"Sentenced to the punishment of death": Pre-Furman capital crimes and executions in Shelby County, Tennessee

Vandiver, Margaret

"Whenever any person is sentenced to the punishment of death, the court shall direct that he be put to death by electrocution, and that the body be subjected to shock by a sufficient current of electricity until he is dead."1

I. INTRODUCTION

This Article describes the use of the death penalty in Memphis, Shelby County, Tennessee,2 from 1916 until the county's last preFurman3 execution in 1949. The Article begins with an overview of

capital punishment in Tennessee, including capital offenses, the characteristics of persons executed, and efforts to abolish the death penalty in Tennessee. The Article reports and discusses findings from an examination of archival data on capital crimes in Shelby County,4 and describes Shelby County executions, giving a number of case studies. The Article explores these cases within the context of race and gender relations and the criminal justice system of the time.

Several recent studies have examined the history of the death penalty in various states,5 but few have looked at executions by

county.6 Scholarship on capital punishment can gain from studies using the county as the political and geographical unit of analysis.7 This is especially true in a state such as Tennessee, which has several distinct cultural and geographical regions that differ significantly from each other.8

The geography of capital punishment is important to an understanding of its social functions.9 The use of capital punishment in America has always varied by region. The South10 made greater use of executions than other regions of the country historically,11 and

continues to do so under present laws.12 Tennessee is exceptional as the only former Confederate state ever to legislatively abolish the death penalty for murder.13 Tennessee was the first southern state to cease executions in the early 1960's14 and the last to resume executions under current laws.15 Within Tennessee, Shelby County historically was the source of the most convictions leading to

executions,16 and currently more people are on death row from Shelby County than from any other county of the state.17

The geographical distribution of executions in America is not accidental. The death penalty fits with the culture of the South in ways it does not, and has not for many decades, in other regions of the country. Within the South, the local culture of counties is reflected in their differing use of the capital sanction. Not surprisingly, the issue at the heart of the South's use of capital punishment was and continues to be race.18 Shelby County's executions were carried out

in the context of the social concerns of the times. This Article explores these concerns and their impact on sentencing in capital cases.

II. AN OVERVIEW OF THE DEATH PENALTY IN TENNESSEE

A. Capital Offenses

Tennessee became the sixteenth state of the union on June 1, 1796. The new state's law derived from the law of North Carolina, of which Tennessee originally was a part.19 Tennessee's early laws were harsh, with provisions for execution on the second offense for the crimes of horse stealing, theft of goods to the value of ten dollars, forgery, perjury, and the burning of houses or barns.20

Like other slave states, Tennessee had separate statutes for crimes committed by whites and those committed by slaves, and, often by free blacks.21 A law passed in 1819 provided that "[m]urder,

arson, burglary, rape, and robbery, shall when committed by a slave or slaves be deemed capital offences, and be punished with death."22 Slaves also were liable to a discretionary death sentence for "conspiracy to rebel."23 Two statutes specified race of victim, as well as race and/or condition of offender. An act of 1833 provided that "if any negro or mulatto, whether bond or free, shall make an assault upon a white woman, with intent to commit a rape, and use violence to her person, such negro or mulatto, for such offence, shall suffer death by hanging."24 An act of 1836 reiterated this law and added as another capital offense for slaves "an assault or battery upon any free white

person with intent to commit a murder in the first degree."25

The legislature passed yet another act concerning rape in its 1849-50 session, providing that "any free negro, or free mulatto, who

shall commit rape on a free white female, shall suffer death by hanging."26 The second section of this chapter made death by hanging mandatory for "any negro, or mulatto, bond or free" who was "an accessary [sic] before the fact to murder in the first degree."27 In 1852, the Assembly added more capital crimes for slaves and free blacks, making death mandatory for those who "shall prepare, exhibit or be an accessory to the administering of any poison, potion or medicine whatsoever, with intent to kill any person or persons" and for rape committed against a white female child under the age of ten.28 Whites were to be punished by ten to twenty-one years for rape and five to fifteen years for robbery, burglary, and arson. Whites faced three to ten years for stealing livestock and five to fifteen years for stealing slaves.29

Until 1829, the only penalty available for a conviction of murder was death.30 An act passed in 1829 divided murder into first and second degree.31 The act provided a mandatory death sentence for

those convicted of first degree murder and of being an accessory before the fact to first degree murder, while allowing for a sentence of ten to twenty-one years for second degree murder.32 An important change occurred in Tennessee's homicide law in 1838. Tennessee was the first state to give the jury discretion in sentencing to death or life for first degree murder.33 The law referred to persons sentenced to death for murder in the first degree, leaving it unclear whether accessories before the fact were still to be tried under the older mandatory death penalty law or whether juries in such cases would have discretion in sentencing.34 The law provided:

Section 1. Be it enacted by the General Assembly of the State of Tennessee, . . . in all cases hereafter to be tried where any person is convicted of murder in the first degree, if the jury who try him should be of opinion that there were mitigating circumstances35 in the case, and shall so state in their verdict, then and in such case it shall be the duty of the court to sentence the defendant to confinement in the Penitentiary for life . 36

By 1858, the punishment for first degree murder was again mandatory death for whites and for slaves.37 On the eve of the Civil War, the following were capital crimes in Tennessee for whites, slaves, and free blacks.

