The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy–of self help, vigilante justice, and lynch law.
–from Justice Potter Stewart's justification of capital punishment in his 1976 opinion in Gregg v. Georgia, which restored the death penalty
Capital punishment, a direct descendent of lynching and other forms of racial violence, remains one of America's most prominent vestiges of slavery and racial oppression.
–Stephen Bright, "Challenging Racial Discrimination in Capital Cases," The Champion, January/February 1997
Sometimes a single story can tell us more about our history than volumes of statistics. How slavery gave birth to lynching and lynching to America's embrace of the death penalty is revealed in its starkest clarity in Mark Curriden and Leroy Phillips Jr.'s invaluable book, Contempt of Court. Subtitled The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism, it is the story of one innocent black man, Ed Johnson, convicted and sentenced to death for the rape of a white woman in the St. Elmo section of Chattanooga, Tennessee, in 1906. When Johnson's attorneys had the temerity to appeal his conviction to the US Supreme Court, which stayed Johnson's execution, he was lynched with the cooperation of Chattanooga's criminal justice establishment. In part because the lynching led to an unprecedented trial for contempt of the Supreme Court, there exists an unusually complete historical record of the events leading up to the lynching. One of the most forceful aspects of the book is how the participants, in their own candid words, explained their actions.
The authors set the scene well. Forty years earlier the South had lost the Civil War militarily but not politically. The economic and political powers of the North had long since made their peace with their white brethren who led the Confederacy. Slavery was illegal but new laws, customs, economic relationships and institutions had been created to keep blacks in their place. Contempt of Court quotes one Tennessee newspaper columnist as explaining that "black people may no longer be slaves, but whites must find means to retain control over the coloreds." One of those "means" was the law. Tennessee enacted statutes that created separate crimes and punishments only for black people. "Any black person found guilty of assault upon a white woman, impersonating a white man for carnal purposes, or stealing a horse, a mule or baled cotton would automatically be punished by death. There was no similar law for white people."
At the same time, extralegal means–the Ku Klux Klan and the lynch mob–grew and spread. The authors provide a valuable appendix listing the number of lynchings, their places and the alleged "crimes" for which those acts were committed, from 1882 through 1944. Black people were lynched throughout the Old Confederacy for everything from murder to insulting a white person. During this period 3,417 black people were lynched, some before arrest and some after.
Contempt of Court paints the most thorough picture we have of the tension between the bloodlust of the white mob and the concerns of the white propertied establishment. The wealthy and powerful, on the one hand, supported and encouraged the mob's desire for speedy "justice." On the other hand, their fear that the lower-class elements that made up the mob would get out of control and threaten larger social stability led them to favor quick execution by the state over lynching as the preferred means of maintaining white supremacy without undermining class rule. This is what Justice Stewart, in his apologia for capital punishment, calls "channeling" "the instinct for retribution" in order to avoid "anarchy…vigilante justice, and lynch law."
The statements by establishment spokespeople–newspaper editorial writers and ministers of the major denominations as well as heads of the criminal justice system–also make plain their concern with appearances. They wanted to avoid criticism from the North and from their commercial partners abroad.
This mix of interests led to the creation of a system that at its core guaranteed the entire white community "retribution" while at the same time creating the appearance of due process. Thus two contradictory messages could be put forth simultaneously. To the larger world they said the black man had a lawyer, had a fair trial, was convicted, sentenced and executed under color of law. To the white community there was a wink. The lawyers appointed would be inexperienced and given no time or tools to prepare for trial. The outcome would be preordained. The execution would be quick.
One of the book's central characters, Chattanooga Sheriff Joseph Shipp, repeatedly made public statements that reflected this duality of the power structure's position. The sheriff, who was commonly called "captain" rather than "sheriff" because of his rank in the Confederate Army, was also quartermaster of the Confederate Veterans Association. Even before Ed Johnson was arrested, and just after the white rape victim had been convinced to say her attacker was black, Shipp issued a statement saying, "I know the people thirst for judgment of the Negro who did this. I can assure the people that all at the courthouse agree and will be satisfied with nothing less. I am confident we will find this beast and he will feel the vengeance of our community upon him." Shipp was later convicted of contempt of the US Supreme Court for enabling the mob to lynch Johnson. When he returned to Chattanooga from his sentencing in Washington, Shipp was greeted by more than 10,000 supporters and a band playing "Dixie."
