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In late summer of 1923 legal hangings disappeared from local communities throughout Texas. They were replaced, beginning in February 1924, by electrocutions at the state penitentiary in Huntsville. Legislators were moved to pass laws mandating this change by the specter of mob lynchings in the immediately preceding years. In this sense, the link between illegal lynchings and the 1923 capital punishment reform statute is clear and direct. They are rooted in a long, common cultural history. We begin the story during Reconstruction.
Reconstruction, Lynchings, and the Spirit of Lawlessness
The legal stage for the eventual reforms was set by passage of the Thirteenth and Fourteenth Amendments to the Constitution and the Civil Rights Act of 1871. Ratification of the Thirteenth Amendment was announced on December 18, 1865. It provided closure on the central issue of the Civil War by outlawing slavery and involuntary servitude "except as punishment of crime whereof the party shall have been duly convicted." Through this loophole, states throughout the recently disbanded Confederacy drove laws for leasing prisoners to maintain plantations and to rebuild public accommodations, as well as laws to impose capital punishment.
In Texas it took barely two months following ratification of the Thirteenth Amendment to enact legislation that established the Board of Labor, whose members were given the task of forming contracts for the use of prisoners. At the same time, prisons themselves took on a plantation-like character. They were located on large sections of land in East Texas. Inmates were used to raise cotton and corn, to tend livestock, and to maintain such public accommodations as roads and waterworks. Order within prison was maintained much as it had been under the old system of slavery. Physical domination was paramount. Whippings were permitted and dog packs chased down escapees. Prison units were segregated: Black inmates were more likely than their white counterparts to be found in the fields picking cotton. These prison plantations would remain very much in evidence a full century later.
The same can be said for patterns of capital punishment, both legal and illegal. It is important first to note, as others have done, that the line between legal and illegal hangings was often razor-thin. In his now classic study of lynching, published in 1933, Arthur Raper put it this way: "In the efforts to prevent a lynching, or prevent further mob outbreaks after a lynching, peace officers and leading citizens often make promises which virtually preclude impartial court procedure." More recently George Wright, in a study of Kentucky executions between 1870 and 1940, has reiterated the same point.
It is clear that life in Texas in the years immediately following the Civil War, as in other regions of the former Confederacy, was dominated by the political and economic struggle to define the new relationship between the authority of local, state, and federal government officials. Central to this struggle were the recently redefined relationships between persons in the white and black communities. Much of this struggle was permeated by an underlying climate of coercion, both threatened and real. From all available accounts, white aggression and black victimization was the dominant form of violence—violence used by whites to keep blacks in their "place," excluded from political, legal, economic, and social institutions.
Records of violence during this period come from two sources. Concerned with the rising level of lawlessness, the 1868 Texas Constitutional Convention established a special committee to gather relevant statistics. Reflecting the general suspicion of the time, the Freedmen's Bureau organized its own data-gathering effort for the same topic and time period (1865-1868). While both sets of records contain flaws that stem from lack of systematic coverage, the Freedmen's Bureau records appear to be the more complete. Complete or not, both reports are consistent in their conclusion that, as the Texas Constitutional Convention's special committee put it, "the great disparity between the numbers of the two races killed, the one by the other, shows conclusively that the 'war of races' is all on the part of the whites against the blacks." Anecdotal support for this conclusion is abundant.
For example, in mid-1868, in the small community of Millican, about ten miles north of where the Navasota and Brazos rivers join on their way to the Gulf of Mexico, black members of the community protested when the murderer of a politically active black minister and voter registrar went unpunished. In response, members of the newly formed Ku Klux Klan incited a riot that resulted in the killing of at least six prominent members of the black community. In Washington County, just south of Millican, a former slave who was protesting his continued enslavement by his former master was shot for his "boldness" and as a consequence had to have his arm amputated. Further north, in the East Texas County of Rusk, just south of Longview, a relatively large community, a black mother and her baby were killed when she tried to seek new employment opportunities. In McLennan County, near Waco, a freedwoman was shot by her former master because "she gave saucy words to her mistress."
Not all regions of Texas were equally infused with a tradition of plantation life and slavery. Circumstances seemed to be worse in locations where slave plantations had formerly dominated the rhythm and substance of life. In 1836 Texas had become a republic, and with independence from Mexico slavery had been legalized. A large influx of white planters from other slave-holding states began almost immediately. In the main, this influx first concentrated in counties along the Sabine River where it forms the state's eastern boundary, especially in San Augustine, Sabine, Shelby, and Nacogdoches counties. It was not long, however, until slave plantations expanded all along the Sabine, Neches, Trinity, Navasota, and Brazos rivers: Harrison, Rusk, and Smith counties in the northeastern region of the state and Walker, Montgomery, Grimes, and Washington among the more central counties led the way.