In 1865, the Tennessee legislature passed a number of capital statutes. Reflecting the dangerous and unsettled post-War conditions,38 the General Assembly passed "An Act to Punish all Armed Prowlers, Guerrillas, Brigands, and Highway Robbers."39 This Act ordered that a number of offenses relating to plunder, robbery, prowling, and theft be punished by hanging.40 no In the next chapter of legislation, the Assembly rewrote many of the old mandatory capital slave code provisions, allowing the jury to choose a term of years rather than death and omitting reference to color of offender or

victim.41 Thus, the following crimes could be punished by death or could be punished by not less than ten and not more than twenty-one years in prison: Theft of livestock, housebreaking (burglary), robbery, and house or bridge burning (arson).42 Oddly enough, immediately after the Civil War, rape was not a capital crime. This meant that a person convicted of stealing a horse or burning a bridge risked hanging, while a person convicted of rape did not. The legislature restored the death penalty for rape in 1871, giving the jury discretion to impose death or imprisonment for not less than ten years.43

Another capital law that reflected the troubles of the post-War period was passed in 1870.44 This statute reflected concerns about the activities of the Ku Klux Klan, especially in Middle and Western Tennessee. A legislative committee had concluded that terrible abuses were being perpetrated on "poor Negroes... taking them out of their houses at night, hanging, shooting and whipping them in a most cruel manner," with women being raped and women and children "subjected to the tortures of the lash."45 Apparently no one was ever executed for any of these offenses, although Governor Brownlow did declare martial law in a number of counties in an attempt to restore order.46

A few other offenses were treated as capital crimes at various times in Tennessee, although no one was executed under these

statutes. An act of 1871 made hanging the punishment for obstructing or tampering with railroad tracks, if such action led to anyone's death.47 Kidnapping for ransom was made a capital crime in 1935; juries had discretion to sentence the accused to death or to twenty years.48 The legislature provided a discretionary death sentence for robbery with a deadly weapon in 1955.49

B. Other Laws Relating to Executions

The earliest executions in Tennessee were carried out in public, in the county of conviction, by hanging. Over time, the legislature revised each of these aspects of the execution of capital sentences. The effect of these changes over many decades was to end public executions, to move executions from the counties of conviction to the state prison in Nashville, to change the method of execution from hanging to electrocution, and to provide for consideration of clemency by the governor.

1. Private and Central Executions

All executions in America were public until the 1830's. The crowds that gathered to witness public executions were large and often unruly, disrespectful, drunken, and dangerous. By the late 1820's, there was concern that these "festivals of disorder . . . subverted morals, increased crimes, excited sympathy with the criminal, and wasted time."50 The move from executing prisoners in public to executions carried out in prisons or jails before selected official witnesses occurred at different times in different states, with the South and southern border states maintaining the old tradition of public executions longer than the rest of the country. Pennsylvania abolished public executions in 1834, with other states in the northeast

quickly following, while Kentucky and Missouri carried out public executions as recently as 1936 and 1937, respectively.51

In Tennessee, concern about public executions was expressed as early as 1849 by State Representative Alexander Jackson, who introduced a resolution to require the judiciary committee to look into moving executions within prison walls. The Senate Judiciary Committee rejected the bill.52 It was not until 1883 that executions were moved from public spaces to the relative privacy of prison yards; at the same time, those who could witness the execution were specified by law.53 The statute required each county to construct a private area for executions, causing considerable effort and expense for the counties.54 Governor Malcolm R. Patterson proposed in 1909 that these difficulties could be remedied by a law requiring "the immediate removal of a prisoner condemned to die from the scene of his crime and from the county to the penitentiary at Nashville... and that all executions hereafter in this State shall occur within the grounds of the State penitentiary, in strict privacy and seclusion."55 The legislature agreed and passed a statute moving executions from

the county of conviction to the state prison.56

2. Methods of Execution

In pre-modern and early modern Europe, many methods of execution were devised to be as slow and torturous as possible. The public spectacle of suffering was one of the main goals of the execution.57 The American colonies and states generally avoided the infliction of torture and tried to make executions quick, efficient, and no more painful than was inherent in the method used.58 Among the various methods used to carry out executions in America, hanging, the firing squad, electrocution, the gas chamber and lethal injection have been the most common. Many states changed their method of execution from hanging to electrocution in the late nineteenth and early twentieth centuries in an attempt to provide a quicker and more reliable method of imposing death.

Tennessee's first method of execution was hanging.59 Governor Ben W. Hooper expressed his wish to change methods in 1911, telling the legislature that "[t]he next step for decency and humanity .. should be the substitution of electrocution for hanging." In

1913, the General Assembly passed a bill changing the method of execution to the electric chair.61 The Act provided $5,000.00 for the cost of the "death chamber, apparatus, machinery, and appliances" necessary to comply with the new law.62 On July 16, 1916, Julius Morgan was the first person to be electrocuted in Tennessee.63 The Nashville Banner reported that "the new chair... worked perfectly and the grim task was accomplished without accident."64 All executions in Tennessee from 1916 through 1960 were carried out in the electric chair.65