Another of the book's central characters is Chattanooga's criminal court judge, Samuel McReynolds, who if anything was even more conscious than Shipp of the relation of the criminal justice system to the lynch mob. As soon as Johnson was arrested a mob formed, but it was rebuffed in its initial attempt to hang the prisoner. Judge McReynolds addressed the mob:
I know you want justice and punishment. I do as well. But this is not the way. We have laws we must follow. I have called for a special session of the county grand jury for next Saturday to take up the case. Following an indictment, I will give the criminal trial precedence over all other trials. I hope that before week's end, the rapist will be convicted, under sentence of death and executed according to law before the setting of Saturday's sun.
True to his word, McReynolds immediately impaneled a grand jury, instructing them that "such outrages as this must have the immediate attention of the law, that the law may be preserved. It is the 'law's delay' that brings about mob spirit." The judge initially appointed a white lawyer with no criminal experience to represent Johnson.
Sheriff Shipp said, "The rape that has so inflamed the community is a capital offense in Tennessee. It is time for the people to allow the law to do what the mob wants done." The sheriff was further quoted in the Nashville Banner as saying, "Justice is quick enough when it really wants to be. This is not quite so quick as lynching, but it reads better in the statistics."
The Chattanooga News both supported law enforcement's claim that Johnson would be quickly tried and executed, and at the same time supported the mob's pressure to insure that outcome. "The noose around the Negro's neck is tightening…. In case of the guilt of Johnson being proven there will be no unnecessary delay in executing the sentence of the court. A gallows stands in the jail…. Hangman's ropes are in possession of the sheriff already stretched with the knot already tied."
But just days later the same paper reported, "There have been expressions of concern that the Negro was enjoying too long a lease on life after his crime. There exists a determination to see that the Negro Johnson shall pay the extreme penalty for his terrible crime."
No spokespeople for Chattanooga's white establishment were more articulate than the Protestant clergy in explaining the preferences for execution by the state over that by the mob.
On the Sunday after Johnson was lynched, the act was criticized in a sermon by the minister of Chattanooga's First Baptist Church that was based on much the same fears of anarchic social consequences that scared Justice Stewart seventy years later:
The white man rules in this community. I am using an old phrase oft used by you, when I affirm that he always has and he always will. The honor of rule involves a burden of responsibility. If the white man rules and this community is condemned with a charge of anarchy and lawlessness, then the white man must face the responsibility…. The worst elements among the white men of this community took over the reins of government…. So far as Ed Johnson was concerned, the mob only deprived him of a life which in all probability he would only have possessed for a few weeks longer. But consider what it has done to our community.
So, the desire of the establishment for a speedy trial, conviction, sentence and execution was apparent to all. Judge McReynolds gave Ed Johnson's lawyers no time to prepare for trial. However, thanks to the fact that at the time of the rape the defendant was in a saloon a great distance from St. Elmo with a dozen other people, the defense had a parade of alibi witnesses that unquestionably proved Johnson's innocence. Not surprisingly, the jury of twelve white men rejected the testimony and convicted him. The judge quickly sentenced him to death and set the execution date for the following week.
One of Johnson's lawyers, William Thomas, convinced his client not to appeal his death sentence by telling him: "Ed, there are two choices here. You can accept the verdict of the court and die in an orderly, lawful manner. Or you can die horribly by the hands of the mob." The lawyer later wrote, "The life of the defendant, even if the wrong man, could not be saved. An appeal would so inflame the public that the jail would be attacked." Thomas proved to be correct in his prediction. When Styles Hutchins and Noah Parden, the two black attorneys who, along with Ed Johnson, are the heroes of the book, convinced Johnson to change course and appeal, they not only sealed Johnson's fate but their own as well. So angry was the white community at these two lawyers that when the Supreme Court granted a stay of Johnson's execution pending his appeal of the denial of a writ of habeas corpus, Hutchins's and Parden's legal careers in Chattanooga were through.
