Capital Punishment: A Century of Discontinuous Debate

Article excerpt


A little more than one hundred years ago, in 1909 (the same year as the founding conference for the Journal of Criminal Law and Criminology (1)), the U.S. Supreme Court held its first and thus far only full-blown criminal trial under its original jurisdiction. The defendants were a group of city officials and townspeople from Chattanooga, Tennessee, and the charges were criminal contempt. The charges arose from the lynching of Ed Johnson--a black man accused of raping a white woman--an act of defiance in response to the Supreme Court's assertion of jurisdiction to conduct federal habeas corpus review of his case. Johnson's state court trial began two weeks after the crime and concluded four days later; his lawyers had been allotted only ten days to prepare his defense. Johnson was convicted and sentenced to death by an all-white jury on extremely flimsy evidence (the victim and sole witness to the crime testified, "I will not swear that he is the man") in a hasty proceeding suffused with the threat of mob violence. The Tennessee Supreme Court denied Johnson's appeal, but Justice John Marshall Harlan (famous dissenter in Plessy v. Ferguson (2) thirteen years earlier), after consulting with his brethren, accepted habeas review of the case as the Circuit Justice hearing emergency appeals from

the Sixth Circuit. The day following Justice Harlan's order, a mob removed Johnson from his cell with the tacit permission of jail officials and the county sheriff. The mob brought Johnson to the county bridge that spanned the Tennessee River, where they hanged him and also shot him more than fifty times. One of those involved was a deputy sheriff who fired five shots himself at point-blank range and left a note pinned to Johnson's body that read: "To Justice Harlan. Come get your n--r now." The Supreme Court, in an opinion by Justice Oliver Wendell Holmes, rejected vociferous defense arguments that the Court's assertion of jurisdiction over the case constituted an unlawful intervention in state processes and held instead that the violation of the Court's order, if willful, would constitute criminal contempt. (3) Ultimately, the sheriff, a deputy sheriff, and four leaders of the lynch mob were convicted of contempt at trial and given sentences ranging from sixty to ninety days in prison, though the sheriff was greeted as a hero in Chattanooga upon his early release by a crowd of 10,000 supporters. (4)

No one doubts that death penalty litigation has changed a great deal in the past on hundred years, as this dramatic case illustrates. The authority of the United States Supreme Court and the federal courts more generally to review state capital and criminal convictions is now unquestioned, thanks in no small part to the Chattanooga contempt prosecutions. Moreover, starting in the decades following Johnson's lynching and accelerating during the constitutional criminal procedure revolution of the 1960s, the Supreme Court established a plethora of constitutional guarantees regarding state capital and criminal processes--including the rights to appointed counsel, representative juries, and insulation from the threat of mob violence, among many others. Ironically, Ed Johnson's lawyers raised all three of these claims in their representation of him, but to no avail. Indeed, it is clear that the recognition of these federal rights was driven in large part by trials like Johnson's--hasty, mob-driven capital trials of black defendants in state courts in the South that could be so perfunctory as to earn the sobriquet "legal lynchings." (5) The procedural world of Ed Johnson's trial is unrecognizable today and elicits amazed headshakes when presented to current law students studying the history of criminal procedure and federal habeas corpus.

In contrast to the transformation of the legal process for capital trials, many assume that the nature of public discourse about capital punishment has remained relatively static, with the same old, well-worn arguments about the morality or wisdom of the death penalty recycled through the generations. …