3. Executive Clemency

The Tennessee Constitution gives the governor the right to "grant reprieves and pardons."66 Governor James K. Polk told the legislature in 1841 that a law was needed to enable him to commute death sentences to life as well as to grant pardons.67The legislature responded to this request the next year, allowing the governor to reduce a death sentence to life when he thought a full pardon was not warranted.68 Governor Neill S. Brown made the same request in 1849, pertaining to the power to commute death sentences imposed on slaves; the legislature did not act on his request.69

An act in 1858 gave the Tennessee Supreme Court the power to recommend the commutation of death sentences to the governor. The Act provided that "[t]he Governor may, likewise, commute the punishment from death to imprisonment for life, upon the certificate of the Supreme Court, entered on the minutes of the court, that, in their opinion, there were extenuating circumstances attending the case, and that the punishment ought to be commuted."70 Although this statute has been in effect for nearly 150 years, it has been rarely applied.71

C. A Brief Experiment with Partial Abolition

In 1915, Tennessee did something no other southern state has done before or since: it abolished the death penalty for murder by legislative vote.72 Chapter 181 of the Regular Session of 1915 abolished capital punishment for murder, excluding murder committed by a prisoner serving a life term in a state prison.73 The death penalty remained as a punishment for the crime of rape. The retention of capital punishment for rape even after it had been abolished for the more serious crime of murder reflected Tennessee's typically southern preoccupation with rape.74

According to Robert H. White, who has written the most detailed history of this legislation, the momentum for abolition seems to have come largely from one remarkable man, Duke C. Bowers, rather than from public concern about the death penalty.75 The bill abolishing the death penalty was debated, and several amendments were proposed, one being that the law should take effect in 1999!76 The bill passed in the Tennessee House by a vote of fifty-one to forty-four and in the Tennessee Senate by a vote of twenty-two to ten. Records of the Tennessee State Historical Society indicate a substantial amount of pubic opposition to abolition of the death penalty, much of it based on the fear of crime by blacks and on the belief that abolition would

increase lynchings.77

The abolition bill was sent to Governor Tom C. Rye for his signature on March 31, 1915.78 Governor Rye did not sign the bill, instead returning it to the Assembly with a veto message:

I would be gratified indeed to escape the responsibility that this bill affords the chief executive of the State. No one desires to see a human being forfeit his life as punishment for crime, but I feel that for this bill to become a law ... would, in my judgment, increase crime and encourage mob law. The death penalty in Tennessee, as punishment for crime, is rarely meted out to criminals, but there is no doubt that it serves to prevent crime. I do not believe it best for the State, the peace and safety of her people, for this bill to become a law, and I am therefore returning the same . without my approval.79

A motion to sustain the Governor's veto passed the House by a fiftyseven to twenty-six vote, despite the previous vote in favor of the bill.80 The Governor, however, had delayed his veto far beyond the five days provided him by the Tennessee Constitution to act on a bill, and thus the abolition bill became law despite the Governor's veto and the House vote to sustain the veto.81

Abolition of the death penalty in Tennessee was short lived.82 A

week after Governor Albert H. Roberts took office in 1919, he sent an urgent message to the legislature requesting reinstatement of the death penalty for murder. In his request, Governor Roberts took up the theme of mob activity that had troubled Governor Rye. Responding to the threatened lynching of a white man, the Governor sent the following message to the legislature:

Your attention is respectfully directed to the condition of lawlessness which now exists in the State and has existed for some years, and to the remedies therefor which I now desire to urge upon you.

About noon today I received a telephone message from a Sheriff of one of the counties in Tennessee, stating that a white man who is in his custody on a charge of murder is threatened with a mob.

Mob violence is at all times inexcusable and while I am Governor of Tennessee I shall use every means and power at my command to prevent the crime of lynching. I verily believe that the passage of Chapter 181, Acts of 1915, commonly known as the `Bowers Law,' has been the contributing cause to the commission of the crime of murder and to the summary vengeance of the mob on the murderer. The assassin now knows that he will not forfeit his life by commission of the most atrocious crime upon his innocent victim. A bill has already been introduced which ... fixes the death penalty for murder in the first degree, the immediate passage of which bill I here urge with great earnestness . . . .83

The Senate acted immediately, moving the bill from the Commit

tee on the Judiciary that afternoon and passing it by a vote of twentyone to ten. The next day, the House passed the bill by a vote of eighty to five,84 thus ending Tennessee's brief experiment with partial abolition of the death penalty. The new law carried three possible penalties for first degree murder and accessory before the fact to first degree murder: death by electrocution, imprisonment for life, or imprisonment for over twenty years.85

III. PRE-FURMAN EXECUTIONS IN TENNESSEE

The best single source of information on executions in the United States is the data compiled by M. Watt Espy, Jr.86 Espy's list is the only inventory of Tennessee executions occurring before 1916, when the state began to keep official records of executions.87 For executions that occurred before this date, Espy's list is the best source of

information on offenders, victims, location, and type of crime.88

Over ninety-five percent of the people executed in Tennessee were convicted of murder, rape, or associated offenses.89 There were twelve executions for other crimes and four for unknown offenses.90

One person was executed for aiding a runaway slave,91 one for arson,92 one for guerrilla activity,93 three for horse stealing,94 one for housebreaking/burglary,95 four for slave revolt,96 and one for spying/espionage.97

