POLITICS AND THE LAW

LEGAL CONSIDERATIONS;

While the White House was silent, the Department of Justice briefly considered intervening in the Till case after the acquittal of Roy Bryant and J.W. Milam in the Tallahatchie County murder trial, but a month later announced that it would not do so. According to Attorney General Brownell, the federal government had no jurisdiction over the matter.56 Evaluating this conclusion requires an understanding of a few basic legal principles about the powers of the federal government and the relationship between national and state authority.

Let us begin with what was not at issue in Brownell’s decision to stay out of the Till affair: the Fifth Amendment’s protection against double jeopardy. There was no constitutional barrier to a federal prosecution in the wake of the state trial. It is important to make this point because even the author of an otherwise valuable study of the 1959 lynching of M.C. Parker in Poplarville, Mississippi, got this concept wrong.57 The Supreme Court, in a long line of cases with its roots in several pre-Civil War decisions (one of them, ironically, a fugitive slave case) has employed what it calls the dual-sovereignty doctrine. Under this doctrine, double jeopardy does not apply to successive prosecutions by different sovereigns — the federal government and a state, or two different states — provided that each sovereign has independent authority to act.The crucial question, therefore, was whether the federal government had such authority irrespective of what happened in the Mississippi courts. Under the Constitution, the federal government does not have general police powers. Accordingly, most criminal law in this country is the province of the states. This means that Emmett Till’s murder was a crime under Mississippi law, but the Department of Justice could not have prosecuted his killers for murder. There is a federal kidnapping statute, the so-called Lindbergh Law, but it covers only cases in which the victim is taken across state lines.59 In fact, uncertainty about whether M.C. Parker was taken out of Mississippi alive led the Department of Justice to drop its quest for a kidnapping charge against members of his lynching party.60 If there was uncertainty on that score in the Parker case, it was absolutely clear that Emmett Till’s kidnappers had not taken him across state lines. Because he had been kidnapped and kept only in Mississippi, the United States could not press charges for this offense.

The only alternative federal charge involved conspiracy to violate Emmett Till’s civil rights. A law originally enacted in 1870 made it a crime for “two or more persons” to “conspire to injure, oppress, threaten, or intimidate any person” exercising “any right or privilege secured to him by the Constitution or laws of the United States.”61 This law can best be understood in relation to another one originally enacted four years earlier. That measure makes it a federal crime for any person “under color of any law” to deprive another person of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”62 Observe that the first provision, section 241, forbids conspiracies to violate federal rights, whereas the second, section 242, forbids actual violations of federal rights. In addition, section 241 — the conspiracy statute — can apply to any person, whereas section 242 — the substantive statute — applies only to persons who act “under color of law.” There is a large body of jurisprudence and legal scholarship on the meaning of the latter requirement. For present purposes, it suffices to say that “under color of law” means either a public official (such as a sheriff or police officer) or someone acting in concert with an official. Nobody has ever suggested that any law enforcement personnel were involved in Emmett Till’s killing, either directly or indirectly. For this reason, the only basis for federal prosecution was section 241, the conspiracy statute. At the time, however, the precise meaning and even the constitutionality of this measure were unclear. To see why, we need to examine a series of Supreme Court rulings running from the end of Reconstruction to only four years before the Till affair. The key legal issue in these cases was the scope of the rights secured by the Constitution and laws of the United States. As we shall see, even an administration that was strongly committed to protecting African Americans might have concluded that prosecuting Emmett Till’s killers would face substantial legal hurdles.

The earliest of these rulings, United States v. Cruikshank,63 arose out of the Colfax massacre of April 1873, which has been described as “the bloodiest single act of carnage in all of Reconstruction.”4 Following the disputed 1872 Louisiana gubernatorial election, supporters of the white Democratic candidate stormed the Grant Parish courthouse and slaughtered supporters of the Republican candidate who had been trying to hold them off. Most of the casualties were former slaves; estimates of the number of African American victims run between 60 and 280.65 It took two trials for federal prosecutors to obtain guilty verdicts under the original version of section 241 against three of the ninety-seven persons who had been indicted.66 The Supreme Court threw out the convictions.

The main counts charging the defendants in general terms with violating the victims’ constitutional rights failed to specify precisely which rights had been affected. The gaps in the indictment required that those charges be dismissed.67 Similarly, the counts charging the defendants with interfering with the victims’ right to vote did not specify that the defendants had acted on account of race and therefore were fatally defective as a matter of drafting.68 The Court’s discussion of the legal infirmities of the remaining charges strongly implied that section 241 was unconstitutional, although the opinion stopped short of that conclusion. Even so, the permissible scope of the statute was strikingly narrow. Of particular concern, the Court held that the Constitution secured only a limited range of rights and that it protected those rights only against abuse by the federal government. Some of the rights specifically mentioned in the Constitution, such as the right of peaceable assembly and the right not to be denied life, liberty, or property without due process of law, were natural rights. Accordingly, they were not created by the Constitution and hence were not secured by that document. It followed that section 241 did not prohibit violations of such natural rights.69 Nor was this the only problem with using the statute in this case. There was no evidence that the defendants had interfered with any of the victims’ federally protected rights, such as the First Amendment right to seek redress from the national government.70 It would take nearly half a century for the Court to suggest that the First Amendment did apply to the states, but even that would not have changed the outcome in Cruikshank. That is so because of another restrictive interpretation of the Constitution. Although the Due Process Clause of the Fourteenth Amendment did protect against state abuses, the Colfax massacre was treated as a purely private conflict. Only governmental action could violate constitutional rights, so the carnage in Grant Parish could not provide the basis for federal charges. The crimes committed were exclusively for the Louisiana authorities to prosecute.71

