beginning as early as 1866 in states like Texas, Mississippi, and Georgia, convict leasing spread throughout the southern states and continued throughout the late nineteenth and early twentieth centuries.23 In contrast to white prisoners, who were routinely sentenced to the penitentiary, leased black convicts faced deplorable, unsafe working conditions and brutal violence when they attempted to resist or escape bondage.24
An 1887 report by the Hinds County, Mississippi, grand jury recorded that, six months after 204 convicts were leased to a man named McDonald, twenty were dead, nineteen had escaped, and twenty-three had been returned to the penitentiary disabled, ill, and near death.25 The penitentiary hospital was filled with sick and dying black men whose bodies bore “marks of the most inhuman and brutal treatment…so poor and emaciated that their bones almost come through the skin.”26 Under this grotesquely cruel system that lasted decades, countless black men, women, and children lost their freedom—and often their lives. “Before convict leasing officially ended,” writes historian David Oshinsky, “a generation of black prisoners would suffer and die under conditions far worse than anything they had ever experienced as slaves.”27
More enduring was the mythology of black criminality and the way America’s criminal justice system adopted a racialized lens which menaced and victimized people of color, especially black men. The presumptive identity of black men as “slaves” evolved into the presumptive identity of “criminal,” and we have yet to fully recover from this historical frame.
The explicit use of race to codify different kinds of offenses and punishments was challenged as unconstitutional, and criminal statutes were modified with language that contained no explicit racial references, but the enforcement of the law didn’t change. Black people were targeted for a wide range of “offenses,” some of which were never used to charge whites. African Americans endured these challenges and humiliations and continued to rise up from slavery by seeking education and working hard under difficult conditions. But the more black people no longer acted as slaves, the more most white people were provoked and agitated. This tension created an era of racial terror, lynching, and violence that traumatized black people for decades.
Nowhere was the animus toward black people more evident than in the criminal justice system. The deep racial hostility that permeated America from the 1860s through the 1940s often served to focus suspicion on black communities after a serious violent crime was discovered, whether evidence supported that suspicion or not. Whites’ accusations of rape or murder were rarely subject to serious scrutiny when they were lodged against black people. In a strictly maintained racial caste system, just the suggestion of black-on-white violence was often enough to spark outrage, mob violence, and murder before even a biased judicial system could act. After all, in this society, white lives held heightened value, while the lives of black people held little or none.
Between the Civil War and World War II, thousands of African Americans were lynched in the United States. Lynchings were violent, public acts of torture that traumatized black people throughout the country and were largely tolerated by state and federal officials. These lynchings were terrorism. “Terror lynchings” were at their peak between 1880 and 1945 and claimed the lives of African American men, women, and children who were forced to endure the fear, humiliation, and barbarity of this widespread practice.
Lynching had a profound impact on race relations in the United States and shaped the geographic, political, social, and economic conditions of African Americans in ways that are still evident today. Terror lynchings sparked the mass migration of millions of black people from the South into urban ghettos in the North and West throughout the first half of the twentieth century. Lynching created an environment where racial subordination and segregation could be maintained for decades with limited resistance. Most critically, lynching reinforced a legacy of racial inequality that has never been adequately addressed in America. In particular, the administration of criminal justice is tangled with the history of lynching in profound and important ways that continue to compromise the integrity and fairness of the justice system.
Of the hundreds of black people lynched under accusations of rape and murder, very few were legally convicted of an offense, and many were demonstrably innocent. In 1918, for example, after a white woman was raped in Lewiston, North Carolina, a black man named Peter Bazemore was accused of the crime and lynched by a mob before an investigation revealed that the real perpetrator had been a white man wearing black face makeup.28
Hundreds more black people were lynched based on accusations of far less serious crimes, like arson, robbery, nonsexual assault, and vagrancy,29 many of which would not have been punishable by death even if the defendants had been convicted in a court of law. In addition, African Americans were frequently lynched for noncriminal violations of social customs or racial expectations, such as speaking to white people with less respect or formality than observers believed due.30
Many African Americans were lynched, not because they committed a crime or social infraction, and not even because they were accused of doing so, but simply because they were black and present when the preferred party could not be located. In 1901, Ballie Crutchfield’s brother allegedly found a lost wallet containing $120 and kept the money. He was arrested and about to be lynched by a mob in Smith County, Tennessee, when, at the last moment, he was able to break free and escape. Thwarted in their attempt to kill the suspect, the mob turned their attention to his sister and lynched Ms. Crutchfield in her brother’s stead though she was not even alleged to have been involved in the theft.31
The Equal Justice Initiative (EJI) in Montgomery, Alabama—of which I am founder and executive director—spent five years and hundreds of hours documenting and researching terror lynchings in the twelve most active lynching states in America: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia. We distinguished “racial terror lynchings” from hangings or mob violence that followed some sort of criminal trial process or were committed against non-minorities without the threat of terror. Those lynchings were a crude form of punishment that didn’t have the features of “terror lynchings” directed at racial minorities who were being threatened and menaced in multiple ways.