By the time the Civil War broke out, Texans were paying taxes on over 200,000 slaves, who constituted almost one-third of the state's population (Map 1.1). Following the end of the war and emancipation, the growth of the recently freed, but still highly dependent, black population slowed dramatically. However, with the exception of some out-migration to urban areas and northern states, as late as 1930 the descendants of Texas slaves maintained residence largely in East Texas in much the same location as their ancestors. It was in these counties that the disproportionate amount of violence and lynchings in the post-Civil War period occurred.
In 1868, General Reynolds, commander of the Fifth Military District, reported that "civil law east of the Trinity River is almost a dead letter" and that "murder of negroes is so common as to render it impossible to keep an accurate account of them." In his attempt to analyze the veracity of this conclusion, Barry Crouch noted that in 1868 there were some 5,000 pending homicide indictments in Texas. Between the end of the war and 1868, there was only one recorded legal execution, that of a Houston freedman.
In addition, the records from the Freedmen's Bureau's investigation of postCivil War violence in Texas that were examined by Crouch reveal that white-against-black violence was far more dominant than any other combination. Rates of victimization constructed from these data reveal that white violence against blacks was recorded at a rate of 601.2 incidents per 100,000 blacks in the population. By contrast, the comparable rate for black violence against white victims was 7.4 incidents per 100,000 whites. While these figures offer a clearly imperfect view of the level of violence that occurred during this time, in all likelihood they reflect the basic pattern.
It is further established in Cantrell's analysis that the incidence of violence during this time rose dramatically when freedmen won the right to vote and began to register, join Union Leagues, and vote for Radical delegates to the constitutional convention. Thereafter, violence became a not so subtle tool to keep blacks in their traditional political, social, and economic position. This practice of exclusion became the cultural bridge between lynching and the South's near monopoly on the practice of capital punishment.
Lynchings in Texas: 1888-1918
The tragic consequences of exclusion continued with a vengeance following Reconstruction and soon became intertwined with the sectional struggle over federalism and states rights. In 1888 Senator Richard Coke found himself before his U.S. Senate colleagues explaining the particularly egregious lynching of Joseph Hoffman in Washington County, Texas. Denying a race problem, and asserting instead that the incident resulted from human nature "under excitement," Coke replied to his critics bluntly:
It is reserved for the South to have to stand face to face with the black man and solve the problem of joint government and joint residence, and we are solving it. If you will let us alone, we will solve it.
The solution, however, was slow in coming. This pace is documented in several related sources. The best figures, albeit incomplete, come from the Tuskeegee Institute and from the Chicago Tribune's efforts to document lynching incidents beginning around 1882. This information was later compiled, expanded, and analyzed in Thirty Years of Lynchings in the United States, 1889-1918, a document published in 1919 by the National Association for the Advancement of Colored People (NAACP) as part of their antilynching campaign.
By the time the Chicago Tribune began chronicling lynchings in the early 1880s, hangings and vigilante justice were a well-established tradition on the frontier, including the frontier in Texas. 15 Lynchings, as one form of vigilante justice, were thought by many on the western frontier to be a guardian of the otherwise precarious social order. In practice they were visited disproportionately upon groups marginalized by the dominant community—African-Americans, Mexican-Americans, Asians, Native Americans, and Southern European ethnic minorities. Most particularly in the Reconstruction South lynchings increasingly became one tool (along with coercive labor contracts, various crop lien laws, and tenant-farming practices) in the continuing struggle between black members of the community who had obtained or were striving for a better position and whites who saw their status threatened.
According to Thirty Years of Lynching, during the period 1889-1918, Texas ranked third in terms of the number of lynchings (335), behind Georgia and Mississippi. Seventy-eight percent of the individuals lynched in Texas had their familial roots in Africa, a figure somewhat below the percentages in other former states of the Confederacy—for example, 97 percent, 94 percent, 93 percent, and 90 percent in South Carolina, Mississippi, Georgia, and Florida, respectively. When these lynchings are separated according to the county of occurrence, the 335 reported lynchings in Texas during this time are concentrated in geographical locations such as Harrison, Upshur, Rusk, McLennan, Limestone, Freestone, Waller, Grimes, and Brazos counties, where the tradition of plantation slavery was the strongest and the proportion of African-American citizens was the greatest. (The Southern Commission on the Study of Lynching would later report that between 1900 and 1929 lynchings in Texas counties with a black majority population occurred at a rate of 3.79 per 10,000 blacks, compared with a rate of 1.94 per 10,000 blacks in counties with less than one-quarter black population [see Map 1.2]).