Cruikshank suggests some of the potential obstacles to federal action against Emmett Till’s killers. First, his right to life, being a natural right, was not secured by the Constitution and therefore did not come within the scope of section 241. Second, even if one of his constitutional rights was denied, the perpetrators were private parties. In the absence of state action, the federal government had no authority to intrude on the powers of the sovereign state of Mississippi even if the Magnolia State had defaulted on its responsibilities. Nor was Cruikshank exceptional in its limited view of federal authority to protect civil rights. In a ruling handed down the same day, the Court invalidated two other provisions of the law that contained the original version of section 241. Those provisions were intended to implement the Fifteenth Amendment’s prohibition against racial discrimination in voting, but the Court concluded that they were not limited to race-based election violations and therefore went beyond the national government’s powers even though the case arose when Kentucky officials refused to allow African Americans to vote in a municipal election.72 As late as 1941 the Court had difficulty in mustering more than a bare majority for the proposition that sections 241 and 242 could be used to prosecute election officials for altering ballots in a congressional primary, and the dissenters were among the most liberal justices ever to serve.73

Perhaps the most troublesome precedent was Screws v. United States,74 which was decided only a decade before Emmett Till was murdered and suggested the virtual impossibility of obtaining a conviction. This “shocking and revolting” case arose from a Georgia sheriff’s beating to death of Robert Hall, an African American against whom he had a longstanding grudge.75 Sheriff Claude Screws was prosecuted under section 242, but the Supreme Court’s discussion of that provision had obvious implications for section 241 as well. Three justices thought that the law was unconstitutional because the federal government had no authority to prosecute crimes such as homicide and assault that were the exclusive responsibility of the states.76 Four other justices voted to uphold section 242 but only insofar as it punished persons who acted with the purpose of depriving an individual of a specific constitutional right.77 Because the jury had not been instructed to this effect, Sheriff Screws was entitled to a new trial.78 Two other justices believed that the conviction should stand, but this would have left the Court deadlocked: four justices favoring a new trial, two justices favoring affirming the conviction, and three advocating dismissal of all charges on constitutional grounds, with no majority for any disposition of the case. To avoid this result, one of those two reluctantly joined with the four-member plurality in calling for a new trial at which the government would have to prove that Screws intended to deny Hall his day in court when the sheriff beat him to death in the course of arresting him on a minor charge.79 Screws was acquitted at his retrial and soon afterward was elected to the Georgia legislature.80

The Screws case further underscores the potential legal difficulties that the federal government might have faced in moving against Emmett Till’s killers. Although that case involved a substantive violation under section 242 rather than a conspiracy charge under section 241, the problems identified by the various opinions would have applied to a section 241 conspiracy prosecution in connection with the Till tragedy. Only two justices believed that the conviction in Screws should stand. Three justices thought that section 242 was unconstitutional because the federal government could not prosecute racially motivated assaults or homicides, and four others believed that a conviction required proof beyond a reasonable doubt that the defendant actually intended to deny the victim a specifically enumerated constitutional right. Because the right to life is a natural right rather than one secured by the Constitution, merely intending to kill Emmett Till would not have been sufficient to obtain a guilty verdict.

One last case in this line deserves mention. Williams v. United States,81 decided only four years before Emmett Till’s murder, construed section 241 in a restrictive fashion that would have precluded a federal prosecution of his killers. Williams involved some Miami private detectives who tortured several people who were suspected of stealing from their employer. The Supreme Court, in a 5-4 ruling, overturned the convictions. The lead opinion by Justice Frankfurter, who had dissented in Screws because he thought section 242 was unconstitutional, reasoned that section 241 did not cover the conduct at issue. The rights protected by the conspiracy statute had to do with a person’s relationship to the federal government, such as the right to vote in national elections. Because the bar against subjecting people to the third degree applied only to state action, the federal government had no authority to prosecute private parties such as Williams and the other private detectives who engaged in brutal treatment of their fellow citizens.82

The implications of this reasoning for a federal prosecution of Emmett Till’s killers were ominous. Whatever the reasons for his murder, they had nothing to do with his relationship with the federal government. This was a purely private outrage, so section 241 did not reach what had happened to him. In sum, the line of decisions discussed here gave little basis for hope that the federal government could prosecute in the Till case. Emmett Till’s right to life was not one secured by the Constitution but rather was a natural right. His life had been taken not by a local official but by private parties, and his death had nothing to do with his relationship with the federal government. From Cruikshank to Williams, therefore, this looked like a crime over which only the state had jurisdiction.

Before proceeding further, we should keep in mind that this cramped view of federal authority was not confined to those who lacked sympathy for the rights of African Americans. That view was endorsed by such liberal stalwarts as Justices Hugo L. Black and William O. Douglas, who interpreted section 242 so narrowly and restrictively in Screws and had dissented in the 1941 case that upheld federal authority to prosecute election fraud in a congressional primary; it was also endorsed by Justice Felix Frankfurter, who had been a staunch civil libertarian before his appointment but took the position in Screws that section 242 was unconstitutional and wrote the lead opinion in Williams that effectively eviscerated section 241. Even stronger evidence of the pervasiveness of the view of limited federal power can be seen in the views of Moorfield Storey, the NAACP’s first president and one of the leading lawyers in the nation for many years. He began his career as an aide to Senator Charles Sumner, the Massachusetts abolitionist and one of the leading advocates of black rights during Reconstruction, at the time of the adoption of the Fourteenth Amendment. Storey abhorred lynching, which was one of the NAACP’s primary concerns, but he initially doubted that the federal government had constitutional authority to outlaw the practice.