By Hands Now Known: Jim Crow's Legal Executioners
By Margaret A. Burnham
New York Review of Books, April 6, 2023
A little over twenty years ago, the New-York Historical Society mounted "Without Sanctuary," a remarkable exhibition of photographs of lynchings in the American South. The images of mobs torturing and murdering Black citizens, some widely circulated as souvenir postcards, revealed a depravity that had long been shrouded by historical amnesia. Since then, the roughly 3,500 lynchings that took place between 1880 and the 1950s have received ample public attention, including at the National Museum of African American History and Culture in Washington, D.C., and the National Memorial for Peace and Justice in Montgomery, Alabama, which opened in 2018. Thanks to a recent outpouring of scholarship, novels, and films, most Americans are also aware that violence was essential to the functioning of slavery. Less widely remembered, however, is the quotidian brutality that claimed many hundreds of Black lives between the end of slavery and the civil rights revolution. The horrors of Black life in the Jim Crow South have not really entered the country's historical consciousness.
Jim Crow, a shorthand for the more than six-decade-long southern racial order that followed Reconstruction, is usually equated with segregation, but it was far more than that. A comprehensive system of white supremacy, it also included the disenfranchisement of Black voters (thus stripping them of political power), a labor market that relegated African Americans to the lowest-paying jobs, and a code of behavior in which Blacks were required to demonstrate deference in all their interactions with whites.
In the Jim Crow South, for a Black person to step outside norms of behavior established by whites could be a death sentence. Violence could erupt at any time, for any reason, or for no reason at all. The "mundane, largely hidden violence" that loomed over Black life is the subject of Margaret A. Burnham's new book, By Hands Now Known: Jim Crow's Legal Executioners, a work by turns shocking, moving, and thought-provoking. It merits the attention of anyone interested in the historical roots of the civil rights movement of the 1960s and, more recently, Black Lives Matter.
Over the course of a long career, Burnham has been a pioneering civil rights attorney and legal scholar. In 1977 she became the first Black woman appointed to a judgeship in Massachusetts. Today she directs the Civil Rights and Restorative Justice Project at the Northeastern University School of Law, which chronicles the history of racist southern homicides between 1930 and 1970 and seeks to rescue the victims, many of whose stories have never been told, from historical oblivion. The project's detective work has uncovered over one thousand such murders. Approximately thirty are discussed in detail in this book.
Often the perpetrators were the very officials sworn to uphold the law—police officers and sheriffs. Almost all the murderers escaped punishment. Complicity extended well beyond the actual killers. Prosecutors were reluctant to seek indictments; all-white trial juries refused to convict; the FBI, Department of Justice, and army, in the case of soldiers killed on American soil, almost never took action; and the Supreme Court eviscerated the constitutional amendments and laws Congress had enacted during Reconstruction that empowered federal authorities to punish those who deprived Blacks of constitutional rights. The diligent research of Burnham and her students in local records, the Black press, NAACP files, and interviews with descendants makes those who perished more than victims, bringing to light their family relations, jobs, and educations, and the details of the encounters that ended with their deaths.
Burnham's account focuses on particularly dangerous locations, such as Birmingham, where the laws prohibiting homicide, she writes, "simply did not apply" to the police. Long before the 1963 confrontation between "Bull" Connor's dogs and fire hoses and young civil rights demonstrators that marked the high point of the mass civil rights movement, shootings of Blacks and the bombing of their homes were shockingly commonplace. Fifty bombings took place in the city between 1947 and 1965, mostly directed against Black families who breached the color line by seeking to move into white neighborhoods. In 1948 alone, according to the Birmingham World, a Black newspaper, sixteen African American men died at the hands of law enforcement officers.
The strange alchemy of the city's criminal justice system transformed minor infractions into capital crimes. One individual murdered by the police while incarcerated had been arrested for having too much to drink, another because the police were searching for a prowler. In Westfield, a town near Birmingham, a female white clerk at a local store, claiming that a Black customer, William Daniel, had insulted her, called the police. When an officer arrived he almost immediately shot and killed the alleged offender, even though, as Burnham laconically remarks, Daniel had not committed a crime: "Even in Alabama, there was no law against 'insulting a white woman.'"