Data from Thirty Years of Lynchings reveal that in the first decade of this period (1889-1898) well over 95 percent of the recorded lynchings (in some cases race was not recorded) were of blacks. The incidents were largely concentrated in the northeastern triangle of the state (bounded roughly by Paris and Longview in the north, through Nacogdoches, and continuing along the Neches River to Beaumont and Port Arthur), as well as within a fifteen-mile corridor along the "bottoms" of the Brazos River running south from Waco. There was not only a geographic but an episodic concentration in that a number of lynchings would occur in the space of a few months and then there would be a lull. For example, 1897 was particularly brutal, with four multiple lynchings between April 27 and May 18; the following twelve months were relatively free of lynchings.
In the second decade of this thirty-year period, between 1898 and 1909, the basic episodic and location patterns continued. There was a general "diffusion" of incidents along the Trinity River as well as in the corridor between Waco and Longview through Athens and Tyler. The link between this violence and political and economic social control was repeatedly demonstrated.
In 1900, in Grimes County, a political struggle between local factions resulted in the assassination of two black leaders, and the eventual exodus of many local citizens. Five blacks were lynched on October 3, 1901, in Harrison County in a quarrel over "profit sharing." In 1907 there was an outbreak of four lynchings in two months in Montgomery County, near Conroe, just south of Huntsville. The year 1908 proved to be one of the most violent in Texas in the twentieth century in terms of lynchings, with a total of twenty-one. Nine blacks were lynched on a single day in June of that year in Hemphill, close to the Sabine River on the East Texas border. In 1909, some sixty miles north of Hemphill, four more lynchings were carried out in the space of four days, again in Harrison County. Scattered in clusters between these multiple-victim incidents were single-victim lynchings.
In many instances lynchings were motivated by an underlying agenda that had to do with imagined insults or lack of respect for existing conventions. Frequently the focus was relationships between black males and white females, or what would eventually come to be called a "peculiar form of chivalry." It mattered little that the assertions were removed from the facts in any particular case. What mattered was dominance and control. A 1905 editorial in the northeastern Texas newspaper, the Times Clarion (Longview), is illustrative.
Almost every day some negro brute assaults a white woman in this state, and often one to a half-dozen murders are committed in an effort to hide the crime.... If rape and murder by brutish negroes are to become common, the negro must expect extermination.
Such gross exaggerations were obviously designed to whip up emotion, rather than rational discourse. Such emotions were, of course, not restricted to Texas. Again evidence provided by the NAACP's 1919 report demonstrates that nationwide during these years some 140 African-Americans, compared with six whites, were victimized by lynching without being charged with a specific crime. Instead published accounts in these cases reported accusations of "testifying against whites," "suing whites," "wrong man lynched." In addition approximately 760 lynchings of African-Americans were precipitated for unspecified crimes against the person or property, not including murder or rape.
Responding in large measure to the social, political, educational, and economic injustices illustrated by this brutal pattern of selective repression—which were evident as well in the less brutal but more pervasive arenas of travel, employment, and education—twenty-nine African-American professionals and intellectuals met in Niagara Falls in the same year that the Longview Times Clarion editorial was published. Led by William Edward Burghardt Du Bois, they adopted at their second meeting (1906), a resolution that read in part:
We shall not be satisfied with less than our full manhood rights.... We claim for ourselves every right that belongs to a free-born American—political, civil, and social—and until we get these rights, we shall never cease to protest and assail the ears of America with the story of its shameful deeds toward us.
Some of the persons associated with what came to be called the Niagara Movement, further energized by publicity surrounding continued lynchings during this period and a race riot in Springfield, Illinois in 1908, joined forces with others to initiate what became the National Association for the Advancement of Colored People.
"The Call" for a Lincoln Emancipation Conference, in celebration of the centennial of the birth of the man who presided over the Civil War, brought these people together with this lament:
If Mr. Lincoln could revisit this country he would be disheartened by the nation's failure.... He would see the black men and women, for whose freedom a hundred thousand of soldiers gave their lives, set apart in trains ... in railway stations and in places of entertainment, while State after State declines to do its elementary duty in preparing the Negro through education for the best exercise of citizenship.... Added to this, the spread of lawless attacks upon the Negro ... even in the Springfield made famous by Lincoln—often accompanied by revolting brutalities, sparing neither sex, nor age nor youth, could not but shock the author of the sentiment that "government of the people, by the people, for the people shall not perish from the earth. "
Back in Texas, in the final decade of the thirty years of lynchings, the basic distribution of race-linked vigilante justice continued. Two months after the NAACP's founding a race riot broke out in Palestine, Texas, claiming the lives of eighteen blacks. Some five years later, in 1916, a particularly egregious lynching took place in Waco, dubbed the "Waco Horror" in light of the reported fact that a seventeen-year-old black boy, accused of killing a local white woman, was removed from the jail, dragged through town, mutilated, hanged, and eventually burned.
