LEGAL LYNCHING
The Death Penalty and America's Future

By Rev. Jesse L. Jackson, Sr.

THE NEW PRESS

Copyright © 2001 Rev. Jesse L. Jackson, Sr.. All rights reserved.
ISBN: 1-56584-685-0



Chapter One


The Death Penalty andThe American Past


It is August 6, 1890. Ninteenth-century America is waking up to thepower of twentieth-century technology, to the first lightbulbs,phonographs, telephones, automobiles.

    In the basement of Auburn State Penitentiary in upstate NewYork, a man named William Kemmler is bound to a chair withheavy leather straps. His journey there has attracted internationalattention, and this day more than 100 reporters are on hand. Anilliterate who confessed to the ax-murder killing of his lover in analcohol-sodden rage, Kemmler is the guinea pig in an unprecedentedexperiment: the first attempt to execute a criminal withelectricity. The medieval gallows would give way to a punishmentboth more modern and, its proponents argued, more humane.

    Among the people most anxiously awaiting the results oftoday's experiment are the industrialist Thomas Edison and hisgreat rival George Westinghouse. Edison and Westinghouse havedeveloped different electric-power systems, and Edison has beenpromoting his as safer for consumers. Since the Auburn electricchair's generator is manufactured by Westinghouse, Edison viewsKemmler's execution as a PR bonanza, and even suggests that capitalpunishment be renamed "Westinghousing." George Westinghouse,for his part, is so worried about the bad press that he haspoured $100,000 into Kemmler's unsuccessful legal appeals, allthe way up to the U.S. Supreme Court.

    At a sign from Auburn's warden, a guard pulls a switch. Sixteenhundred volts of current run through Kemmler's body. His bodystill, the witnesses in Auburn's basement conclude Kemmler isdead—until a doctor feels a faint pulse. The condemned man beginsto groan and foam at the mouth, driving sickened witnessesfrom the room. Quickly, the warden orders the switch pulledagain; the next jolt burns Kemmler's scalp and this time, the doctorfinds, he is definitively dead.

    Edison, awaiting word at his home, tells reporters, "I shouldhave been excited myself" to be at Auburn. But an electricianlisted as one of the official witnesses that day has a different view.Charles Huntley, manager of the Brush Electric Light Company inBuffalo, tells reporters that the new "electric chair" is nothingshort of legal torture. "It was one of the most horrifying sights Ihave ever witnessed or expect to witness," he says. "There is nomoney that would tempt me to go through the business again."


Capital punishment, at times, seems as much an unchanging fixtureof the American landscape as the sheer bluffs of MonumentValley in Utah, where so many Westerns were filmed—completewith the familiar hanging scenes. Politicians make it seem as if thedeath penalty is part of our national heritage, as if opposition tocapital punishment is nothing but an invention of 1960s liberals."The Constitution ... authorizes the death penalty," writes pro-executionlegal scholar Ernst Van Den Haag, adding that theframers of the Constitution "did not think that taking the life of amurderer is inconsistent with `the sanctity of life.'" Such "originalintent" arguments have succeeded in many people's minds inwrapping the death penalty in the American flag.

    But as the story of William Kemmler suggests, the reality is morecomplicated. Kemmler's story reminds us that the death penaltyhas evolved for reasons that often have little to do with law andorder. Edison's gloating and electrician Huntley's revulsion at thedawn of the modern execution era mark the two poles of debateover capital punishment. This debate has deeply marked Americanhistory; pushing and pulling over capital punishment haveplayed a crucial role in shaping the law as we know it today, and oppositionto capital punishment is as much a part of Americantradition as the Fourth of July. So it is time to retell the story:Any discussion of the death penalty in today's America must beginwith an accurate framing of the death penalty in the Americanpast.

    Capital punishment arrived on North American shores with thevery first British colonists. It was scant weeks after the establishmentof Jamestown in 1608 that colonists carried out their firsthanging: an accused mutineer named George Kendall. British lawin that period routinely handed out death sentences even forminor crimes like robbery and burglary. On paper, the coloniesfollowed suit: "If any person commit Burglary, or rob any person,he shall be branded on the right hand with the Letter B—for 2ndoffence, shall be branded on his left hand, and whipt, and for thethird offence he shall be put to death," read the 1656 Laws of theNew Haven Colony. In Puritan New England, the colonists addedsome capital offenses of their own to their so-called Blue Laws,prescribing the death penalty for adultery, homosexuality, and forpersistently "stubborn" children.

