[Most Americans now grasp that violence was essential to the
functioning of slavery, but a new book excavates the lesser known
brutality of everyday Black life in the Jim Crow South.]
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A REGIONAL REIGN OF TERROR  
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Eric Foner
March 15, 2023
The New York Review
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_ Most Americans now grasp that violence was essential to the
functioning of slavery, but a new book excavates the lesser known
brutality of everyday Black life in the Jim Crow South. _

Howard University students protesting outside the Attorney
General’s Conference on Crime held at Memorial Continental Hall,
Washington, D.C., December 13, 1934. The four-day conference failed to
include lynching in its program., Afro American Newspapers/Gado/Getty
Images

 

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.

Reviewed: By Hands Now Known: Jim Crow’s Legal Executioners by
Margaret A. Burnham Norton, 328 pp., $30.00

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.

On the other hand, as the civil rights revolution demonstrated, when a
repressive local system comes into conflict with the interests of the
nation-state, as eventually happened during the cold war, it becomes
vulnerable to a mass challenge from below. None of this, of course, is
how Americans are accustomed to thinking about our constitutional
system—widely seen as an example of enlightened statesmanship, a
model for the rest of the world. _By Hands Now Known_ is one of
those rare books that forces us to consider in new ways the nature of
our politics and society and the enduring legacy of our troubled past.

_ERIC FONER is the DeWitt Clinton Professor Emeritus of History at
Columbia. His books include The Fiery Trial: Abraham Lincoln and
American Slavery, which won the Pulitzer Prize for History,
and Reconstruction: America’s Unfinished Revolution, 1863–1877.
(April 2023)_

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* jim crow
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* slavery
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* U.S. history
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* Racism
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* Violence
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* reparations
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* Politics
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* democracy
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* justice
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