We also distinguished “terror lynchings” from other racial violence and hate crimes that were prosecuted as criminal acts. Although criminal prosecution for hate crimes committed against black people was rare before World War II, such prosecutions ameliorated those acts of violence and racial animus. The lynchings we documented were acts of terrorism because these were murders carried out with impunity, sometimes in broad daylight. These terror lynchings were horrific acts of violence, often as Sherrilyn Ifill explains “on the courthouse lawn,”32 whose perpetrators were never held accountable. They were not “frontier justice,” because they generally took place in communities where there was a functioning criminal justice system that was deemed too good for African Americans. Some “public spectacle lynchings” were even attended by the entire white community and conducted as celebratory acts of racial control and domination.
EJI’s research generated several findings which are relevant to criminal justice policy today. First, racial terror lynching was much more prevalent and common than has been previously reported. EJI documented several hundred more lynchings than had been identified in the most comprehensive work done on lynching to date. Sociologists Stewart Tolnay and E. M. Beck did extraordinary work on lynching and provided an invaluable resource for our work, as did the collected research at Tuskegee University in Tuskegee, Alabama, assembled by Professor Monroe Nathan Work. These two sources are widely viewed as the most comprehensive collections of research data on the subject of lynching in America. EJI did extensive analysis of these data and then did supplemental research and investigation of lynchings in each of the states covered by this report. We reviewed local newspapers, historical archives, and court records, and we conducted interviews and exhaustively examined reports in African American newspapers published during the era. EJI has documented more than four thousand racial terror lynchings between the end of Reconstruction in 1877 and 1950 in just twelve southern states. This represents at least eight hundred more than had been previously reported.33
There were six kinds of terror lynchings most common from Reconstruction until World War II: (1) lynchings that resulted from a wildly distorted fear of interracial sex; (2) lynchings based on casual social transgressions; (3) lynchings based on allegations of serious violent crime; (4) public spectacle lynchings, which could involve any of the allegations named above; (5) lynchings that escalated into terroristic violence that targeted the African American community as a whole; and (6) lynchings of sharecroppers, ministers, and other community leaders who resisted mistreatment, which were most common between 1915 and 1945.
Our research confirmed that many victims of terror lynchings were murdered without being accused of committing a crime; they were killed for minor social transgressions or for asserting basic rights. Racial terror lynching was a tool used to enforce Jim Crow laws and racial segregation. These lynchings were a tactic for maintaining racial control more than a way of punishing particular crimes; their purpose was to victimize the entire African American community, not just the alleged perpetrator of a crime.
Our conversations with the survivors of lynchings led us to recognize that the phenomenon of lynching and racial terror played a key role in the forced migration of millions of black Americans out of the South. Thousands of people fled north for fear that some minor social transgression might provoke a mob to show up and take their lives. Parents and spouses sent their loved ones away in frantic, desperate acts of survival and suffered what they characterized as “near-lynchings.”
The decline of lynching in America relied heavily on the increased use of capital punishment following court trials and accelerated, unreliable legal process in state courts. The death penalty’s roots are clearly linked to the legacy of lynching.