Elizabeth Freeman, an active member of the Women's Suffrage Movement, was engaged by the newly founded NAACP to conduct an investigation. Her report appeared in a special July supplement in the Crisis, a publication of the NAACP, edited by W. E. B. DuBois. As part of a campaign to publicize the incident, copies of Freeman's article on the Waco Horror were distributed to all members of the U.S. Congress, 750 newspapers across the country, and 42,000 Crisis subscribers. As Joel E. Spingarn, chairman of the NAACP Board of Directors, put it, "The publicity we gave Waco has roused a fighting spirit we must not let die. "
By the end of 1918, lynchings had been declining for a number of years and antilynching reform efforts, spearheaded by the NAACP, were beginning to see results. While lynchings continued to be a serious problem, statistics on the number of prevented lynchings also began to appear, signaling the efforts of local citizens who largely through local church groups were attempting to turn the tide.
At this same time, soldiers began returning from the battles of World War I. Black veterans who had fought for freedom and had come to know the trenches, fields, towns, cities, and regions of France returned home to many of the same prejudices and threats they had left. It was a situation made for renewed conflict; an article titled "Returning Soldiers," written by W. E. B. DuBois from the point of view of the black veteran, in the May 1919 issue of the Crisis, said it loud and clear:
This is the country to which we Soldiers of Democracy return. This is the fatherland for which we fought! ...
It was right for us to fight ... Under similar circumstances, we would fight again. But by the God of Heaven, we are cowards and jackasses if now that the war is over, we do not marshal every ounce of our brain and brawn to fight a sterner, longer, more unbending battle against the forces in our land.
We return from fighting.
We return fighting.
Make way for Democracy! We saved it in France, and by the Great Jehovah, we will save it in the United States of America, or know the reason why.
Racial Violence in Texas: 1919- 1922
The general downward trend in racial violence was reversed just seven months after the Treaty of Versailles was signed and one month after the above Crisis article appeared. The most violent episode in Texas occurred in the northeastern community of Longview. It began on June 16, 1919, in the small town of Kilgore, just outside Longview, with the killing of a black dentist from Illinois for associating with a prominent white woman. While both the dentist and the woman had reportedly graduated from the same college, local citizens were incensed by the dentist's lack of respect for his "rightful place." More general socioeconomic tensions mounted when white members of the community began opposing the founding of the Negro Business Men's League in Longview at this same time.
Violence was precipitated on July 5, when local citizens saw copies of a Chicago Defender article that suggested that the dentist and the woman were lovers. Thus aroused, these citizens, including the woman's brothers, threatened to lynch the article's author, a prominent black Longview schoolteacher and community leader. Five days after the Chicago article appeared, its author was severely beaten and threatened with lynching unless he left town.
A crowd of white men formed to carry out the threat. A group of black citizens responded in defense. Shooting ensued, with several injuries to members of the white crowd. A larger white crowd, estimated to be about one thousand strong, gathered in the town square, and began burning houses and businesses. Governor William P. Hobby declared martial law and sent some three hundred National Guardsmen and several Texas Rangers to Longview to enforce the peace. By July 12 quiet was restored. One week later rioting broke out in Washington, D.C., and in Chicago. What would eventually be referred to as the "Red Summer of 1919" was under way. Racial violence would occur in Chicago, Washington, D.C., Knoxville, Philadelphia, and Indianapolis and would finally climax in October in Phillips County, Arkansas.
In the same summer in Austin officers of the NAACP, after issuing a particularly strong plea for racial equality at their June 1919 conference in Cleveland, were summoned to court to show why thirty-one branch offices of the NAACP in Texas should not be closed. The NAACP responded in late August, by sending John R. Shillady from New York, who among other things was a prominent member of the organization's effort to get an antilynching bill through the U.S. Congress.