One reason for the excessive violence in what Blacks called "Bad Birmingham" was that the region's coal and steel companies had their own private police forces that worked in tandem with municipal authorities to weaken the United Mine Workers. In 1948 the Reverend C.T. Butler, pastor of a local Baptist church, father of thirteen children, and an important figure in the union, was shot and killed by Tennessee Coal, Iron and Railroad Company police. In a familiar pattern, the white press sought to undermine Butler's reputation, publicizing police claims that he had been "molesting" a fifteen-year-old white girl. Fearing additional killings, nearly the entire Butler family fled to Michigan.
While statistics can reveal the scope of racist terror, it is the individual stories uncovered by Burnham and her students that make for the most powerful reading. Some truly boggle the mind. In 1941 John Jackson, a Birmingham steelworker, was waiting with other African Americans to gain access to a movie theater through the "Negro entrance." Police ordered them to clear a path for passersby. Evidently Jackson did not hear the directive and laughed at something said by his female companion. "What are you laughing at, boy?" a policeman yelled. Jackson replied, "Can't I laugh?" With that, he was thrown into a patrol car, shot, and beaten by an officer. He died on the way to the station house. (In this case, unusually for Birmingham, the culprit was dismissed from the police force, though not otherwise charged.)
Being in the wrong place at the wrong time could be dangerous. In 1950, much like Trayvon Martin six decades later, Robert Sands, a fifteen-year-old Black youth, was shot and fatally wounded as he walked through a segregated Birmingham neighborhood, where he was employed by a white family. Sands's presence had led a white woman to express alarm to her husband. Within minutes he shot the teenager in the back. The local prosecutor refused to assemble a grand jury to consider criminal charges.
New Orleans was another city with police officers known for brutality, including the chief detective, John Grosch, and his brother William, also a detective. In 1940 William Grosch and another officer drove to Detroit to take custody of Wilbert Smith, a Black man who had fled New Orleans several years earlier after being charged with shooting a policeman during a traffic stop and had been living in Detroit until apprehended by that city's police. Almost as soon as the three men reached New Orleans, the detectives fatally shot Smith. The two officers went on to beat his former wife and ordered her to leave the city. In this instance a grand jury was summoned, but it declined to issue indictments.
The stationing of large numbers of Black soldiers, many from the North, at segregated World War II army bases adjacent to southern cities led inexorably to conflict as servicemen began to push back against segregation. Willie Lee Davis, a twenty-five-year-old corporal from Georgia, was murdered by a local police chief in 1943 while on furlough after a verbal dispute. Davis, who was dressed in his army uniform, evidently angered his killer by objecting to being searched by him, saying, "I'm not your man. I'm Uncle Sam's man [now]." Uncle Sam's assistant attorney general, Tom Clark, filed a criminal charge, but the case never went to trial.
Burnham reports that at least twenty-eight active duty Black soldiers were murdered between 1941 and 1946 for refusing to submit silently to Jim Crow. Hundreds more suffered gunshot wounds or imprisonment. As Thurgood Marshall complained in 1944 to the Department of Justice, "There have been numerous killings of Negro soldiers by civilians and police," but he was "not aware of a single instance of prosecution." These experiences, Burnham writes, "never made it into the sagas about the 'Greatest Generation.'"
Years before Rosa Parks refused to surrender her seat to a white passenger in Montgomery, southern buses had become flash points. Many communities authorized drivers to carry weapons, a recipe for homicide. In 1944 a driver ordered the Black soldier Booker Spicely to give up his seat when a group of whites entered the bus, traveling between Durham and Camp Butner in North Carolina. Spicely left the bus after remarking, "I thought I was fighting this war for democracy." As he stepped into the street the driver shot him twice, then drove away, leaving the soldier bleeding from his wounds. Refused treatment by a whites-only hospital, Spicely was admitted to a "Negro" bed at another, where he died. The War Department launched an intelligence operation to learn local Blacks' response to the murder, especially if "agitators" were encouraging them to "misconduct themselves." Tried on a charge of manslaughter, the driver was acquitted.
In 1946 in Bessemer, a center of coal mining and steel production near Birmingham, Timothy Hood, a Black veteran, adjusted the "color board"—the physical marker separating Black and white sections of a bus—to create more seats for Black passengers. When the driver ordered him to move it back, Hood replied, "Do it yourself." A fight broke out and the driver fired five shots, wounding Hood. Shortly afterward the local chief of police, a member of the Ku Klux Klan, arrested Hood and shot him inside the police car, killing him instantly. A coroner's inquest ruled the incident justifiable homicide.