As early as the 1920s, lynchings were falling out of favor for the “bad press” they attracted. Southern legislatures looked to shift to capital punishment as a means of using ostensibly legal and unbiased court proceedings to reach the same goal as vigilante violence: satisfying the lust for revenge.34
In what is likely the most famous attempted “legal lynching,” the “Scottsboro Boys” were nine young African Americans charged with raping two white women in Alabama in 1931. During the trial, white mobs outside the courtroom demanded the boys’ executions. Represented by incompetent lawyers, the nine were convicted by all-white, all-male juries within two days, and all but the youngest were sentenced to death. When the NAACP and others launched a national movement to challenge the cursory proceedings, “the white people of Scottsboro did not understand the reaction. After all, they did not lynch the accused; they gave them a trial.”35 In reality, many defendants of the era learned that the prospect of being executed rather than lynched did little to increase the fairness of trial, reliability of conviction, or justness of sentence.
Though northern states had abolished public executions by 1850, some in the South authorized the practice until 1938.36 The hangings were often racialized displays intended more to deter mob lynchings than to deter individual crimes.37 Following Will Mack’s execution by public hanging in Brandon, Mississippi, in 1909, the Brandon News reasoned: “[P]ublic hangings are wrong, but under the circumstances, the quiet acquiescence of the people to submit to a legal trial, and their good behavior throughout, left no alternative to the board of supervisors but to grant the almost universal demand for a public execution.”38 Even in southern states that had outlawed public hangings much earlier, mobs often successfully demanded them.
In Sumterville, Florida, in 1902, a black man named Henry Wilson was convicted of murder in a trial that lasted just two hours and forty minutes. To mollify the mob of armed whites that filled the courtroom, the judge promised a death sentence would be carried out in a public hanging—despite state law prohibiting public executions. Even so, when the execution was set for a later date, the enraged mob threatened, “We’ll hang him before sundown, governor or no governor.”39 In response, Florida officials moved up the date, authorized Mr. Wilson to be hanged before a jeering mob, and congratulated themselves on having “avoided” lynching.
By the end of the 1930s, court-ordered executions outpaced lynchings in the former slave states for the first time ever.40 Two-thirds of those executed that decade were black,41 and the trend continued: as African Americans fell to just 22 percent of the southern population between 1910 and 1950, they constituted 75 percent of those executed in the South in those years.42
In the 1940s and 1950s, the NAACP’s Legal Defense Fund (LDF) began what would become a multi-decade litigation strategy to challenge the American death penalty—which was most active in the South—as racially biased and unconstitutional.43 They won in Furman v. Georgia in 1972, when the United States Supreme Court struck down Georgia’s death penalty statute, holding that capital punishment still too closely resembled “self-help, vigilante justice, and lynch law” and “if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.”44
Southern opponents immediately decried the decision and set to writing new death penalty statutes.45 In 1976, in Gregg v. Georgia, the Supreme Court upheld the demand for Georgia’s new death penalty statute and reinstated the American death penalty, capitulating to the claim that legal executions were needed to prevent vigilante mob violence.46
The new death penalty statutes continued to result in racial imbalance, and constitutional challenges persisted. In the 1987 case of McCleskey v. Kemp, the United States Supreme Court considered statistical evidence demonstrating that Georgia decision-makers were more than four times as likely to impose death for the killing of a white person than a black person. Accepting the data as accurate, the Court accepted racial bias in sentencing as “an inevitable part of our criminal justice system,”47 and upheld Warren McCleskey’s death sentence because he had failed to identify a “constitutionally significant risk of racial bias”48 in his particular case.
