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Excerpted from: 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, 59 American Journal of Legal History 297 (September, 2019) (131 Footnotes) (Full Document)

JeffreySAdlerTo white New Orleanians, Leaval Hubbard personified the threat that African American residents posed to law and order, and his 1932 execution demonstrated the critical role of capital punishment in safeguarding social stability and preserving white supremacy. A twenty-year-old, unemployed African American laborer, Hubbard and his twenty-two-year-old, unemployed African American accomplice, Sanders Watkins, murdered a white shopkeeper during a robbery on March 21, 1932. Even in a city rife with violence, this crime seemed particularly vicious. The bandits believed that holding up Edward Melancon's small grocery store promised "easy money," but when the forty-nine-year-old proprietor resisted, Hubbard shot him in the abdomen, as the merchant's thirteen-year-old son, Lloyd, watched in horror. After his victim crumbled to the floor, Hubbard instructed his accomplice to empty the cash register. Watkins snatched $1.87 from the till and then, as Melancon lay bleeding and writhing in pain, rifled the shopkeeper's pockets, finding another $12.00. With their haul of $13.87, the robbers fled. Melancon teetered at the edge of death for the next two days, before succumbing from hemorrhage and shock.

Hubbard and Watkins belonged to a loosely organized African American bandit gang that had committed two dozen robberies during the previous few months. They targeted small grocery stores and "terrorized" the white, neighborhood shopkeepers and their customers. Early on the evening of the robbery-murder, Watkins had told Hubbard, who had participated in six of the gang's holdups, that he had identified "a good job we could pull off tonight," claiming that the shopkeeper "keeps a roll [of cash] in his pocket." When the bandits arrived at the modest grocery store, however, Hubbard balked, arguing "that man ain't got no money," though Watkins insisted "he has got money." Hubbard finally agreed to pull off the job and moments later fatally shot Melancon.

The crime shocked white New Orleanians and contributed to a panic about African American predatory violence. In part, this was because the robbery gang had now graduated to murder. But Melancon was also an especially sympathetic victim, and the killing both crossed racial lines and seemed especially cold hearted. According to a local newspaper, the Melancon family had been "happy" until the bandits shattered their world. The "little grocery store," the New Orleans States explained, had "provided a comfortable living for his [Melancon's] wife and five children," four of whom were under the age of fourteen. "There was not much in the way of luxuries, but the necessities were there--and the Melancon family was happy." Shortly after Hubbard murdered the shopkeeper, however, creditors seized the store and evicted the family from the small apartment behind the grocery; Melancon's widow, Lucina, became "gravely ill"; eighteen-year-old O'Neil, who worked part-time in a cotton mill and earned a paltry six dollars per week, "became the sole support of the family" of six; and thirteen-year-old Lloyd issued a desperate public plea for a job. "I've just got to do something to help O'Neil take care of the family," the boy beseeched. With an almost voyeuristic gaze, crime-beat reporters chronicled the Melancons' descent into despair, poverty, and illness, documenting the devastating impact of African American crime on a solid, respectable, white family--and on social order more broadly.

New Orleans's criminal justice system reacted swiftly and aggressively to the brutal crime. Within hours of the shooting, the police superintendent assigned the entire night shift of the detective bureau to the case, and the chief of detectives "ordered the wholesale arrest of negro loiterers," hoping that such a sweep might ensnare the killer. Overnight, the dragnet nabbed 170 African American suspects and the number reached 300 by the time Melancon died, though none could be connected to the murder. Detectives focused on suspected thieves and robbers and soon apprehended members of Hubbard's gang, along with an "arsenal" of weapons, including seven shotguns. Detective John Grosch oversaw the high-profile investigation and interrogated the gang members, two of whom identified Watkins as one of Melancon's robbers. Known to suspects as "Third-Degree Grosch" and considered by local defense attorneys the "best third degree artist in the country," the thirty-four-year-old detective routinely and unapologetically employed illegal, coercive interrogation techniques and likely relied on such methods to extract the name of Melancon's assailant. Detectives promptly arrested Watkins and, shortly after Grosch began to "grill" him, the robber confessed to his role in the holdup and fingered Hubbard as the shooter. Four days later, cops captured the killer in Bayou Sara, 120 miles northwest of the city.

Committed to fighting crime and defending white supremacy, District Attorney Eugene Stanley spearheaded the prosecution of Melancon's killers. The thirty-eight-year-old lawyer, a lifelong resident of the city, World War I veteran, and pillar in the local political machine, had been the parish prosecutor for five years and boasted of achieving the highest conviction rate for robbers and the highest death-penalty rate in the history of his office. In Stanley's campaigns for re-election, he vowed both to make criminals "feel the demands of civilized society" and to "protect white supremacy." Within two months of Hubbard's arrest, the robbers were indicted, tried, and convicted of murder. An Orleans Parish jury sentenced Watkins to life imprisonment and Hubbard to death. At noon on November 25, 1932, barely eight months after the holdup, Leaval Hubbard climbed the steps of the scaffold in the parish prison, had a black hood placed over his face, and was "hanged by the neck until dead."

