So yesterday morning Jeffrey Lord of the American Spectator put up a long post claiming that Shirley Sherrod had lied when she said that a relative of hers was lynched in Georgia in 1943.
Specifically, Lord claimed that the term “lynching” refers exclusively to murder by hanging. Since Sherrod’s relative was merely arrested, handcuffed, publicly beaten for as much as half an hour by three police officers, dragged feet-first across a courthouse lawn, and then left to die, Lord said, he wasn’t lynched.
Informed that lynching does not refer, and has never referred, exclusively to hangings, Lord has tried a variety of new lines of attack in the last 36 hours. He’s argued that three assailants is too few for a lynch mob (it isn’t), that the Supreme Court declared the crime to not be a lynching (they didn’t), and even — most recently — that because lynching wasn’t articulated as a specific criminal offense in the Jim Crow era, the term cannot be properly applied to any historical event.
Yeah. It’s a train wreck.
Lord’s comments on his and others’ posts on the American Spectator site have become increasingly erratic over the last two days, so I’m not going to even try to parse and refute them all. But his repeated references to a Supreme Court case that arose from the incident prompted me to take a look at the decision in question, and it turns out that it’s a fascinating and important one.
Grab a snack. This is going to take a while.
Robert Hall was arrested at his home late one night on charges that he had stolen a tire. (There are indications that the warrant against him was flawed, or even concocted after the fact.) A sheriff and two deputies handcuffed him and took him into town in a patrol car.
When the group arrived at the courthouse square, Hall was removed from the vehicle. The officers would later claim that he tried to escape or that he grabbed a gun. These claims are disputed. What is not disputed is that after Hall had been knocked to the ground and incapacitated, the three continued to beat him with their fists and a blackjack for at least fifteen minutes, perhaps half an hour, continuing well after he had been rendered unconscious. When they tired of assaulting him, they dragged him by his feet to the jail. At some point they called an ambulance. Robert Hall was pronounced dead at the hospital shortly after his arrival.
This was Georgia in the 1940s. The three murderers were white police officers. Hall was a black man. No indictments were filed. No grand jury was convened. There is no evidence that any state prosecutor so much as contemplated bringing charges against the three.
And so the feds stepped in.
Murder is not, in most cases, a federal crime, and anti-lynching legislation had by that time been hopelessly stalled in Congress for decades. But a Reconstruction-era civil rights law — Section 20 of the US criminal code — made it a crime for anyone acting “under color of any law” to deprive any inhabitant of the United States “of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.”
This law carried a maximum jail sentence of just one year. It had been on the books for more than eighty years, but had been rarely applied. Prosecutors now argued, though, that in murdering Robert Hall, Sheriff Claude Screws and his two confederates had deprived Hall of the right to a fair trial for the crime he was alleged to have committed. They indicted the three in federal court, and won convictions.
But because this was a novel use of the law, and because the law itself was controversial, the case quickly worked its way up to the Supreme Court. In the spring of 1945, the Supremes ruled in the case of Screws v. United States.
I’m going to pause here for a moment to return to Jeffrey Lord.
In his original post on the story, Lord says that Screws v. United States was decided in a 5-4 vote, with the majority voting to “overturn the conviction of Bobby Hall’s killer.” If any of the five had voted the other way, he claims, the Court “would have provided some form of justice to the Sherrod family” by “voting to keep the Screws conviction intact.” Justice Hugo Black, he says, in voting with the majority, “rescued the racist Sheriff Screws.” Black was, he says, “a staunch supporter of FDR’s New Deal” and “a committed racist.”
Some of this is more or less accurate, some of it is complete balderdash. Taken as a whole it’s a wild misrepresentation of the Court’s ruling.
To begin with, the decision in Screws wasn’t 5-4. It was 5-1-3. More specifically, it was a 4-2-3 decision that turned into a 5-1-3 decision by a tactical vote by one of the dissenters.
Let me explain.
There were two issues facing the Court in Screws: whether the law that had been used to convict the three men was constitutional, and whether the defendants had received a fair trial. The court fractured into three camps over these two questions.
These two men wrote separate opinions bristling with righteous indignation. The weak arguments against the law, Rutledge declared, “do not nullify what four years of civil strife have secured and eighty years have verified.” The defense that the three officers were mere murderers, not violators of Hall’s civil rights, was, he said, “not pretty. Nor is it valid.”
Murphy was even more scathing. “Too often,” he wrote, “unpopular minorities, such as Negroes, are unable to find effective refuge from the cruelties of bigoted and ruthless authority.” The question before the court, he said, was “whether law enforcement officers and those entrusted with authority shall be allowed to violate with impunity the clear constitutional rights of the inarticulate and the friendless.”