Today, race remains a salient factor in capital sentencing. African Americans make up less than 13 percent of the national population, but nearly 42 percent of those currently on death row in America are black,49 and 34 percent of those executed since 1976 have been black.50 In 96 percent of states where researchers have completed studies examining the relationship between race and the death penalty, results reveal a pattern of discrimination based on the race of the victim, the race of the defendant, or both.51 Meanwhile, capital trials remain proceedings with little racial diversity, where the accused is often the only person of color in the courtroom and illegal racial discrimination in jury selection also remains widespread. This is especially true in the South and in capital cases; in Houston County, Alabama, prosecutors have excluded 80 percent of qualified African Americans from serving as jurors in death penalty cases.52
More than eight in ten American lynchings between 1889 and 1918 occurred in the South, and more than eight in ten of the more than 1,400 legal executions carried out in this country since 1976 have been in the South.53 Modern death sentences are disproportionately meted out to African Americans accused of crimes against white victims; efforts to combat racial bias and create federal protection against racial bias in the administration of the death penalty remain thwarted by familiar appeals to the rhetoric of states’ rights; and regional data demonstrates that the modern American death penalty mirrors racial violence of the past.54 As contemporary proponents of the American death penalty focus on form rather than substance, tinkering with the aesthetics of lethal punishment to improve process and methods, capital punishment remains rooted in racial terror and is “a direct descendant of lynching.”55
America’s comfort with lethal violence in response to suspected black criminality cannot be disconnected from police violence today and a range of contemporary racial justice issues in law enforcement policy. This nation’s racial history has nurtured an impulse to shoot or kill black men in ways that can’t be justified or defended. Our history has created a resistance to acknowledging the victimization of black people, and the explicit and implicit bias in this history can be seen in law enforcement and criminal justice policy throughout this nation.
In the face of this national ignominy, there is still an astonishing absence of any effort to acknowledge, discuss, or address lynching. Many of the communities where several lynchings took place have gone to great lengths to erect markers and memorials to the Civil War, to the Confederacy, and to events and moments when local power was violently reclaimed by white southerners. These communities celebrate and honor the architects of racial subordination and political leaders known for their beliefs in white supremacy. There are very few, if any, significant monuments or memorials that address the history and legacy of lynching in particular or the struggle for racial equality in general. Most communities have no active or visible awareness of the way in which race relations in their communities were formed and shaped by terror and lynching. As Sherrilyn Ifill has brilliantly argued in her seminal book on the topic, On the Courthouse Lawn, the absence of memorials to lynching has deepened the injury to African Americans and left the rest of the nation indifferent to black victimization.
When the era of racial terror and widespread lynching ended in the mid-twentieth century, it left behind a nation and an American South fundamentally altered by the preceding decades of systematic community-based violence against black Americans. The effects of the lynching era echoed throughout the latter half of the twentieth century. African Americans continued to face violent intimidation when they transgressed social boundaries or asserted their civil rights, and the criminal justice system continued to devalue black life and operate as a tool to subordinate African Americans. These legacies have yet to be confronted.
After the number of lynchings abated, the central feature of the era of racial terror—violence against black Americans—found expression in new ways. The social forces and racial animus that made lynching a frequent occurrence and constant threat in the late nineteenth and early twentieth centuries remained deeply rooted in American culture, and violent intimidation continued to be used as a means of preserving social control and white supremacy. Unable to rely on the justice system for protection, African Americans faced violence, threats, and intimidation in myriad areas of daily life.
Black southerners who had survived the lynching era still lived under the established legal system of racial apartheid known as Jim Crow. African Americans in other parts of the country generally lived in the margins of newly organized political structures. As organized resistance to this racial caste system began to swell in the early 1950s, black demonstrators’ efforts were met with violent opposition from white police officers and community members. Black activists protesting racial segregation and disenfranchisement through boycotts, sit-ins, voter registration drives, and mass marches consistently faced physical attacks, riots, and bombings from whites.
As a leader of the nonviolent protest movement, the Reverend Dr. Martin Luther King Jr. faced white law enforcement officials and private citizens who issued death threats, physically assaulted him at public lectures, and even bombed his Montgomery, Alabama, home while his wife and infant daughter were inside. Police also attacked demonstrators in highly publicized events like Bloody Sunday in Selma, Alabama, in 1965. Even black children were at great risk of harm and death: in 1963, four young girls were killed when the Sixteenth Street Baptist Church in Birmingham, Alabama, was bombed, and that same year, more than seven hundred black children protesting racial segregation in the city were arrested, blasted with fire hoses, clubbed by police, and attacked by police dogs.
Police in Mississippi facilitated the extrajudicial murders of civil rights workers Andrew Goodman, James Chaney, and Michael Schwerner in 1964 by delivering the men to waiting white mobs after detaining them for an alleged traffic violation. A mob of Ku Klux Klansmen who had gathered during the several hours the three young men were held in jail were ready and waiting to pursue, seize, and murder them upon release.56 Just as lynchings had been justified in the preceding decades, these violent incidents were defended as necessary to maintain “law and order.”
