The Champion
November 1997


Capital Cases
A Legacy of Slavery and Lynching: The Death Penalty as a Tool of Social Control

By William S. McFeely

William S. McFeely is Abraham Baldwin Professor of Humanities, Emeritus at the University of Georgia in Athens. His book, Grant: A Biography, won a Pulitzer Prize in 1982. The Black Man in the Land of Equality, and Frederick Douglas are among the books he has written. Contents of this article will also appear in the Carter Center Symposium on the Death Penalty -- July 14, 1997, 14 Georgia State University Law Review , forthcoming in December 1997.


There is a link between African Americans and the death penalty, or more generally, African Americans and societal infliction of death. It is necessary for us neither to count up the numbers of black Americans who have been killed nor to recount a history of racism. What is important to a discussion of the present-day death penalty, is to look at certain uses of violence over the course of American history.

The physical pain meted out under slavery and by lynchers had the purpose of creating a psychological fear designed to control a large stretch of black communities. In the past, there were two reasons for exercising that control -- the need for labor and fear of the black people who were the laborers.

In the 1990s there is no longer the same need for that labor, but the fear remains. Many in the majority community, consisting of both the affluent and those afraid of slipping from economic security, dread not only black folk, but the poor in general. Desperate poverty may lead to desperate acts, thus, those who feel threatened by this desperation use the power of the state to control those they fear. To exercise that control, there are increasing calls for and use of the death penalty.

Slavery
Slavery in the United States was an immensely complex system. Crucial to its maintenance was the threat, often carried out, of the pain of the whip, the anguish of forced separations by sale, and the finality of death. Frederick Douglass recalled from his childhood the shooting of a slave named Demby by Austin Gore, an overseer on the huge farm on which Douglass (then Frederick Bailey) lived.

Douglass remembered the scene of Gore taking up a whip: "He had given Demby but few stripes, when to get rid of the scourging, he [Demby] plunged himself into a creek, and stood there at the depth of his shoulders, refusing to come out. Mr. Gore told him that he would give him three calls, and that, if he did not come out at the third call, he would shoot him. The first call was given. Demby made no response, but stood his ground. The second and third calls were given with the same result. Mr. Gore then . . . raised his musket to his face . . ., taking deadly aim . . ., and in an instant poor Demby was no more. His mangled body sank out of sight, and blood and brains marked the water where he had stood."1

The scene was firmly imprinted on Douglass' mind; he told the story countless times to anti-slavery audiences to illustrate the horror of slavery. But more to the point of our discussion is the effect of the killing on the other slaves at the time it happened. We can be sure that adults as well as children had the killing imprinted on their minds as well. The overseer, pardoned by Demby's owner even though a valuable piece of property had been destroyed, had set an example that was not lost on the 500 other slaves owned by Edward Lloyd: "A thrill of horror flashed through every soul on the plantation."2 It was clear who had the control of the slaves' lives.

The Gore story might make people assume that the slavery period presented the greatest threat to African American lives. We prefer to think that the worst of times were in the past. To be sure, there were examples of cold-blooded murder, as in the instance of Gore, or when a master, in moments of frustration, fear of his slaves, and rage, whipped a slave to death or shot him or her. There were, however, several constraints. In the first place a slave was property worth a lot of money. In addition, social pressure sometimes operated to repress the grossest of mistreatment. An owner who mistreated "his people" might be shunned by his neighbors. Rarely, there was even access to the courts. A North Carolina slave owner was tried and convicted for the torture-murder of a slave woman. Even the insurrectionary, Nat Turner, was accorded a trial.

But Turner, a free black preacher who, in 1831, led the most famous slave revolt, was executed in a horrible fashion. The revolt not only brought an end to any Southern plans for gradual emancipation such as those the Virginia legislature was about to debate, but also led to the tightening of the Southern white resolve to impose more severe control over their slaves and to defy any Northern efforts to end slavery. Most slaves were left with a sense of the uselessness of any direct challenge to that control.

There were white people in authority who did consider the welfare of individual slaves. Frederick Douglass, after a failed attempt at escape, was spared a lynching or being sold South by his owner, Thomas Auld. Instead, Auld sent the slave to his brother in Baltimore. There, as Auld must have expected, Douglass attempted escape again, this time successfully.