Gender did not shield Black women from brutality. The first case outlined in the book involved Ollie Hunter, described by the writer of a letter to the NAACP as an "elderly Negro woman" shopping in a general store in Donalsonville, Georgia. The white storekeeper ordered her to put down an item she was examining. When Hunter left the store, he followed. He physically assaulted her on the street, killing her.
Black young people were also among the victims. Willie Baxter Carlisle, an eighteen-year-old in eastern Alabama, tried, with some friends, to sneak into a dance party for local high schoolers. Two policemen removed them and then discovered that someone had let air out of a patrol car's tires. The next night the officers took the teenagers to jail and beat them with a walking stick and rubber hose. Carlisle died a few hours later. This took place in 1950, by which time white acceptance of extreme police brutality had begun to wane. Acquitted of murder in a local court, the officers were indicted on federal charges and served a few months in prison. According to Burnham, no death certificate was issued for Carlisle, and his grave remains unmarked.
Most of the acts of violence related in By Hands Now Known were committed by law enforcement officials or by persons, such as bus drivers, performing public functions. This is significant because beginning in the late nineteenth century the Supreme Court embraced the legal concept of "state action," according to which the federal government's ability to prosecute violations of Blacks' constitutional rights was limited to crimes committed by public officials, not by private individuals. Police officers and sheriffs were certainly state actors, and the federal government could have taken legal action against them but almost never did. The justices also adopted a rigid understanding of states' rights and federalism, ruling as early as 1873 in the Slaughter-House Cases that despite the Fourteenth Amendment, which barred states from denying to any person the equal protection of the laws, most of the constitutional rights enjoyed by Americans remained under the purview of the states, not the nation.
The Court's limited interpretation of the constitutional changes brought about during Reconstruction continued well into the twentieth century. In a ruling in a 1945 murder case, the Court declared that murder and assault, even when motivated by the desire to violate the victim's constitutional rights, must be prosecuted under state, not federal, laws. The case involved a sheriff, Claude Screws, and two deputies who shot and killed a Black man on a courthouse lawn in Baker County, Georgia. Screws was prosecuted and convicted in federal court, but the Supreme Court overturned the verdict. Even though Georgia authorities refused to take action against the killers, the hands of the federal government were tied.
For good measure, three justices—Owen Roberts, Felix Frankfurter, and Robert Jackson—reflecting the prevailing historical orthodoxy, declared in a separate opinion that Reconstruction legislation authorizing federal protection of Blacks' rights was motivated by a "vengeful spirit" on the part of northerners after the Civil War. For members of the Supreme Court to view expanding the rights of Blacks as a form of punishment to whites did not bode well for a broader understanding of the federal government's power to protect Black citizens. Overall, Burnham writes, the federal courts "rendered nearly toothless the Reconstruction-era statutes that specifically targeted racist terror." As for Screws, in 1958 he was elected to the Georgia Senate.
Along with Supreme Court rulings, a combination of other circumstances helps explain why so many persons guilty of heinous crimes walked away scot-free. These include the exclusion of virtually all Black southerners from jury service, the FBI's reluctance to investigate these crimes, and the power of the Jim Crow South in the Democratic Party, which made it impossible to enact federal antilynching legislation.
In addition, Burnham writes, federalism "fortified and insulated local regimes of racial terror." To be sure, federalism can be a double-edged sword. Before the Civil War, southerners employed the doctrine of states' rights as a shield for slavery only to see northern states enact laws to prevent the return to the South of fugitives from bondage. Federalism certainly protected the Jim Crow system from national interference. Today, however, now that the Supreme Court has overturned protection of reproductive rights via the US Constitution, legislatures and courts in "blue" states are relying on federalism to uphold a woman's right to terminate a pregnancy.
Indeed, in a surprising twist, Burnham begins By Hands Now Known with a chapter about northern governors who refused requests from their southern counterparts for the extradition of Blacks who managed to escape the clutches of the southern legal system. These cases underscore the importance of the fact that while Jim Crow could not have existed without national complicity, it was a regional system. The Great Migration from the South to the North during and after World War I created large new communities where fugitives could find refuge and where Blacks, unlike in the South, enjoyed the right to vote. Despite the enactment in 1934 of the Fugitive Felon Act, which Burnham calls a "latter-day Fugitive Slave Act," northern governors like Frank Murphy of Michigan could not ignore the demands of Black voters, and battles over extradition kept the southern legal system in the national spotlight. Scores of such cases, Burnham writes, required northern authorities to make a judgment about southern justice. In many instances they concluded that the fugitives would be lynched if extradited to the South.