America has never systematically and publicly addressed the effects of racial violence, the criminalization of African Americans, and the critical role these phenomena have played in shaping the American criminal justice system. The Civil Rights Act of 1964, arguably the signal legal achievement of the civil rights movement, contains provisions designed to eliminate discrimination in voting, education, and employment, but does not address discrimination in criminal justice. Though the most insidious engine of racial subordination throughout the era of racial terror and its aftermath, the criminal justice system remains the institution in American life least affected by the civil rights movement. Similarly, the system’s links to and existence as a legacy of racist myths of black criminality have never been meaningfully acknowledged or confronted. The unprecedented levels of mass incarceration in America today stand as a continuation of these past distortions and abuses, still limiting opportunities in our nation’s most vulnerable communities.
The civil rights movement should have been followed by a process of truth and reparation that focused on recovery. We needed diagnosis and treatment for what decades of racial subordination and segregation—which followed decades of racial terror and violence, which followed two hundred years of brutal, racialized slavery—had done to us. The trauma, the bigotry, the miseducation and distortions required therapy and management so we could move forward and reconcile ourselves to a better future informed by the mistakes and human rights abuses of the past. Instead, a toxic era shaped by the politics of fear and anger followed the civil rights movement and sustained racial inequality. We retreated from racial and economic justice and opted for mass incarceration and a misguided “war on drugs” that has left many poor and minority people marginalized, incarcerated, and condemned.
We can’t change our history, but we can acknowledge it and better shape our future. The United States is not the only country with a violent history of human rights atrocities and oppression. Many nations have been burdened by legacies of racial domination or tribal conflict resulting in massive human rights abuses or genocide. Apartheid in South Africa shaped that nation in ways that are profound. The horrific genocide in Rwanda created wounds that will last for generations. The Holocaust in Germany was a twentieth-century nightmare with unprecedented features. What distinguishes the United States from these other nations is our unwillingness to confront our history in a public and meaningful way.
The commitment to truth and reconciliation in South Africa was critical to that nation’s recovery. In Rwanda, there is an understanding that there must be transitional justice for the nation to heal. Today in Berlin, Germany, visitors encounter markers and stones at the homes of Jewish families who were abducted and taken to the concentration camps. The Germans want everyone to go to the camps and reflect soberly on the history of the Holocaust; they have created legal structures to eliminate and repel the return of Nazism.
In America, we do the opposite. We don’t acknowledge the history and legacy of slavery; instead we have littered the landscape with misguided markers, memorials, and pride in the Confederacy. We have done nothing to recognize the era of lynching. We have done very little to atone for decades of legally sanctioned racial subordination.
We are long overdue for a commitment to transitional justice in this country. We need to engage in truth-telling about our history with the hope that the truth might inspire us to address a range of contemporary issues in a different way. In Between Vengeance and Forgiveness, Martha Minow outlines the complex demands of truth and justice when societies seek to recover from massive human rights abuses and atrocities. What emerges from Minow’s work and others in the transitional justice community is that silence and inaction in the aftermath of horrific abuse yield continuing frustration and distrust. As the International Center for Transitional Justice has noted:
A history of unaddressed massive abuses is likely to be socially divisive, to generate mistrust between groups and in the institutions of the State, and to hamper or slow down the achievement of security and development goals. It raises questions about the commitment to the rule of law and, ultimately, can lead to cyclical recurrence of violence in various forms.57
Lynching scholars like Sherrilyn Ifill have recognized that this process is vital for recovery. The Equal Justice Initiative has begun a project to erect markers across the nation that recognize the history of slavery. No one should be able to travel to Memphis, New Orleans, Montgomery, Natchez, Charleston, Richmond, Savannah, or Washington, D.C., without being forced to confront the history of slavery in America. To confront our violent past and resolve to never repeat it, EJI wants to mark every lynching site in America. At the dedication of each of these markers, law enforcement leaders ought to be present to apologize to communities of color because public safety officials throughout our history failed to protect black people from racially motivated violence and persecution.