Lynching
During Reconstruction, following the Civil War, champions different from patriarchal masters appeared. These were Federal District Judges and an Attorney General of the United States who thought the Civil War really had been about something and undertook to enforce the Thirteenth and Fourteenth Amendments to the Constitution. In 1867, Chief Justice Salmon P. Chase ruled that an involuntary apprenticeship law in Maryland constituted a return of slavery and was in violation of the Thirteenth Amendment.3 In 1871 Attorney General Amos Akerman, an ex-Confederate officer from Georgia, using the power of the newly created Justice Department, sent federal marshals into South Carolina to round up murderous Klansmen who were thwarting the political and economic assertions of the freed people. Indictments were obtained and the perpetrators of outlaw killings were brought before federal judges for violation of the Fourteenth Amendment. Intimidation of witnesses made convictions scant, but the power of the Klan was seriously curtailed.

Federal legal support, thin as it sometimes was, effectively ended following the Supreme Court's Slaughter House4 decision in 1873 and the political Compromise of 1877. The freed people were protected -- or not protected -- only by state laws and actions. In the 1880s black farmers gathered a measure of power by banding together in the Colored Farmers' Alliances to address the problems of rural poverty. Later, they formed an uneasy link with the radical People's Party. This genuine threat to the power of the landowning establishment was met not only by shrewd political maneuvering, but also by lynchings, used increasingly to reassert white social control.

Indeed, by the close of the nineteenth century and well into the twentieth, lynching, disenfranchisement, and the formal categorization of Negroes as separate of the Jim Crow laws caused African Americans to be as powerless in America as they had ever been. Such humiliations as separate drinking fountains were part of the wall deliberately erected between Americans. Not even under slavery had African Americans been so excluded from any recourse to those in authority.

Death Penalty
Is there a link between "lynch law" and statutory capital punishment law, between torture, mutilation, and death on a tree outside town and the orderly procedure of placing a person in a chair and throwing a switch, or, more antiseptically, on a gurney and injecting a needle within legal walls? Is the death penalty a direct descendant of lynching?

The merger of the two is the phenomenon known as legal lynching. As killings outside the law declined in the twentieth century South, the infliction of the death penalty by the courts increased. The hundred-a-year lynchings of the 1890s were matched by similar numbers of legal executions in the 1930s. (This year Texas may top the record it set in the 1930s) Critics coined the phrase "legal lynching."

A judge passed along to a mob outside a jail -- where a defendant was waiting for a trial -- the word that the trial was sure to result in an execution. His motive was to prevent the disreputable scene of the defendant being dispatched outside the law, outside the walls. A crowd might well gather and cheer; reporters might write vivid descriptions of the event. In the twentieth century, public opinion across much of the nation, and, indeed, in what we sometimes refer to as the civilized world, deplored lynching. Judges participating in legal lynchings were simply protecting the reputation of their region. If legal lynching achieved part of the would-be lynchers' goal -- if it did substitute one sure road to a hanging for another -- does this establish a clear link between death outside the law, according to a perverted code of honor, and death ordered by the state?

The scholar who has done the most sophisticated work on lynching, Fitzhugh Brundage -- studying, county by county, where killings did and did not occur and why -- is uncomfortable with what he sees as a glib connection between lynching and legal lynching.5 Brundage is not so sure that the courts were ready to do the lynchers work. He points to judges in the nineteenth century who, far from agreeing to do the lynchers work for them, genuinely tried to provide a fair trial for a defendant. Brundage also points out the irony this admirable approach often enraged a community and provoked a lynching.

The political implication of Brundage's cautionary approach is that we should not tear up the criminal justice system, root and branch. Some scholars come close to urging a radical change in the system that would require such yanking. They may be right. But don't hold your breath. For worse rather than better, we have our legal system.

When we look at what does exist, can we sometimes see a link between death at the close of a legal lynching and the same result after turning to the supposedly safeguarding procedures established post-Furman by legislatures? Are we not seeing eager prosecutors and judges up for election achieving death sentences almost as trophies? How effective is the automatic review? Even if relief is granted, with no right to counsel, who is to defend the indigent at subsequent appearances in court? If someone steps in to appeal, are there not limitations to the process that almost insure a death?

What is more, isn't the actuality of one man's death as retribution, a deliberate threat to a whole community? Individual black criminals are not deterred from further violent crimes, but a controlling pall does fall over an African American community.

The Brundage challenge to the link between lynching and the death penalty, if technically correct, misses the psychological connection between lynching, legal lynching, and the present-day death penalty. On both sides of the divide, whether the death is by lynching or by execution, similar emotions are aroused. Outside the prison, crowds gather to cheer when the hearse leaves Georgia's home for its electric chair signalling that a death has occurred. Those cheers are not unlike those of the hordes who took excursion trains to witness lynchings. Meanwhile, the burden of sadness descends on the home community of the man killed.