    By the time British colonists settled in North America, capitalpunishment had for centuries been an escalating public spectaclein Europe. Early Christian theologians debated the legitimacy ofthe death penalty, and some feudal rulers such as William the Conqueroropposed its use. But by medieval times, executions—bothby church and crown—became more indiscriminate, and tortureoften accompanied death. The number of capital crimes increased,too; in England, for example, a death writ condemningheretics to burn or drown stayed on the books from 1382 to 1677.French nobles at least had the comfort of knowing they would behonorably beheaded with an ax rather than being hanged ordrawn and quartered—often how members of the lower classeswould meet their demise. Women were usually strangled to deathand burned to ashes out of a sense of "decency" to their gender. (Itwould have been improper to make a public spectacle of awoman's bare limbs, whether attached to her body or otherwise.)Henry VIII made boiling to death a legal form of execution, andmore than 72,000 of his subjects were killed by this and othermeans. By the seventeenth century, no less than 200,000 womenhad been executed as witches throughout Europe. Bodies wereleft on display for weeks and sometimes months.

    Despite this bloody history and the severity of the Americancolonies' laws, in practice, as legal historian Lawrence Silbermanputs it, "the colonies used the death penalty pretty sparingly."True, there were notorious executions like those following theSalem witchcraft trials in the 1690s. But for much of colonialAmerica, many capital laws were honored only in the breach. Insome cases, the colonists outright refused to invoke capital punishment.By the 1650s, juries were declining to convict adulterersbecause citizens found the death penalty disproportionate: thefirst instances on record of so-called jury nullification, the samecitizen-refusal to convict under unjust laws that in the 1730shelped establish the uniquely American institution of free speech,and that today has led to occasional juries refusing convictionsunder disproportionate drug laws. Capital punishment for sodomywas next, its enforcement ending after 1673.

    In fact, despite our image of angry Puritans hanging witches bythe wagonload, the first 40 years of the Massachusetts Bay Colonybrought only 15 executions for all offenses, an average of oneevery two and a half years. In Pennsylvania, executions averagedjust one per year all the way up through the Revolution. What ismore, colonial governors showed a far greater degree of compassionthan most death-penalty states' governors today. In the eighteenthcentury, more than half of New York's condemned werespared, and the governors of Virginia pardoned or commuted thesentence of one-quarter of all offenders facing execution.

    There was one great exception to this generally restrained applicationof the death penalty in colonial America, and it was anexception that echoes today. What made the death penalty mostlikely in the colonies was not the severity of the offense but the skincolor of the offender. African slaves and their descendants werefrom the very first singled out for indiscriminate and large-scaleexecution—both to enforce the discipline of slavery and becauseblacks were considered pagan and resistant to redemption. Between1706 and 1784, the Virginia colony alone sentenced nofewer than 555 slaves to death. By the late eighteenth century inConnecticut, the only men hanged for sexual assault were black,while whites convicted of the same offense routinely had their sentencescommuted. In New York in 1741, some 150 African slavesand 20 whites were accused of plotting an uprising: 30 of the slavesand four whites were executed, with 13 of the slaves burned alive atthe stake as an example to other would-be rebels. This just onegeneration before the American Revolution.


In 1764, a young Italian attorney and economist named Cesar Beccariaalmost single-handedly set off the modern crusade againsttorture and the death penalty by publishing his still-resonant essay"On Crimes and Punishments." "Nothing in the social contract,"he proposed, "gives the state the right to take a human life." Thedeath penalty, Beccaria argued, amounts to "a war of the nationagainst the citizen" that is "neither useful nor necessary." Capitalpunishment, he wrote, "is ineffectual because of the barbarity ofthe example it gives to men."

    By 1767, Beccaria's writings had been translated into Englishand were widely read by British and American intellectuals—includingmany of those who led the American Revolution andwould eventually frame the new Constitution. In 1777, Thomas Jeffersonproposed abolishing capital punishment in Virginia exceptfor cases of murder and treason; in 1785, such a bill was brought beforethe Virginia legislature, where it was defeated by only one vote.A few years later, Tom Paine—who had grown up in the Englishtown of Thetford literally within sight of the local gallows—wouldurge not only the new United States but also revolutionary Franceto "abolish the penalty of death," and the crusading Irish barristerDaniel O'Connell made the same argument in England.

    Shortly after the Revolutionary War ended, Quakers in Pennsylvaniafounded the Philadelphia Society for Alleviating the Miseriesof Public Prisons. One of its leaders, physician BenjaminRush, a signatory of the Declaration of Independence, gave a lectureat the home of Benjamin Franklin in 1787 entitled "AnEnquiry into the Effects of Public Punishments upon Criminalsand upon Society." In that essay and a second treatise publishedin 1792, Rush expanded on Beccaria with the first reasonedargument in America favoring the abolition of the death penalty,which he called an "absurd and unchristian practice." Rush combinedan Enlightenment appeal to reason with Christian religioussentiment: "the obligations of Christianity upon individuals,to promote repentence, to forgive injuries, and to dischargethe duties of universal benevolence, are equally binding uponstates.