The previous year, shortly after assuming the duties of executive secretary of the NAACP, Shillady had written a particularly strong letter of protest to Governor Hobby, condemning the killing of six members of a single family in Walker County, reminding the governor that some 157,000 Negroes were fighting in France for freedom, and appealing to the governor's patriotism to stop such violence. Governor Hobby, reflecting the delicate balance, in public sentiment in 1919 Texas, between "states' rights" politics and revulsion at this and other recent incidents of violence aimed against blacks, reportedly told the NAACP and Shillady "to go to hell," while simultaneously asking the Texas legislature for stricter measures designed to reduce the occurrence of lynchings.
Whatever the governor's response to lynchings and the protest correspondence from the NAACP, Shillady did not receive a warm welcome when he arrived in Austin to address the charges being leveled at NAACP organizing activities in Texas. While walking back to his hotel in downtown Austin after making his case for the NAACP before the court, Shillady was accosted and beaten by a group of men, including a local judge and sheriff. In an interview many years later, the assaulting judge recalled, "[On] my forty-first birthday, Ben Pierce, Charlie Hamby and I, met John R. Shillady ... on the corner of Brazos and 6th Street. He was apparently advocating social equality of the Negroes and Whites. We gave him a pretty good thrashing." This thrashing left Shillady a "shell-shocked soldier." Returning to New York, he resigned his leadership role in the NAACP within a year. It was later charged that these injuries led to complications that eventually caused Shillady's death.
While the Red Summer of 1919 was clearly a racially violent period in the history of Texas and the United States, there were also countersigns that the boundaries of "place" were becoming more inclusive. On June 28, 1919, Texas ratified the Nineteenth Amendment to the U.S. Constitution guaranteeing women's suffrage. A concerted campaign against lynching brought together such organizations as the Texas League of Women's Voters, the Texas Interracial Commission, branches of the missionary societies of the Methodist Episcopal Church, the Young Women's Christian Association, and eventually the Association of Southern Women for the Prevention of Lynching, headed by a Jessie Daniel Ames, who was born just twenty miles from Longview.
Reaching a more inclusive definition of the human community became the centerpiece for this loose-knit coalition of reform-minded organizations. While lynching remained the most dramatic manifestation of injustice, leaders were tenacious in their insistence that lynchings would cease only when the descendants of slaves were given an equitable place in the, educational, economic, and political institutions of society. This insistence notwithstanding, success was slow in coming, signaled most vividly by the halting progress of L. C. Dyer's antilynching bill through the U.S. Congress.
As information on the pattern of lynchings accumulated, however, it became evident that most incidents occurred when local citizens worked themselves into a kind of frenzy after a black male was accused of either murder or rape of a white person. Unwilling to wait for the law to run its course, citizens opted for the more expeditious procedure of lynching. This tendency was tragically illustrated on May 6, 1922, when three blacks were "burned at the stake" in communities about seventy miles east of Waco in Freestone County for their alleged participation in the slaying of a young orphan girl the day before. Black members of the community threatened revenge for the brutal burnings. Governor Neff sent Texas Rangers to ensure the peace. Two days later another black man was lynched. Natural calamity intensified tensions when heavy rains caused record flooding and heavy losses along the East Texas rivers. Within two more weeks a total of nine blacks had lost their lives to lynch mobs.
Legal Hangings in Texas
We do not mean to suggest that illegal lynchings were the sole factor that led Texas lawmakers to enact the reformed electrocution statute in 1923. Illegal lynchings and the social movement aimed at their elimination were important, but legal local hangings by the 1920s were a long-established part of the state's landscape. Indeed, one of the most enduring stereotypes of Texas surrounds the public hanging of cattle rustlers on the range or in dusty frontier hamlets.
Prior to 1923, convicted capital offenders in Texas were executed in the county of conviction, under the supervision of the local sheriff. These hangings were by design a public show, "carefully arranged beforehand and attended not only by the rabble, but by persons of rank and fashion, of intelligence and sensibility." Capital crimes in the pre-1923 era at one time or another included treason, piracy, murder, kidnapping slaves, selling free persons as slaves, rape, robbery, burglary, counterfeiting, and arson.
The best set of data for legal hangings in the United States during this time has been compiled by Watt Espy. He has collected (and continues to collect) information on 14,634 executions in this country since 1608, of which 394 took place in Texas between 1819 and 1923. With the "Espy files" we examined these early Texas executions.
Murder and felony murders constitute the large majority of cases. Of the 394 offenders, 390 were hung and 4 were reportedly shot, all in the county of conviction. Nearly all were men (391). The three women were hung for murder. The ages of the condemned ranged from fifteen to eighty. The primary types of occupation of those executed were farm labor of one sort or another, though in some instances the occupation was listed more specifically as bandit, bandit leader, buffalo hunter, slave, cowboy, or rug peddler.