At least briefly, the execution allayed the fears of white New Orleanians, for it demonstrated local law enforcers' commitment to crime control and to race control. The lead detective had employed his signature ferocity to solve the murder and secure confessions, and the district attorney had proved unyielding in ensuring that Edward Melancon's killer paid for the crime with his life. Simply put, the death penalty served its intended purpose: it "protects the white people from the colored killers."

The Melancon case reflected a core mission of Jim Crow criminal justice--race control. Early twentieth-century sociologists unearthed copious evidence of this law enforcement focus. They documented, for example, an enormous racial disparity in capital punishment. In 1930, H. C. Brearley, one of the nation's leading authorities on violent crime, reported that African Americans comprised one-third of the population of North Carolina but three-fourths of those executed for murder. Midcentury scholars corroborated these findings. Focusing on the 1930-57 period, the prominent sociologist Thorsten Sellin calculated that African Americans made up 67.9% of those executed for murder in the South and 73.2% of those put to death in Louisiana, while the sociologist Frank E. Hartung concluded in 1952 that the "death penalty is in this country predominantly imposed on Negroes, the poor and the less educated." Early twentieth-first-century historians have confirmed these patterns. Howard W. Allen and Jerome M. Clubb, for instance, found that African Americans comprised nearly three-fourths of those executed for murder in the early twentieth-century South.

Thus, for nearly a century, scholars have argued that Southern courts disproportionately applied the death penalty against African American defendants and used capital punishment as a mechanism of race control. With the rise of Jim Crow justice, the execution of African American crime suspects, neatly packaged as the rule of law, supplanted--white--popular justice, particularly lynching. According to Southern policy makers, such a shift safeguarded the racial order. At the same time, they insisted, capital punishment discouraged mob violence and the social instability that it unleashed.

But the timing of the emergence of this racial disparity has received less attention. It remains unclear, for example, when and why prosecutors, judges, and jurors embraced capital punishment as an instrument of race control. The often-unstated implication of the scholarly literature is either that Southern law enforcers have disproportionately applied this sanction against African American residents at least since Emancipation or that the modernization of the region spurred the transition from extra-legal, mob justice to legal, state-sanctioned executions as a weapon of race control.

Data from early twentieth-century New Orleans sheds light on the process through which capital punishment became racialized and emerged as a central component of Jim Crow criminal justice. In many ways, the application of the death penalty in the city mirrored regional and national patterns. Though executions commanded enormous attention from the public as well as from contemporary scholars and moral reformers, capital verdicts were--and remain-- rare. One sociologist recently calculated that lightning kills more Americans each year, as it did a century ago. Between 1920 and 1945, 1.4% of New Orleans killers received capital verdicts, compared with 1.4% in 1920s New York City, and 1.6% in 1920s South Carolina. In 1935, when state-sanctioned execution reached its peak level in U.S. history, 1.1% of New Orleans murderers were hanged, whereas 1.7% of killers nationally received the ultimate sanction--184 executions out of 10,587 homicides.

A case-level analysis of capital punishment in New Orleans, however, reveals jarring shifts in the application of the death penalty during the 1920s and 1930s. Unusually detailed police files and court records also uncover the sources of changing trends in the use of capital punishment. Such a local, case-driven study exposes four surprising and counter-intuitive patterns in early twentieth-century death-penalty sentencing.

First, trends in the application of capital punishment bore no connection to patterns of homicide. Surges in lethal violence, for example, did not generate spikes in execution. To the contrary, capital verdicts more often varied inversely with local homicide rates. During the city's most murderous years, when New Orleans endured one of the highest homicide rates in the nation, 1.42% of cases ended with a capital verdict. By contrast, during the least murderous years, when the city no longer ranked among the twenty most violent urban centers, the capital-verdict rate was 1.47%. The gap was modest, though homicide rates and execution rates generally moved in opposite directions, and levels of lethal crime were low and falling in the years with the highest number of executions.

Second, trends in the application of capital punishment in early twentieth-century New Orleans were only loosely related to overall patterns of homicide conviction. Death-penalty verdicts did not mirror larger currents in jury decisions or an overall pivot toward draconian sanctions for lethal violence. The years in which juries returned the highest proportion of convictions in homicide cases did not correspond to the years with the highest percentage of capital verdicts. Just as the application of the death penalty did not correlate with rising homicide, capital punishment was not merely part of a wider embrace of law and order.