And so the mob came to lynch Ed Johnson with the blessing and contrivance of the sheriff, as Judge McReynolds and the district attorney watched from the courthouse window. The leader of the mob addressed it before the lynching. "Friends, we are here for one reason. We are here for the sake of the purity of our wives and daughters and all the women of the South. We are here to protect them from the savagery of the Negro brutes. We cannot stand by while Negroes defile and ruin our precious women. We must make an example of this Negro to show the other Negroes that they must leave our women alone."
After Ed Johnson was hanged and shot, one of several Chattanooga police officers who participated in the lynching cut off Johnson's finger as a souvenir. The Chattanooga News blamed the lawyers and the Supreme Court: "The lynching is a direct result of the ill-advised effort to save the Negro from the just penalty of the laws of Tennessee…. There is no community south or north which will submit to delay in punishment for this particular crime. The Supreme Court of the United States ought in its wisdom to take cognizance of this fact."
Of course, Justice Stewart's opinion in Gregg did just that. It says that if the courts don't condone capital punishment, lynch law will result. But at the time of Johnson's lynching the Supreme Court came to the opposite conclusion. Speaking for a majority of the Court in United States v. Shipp, Chief Justice Melville Fuller said:
In our opinion…this lamentable riot was the direct result of opposition to the administration of the law by this court. It was not only in defiance of our mandate but was understood to be such. The Supreme Court of the United States was called upon to abdicate its functions and decline to enter such orders as the occasion, in its judgment demanded, because of the danger of their defeat by an outbreak of lawless violence. It is plain that what created this mob and led to this lynching was the unwillingness of its members to submit to the delay required for the appeal…. if the life of anyone in the custody of the law is at the mercy of a mob, the administration of justice becomes a mockery.
Both the News, by claiming that "no community south or north" would tolerate such a delay in execution, and Justice Stewart, by claiming that "retribution is part of the nature of man," tried to sidestep the central racist truth of lynching in the United States. It was overwhelmingly practiced against black people by white people, and it was overwhelmingly practiced in the former Confederacy. For instance, in the sixty-two-year period covered by the book's appendix, not a single lynching took place in any of the six New England states. If Stewart's and the News's reasoning was correct, that zero figure would be the result of numerous and speedy legal executions. But the opposite is true. New England trailed the nation in capital punishment.
The experience of the Western democracies with the abolition of capital punishment over the past fifty years, as well as that of the American states that don't execute people, proves the fallacy of Justice Stewart's claim in Gregg that the death penalty "is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help." While the South used the death penalty disproportionately to control its black population, many Northern industrial states, like New York, used capital punishment disproportionately to keep its immigrant population in line. As the great waves of black migration from the South enlarged the black population of the North, the death penalty migrated with them as the states' ultimate weapon of choice for social control of the descendants of slaves. But to this day, nowhere else in America is capital punishment used with nearly the frequency it is in the former Confederacy. The moves of the Rehnquist Court, Congress, the executive and the states to shorten the appeals process and deny effective legal representation in capital cases carries on the tradition of bending the law to support white supremacy, a tradition well exposed in Contempt of Court. At the same time, numerous bar associations, Congressional supporters of the Innocence Protection Act and human rights legal advocacy groups carry on the effort of Styles Hutchins and Noah Parden, reflected in Chief Justice Fuller's Shipp opinion, to strengthen the rule of law for the protection of all people.
If Contempt of Court has any real weakness, it is the hesitancy of the authors to analyze and draw conclusions about the relationship of slavery, lynching and capital punishment that the story gives rise to. The book clearly demonstrates that the problem with the death penalty in America is not just that it is practiced in a racially discriminatory manner but rather that it owes its very existence and continuation to protecting an entire system of racial discrimination. The sleeping, drunk, ill-prepared and poorly paid and equipped lawyers we've heard so much about in recent years are not the result of a system that is just too cheap to expend greater resources. Rather, they are the result of a system intentionally created to give the appearance, but not the reality, of due process–to, as Sheriff Shipp said, "allow the law to do what the mob wants done."