The race and ethnic breakdown of those executed was 60.5 percent African-American, 26.5 percent Anglo, .5 percent Native American, and 12.5 percent Latino. The records reveal that eight slaves were legally executed. Most of the executions of African-Americans (some 60 percent) were carried out during 1867-1899, the most lethal decade being the 1890s, when sixty-five African Americans were hung according to then operable laws. As noted earlier, however, the line between legal hangings and illegal lynchings was often very thin. Both often appeared to be administered as much to maintain the castelike system of domination as to even the scales of justice. Nevertheless, it was the outbreak of brutal lynchings in central Texas in May of 1922 that eventually precipitated reform of the then operating statute.
The Road to the Electric Chair
Appalled by the level and sheer brutality of illegal lynchings in the 1920s, J. W. Thomas, from the small community of Rogers (not far from where the brutal burnings had taken place and a short distance from Waco), ran for the state senate on the platform that hangings should be removed from the emotional atmosphere of local communities to the more remote prison in Huntsville, where citizens, both black and white, could be brought more securely under the equal protection of the law. At the same time, Thomas advocated a shift from the rope to the electric chair as a more progressive and humane means of execution. Neither the shift to centralized state-imposed executions nor that to the use of electrocution was unique to Texas at the time; both reflected national trends of the day.
The initiation of centralized state-imposed executions in the United States is generally linked to an 1864 execution in Vermont, but the momentum for removing these events from the emotional fever of local communities began to build during the height of lynchings in the 1890s. Most of the initial reform statutes appeared first in the northeastern, followed by the midwestern and western regions of the nation, and then finally in the South, where Virginia, Kentucky, North and South Carolina, and Arkansas enacted statutes between 1908 and 1913. Florida, Georgia, and Texas followed in 1924. Mississippi, in 1955, and Louisiana, in 1957, were the last.
In New York, on August 6, 1890, William Kemmler became the first person to be executed by electrocution. His death followed a decade-long controversy involving such famous personages as Thomas A. Edison and George Westinghouse. Throughout the 1880s, a controversy swirled around the types of current (alternating or direct current) to be employed in homes, businesses, and public areas. Edison favored DC, while his opponent and rival Westinghouse advocated AC. Edison's DC current was winning the "marketing war" because it was cheaper to install. Westinghouse countered by charging that DC current was dangerous to humans. Putting this danger to work for the state, Harold Brown, in the mid-1880s, invented the electric chair, a device to execute criminals more humanely in a "quick and painless" manner.
Joining the debate over the expanding uses for electricity, on January 1, 1889, the New York legislature approved electrocution as the new means to carry out capital punishment. The "chair" replaced the gallows, and Harold Brown was authorized to oversee the execution of Kemmler. Three used generators were purchased to carry out the new statutory provisions. While the new execution technology was being refined, Kemmler was fighting to avoid it. His attorney petitioned the United States Supreme Court to review his case. The Court, however, decided against Kemmler, noting that electrocution did not offend the Eighth Amendment's prohibition of cruel and unusual punishment.
Kemmler's electrocution, much like the later lethal injection innovations, started a trend. Following New York's lead in the North were Ohio in 1897, Massachusetts in 1901, New Jersey in 1907, and Pennsylvania in 1915. Southern lawmakers also became advocates: Kentucky adopted electrocution in 1907, Virginia in 1908, Tennessee in 1909, North Carolina in 1910, South Carolina in 1912, Arkansas in 1913, Texas in 1923, Florida and Georgia in 1924, and Alabama in 1927.
Thus, by the time the freshman senator from Rogers proposed his 1923 reform execution statute (in Senate Bill 160), electrocutions had become an "acceptable" form of capital punishment in the United States. However, not everyone agreed. Two of Thomas's colleagues in the state senate are quoted in the senate journal:
Whereas, The Electrocution Bill passed by the Second Called session of the Thirty-Eighth Legislature is in contravention of all rules of civilized treatment of prisoners by hauling them hundreds of miles over the State subject to the gaze of the public; and
Whereas, those bereaved and near in kin to the unfortunate one will be denied the last few days of association with the unfortunate one—and only the wealthy can accompany the condemned person and thus the poor whose heartstrings are just as tender will be discriminated against, which is contrary to all laws of Democratic institutions; and
Whereas, it will be unfair to the inmates of the State penitentiary to use their confined place as headquarters for executions; and
Whereas, there is a State education institution located where this place of execution is designated.