We are building a national memorial to the victims of lynching where the names of victims and the communities that allowed this terror will be recorded for our nation to see and reflect upon. We want to create a space where we can soberly acknowledge the terror that fed racial hierarchy and violence so we can better understand the challenges we face. We are opening a museum named From Enslavement to Mass Incarceration so visitors can understand the connections between our past and the issues we face today.
We could make different policy decisions about a host of contemporary issues. The threshold question concerning capital punishment is not whether people deserve to die for the crimes they commit but rather do we deserve to kill. Given the racial disparities that still define the death penalty in this country, we should eliminate capital punishment and expressly identify our history of racially biased lethal violence as a basis for its abolition. Confronting implicit bias within police departments should be seen as essential in twenty-first-century policing. If we don’t proactively confront the challenges our history of racial injustice has created, we will be doomed to another century of inequality and abuse.
What threatened to kill me on the streets of Atlanta when I was a young attorney wasn’t just a misguided police officer with a gun, it was the force of America’s history of racial injustice and the presumption of guilt it created. In America, no child should be born with a presumption of guilt, burdened with expectations of failure and dangerousness because of the color of her or his skin or a parent’s poverty. Black people in this nation should be afforded the same protection, safety, and opportunity to thrive as anyone else. But, alas, that won’t happen until we confront our history and commit to engaging the past that continues to haunt us.
1. See Tanya H. Lee, “The Native American Genocide and the Teaching of U.S. History,” Truthout, April 1, 2015. Available at http://www.truth-out.org/news/item/29954-the-native-american-genocide-and-the-teaching-of-us-history.
2. For example, in the Spanish and Portuguese colonies of South America, freed black people did not retain a stigma of inferiority after slavery ended there, the way they did in the United States. Frank Tannenbaum, Slave and Citizen: The Negro in the Americas (New York: Alfred A. Knopf, 1947), 65.
3. Roman law, which remained influential in countries like Spain and Portugal in the seventeenth and eighteenth centuries, viewed slavery as a mere accident, of which anyone could be the victim. As such, it tended to forestall the identification of the black man with slavery, “thus permitting the Negro to escape from the stigma of his degraded status once he ceased to be a slave.” Carl Degler, “Slavery and the Genesis of American Race Prejudice,” Comparative Studies in Society and History 2, no. 1 (Oct. 1959): 50. “Yet, of course, ancient [Roman] slavery was fundamentally different from modern [American] slavery in being an equal opportunity condition—all ethnicities could be slaves—and in seeing slaves as primarily a social, not an economic, category.” Philip D. Morgan, “Origins of American Slavery,” OAH Magazine of History 19, no. 4 (July 2005): 51.
4. “The status of the Negroes was that of servants, and so they were identified and treated down to the 1660s.” Oscar and Mary Handlin, “The Origins of the Southern Labor System,” William & Mary Quarterly 2, no. 3 (April 1950): 203.
5. “Slavery was not an isolated economic or institutional phenomenon; it was the practical facet of a general debasement, without which slavery could have no rationality. (Prejudice, too, was a form of debasement, a kind of slavery in the mind.) Certainly the urgent need for labor in a virgin country guided the direction which debasement took, molded it, in fact, into an institutional framework. That economic practicalities shaped the external form of debasement should not tempt one to forget, however, that slavery was at bottom a social arrangement, a way of society’s ordering its members in its own mind.” Winthrop D. Jordan, “Modern Tensions and the Origins of American Slavery,” Journal of Southern History 28, no. 1 (Feb. 1962): 30. “[S]lavery became indelibly linked with people of African descent in the Western hemisphere. The dishonor, humiliation, and bestialization that were universally associated with chattel slavery merged with blackness in the New World. The racial factor became one of the most distinctive features of slavery in the New World.” Morgan, “Origins of American Slavery,” 53.
6. “[A]s slavery evolved as a legal status [in America], it reflected and included as a part of its essence, this same discrimination which white men had practiced against the Negro all along and before any statutes decreed it…As a result, slavery, when it developed in the English colonies, could not help but be infused with the social attitude which had prevailed from the beginning, namely, that Negroes were inferior.” Degler, “Slavery and the Genesis of American Race Prejudice,” 52.
7. “Extracts from the Message of Gov. McWillie, of Mississippi, to the Legislature of the State,” The Liberator (Dec. 11, 1857).