Only four of the 335 people executed in Tennessee were women.98 These cases occurred in the early nineteenth century, and very little is known about them.99 Sixteen-year-old Clarence Cox was the youngest person executed in Tennessee.100 Five persons were seventeen, six were eighteen, and five were nineteen.101 The Espy File contains information on the defendant's occupation in about 41 of the cases.102 As would be expected, most of the defendants whose occupations are known worked in lower status jobs, such as laborers, farm hands, and servants, or had criminal occupations.103

The Espy data confirm the executions of forty slaves in Tennessee.104 A study of the prosecution of slaves for capital offenses in

Tennessee105 found that slaves had certain legal protections, including the right, after 1839, to call black witnesses; the right to counsel if their masters did not provide a lawyer to represent them; and the right to as many jury challenges as a white person would have in a capital case.106 A surprising sixty-eight percent of the slaves charged with capital offenses were acquitted; only 14% were executed.107 Appeals to the Tennessee Supreme Court were frequent when slaves were convicted of capital crimes and were quite often successful.108 It is probable that there was a substantial gap between the law as written and the law as enforced in the prosecution of slaves for capital offenses. Legislators wished to appear severe and to respond to the increasing fears of whites in the years before the Civil War;109 they could do so by passing mandatory death sentences for a whole host of offenses. On the other hand, there was a strong practical reluctance to execute or to imprison a slave for the "obvious reason that the

slave represented an investment."110 Unlike many other slaveholding states, Tennessee did not provide for reimbursement to the owners of executed slaves.111

Tennessee reflected the national pattern in the relative number of executions the state carried out per decade, having the highest number of executions in the 1930's, followed by a steep decline by the 1950's, with executions coming to an end in the 1960's.112 The numbers of executions in the five decades for which complete data are available are twenty-seven in the 1920's, forty-seven in the 1930's, thirty-eight in the 1940's, eight in the 1950's, and one in 1960. 113 The highest number of executions per year in Tennessee was eleven in 1922, followed by ten in 1937 and 1939.114 The longest period of time without executions before the forty year hiatus that ended in 2000 was a five year gap between the execution of Clyde Steele for rape in January 1950 and Samuel Voss for murder in April 1955.115

Most of the cases of people executed pre-Furman in Tennessee remain obscure. Little is known about the crimes committed, the legal proceedings that followed, or the individuals who were convicted and executed. Three cases have received some attention in recent years, one because it was the last pre-Furman Tennessee execution,116 and the others because of substantial doubt that the

executed person was guilty.117

IV. EFFORTS To ABOLISH CAPITAL PuNisHmENT IN TENNESSEE

Although Tennessee has executed over 300 prisoners and although the racial pattern of Tennessee's executions is very similar to that of other Southern states, the history of the death penalty in the state is not typical of the South. Unlike most other southern states, Tennessee has a history of vigorous opposition to capital punishment dating back to the earliest years of statehood.118 Governor Sevier set the tone when he gave his final message to the legislature in 1807:

Humanity and policy call aloud for a revisal of the criminal code of our laws. Experience has led the greater part of our most respectable sister-states to abolish the inhuman and prompt mode of punishing with death, those unhappy wretches who violate the laws of their country, and have substituted other modes... which greatly ameliorates the sufferings of humanity, the culprit, and softens the distress

of the unfortunate friends and relatives .... Would it not be highly worth the consideration of the legislature, to introduce some other mode in lieu of the present, whereby there would not be such repeated examples of cruelty exercised under the law of a republican government?119

Governor Cannon in 1837 followed with his own call for the abolition of capital punishment in Tennessee. He suggested to the legislature:

As a humane and enlightened improvement in the penal system, I respectfully recommend to your consideration the propriety of entirely abolishing punishment by death in our state, and of substituting in its stead confinement at labor in the Penitentiary during life. . . 120

Perhaps the most eloquent of the pre-Civil War opponents of capital punishment was Aaron V. Brown, a Giles County attorney and Chairman of the Senate Judiciary Committee. In 1831, Brown wrote a lengthy treatise setting out his arguments against capital punishment. Brown believed that no one had the right to take the life of another person:

Shall poor mortal man, himself a pilgrim, shuddering every moment of his life at the dreadful accountability which awaits his own soul, shall he fix the awful period when the spirit of his frail brother-child of the dust, shall return to him who gave it? - Surely He, and He alone, knows best when to recall them, who sent them forth, and whose high purposes they were intended to accomplish. The responsibility of extinguishing human life, is the greatest that can be incurred on this side of eternity. This responsibility may be parcelled out amongst so many individuals - the Legislators, the judges and jurors of the country, that none may be able to feel and realize its full weight; yet all should remember that it still continues to exist somewhere; and that every drop of human blood,

wrongfully shed, will continue to cry from the ground like Abel's, until Heaven shall avenge it.121

Brown argued that the death penalty was not a superior deterrent, and cited statistics to support his assertion. 122 He also argued that the possibility of judicial error must be considered, because of "the natural frailty of man, and consequent fallibility of every tribunal in which he presides:"123

Human tribunals are perpetually subject to errors and mistakes, from the corruption and ignorance of the instruments which they are obilged [sic] to use in conducting their trials. Bold, unblushing perjury often stalks into the sacred temple of justice, pours its envenomed poison into the ears of the jury, and marches out again with impunity, sure and exulting in the blood of its victim! These demoniac visits are by no means rare. 124

When Aaron Brown became governor in 1845, he reiterated his position on capital punishment, telling the legislature:

The gradual amelioration of the criminal code of Tennessee, effected as it has been, through slow degrees for many years, has added another proof to those drawn from other countries in favor of the abolition of capital punishment. Instead of weakening it has evidently increased the actual strength of the Government, by drawing around it the rational approbation of society, and by the explosion of those ancient barbarities, which are now justly regarded with the deepest abhorrence. Nor has this relaxation tended in the slightest degree to the increase of crimes. .