The rule of law—a legal system based on principles that apply equally to all persons (including the police)—is a hallmark of civilized societies. A perversion of the rule of law in the Jim Crow South—the conviction of an innocent Black man charged with raping a white woman—is the centerpiece of Harper Lee's To Kill a Mockingbird (which a 2021 survey of 200,000 readers of The New York Times named the best book published in the last 125 years). Lee's hero is the white lawyer Atticus Finch, who understands that racism makes it impossible for southern courts to dispense justice fairly. He associates racial bigotry with the "cruel poverty and ignorance" of the accusers, a rural white family. Lee's implication is that change will come to the South through the actions of well-meaning better-off whites like Finch. There is no room in this narrative for Black activism.
In reality, as Burnham amply demonstrates, respectable whites—public officials; newspaper reporters who deemed the murder of a Black person, as she puts it, "too trivial to report"; and businessmen who profited from the availability of cheap Black labor—all helped to maintain the Jim Crow system. Judges, from local courts all the way to the Supreme Court, violated their oaths to uphold the Constitution, while members of Congress refused to enact laws against lynching. The incidents detailed in By Hands Now Known were not the work of prejudiced poor whites. Nor were they random occurrences or the actions of a few bad apples—entire communities were to blame for the perversion of the criminal justice system. In 1947, just as the United States was embarking on the cold war, J. Edgar Hoover told President Truman's Committee on Civil Rights that an "iron curtain" in the American South made it impossible for the FBI to conduct adequate investigations, since white residents at all levels of society refused to provide information (not that Hoover had any real interest in investigating these crimes).
As Burnham makes clear, the events she chronicles must be understood as expressions of "systemic" racism (a concept whose mention can today cost a teacher in some states his or her job for discussing "divisive topics" in the classroom). Not long ago, admirers of Lee's novel were shocked when Go Set a Watchman, which she had written before Mockingbird, was finally published. It depicted Finch not as a heroic man of principle but as an outspoken racist who could not accept the idea of Blacks challenging Jim Crow. Of the two portrayals of the character, this is more realistic. But it is the Finch of To Kill a Mockingbird who remains in the minds of readers and of admirers of the celebrated film version starring Gregory Peck.
The idea of the white savior, it seems, has an enduring appeal. Yet one of Burnham's central arguments is that resistance to the systemic miscarriage of justice in the South arose primarily from Black communities. Memory itself—the efforts of relatives, friends, and neighbors of the victims to keep alive their names and stories—can be a form of resistance. Protests against misconduct by police, bus companies, and others, she shows, long preceded the 1960s civil rights revolution. She devotes special attention to the legal work of the NAACP. That organization, often dismissed as hopelessly conservative, emerges here as courageous activists risking their lives to seek justice for Black victims of Jim Crow violence. What Hoover called the NAACP's "aggressiveness" alarmed him. Some local NAACP leaders paid with their lives. Elbert Williams, for example, was murdered in Tennessee in 1940 after the NAACP announced a plan to encourage Blacks to vote in that year's election. (The FBI investigated, but its inquiry focused on determining whether local Blacks were influenced by communism, not on identifying Williams's assailants.)
In her final pages, Burnham raises the fraught question of reparations for the families of victims of Jim Crow savagery. "An apology must be made," she writes, but more than an apology is needed. She calls for a "material remedy" for victims, some of them still living, forced to flee the South lest they too become targets, often leaving behind farms, shops, and other hard-won economic assets.
It is unclear how best to describe the United States in the Jim Crow era, when a quasi-fascist polity was embedded within a putative democracy. Some scholars, drawing on the example of South Africa in the time of apartheid, use the term "Herrenvolk democracy" to describe a situation in which parts of the population enjoy full democratic rights while others are entirely excluded. The political philosopher Jean L. Cohen calls these systems "hybrid regimes," while pointing out that the undemocratic enclave can exercise a significant degree of power at the national level and can accustom the larger system to authoritarian practices.