    So intense was the debate over capital punishment in Pennsylvaniain the ensuing years that pro-death penalty legislators introduceda new distinction—between first- and second-degreemurder—greatly narrowing the numbers of the condemned, as away of keeping capital punishment on the books. William Bradford,the Pennsylvania (and later U.S.) attorney general, arguedsuccessfully to limit the death penalty to the most severe cases. In1794, he persuaded the Pennsylvania legislature to restrict capitalpunishment even further, to premeditated murder.

    The Philadelphia Society became the center of the criminal-justicereform movement throughout the country. In 1808, theQuakers helped establish the first association dedicated to abolishingthe death penalty. The first decades of the nineteenth centurywere marked by the slow but persistent growth of this abolitionmovement's influence. In 1825, Louisiana nearly passed a criminalcode that would have banned capital punishment outright.

    By the 1830s, the campaign to abolish or restrict capital punishmenthad gained undeniable momentum, even as crowds of30,000 or more would sometimes assemble for hangings. Nearlyevery state had an anti-gallows society. New York's Mayor DanielTompkins took up the cause; by 1832, the New York State Assemblynamed a committee to "inquire into the expediency" of the abolitionof hanging. The committee proposed that the death penaltybe virtually eliminated. Its proposals were narrowly defeated in1834; a year later, the legislature outlawed public hangings, confiningexecutions to prison yards before prescribed witnesses.

    In the 1840s, anti-gallows societies and activists—some religious,some secular—were a bona fide political force in severalstates, pushing not only for an outright end to the death penaltybut also for the further narrowing of capital statutes. Indeed, theuniversal acceptance of degrees of murder today is largely the resultof nineteenth-century compromises between death-penaltyabolitionists and politicians who wanted to retain executions forsome offenses. Lydia Maria Child—a pioneering antislavery journalistand suffragist—campaigned against public executions. Thetowering antislavery editor and orator Frederick Douglass took upthe death-penalty cause, penning an influential pamphlet entitledCapital Punishment Is a Mockery of Justice.

    The first great triumph for death-penalty opponents, in fact,came more than 100 years before the 1960s. In 1847, Michigan'slegislature outright repealed its death penalty for murder. By themid-1850s Rhode Island and Wisconsin had also done away withcapital punishment.

    It was only the Civil War—with its 600,000 dead—that stalledthe abolition campaign. As historian David Brion Davis of YaleUniversity writes, "Men's finer sensibilities, which once had beenrevolted by the execution of a fellow human being, seemed hardenedand blunted."

    But by the late 1800s, the anti-gallows campaign had resumedand gained substantive victories. Kansas, Iowa, and Colorado experimentedwith doing away with the death penalty. State legislaturesvacillated between reason on one hand and the passions oftheir constituents on the other. Reason would persuade them tooutlaw capital punishment; then a heinous crime would drive publicdebate and the death penalty would be reinstated. Through thesame era, some regional differences in death-penalty culturebegan to emerge, with frontier states like Texas and Wyoming prescribingexecution as the penalty for cattle rustling and other offenses.Yet by World War I, 13 states, from Tennessee and Missourito Maine, had fully or virtually eliminated capital punishment—withMaine, Iowa, and Oregon each abolishing capital punishmenttwice in successive waves of reform and reaction. In contrastto the death-penalty reforms of the 1960s, this was not abolition byjudicial decree; it was state legislatures, backed by popular will.


In fact, in both scale and bureaucratic character, capital punishmentas we know it today is entirely a twentieth-century invention—achilly marriage of technology and politics, beginning withKemmler's execution in Auburn. Suddenly, the supposedly mercifulelectric chair was all the rage, and seemed to inspire a newwave of political hunger for execution. By 1920, several of thestates that had repealed the death penalty had restored it, and anunprecedented wave of executions began. Perhaps not so coincidentally,this turn-of-the-century resurgence in the death penaltyroughly coincided with the great wave of lynchings of African-Americansthroughout the South—"unofficial" executions runningparallel to those sanctioned by courts.