. . In all cases authorized by law and justified by their circumstances, I shall, with the greatest pleasure, commute the punishment from death to imprisonment for life in the penitentiary. 125

Interest in abolishing the death penalty waned in the years before and following the Civil War. In the early part of the twentieth century, the effort was renewed by Duke C. Bowers.126 Bowers was a Memphis businessman who carried on a one-man crusade against the death penalty.127 Bowers was well-known, highly respected, and

completely dedicated to abolition. He used letters to the editor128 and large paid newspaper advertisements129 to present his arguments against capital punishment to the public. Bowers was involved in exonerating at least one wrongfully convicted prisoner,130 and he spearheaded the effort for legislative abolition.131 When the Senate passed the abolition bill in 1915, Bowers and his wife, who were present, wept with joy.132 Bowers' influence in gaining passage of the bill was so great that the legislation was generally referred to as "Duke Bowers' Bill."133 Bowers died in 1917, during Tennessee's period of abolition. 134

From the reinstatement of capital punishment in 1919 until the

1950's there was little public or legislative effort to abolish the death penalty in Tennessee. In 1957, an anti-capital punishment league was formed, with Memphis attorney Lewis Taliaferro as its chairman."' Taliaferro compiled a volume of statements to support the cause of abolition, including one from Estes Kefauver, U.S. Senator from Tennessee.136 Speakers gave public talks in cities around the state calling for abolition of capital punishment. These efforts were supported by Governor Frank Clement, who requested the Tennessee Assembly to give "serious consideration ... [to] the abolishment of capital punishment in our State" when he addressed the legislature on its opening day in 1959.137

A renewed legislative effort for abolition was nearly successful, although the first attempt in 1961 "was almost hooted off the floor" of the legislature.138 In 1965, however, an abolition bill passed the Senate with overwhelming support.139 Governor Clement strongly endorsed the bill, calling the death penalty "the legal murder of our fellow man."140 Clement addressed the House in emotional terms:

From the bottom of a deeply disturbed heart, I want to

thank each of you for allowing me to come here this morning to spend a few short minutes talking with you about a most vital matter .... I beg with you to cast your vote tomorrow morning for the elimination from our statutes of the capital punishment law. It is a law that we cannot justify. It is a law we cannot be certain will not make a mistake. It is a law which may not apply equally to all. It is a law that does not conform to an older law, the simple four-word law which says, "Thou shalt not kill. "141

The House defeated the proposal by a margin of one vote. Immediately after the announcement of the bill's defeat, Governor Clement went to the state prison and commuted the death sentences of five prisoners, three of whom were scheduled to be executed the next day. Clement told the prisoners "to ask God to forgive them their crimes of rape and murder."142

"I can save your life, but I can't be the pardoning power ultimately," he said, while standing outside the prisoners' cell, only a few feet from the electric chair.

His hands trembling, the governor bowed his head and asked the prison chaplain to lead them in prayer. It ended with a chorus of "amen" by the convicts.143

Although the legislature retained the death penalty, the pace of executions had slowed to a halt by the time the legislation was considered.144 William Tines, executed in November of 1960, was the last person put to death under Tennessee's pre-Furman law.145 The state observed an unofficial moratorium, with death sentences imposed and death row maintained, but no executions occurring.146 The same situation gradually occurred all over the country until the

United States Supreme Court invalidated existing death penalty laws in June of 1972.147 In response to the Supreme Court's ruling, Governor Winfield Dunn commuted to ninety-nine years the death sentences of twenty-three men on Tennessee's death row. 148

V. CAPITAL CRIMES IN SHELBY COUNTY, 1916-1949

A. The Social Context: Race Relations in Memphis

The criminal justice system in America is inextricably connected with race,149 and in order to understand how the system functioned in Memphis, it is necessary to review race relations in the city. This history is complex, with African Americans in Memphis facing mob violence and lethal police assaults, but also having significant community strength and individual opportunity. Memphis has long had a large black population,150 and the city presented "an arresting amalgam of opportunity and discrimination for African Americans."151

Despite one historian's assertion that race relations have always been moderate in Memphis,152 blacks in the city as well as in rural parts of Shelby County occasionally faced the worst extremes of white terror.153Lynchings are particularly relevant to a study of capital punishment because of the similarities between the two practices.154 Between 1889 and 1918, sixteen people were lynched in Shelby County, all of them African-American men.155 The 1892 lynching of Thomas Moss, Calvin McDowell, and Will Stewart in Memphis so angered the black community that many people left Memphis permanently.156 A lynching in Millington in 1894 claimed

six victims, all accused of barn burning.157

The most brutal lynching in Shelby County history was that of Ell Persons in May of 1917. 58 Persons was suspected of the murder of Antionette Rappel, a sixteen-year-old white girl. The evidence linking Persons to the crime was weak. In order to strengthen the case against him, the police exhumed the victim's body a few days after burial and photographed her eyes in the belief that the last image she had seen before death would be visible in her retinas. Despite a resolution by the eye specialists of the city stating that this was impossible, the police reported that an image resembling Ell Persons was seen in Rappel's eyes. The police also reported that Persons had confessed to the crime.