On the other end of the bench, three justices – Owen Roberts, Felix Frankfurter, and Robert Jackson – argued that Section 20 was unconstitutional and that its use had deprived the defendants of a fair trial. The three referred to Hall as a “young Negro” and a “lad” in their opinion, though Hall had been in his thirties when he died. They adopted a neo-Confederate reading of history, characterizing the civil rights law under which his murderers had been prosecuted as having been “born of that vengeful spirit which to no small degree envenomed the Reconstruction era.” They minimized the crime itself — alone among the justices, they characterized the crime as “manslaughter, if not murder,” rather than murder plain and simple.
And in the meat of their opinion, they offered Hall and the thousands of other blacks who had been, or would be, lynched in the Jim Crow era no assistance. They said that the use of federal law against criminals like Screws “bent and tortured” the constitution, and characterized the crime as one for which the defendants were “unquestionably subject to punishment by the State,” despite the fact that those defendants had not been punished or threatened with punishment by that state before or after the federal prosecution.
Rutlege and Murphy, in short, sought to put the weight of the federal government behind the project of securing justice for Robert Hall, while Roberts, Frankfurter, and Jackson, sought to make it impossible for the feds to act in that case or in any case like it.
That left four justices in the middle.
Those four — including Hugo Black, who Lord identifies as the villain of the story — contended that the law in question was constitutional, and could be constitutionally applied to cases such as this one, in which “those who take the law into their own hands … deprive a prisoner of the trial which due process of law guarantees him.” They flatly rejected the claim that federal prosecution “encroach[ed] upon state authority or relieve[d] the state from its responsibility for punishing state offenses.”
They did, however, find a significant flaw in the prosecution of this particular case. The jury, they found, should have been instructed on the law’s requirement that the defendants’ deprivation of Hall’s rights had been “willful,” and it had not been. They believed, they made it clear, that Screws and his co-defendants were guilty of a “shocking and revolting” crime, a crime for which the federal government had every right to prosecute them, but that prosecution had been mishandled, and they were entitled to a new trial.
There were, then, two justices voting to uphold the law and the conviction, three to reject both, and four to uphold the one but set aside the other. Three points of view, none commanding majority support. And in the Supreme Court, you need a majority to rule.
And so Justice Rutlege held his nose and joined the majority, so that “stalemate should not prevail.”
Which brings us back to Lord.
Hugo Black did not, as Lord suggested, vote to “rescue the racist Sheriff Screws.” He voted to set aside Screws’ conviction and to allow the federal government to prosecute him again. He voted to keep the prosecution alive, while three of his colleagues voted to kill it. His vote declared, following Justice Murphy, that “law enforcement officers and those entrusted with authority” would no longer “be allowed to violate with impunity the clear constitutional rights of the inarticulate and the friendless.”
It’s true that he didn’t uphold the three men’s convictions, but he didn’t have the power to. Because the Court was so splintered, a change in his vote wouldn’t have created a new majority — it would merely have worsened the stalemate, turning a 4-2-3 Court to a 3-3-3 one.
So Lord is wrong, which is unsurprising. He’s wrong about the facts of the case, wrong about the outcome, and wrong about who the real villains were. None of that is particularly earth-shattering, and certainly none of it would have warranted a post of this length.
So why did I write all this?
Because this case is important. Because this case is momentous. Because this case is so damn interesting.
Okay. I’m at nearly 1700 words, and there’s a show on in eleven minutes that I really want to watch. More about all this tomorrow, but that’ll do for now.
Wednesday Morning Update | Jeffrey Lord has given an interview at Talking Points Memo. I’ve left the following as a comment on that story:
Lord’s claim that Democrats made it impossible for Hall’s killers to be brought to justice is tendentious at best. It was the FDR Justice Department which brought federal charges against the officers who murdered hall, and a Supreme Court dominated by FDR appointees ruled 6-3 that such prosecutions — under Reconstruction-era civil rights laws — were constitutional. It’s true that the convictions of Hall’s murderers were reversed, but they were reversed because of defects in the original trial, and the Court allowed the men to be retried. In doing so, they established a precedent for federal prosecution of white Southern violators of blacks’ civil rights that would become crucial to the civil rights struggle in the decades to come.
I’m not interested in turning this discussion into a political tit-for-tat. I don’t intend this post, or the comment above, to serve as a blanket defense of the Democratic Party in the Jim Crow era — any serious student of history knows better than to offer such a defense. But in his eagerness to deploy the sins of white America’s past for partisan advantage, Lord has — as I’ve made clear in this post — deeply misrepresented that history, and his misrepresentations should not be allowed to stand.
Second Update | I indicated this above, and I was going to discuss it in more detail in a follow-up post, but I’ll say it explicitly now, just to be clear: The Screws decision was a decidedly mixed bag for those who were looking to bring justice to the victims of the South’s white supremacist violence. On the one hand, it upheld the use of civil rights law in such prosecutions, opening the door to the first successful federal prosecution of a lyncher the following year. On the other hand, the standard it set for such prosecutions was a high one. More soon.
Third Update | I’ve just written a new post on why lynching matters. I don’t return to the Screws decision in it, but I plan to revisit that subject soon.