    Bureaucratic, technological, media-driven, the Americandeath penalty is as much a twentieth-century artifact as the auto assemblyline or the Zyklon B gas of Auschwitz (a refined version ofthe cyanide tablets first developed for the Nevada gas chamber in1924). Scholars at the University of Alabama have assembled agrimly fascinating database of all known executions in thecolonies and the United States since George Kendall's hanging inJamestown in 1608. It is deeply revealing of the varied pace of capitalpunishment through the years, and during this century in particular.For all the legends of nineteenth-century frontier justice,for instance, it turns out that nationally the number of executionsin the 1920s exceeded by a wide margin those of just a few yearsearlier. In such classic "wild west" states as Wyoming and Utah, executionsfrom 1900 to 1935 were double those of the frontier decadesbetween 1866 and 1899. Executions doubled in Virginia,too. And despite the assumption that the Deep South and Far Westare America's historic execution capitals, in the early decades ofthe twentieth century it was New York, Ohio, and Pennsylvaniathat led the pack, executions virtually quadrupling in each state tolevels unmatched anywhere else in the United States—more than400 executions in each between 1900 and 1935. The national waveof execution unleashed by New York's electric chair and later thegas chamber peaked in 1935, a year that brought 199 executionsnationwide.


The early twentieth century's increasing turn to execution ultimatelyinspired one of the most influential spokespersons for theabolitionist cause, Unitarian-turned-agnostic lawyer Clarence Darrow.Champion of despised people and unpopular causes, Darrowfound both themes coming together in his work as a defense attorneyand as an advocate for the abolition of the death penalty. Hisfinal murder trial, the 1924 defense of Richard Loeb and NathanLeopold, who had confessed to the murder of a young boy namedBobby Franks in Chicago, led to their receiving life imprisonmentrather than death.

    Darrow believed in social determinism: Humans turned tocrime because society made them that way, not because of theirown free will. He argued that the Civil War and World War I eachunleashed a tidal wave of crime: "Do you think that children of ourschools and our Sunday schools could be taught killing and be askindly and tender after it as before?" He believed correctional institutionsshould be modeled along the lines of hospitals andschools rather than traditional jails or prisons. And he rejectedcapital punishment because "it is too horrible a thing for the stateto undertake.... I would hate to live in a state I didn't think wasbetter than a murderer."

    The Leopold and Loeb case seemed to revitalize the flaggingabolitionist movement. In 1925, the League for the Abolition ofCapital Punishment was formed in New York, and in February 1926it launched its national campaign in New York City just 24 hours beforeDarrow addressed Congress on the issue. The efforts of theleague were further spurred by the case of Nicola Sacco and BartolomeoVanzetti, Italian immigrants and anarchists condemnedfor killing two men in a Lynn, Massachusetts, robbery. Some of theleading legal thinkers of the era believed Sacco and Vanzetti innocent—amongthem Felix Frankfurter of Harvard, later a SupremeCourt justice. Their 1927 execution led to the formation of theMassachusetts Council for the Abolition of the Death Penalty.

    Public sentiment continued to seesaw between abolition andretention of the death penalty. Proponents of capital punishmentwere emboldened by the kidnapping and subsequent murder ofthe son of legendary flier (and private anti-Semite) Charles Lindbergh,in New Jersey in 1932. In a case that was shot full of inconsistencies,unprofessional actions by the prosecution and thedefense, and media sensationalism, Bruno Richard Hauptmannwas convicted of the crime and electrocuted in 1936. In responseto the public outrage over the crime, the federal governmentpassed what was popularly known as the Lindbergh Act, whichmade kidnapping a federal crime. The act authorized capital punishmentif the victim was not liberated unharmed.

     Then, in 1948, the case of Caryl Chessman broke onto the public stage.Chessman was accused of kidnapping and sexual assaultin the course of a California robbery. None of the actions of whichhe was accused were by themselves capital crimes, but a zealousprosectuor charged that together they fell under California'sequivalent of the Lindbergh kidnapping-and-bodily-injury law.Chessman, acting as his own lawyer, was found guilty and handedtwo death sentences. In San Quentin, Chessman taught himselfthe law, filed his own appeals over 12 years, and eventually presentedhis case before the U.S. Supreme Court on four differentoccasions. He wrote four books—one of them a best-seller—andtwo films were made about his life. Increasingly, the publiccame to see Chessman as either innocent or disproportionatelysentenced to death. California governor Pat Brown tried invain to convince the California legislature to impose a capital-punishmentmoratorium in order to forestall Chessman's execution.Chessman's story reignited public debate about capitalpunishment and brought the first large religious denominationsinto the fray. From 1956 through the 1980s, a majority of theProtestant and Roman Catholic religious bodies in the UnitedStates and Canada took positions in opposition to capital punishment.

(Continues...)


Excerpted from LEGAL LYNCHING by Rev. Jesse L. Jackson, Sr.. Copyright © 2001 by Rev. Jesse L. Jackson, Sr.. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.