The sheriff took Persons to Nashville to protect him from the lynch mob159 that had gathered in downtown Memphis. The mob actually stormed police headquarters before being convinced that Persons was not in the city. Members of the mob knew that Persons would be returned to the city to stand trial, and by searching trains coming toward Memphis they were able to capture Persons. The Commercial Appeal advertised the lynching in advance, giving approximately five thousand people time to travel to the announced

site. On May 22, 1917, the paper's headline read, "Mob captures slayer of the Rappel girl; Ell Persons to be lynched near scene of murder; may resort to burning."160 Despite this clear evidence that the planned lynching was public knowledge, there is no record that any law enforcement officers made an effort to regain custody of Persons or to prevent the lynching. The headlines of the Commercial Appeal the next day read: "Thousands cheered when negro burned: Ell Persons pays death penalty for killing girl: Oil is poured on fire ... Wanted black to suffer."161 After Persons' death, his body was dismembered, with various parts taken by people in the crowd. Persons' head and leg were thrown from a car at a group of African Americans on Beale Street. In an editorial, the Commercial Appeal referred to the lynching as "orderly. There was no drunkenness, no shooting and no yelling."162

Although the Shelby County grand jury investigating the lynching was charged to "act fearlessly, fairly, and impartially" and to return indictments against all guilty parties, no charges were ever brought against any of the participants. 163 When the NAACP Field Secretary came to Memphis to investigate, he found at the site of the lynching "[a]ll the paraphernalia of the unspeakable orgy ... still there... At the base of this iron rail to which Ell Person had been chained the earth was still black and charred; at its top, placed there to mark the spot, there floated an American flag."164 The Persons lynching was the largest mob killing in Shelby County history, but it was not the last. Lawrence Shepard was lynched on suspicion of larceny in 1917,165 and Tommie Williams was shot by a mob for the attempted rape of a white woman in 1927.166 Lynching continued to be a threat for blacks suspected of crime in Shelby County at least

into the 1930's.167

The Persons lynching was extraordinary for its brutality and for the number of people involved. African Americans in Memphis faced more mundane, but often no less lethal, violence in their daily interactions With WhiteS.168 An extreme example of white violence occurred in 1908, when Will Latura, a notorious local gambler, entered a saloon at Beale and Fourth Street, and without provocation, shot six black men, four of whom died. This was too much even for the Commercial Appeal,169 which ran an editorial stating:

This thing of killing negroes without cause ought to be stopped. The first reason is, because it is wrong within itself, and the second is, that those white men who kill negroes, as a pastime, or in order to establish a reputation as bad men, usually end by killing white men.170

Although the authorities moved quickly to bring Latura to trial, he was acquitted on grounds of insanity. 171 Latura had a long history of

violent crime, most of it directed against blacks.172 He was killed by a police officer in 1915.173

Violence by police and officials was probably a greater threat to the lives and well being of African Americans than violence by individual whites. The brutality of Memphis police, especially toward African Americans, was widely known and well documented.174 Goings and Smith assert that "city officials as well as police officers were involved overtly and covertly" in every major physical attack on the black community in Memphis before the 1920's.175 Calling Memphis a "racial battleground," Goings and Smith document case after case of official violence toward African Americans.176

With problems of poverty, social disorganization, and violence from individuals and officials, life was difficult for African Americans in Memphis, but certainly was not hopeless. Memphis was a flourishing center for black music and culture, and many individuals were able to achieve high levels of success.177 The Bright Side of

Memphis,178 a book published in 1908 urging blacks to move to Memphis, asserted: "It is very doubtful if there is a city in the world that presents greater opportunities to the colored people . . . .."179 While the claims of the book were no doubt exaggerated, it does document that even as early as the beginning of the twentieth century, Memphis had a significant number of black professionals and blackowned businesses.180 African Americans in Memphis were able to register and vote with little difficulty, though their votes were largely controlled by the local political machine.181

B. Crime in Memphis

Memphis has long had a reputation as a violent and sinful city.182 A description of Memphis in 1860 said, "[b]awdy houses and gambling dens abounded. Stabbings and shootings were common. Violence was an everyday occurance [sic]; life was indeed cheap in Memphis."183 Visitors to Memphis in the early part of the twentieth century commented on the wickedness of the city. One wrote, "that had [Memphis] existed alongside Sodom and Gomorrah, God would

have had to destroy Memphis first."184 A traveler from St. Louis wrote that the "only difference between Memphis and hell is that Memphis has a river running alongside of it."185