Now therefore, we recommend that the provisions of this bill be not carried out, and that all humane organizations are requested to use their best efforts to defeat the carrying out of this uncivilized act.
Such opponents, however, were in the minority and Thomas' bill passed in slightly modified form during the Second Called Session of the Thirty-eighth Legislature. The law is reprinted in Appendix A.
Persons would now be electrocuted when convicted of capital offenses involving robbery, rape, and murder. The new law enumerated a variety of provisions, including specification of the timing (after midnight and before sunrise), and a $5,000 appropriation for the construction of the electric chair. A "Death Row" of nine cells and one shower was to be constructed to house and serve capital offenders awaiting executions. The newly fashioned electric chair (soon given the name "Old Sparky") was embedded in the concrete floor of the death chamber and became operable in the Huntsville prison unit on December 1, 1923.
When the electric chair came on line, it marked the end of an era for legal hangings in Texas.
Bexar County's [San Antonio] rope which has hanged two men and which was retired with the installing of the electric chair in the State penitentiary at Huntsville will hereafter be used by the sheriff's department to tow automobiles. The well oiled and pliable piece of Manila hemp was taken from the locker in the sheriff's office Friday, the hangman's noose untied by Deputy Sam James and was tossed into another locker and renamed "tow rope."
The rope was purchased by former Sheriff John W. Tobin for the execution of Clemente Apolinar. After the execution of Apolinar the rope was lent to the sheriff of Brewster County for the hanging of a man. It was returned to Sheriff James Stevens after being used in Brewster County. The rope has been treated with oil, stretched and whipped until it was pliable as fine silk fishing line. The deputies predicted it will last for years as a tow rope.
On January 1, 1924, Captain R. F. Coleman, warden of the Huntsville prison and therefore the legislatively designated executioner, submitted his letter of resignation to be effective January 15, 1924. The first scheduled electrocutions were to take place on January 16, 1924. In an interview with reporters, Coleman gave as his reasons, "It just couldn't be done, boys. A Warden can't be a warden and a killer too. The penitentiary is a place to reform a man, not to kill him."
Walter Monroe Miller, a former sheriff of Johnson County, just south of Fort Worth, assumed duties as the new warden in Huntsville on February 4, 1924. His views on performing executions varied from those of his predecessor. "It's a case of duty to me," Miller told reporters. "I have hanged several men while I was Sheriff and to touch the button or pull the switch on an electric chair means no more to me than pulling the lever of the gallows.... At any rate it's more humane—the chair." Four days later, Miller oversaw the electrocution of five men, all black, shortly after midnight on February 8, 1924. After the brief increase in illegal lynchings between 1919 and 1923, there was a consistent decline in these incidents until they basically disappeared, with sporadic exceptions, in the 1940s.
The rejection of vigilante justice was facilitated by a broader shift in the definition of "place," in this instance as defined by standing before the law. By expanding the protections of rational-legal due process, encouraged by a more centralized system of capital punishment, the exclusionary beliefs and practices aimed at citizens whose roots were African-American became less stark. This shift in the spectrum of beliefs was, to be sure, a matter of shading rather than sharp contrast. The legacy of an overrepresentation of blacks among the executed population would continue for several decades.
As the implications of Thirteenth Amendment's loophole for maintaining what so many had died to eliminate became apparent, the Thirty-ninth U.S. Congress drafted and passed legislation that at the time was referred to as the Reconstruction Amendment, and that when ratified on July 23, 1868, became the Fourteenth Amendment to the U.S. Constitution, ensuring that within the states citizens were more fully protected by the clause ". . . nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
Still, the slaves-of-the-state imagery for the convicted felon remained. By 1871 a Virginia court held in Ruffin v. Commonwealth that
a convicted felon ... as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the state. He is civiliter mortuus; and his estate, if he has any is administered like that of a dead man. (p. 796)
This same year, as the newly established legal battlefield against the remnants of slavery took shape, the U.S. Congress passed further protections for former slaves, this time in Section 1983 of the Civil Rights Act of 1871—a measure designed to curb the lynching and terrorizing activities of the Ku Klux Klan. On this legislative and judicial battlefield politicians and citizens alike shaped the character of criminal justice in the post-Civil War years.
