Scholars have documented that, in the early twentieth century, southern courts disproportionately imposed the death penalty on African-American defendants.  Yet Jeffrey S. Adler, Professor of History at University of Florida, examined death penalty data for New Orleans between 1920 and 1945, and found that courts there actually sentenced white killers to death at a higher rate than African-American killers. Is this an aberration? Is conventional wisdom wrong? In the September 2019 issue of the American Journal of Legal History, Professor Adler offers an explanation.

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“Adjusting the Noose,” c. 1906. Library of Congress Prints and Photographs Division, Item #2012646359.

In the 1920s, New Orleans prosecutors pursued accused white murderers more aggressively than black ones, dismissing cases less frequently and charging manslaughter rather than murder less often. The African-Americans mostly killed other African-Americans, and white officials expended few resources to punish them.

Moreover, whites believed that blacks could not plan sufficiently to act with the “malice aforethought” necessary for conviction of capital murder.  And since whites thought that African-Americans could not control their passions, the imposition of the death penalty would not deter them from crime. As a result, the state executed a smaller percentage of black homicide defendants than white ones.

The number of homicides by African-Americans skyrocketed in the mid-1920’s, and both law enforcement officials and newspaper editors called for greater use of capital punishment.  But New Orleans judges and juries did not take this advice, at least not yet.

When homicides committed during robberies began to spike in 1929, however, things changed dramatically. The surge was relatively short and relatively modest, but these crimes had novel characteristics that unsettled white New Orleans.

For one thing, the victims changed: robbers, both white and black, killed whites overwhelmingly. And these were respectable types—shopkeepers and bank tellers.  Moreover, the robbers behaved differently—bolder and more vicious.  The gangsters like John Dillinger whom the FBI publicized reinforced this impression.

The robbery panic quieted misgivings about capital punishment: in 1930, the proportion of homicide cases resulting in the death penalty increased by a factor of five. And this new attitude prevailed in many kinds of homicides, not just robbery-murder.

After the panic subsided, New Orleans juries rarely sentenced white killers to death.  But death sentences for African-American defendants increased, spurred by new concerns about the stability of the racial order.  The United States Supreme Court had declared the city’s residential segregation ordinance unconstitutional in 1927, and both activist lawsuits and political agitation threatened to expand black voting. To deal with these trends, white officials seized upon capital punishment as a way to maintain the racial status quo and to appease worried voters.

The surge in death sentences affected more African-Americans than those sentenced to death row.  Prosecutors increasingly used the threat of capital punishment to obtain guilty pleas in exchange for non-capital charges.

Thus, the details of capital punishment in New Orleans may not conform to conventional notions about the workings of southern justice.  But unfortunately, the story merely emphasizes the burden the criminal justice system placed on black defendants.

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Article: Jeffrey S. Adler, “‘To Stay the Murderer’s Hand and the Rapist’s Passions, and for the Safety and Security of Civil Society:’ The Emergence of Racial Disparities in Capital Punishment in Jim Crow New Orleans,” American Journal of Legal History, 59:3 (September 2019), pp. 297-323.

Links: States and Capital Punishment (NCSL); Jeffrey S. Adler

Further Reading: Jeffrey S. Adler, Murder in New Orleans: The Creation of Jim Crow Policing. (University of Chicago Press 2019); David M. Oshinsky, Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America. (University Press of Kansas 2010.)