1. Memphis as the World's "Murder Capital"

Early in the century, the editor of the Commercial Appeal wrote that murder was "the most thriving industry" in town, and suggested that the real news in Memphis was not murder, but rather a day when the headlines could read, "Not a man killed in twenty-four hours in Memphis territory."186 Memphis had become known as the "murdertown" or "murder capital" of the world by the 1920's and 1930's.187 The impression of Memphis as an unusually violent city was to some extent supported by available statistics188 and records.189 Frederick Hoffinan, a statistician with the Prudential Insurance Company, published a number of articles analyzing crime in Memphis. One of these articles compared homicide in 122 American cities and concluded that "[t]he homicide death rate is highest in the city of Memphis, which for many years has maintained an unenviable distinction. In 1927 the Memphis homicide rate was 69.3, against an

average of 10.4 for all cities considered."190

Hoffman's conclusion that Memphis had the highest homicide rate in the country caused heated controversy. Police and city officials disputed the fairness of calling Memphis the most murderous city, arguing that people assaulted and injured in outlying areas often were brought to Memphis hospitals and died there, thus inflating the statistics.191Hoffman rejected this explanation, saying that "[a]n effort is made every year to explain the excess on the ground of nonresidents, but there are no serious reasons for believing that this excess is relatively much greater than in the cities of New Orleans, Birmingham or Baltimore, with which Memphis may be compared."192 In response to this disagreement, a study of crime in Memphis was undertaken by the American Institute of Criminal Law and Criminology.193 The study, which provides the most detailed information available on crime in Memphis during this period,194 concluded that homicide in Memphis was not as out of line with homicide in similar cities as Hoffman had argued. Still, there was no doubt that Memphis was among the most violent cities in the country.

There are a number of reasons why Memphis was so violent. As a river city, a hub of transportation, and the largest city in the region, Memphis attracted a large number of transient and uprooted people, from both far away and the surrounding rural areas. The social

disruptions characteristic of adaptations to urban life were strongly present in Memphis.195 Many of the residents of the city, especially African-Americans, were very poor and lived in difficult conditions.196 The southern "culture of honor" was alive and well in the city, with violence perceived as an acceptable and even commendable response to personal insult.197 In addition, the population of the city was heavily armed, with many men carrying firearms as a matter of course as they went about their daily business.198

2. What Little is Known About Rape

In contrast to the fairly substantial amount of information on homicide in Memphis, we know next to nothing about rape. Many of the factors that contributed to the city's high homicide rate could be expected to cause a high incidence of rape as well. Yet charges of rape are astonishingly rare in the court dockets during the years under study. The Uniform Crime Reports offer no information on rape in Memphis for this period; it was 1958 before the Reports published rape statistics broken down by city.

Even today, rape is reported far below its actual occurrence,199 despite the advances of the feminist movement and demands for

action to address legal and social aspects of rape.200 During the time under study, a number of social phenomena contributed to women's reluctance to report rape, and little legislative action occurred to secure women's rights to a safe environment, whether in their homes or on the streets. The closest response resembling public outcry about violence against women was heavily infused with the racism of the times. The cases that received attention, concern, and the full severity of the criminal justice system were alleged attacks on white women by black men. Rape of black women certainly occurred, but received little attention from public safety officers or prosecutors.201 The public response to the rape of white women formed a way of controlling African-Americans during a time in which women were not far removed from being considered their fathers' or husbands' property.202

C. Potentially Capital Crimes

A widespread popular perception of the history of American criminal penalties holds that the criminal justice system used to impose severe sentences, but has become lenient in recent years. This belief is questionable, at best, and certainly is not supported by the historical evidence from Shelby County. Contemporary observers and historians agree that the criminal justice system in early twentieth century Memphis was highly ineffective. William D. Miller concluded, "It was indeed a rare occasion when a murderer was justly dealt with. Many cases were never brought to trial, and trials usually resulted in an acquittal."203 Research indicates that when convictions were obtained, they were usually for some degree of manslaughter,

and sentences were short.204 The AICLC study found the same pattern for the early 1920's and concluded, "We cannot believe that in the city of Memphis the penalties imposed in the case of homicides are adequate unless, perhaps, manslaughter, or the taking of life with sufficiently strong degrees of mitigations and extenuation, constitute the overwhelming proportion of the cases."205 The likelihood than an offender would be severely punished for rape was negligible unless the defendant was black and the victim white. The records in Memphis strongly support Lawrence Friedman's conclusion that rape historically has been "always among the least-reported, leastprosecuted, and least-punished of the major crimes."206

To get a sense of crime in Memphis at the beginning of our study period, we examined in detail the year 1916.207 There are several striking things revealed by the Shelby County records for this year."208 The first revelation was the rarity of the charge of rape. Only five people were charged with rape in 1916, according to the Reference Docket. One defendant was convicted and sentenced to life in prison. Of the others, one case was nolle prosequied, one defendant was acquitted, one was convicted of assault and battery and sentenced to serve ninety days and pay court costs of $76.80, and in the final case, the Grand Jury returned a no true bill.

Homicides, on the other hand, appeared on nearly every page of the Reference Docket. Every killing in 1916 was charged as first

degree murder; the Reference Docket reports no cases charged as second degree murder or manslaughter.209 First degree murder charges were filed in sixty-three cases involving eighty-three defendants in 1916.210 Most cases had only one defendant, but several had two or three, and one case had fourteen defendants. A true bill was returned against sixty-nine defendants. Dispositions were as follows: There were seventeen acquittals, three convictions for first degree murder, six convictions for second degree murder, fifteen for voluntary manslaughter, and three convictions for involuntary manslaughter. Seven cases were nolle-prosequied and in eighteen cases, the Reference Docket had no information on disposition; the greater part of these were probably fugitives.