Third, and most surprising, Orleans Parish juries sentenced white killers to death at a higher rate than African American killers. Between 1920 and 1945, 1.98% of white killers received capital verdicts, compared with 1.28% of African American homicide assailants. Because African American New Orleanians committed twice as many homicides as white residents, a slight majority of those receiving death sentences, however, were African American. Nonetheless, the chances of a local jury convicting a white killer of capital murder were 64.6% greater.

Fourth, and most important, the analysis of case-level data reveals dramatic changes in death-penalty sentencing between 1920 and 1945, challenging the notion that racial disparities were fixed by the opening decades of the twentieth century. For example, between 1925, when lethal violence in New Orleans reached its high-water mark for the era, and 1945, the city's homicide rate plunged by 59.6%, and the homicide conviction rate dipped by 23.3%. Yet the rate of capital verdicts mushroomed, leaping by 257%. Moreover, a pronounced racial disparity in the application of capital punishment emerged during this period. During the 1920s, Orleans Parish juries were more likely to return capital verdicts against white killers. But by the late 1930s, local law enforcers executed only African American convicted murderers. Fluctuations in the race of the victim exerted little influence on this pattern. Instead, shifts in death-penalty sentencing varied mainly with the race of the killer.

Between 1920 and 1945, prosecutors discovered a new role for capital charges, jurors increasingly meted out capital verdicts only to African American killers, and appellate courts contributed to the transition, overturning death sentences against white New Orleanians while affirming capital verdicts for African American convicted murderers. These significant changes, often masked by aggregate-level analyses of large swaths of time, were bound up with the maturation of Jim Crow criminal justice but also with a brief crime panic that redefined white New Orleanians attitudes toward race and capital punishment and transformed state-sanctioned executions--and the threat of execution--into a bulwark for race control. Thus, a microanalysis of death-penalty sentencing trends helps to explain when and why racial disparities in the application of capital punishment surfaced and became institutionalized.

[. . .]

Jim Crow shaped the application of capital punishment in early twentieth-century New Orleans, though in ironic and often counter-intuitive ways. Trends in execution bore little connection to overall patterns of violent crime in the city. Unrelated to the rate of lethal violence or even the rate of interracial homicide, as long as white New Orleanians felt confident that the city's racial order kept crime contained within racial lines, jurors returned capital verdicts against white defendants at a higher rate than against African American defendants.

During the 1920s, racial stereotypes largely shielded African American killers from capital verdicts, even when their victims were white. Jurors believed that African Americans generally lacked the intellectual capacity to form criminal intent. Unable to act with malice aforethought and controlled by their base passions, African American killers, according to white jurors, were typically unable to commit premeditated crimes and hence were only very rarely charged with, tried for, or convicted of murder. White New Orleanians were content to watch prosecutors, judges, and jurors release, exonerate, and acquit African American homicide suspects. Dismissing African American violence as normative for the group simultaneously tamped down the capital-murder conviction rate for such killers and affirmed assumptions of white supremacy and African American inferiority. From the early 1920s to the mid-1930s, white killers were more than twice as likely to be convicted of capital murder and sent to the gallows as African American killers.

A brief robbery panic during the late 1920s and early 1930s, in combination with mounting white anxiety about the erosion of racial boundaries, transformed ideas about criminal justice and race. Although the panic focused principally on white bank robbers, it erased jurors' doubts about the morality of the death penalty and heightened white fears of predatory violence. African American New Orleanians committed only a small proportion of robbery-homicides during this period, but the crimes of Leaval Hubbard, Doo-Doom Roberts, and others cast long shadows, in large part because African Americans' signature volatility now claimed white, middle-class lives, foreshadowing an anticipated collapse of the racial order. The combination of growing white trepidation about interracial violence and wider calls for more aggressive crime control led white New Orleanians to demand stronger penalties against criminal predators, including the gallows. The expanded use of capital charges quickly evolved into a tool for preserving the racial order, and by the mid-1930s criminal justice officials employed the death penalty exclusively against African American killers.

Although the number of capital verdicts was small, this shift in the application of capital punishment had a seismic impact on New Orleans's criminal justice system. With the enhanced use of the gallows and the electric chair, local prosecutors increasingly relied on threat of capital charges to secure plea agreements from African American homicide suspects, which contributed to a surge in African American incarceration rates during the 1930s and 1940s. Deployed largely as a bulwark for white supremacy, such prosecutorial discretion would accelerate during the second half of the twentieth century, widening racial disparities in criminal justice and helping to usher in the age of mass incarceration.

Professor of History and Criminology and Distinguished Teaching Scholar, University of Florida.

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