8. French researcher Alexis de Toqueville observed that slavery was on the decline in some regions of the United States, but “the prejudice to which it has given birth is immovable.”Alexis de Tocqueville, Democracy in America, trans. Henry Reeve (1840), 460. Writing more than a century later, American historian Carl Degler noted, “[I]t is patent to anyone conversant with the nature of American slavery, particularly as it functioned in the nineteenth century, that the impress of bondage upon the character and future of the Negro in the United States has been both deep and enduring.” Degler, “Slavery and the Genesis of American Race Prejudice,” 49.
9. Alexander H. Stephens, Cornerstone Address (March 21, 1861), available at http://teachingamericanhistory.org/library/document/cornerstone-speech/.
10. Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon & Schuster, 2005), 91, 369.
11. Ibid., 369–70.
12. See ibid., 462–72.
13. Abraham Lincoln, Emancipation Proclamation (Jan. 1, 1863), available at http://www.loc.gov/resource/lprbscsm.scsm1016/#seq-1.
14. Goodwin, Team of Rivals, 464; , infra. 4.
15. Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery (New York: Alfred A. Knopf, 1979), 172–74.
16. Ibid., 182–83.
17. John W. Blassingame, The Slave Community: Plantation Life in the Ante-bellum South, rev. ed. (New York: Oxford University Press, 1979), 261; Equal Justice Initiative, Slavery in America: The Montgomery Slave Trade (2013), 27 & n108 (noting that despite the Mississippi legislature’s voting finally to ratify the Thirteenth Amendment in 1995, the necessary paperwork was not submitted to federal authorities for nearly eighteen years, so the state’s official ratification was not recorded until 2013).
18. Litwack, Been in the Storm So Long, 182, 194–96.
19. T. W. Gilbreth, “The Freedmen’s Bureau Report on the Memphis Race Riots of 1866” (May 22, 1866), available at http://teachingamericanhistory.org/library/document/the-freedmens-bureau-report-on-the-memphis-race-riots-of-1866/; U.S. Congress, House Select Committee on the Memphis Riots (July 25, 1866), available at https://babel.hathitrust.org/cgi/pt?id=uc1.c054751926;view=1up;seq=13; Herbert Shapiro, White Violence and Black Response: From Reconstruction to Montgomery (Amherst: University of Massachusetts Press, 1988), 6–7.
20. James G. Hollandsworth Jr., An Absolute Massacre: The New Orleans Race Riot of July 30, 1866 (Baton Rouge: Louisiana State University Press, 2001), 3, 104–5, 126; Donald E. Reynolds, “The New Orleans Riot of 1866, Reconsidered,” Louisiana History 5 (Winter 1964): 5–27.
21. “The Mississippi Black Codes were copied, sometimes word for word, by legislators in South Carolina, Georgia, Florida, Alabama, Louisiana and Texas.” David M. Oshinsky, Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (New York: Simon & Schuster, 1996), 21.
22. Jennifer Rae Taylor, “Constitutionally Unprotected: Prison Slavery, Felon Disenfranchisement, and the Criminal Exception to Citizenship Rights,” Gonzaga Law Review 47, no. 2 (2011): 365, 374.
23. Douglas A. Blackmon, Slavery by Another Name: The Re-enslavement of Black Americans from the Civil War to World War II (New York: Anchor Books, 2008), 54–55.
24. Oshinsky, Worse than Slavery, 35–36.
25. “Prison Abuses in Mississippi: Under the Lease System Convicts Are Treated with Brutal Cruelty,” Chicago Daily Tribune, July 11, 1887, 26.
26. Ibid.
27. Oshinsky, Worse than Slavery, 35.
28. “Southern Farmers Lynch Peter Bazemore,” Chicago Defender, March 30, 1918; “Short Shrift for Negro,” Cincinnati Enquirer, March 26, 1918.
29. Stewart E. Tolnay and E. M. Beck, A Festival of Violence: An Analysis of Southern Lynchings, 1882–1930 (Urbana: University of Illinois Press, 1995), 47.
30. Ibid., 31.
31. Crystal N. Feimster, Southern Horrors: Women and the Politics of Rape and Lynching (Cambridge, MA: Harvard University Press, 2009), 165; Ralph Ginzburg, 100 Years of Lynchings (Baltimore: Black Classic Press, 1962), 38–39.