The most obvious historical fact that sets criminal justice in the former Confederate South apart from the rest of the country is the legacy of slavery. We have noted that in Lynchings and What They Mean, the 1931 report published by the Southern Commission on the Study of Lynching, the geographic concentration of illegal lynchings was dramatically documented. However, figures compiled by the NAACP Legal Defense and Educational Fund reveal a similar picture for state-sanctioned executions. As this is being written, no southern state is without a death penalty statute. Of the top fifteen states, ranked in terms of the number of executions carried out between 1930 and 1992, twelve were members of the Confederacy. If we look only at executions in the post-Furman years (1977 onward), as of mid-1992 90 percent of the 167 executions took place under death-sentencing statutes in southern states. Texas led the way with 50, followed by Florida with 29, Louisiana with 20, Georgia with 15, Virginia with 14, and Alabama with 9.
But how might slavery be linked to capital punishment, both legal and illegal? How do we account for the fact that within the United States, illegal lynchings and legal executions have been disproportionately concentrated in the southern tier of states? The source of this southern concentration of both illegal lynchings and state-sanctioned executions is rooted in a cultural readiness to engage in what we would call a logic of exclusion. Across time and location slavery, as a social system, depends on beliefs and practices that place some persons in a category apart, separate from rights and duties otherwise applied. As numerous writers have suggested, and as mountains of empirical data have confirmed, there is a deep moral significance in the idea of one's "place" in the human community. When we go to war, when we advocate abortion, when we legitimize capital punishment, and when we tolerate lynching, we engage in a kind of logic of exclusion whereby the life being terminated is placed outside the security of the "bounded" community. As Justice Brennan wrote in Furman v. Georgia, "the calculated killing of a human being by the State involves by its very nature, a denial of the executed person's humanity."
Normally immutable, the sanctity of life becomes less secure once the boundaries of community membership are crossed. "Place" in this sense is central to the power of our cultural myths. A culture of exclusion, once established, is not easily extinguished. Although the Civil War and the ratification of the Thirteenth Amendment ended slavery, the logic of exclusion as a cultural system of beliefs continued. In this sense, the foundation for statesanctioned capital punishment in the United States can be found in the period of Reconstruction, as can the process of reform.
First and foremost, the progression from illegal lynchings to statesanctioned, centralized electrocutions was driven by what Garrison, Fireman, and Rytina have called encounters with unjust authority. Much of the scourge of lynchings in the Reconstruction South originated in the struggle for legitimate authority between local and federal officials. Legitimacy remained an unsettled issue, an issue often resolved in local fact by the situational dispute-settling mechanism of lynching. The central proposition of local beliefs that allowed this to occur was embedded in the tradition of slavery and the inherent logic of exclusion.
Thus, the central issue for those who would reform existing practices became the definition of "place" in the social, economic, and political life of the community. The core problem for reformers was to convince others that "the unimpeded operation of the authority system would result in an injustice." Lynchings were the most dramatic example of the implied injustice and thus provided a solid ideological basis for early efforts toward more broadly based reform. Thus the obvious and tragic inequities of lynchings became, with deep irony, instrumental in getting the NAACP off the ground.
The NAACP spent a great deal of energy in its formative years concentrating on redefining beliefs and practices in regard to lynchings. The report Thirty Years of Lynchings is the most obvious example; the efforts in support of federal antilynching legislation are another. By publicizing potentially dramatic incidents such as the "Waco Horror" in 1916 and the Longview and Chicago riots in the summer of 1919, NAACP leaders hoped to generate a "sudden, discontinuous change in [their] capacity for collective action." It is just such an incident (the burning of three persons accused of a crime) in 1922 that spurred a local Texas politician to push for and pass capital punishment legislation.
In the summer of 1923, the Texas legislature, following a national trend and touting electricity as a "clean, efficient and humane" means of execution, enacted a law to centralize capital punishment in the state prison in Huntsville. The legislative change was precipitated most directly by a rash of racially motivated hangings in the immediately preceding years. The hope was that this new statute would reduce the emotional tension surrounding local hangings and these public spectacles would soon recede into a dimly remembered past. While remnants of this past would continue to show up in ugly detail, by adopting state-controlled electrocution for more secluded executions, Texas legislators hoped to demonstrate that their state was in greater concord with evolving standards of decency.
While lynchings continued to occur in the immediately ensuing years, they eventually ceased. Leaders of a coalition of social movement organizations generated enough awareness of the injustice to concentrate more fully on the core issues of educational, employment, and voting rights. These efforts, in turn, were eventually buttressed by awakened sensitivities to civil and human rights that were occasioned by World War II and the Nuremberg Trials. Once awakened, the broad-based civil rights movement in the last half of the twentieth century would succeed in fashioning a more inclusive understanding of the human community, an understanding still very much in the process of evolving. But this is a subject for later chapters. First, it is important to survey the patterns of legal executions that emerged from the 1923 capital punishment statute in Texas.