That burden teaches little to the frustrated, unemployed young men other than to be defiant. If they turn to crime, the possibility of the death penalty does not deter them. And those in power learn nothing from that fact. Instead, they call for the carrying out of more death sentences.

Poor and Black
African Americans have a well-founded distrust of the criminal justice system. In 1912, in Muscogee County, Georgia, a judge tried to assure a reasonably fair trial for Teasy McElhaney, a black fourteen-year-old. He appointed one of the leading lawyers in Columbus to defend the boy. The prosecutor called it murder; the jury convicted McElhaney of manslaughter. The judge handed down a prison sentence and left the court room. As bailiffs were taking McElhaney, barefoot and in shorts, out of the courthouse to the prison, uncles of Cleopholus Land, the boy who had been killed, probably in a gun accident, seized the prisoner. They took McElhaney by trolley to the edge of town and shot him.

In 1956, a well-spoken local Civil Rights leader, Dr. Thomas H. Brewer, Sr. was shot in a downtown Columbus store. The grand jury ruled it a self-inflicted death.

In 1977, the son of one of the 1912 lynchers was the judge who sentenced William Brooks, a black man accused of raping and murdering a young white woman, to death.

In 1986, Jerome Bowden, with a borderline I.Q. was executed. "I expected it," was his sister, Shirley Thomas' response.

Black citizens of Columbus, in Muscogee County, Georgia, see little, if any, difference between these three American ways of death -- lynching, assassination, or execution.

All those killed were black. With the exception of Dr. Brewer, all were poor and had suffered the damage done to many who grew up in poverty. One of the great collisions of American history comes when the Mack truck of race smashes into the Allied van of poverty. The two powerful concepts should be seen as rolling, unhappily, along the interstate right next to each other. The slaves were the poorest of workers; poverty has been the besetting problem of a huge percentage of their descendants. It is the same problem as that faced by a far larger group of other poor Americans. But African Americans, defined as a race and further delineated by color, have, in the past, been seen as different from other poor people. To a considerable extent they still are. But they are not alone in being feared and controlled.

The poor of whatever race have similar economic interests, but race has been used with great effectiveness to separate them, to cause the larger group of poor whites to despise the smaller group of poor blacks. Once, playing one group against another, landowners and capitalists were able to control the needed supply of black and white unskilled labor. Now, thanks to technology and a worldwide supply of labor to a world economy, there is no work for vast numbers of those laborers.

The Dred Scott 6 decision sought to settle the slavery question once and for all by leaving black American workers no way out of bondage, thereby clearing only the path for free white Americans to search for free soil to farm or to labor as free men. The present draconian Supreme Court takes a different tack. Racial discrimination has been decreed to have ended, so that problem has been solved. Of course, it hasn't. We are back at Plessy,7 pretending there is equality when there is not.

The more general problem of poverty is an inequity that the Supreme Court has never addressed constructively. Whether they know it or not -- and some do -- white people who are poor have been consigned to Ralph Ellison's invisibility.8 All of the poor -- black and white -- must not be kept out of sight.

Or locked away.

Rather than being held in slavery as most of the black poor were in 1857, the present-day equal opportunity poor are being made criminals. As one observer has said, we are creating a nation of felons, who will, if released, have no means of re-entry into the society of the employed. Instead of considering that future, programs of rehabilitation are scrapped in favor of retributive punishment. The response of many in the majority to an undernourished portion of their own society is not analysis, but slogans like, "tough on crime", "three strikes, you're out," and condemnation of "welfare cheats."

And the ultimate expression of this contempt for the useless and, therefore, encouraged to be the dangerous, is the imposition of the death penalty. The steps to attempt to rescue those sentenced to death are term "frivolous appeals." The rich are not executed; it is the poor and, because race does still play a part, disproportionately, the black.

Finally, to return to the question of societal uses of violence, there is, despite the connections suggested, one crucial difference between both the merciless disciplining of slaves and the lynchings of their descendants on one hand and, on the other, those formally executed. Those earlier cruelties were outside the law; with the death penalty, it is the state -- which is to say, we the people -- who are the killers.

NOTES
1. Frederick Douglass, Narrative of the Life of Frederick Douglass, 1845, reprint Boston: Bedford, 1993, 52.

2. Id.

3. In re Turner, 24 Fed. Case 237 (1867).

4. Slaughter House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873).

5. Conversation with the author. See also, W. Fitzhugh Brondage, ed. Under Sentence of Death Lynching the South, Chapel Hill University of North Carolina Press, 1997.

6. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857).

7. Plessy v. Ferguson 163 U.S. 537, 4 L. Ed. 256 (1896).

8. Invisible Man, Ralph Ellison.



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