32. Sherrilyn Ifill, On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-First Century (Boston: Beacon Press, 2007).
33. Equal Justice Initiative, “Lynching in America: Confronting the Legacy of Racial Terror in America” (2015).
34. Stephen B. Bright, “Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty,” Santa Clara Law Review 35 (1995): 440; see also Charles David Phillips, “Exploring Relations Among Forms of Social Control: The Lynching and Execution of Blacks in North Carolina, 1889–1918,” Law and Society Review 21 (1987): 372 (finding evidence for the conclusion that, prior to disenfranchisement, lynchings and executions were used in concert to suppress the black population, but once blacks were politically neutralized, lynching became a “costly and unnecessary form of repression” and legal executions then became sufficient to punish deviance within the black population).
35. Bright, “Discrimination, Death and Denial,” 440–41.
36. Stuart Banner, “Traces of Slavery: Race and the Death Penalty in Historical Perspective,” in From Lynch Mobs to the Killing State: Race and the Death Penalty in America, ed. Charles J. Ogletree Jr. and Austin Sarat (New York: New York University Press, 2006), 106.
37. Amy Louise Wood, Lynching and Spectacle: Witnessing Racial Violence in America, 1890, https://www.pinterest.com/1940 (2009), 38.
38. Ibid., 47.
39. Margaret Vandiver, Lethal Punishment: Lynchings and Legal Executions in the South (2006), 101.
40. James W. Clarke, “Without Fear or Shame: Lynching, Capital Punishment and the Subculture of Violence in the American South,” 28 British J. of Pol. Sci. 269 (April 1998), 284.
41. Bright, “Discrimination, Death and Denial,” 440.
42. Clarke, 287.
43. David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition (Cambridge, MA: Belknap Press of Harvard University Press, 2010), 218–19.
44. Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring).
45. Following Furman, Mississippi senator James O. Eastland accused the Court of “legislating” and “destroying our system of government,” while Georgia’s white supremacist lieutenant governor, Lester Maddox, called the decision “a license for anarchy, rape, and murder.” In December 1972, Florida became the first state after Furman to enact a new death penalty statute, and within two years, thirty-five states had followed suit. Proponents of Georgia’s new death penalty bill unapologetically borrowed the rhetoric of lynching, insisting: “There should be more hangings. Put more nooses on the gallows. We’ve got to make it safe on the street again…It wouldn’t be too bad to hang some on the court house square, and let those who would plunder and destroy see.” State representative Guy Hill of Atlanta proposed a bill that would require death by hanging, to take place “at or near the courthouse in the county in which the crime was committed.” Georgia state representative James H. “Sloppy” Floyd remarked, “If people commit these crimes, they ought to burn.” Garland, Peculiar Institution, 232, 247–48.
46. Gregg v. Georgia, 428 U.S. 153, 184 (1976).
47. McCleskey v. Kemp, 481 U.S. 279, 313 (1987).
48. Ibid.
49. Current Death Row Populations by Race, Death Penalty Information Center, http://www.deathpenaltyinfo.org/race-death-row-inmates-executed-1976#deathrow pop (accessed June 22, 2014).
50. Annual Estimates of the Resident Population by Sex, Race, and Hispanic Origin for the United States, States, and Counties: April 1, 2010 to July 1, 2012, U.S. Census Bureau, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=PEP_2012_PEPSR6H&prodType=table (accessed June 23, 2014).
51. Facts About the Death Penalty, Death Penalty Information Center, http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (accessed June 19, 2014).
52. Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (2010), 5.
53. Number of Executions by State and Region Since 1976, Death Penalty Information Center, http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (accessed June 21, 2014).
54. Bright, “Discrimination, Death and Denial,” 439.
55. Ibid.
56. James P. Marshall, Student Activism and Civil Rights in Mississippi: Protest Politics and the Struggle for Racial Justice, 1960–1965 (Baton Rouge: Louisiana State University Press, 2013), 101–103.
57. International Center for Transitional Justice, “What Is Transitional Justice?” https://www.ictj.org/about/transitional-justice.