The authors of the AICLC study compiled statistics on homicides occurring between 1920 and 1925. Their work is particularly useful because they compiled data on the race of offenders and victims in most cases.211 For homicides where the race of perpetrator and victim was known: 64.4% had both black perpetrators and victims, 19.5% had white perpetrators and victims, 13.2% had white perpetrators and black victims, and only 2.9% had black perpetrators and white victims. The authors found that 92% of the homicides were committed with some sort of firearm.

The AICLC study provides information on the outcome of these cases, thus providing a valuable glimpse of the functioning of the criminal justice system in Memphis in the 1920s. Of those charged with some degree of homicide and found guilty, presumably of some degree of homicide, nearly 60% were sentenced to ten years or less, and many probably served significantly less time than the maximum specified in their sentence. The average sentence for murder during

this period was 14.7 years.212 Table Three summarizes the findings of the AICLC Study.

The Reference Dockets reveal 150 convictions for first degree murder between 1919 and 1949, the years of the study during which murder was a capital offense. Forty-one offenders, or 27.3% of the total, were sentenced to death. Twenty-one of the death sentences were reversed on appeal or commuted by the governor, meaning that twenty convictions, or 13.3% of the total convictions for first degree murder, resulted in execution. The remaining cases received sentences of twenty years (ten cases), twenty-one years (six cases), twenty-five years (five cases), fifty years (three cases), ninety-nine years (three cases), or life (eighty-two cases).

Convictions for rape were rare throughout the years of our study. For example, in the six year period of 1941 through 1946, only eight men in Shelby County were convicted of rape. Sentences for those convicted were lengthy: five received ten year sentences, one received ninety-nine years, and two were sentenced to prison for life.

VI. EXECUTIONS IN SHELBY COUNTY, 1916-1949

A. An Overview

Against the background of acquittals, convictions for lower degrees of homicide, and exceptionally rare convictions for rape, the few cases that did receive the death sentence stand out sharply. Were these cases so different from the vast majority as to deserve more severe punishment, or were factors other than those related to the crime influential in determining the outcome? We consider this question in light of the limited data available.213

The explanatory variable that immediately comes to mind is, of course, race. The racial pattern seen in Tennessee death penalty cases as a whole is even more pronounced in the cases from Shelby County. Table Four gives statistics for Shelby County executions between 1916 and 1949.214

Every man executed for rape was African-American. Research reveals that in each of these nine cases, the victim was white. Thus, the ultimate penalty was reserved for the racial combination of offender and victim between whom the offense of rape was probably least likely to occur.215 It is striking that during the years under study, three times as many black men were executed for rape as white men for murder. Also, executions for rape comprised nearly a third of the total executions in Shelby County, while convictions for rape were rare. Clearly, the system responded to black defendant/white victim rape cases with a consistency and severity it did not approach for any other crime or victim and offender combination.216 While the death

sentence for homicide was not entirely reserved for black men, still nearly 90% of the cases were in this category.217 Data are unavailable on race of defendants and victims in most of the homicide cases that did not result in death sentences; however, there is every reason to assume that homicides in Shelby County are consistent with the general pattern of homicide as an overwhelmingly intraracial crime.218

R Selected Case Summaries

1. Lorenzo Young-Murder-Executed 1919

The first person executed for murder after the reinstatement of capital punishment in 1919 was a Shelby County defendant, Lorenzo Young.219 On June, 1919, police were called to a store at the corner of Poplar and McLean in Memphis to investigate a complaint that a man at that location was selling stolen chickens. The police arrived and questioned Young, who asked permission to return a chicken to his buggy. Young claimed that he picked up a gun in the buggy in order to hide it from the police; the state claimed that he pulled out the gun and began shooting. In any event, there was an exchange of fire, and Young fled the scene with an injury in his leg, having also injured an officer. When the police caught up with him soon afterwards, there was a further exchange of gunfire, resulting in the death of Officer John G. Brinkley from a gunshot wound to the chest. Officer Brinkley was thirty-six years old. After an appeal to the Tennessee Supreme Court, Young was executed on September 3, 1920.220

2. Frank Mays and Jasper Graham - Rape - Executed 1934

Frank Mays and Jasper Graham were condemned for the rape of a seventeen-year-old white woman in Memphis.221 The state argued that, while in their car, the young woman and her male companion were approached a little before midnight by two men who robbed and raped the woman and shot the man. Graham and Mays were arrested two months after the attack and were tried together.

After the trial, Graham's attorney returned to court with an affidavit from a woman who swore that Graham had been with her the entire night of the crime. Graham had not told his attorney of this alibi witness because he had no particular memory of the night in question and did not recall where or with whom he spent that night. It is very difficult to evaluate the credibility of the woman's claim; nevertheless, the court and the governor were not convinced, as Graham received neither a new trial nor clemency. The night of his execution, Graham continued to insist on his innocence: "I'm an innocent man - the Lord knows I am and they are killing me for something I never did. They identified me for the wrong man."222

3. Marshall Spigner - Murder - Executed 1942

Marshall Spigner was one of only three white men executed from Shelby county during the years under study.223 He was convicted of the murder and robbery of Jewell Roberts, a waitress in a downtown Memphis hotel. Spigner was convicted of robbing Mrs. Roberts of $45 and three rings and of strangling her. These crimes were committed after Spigner's release from a Tennessee prison where he had served fourteen years for the murder of another woman. Spigner admitted his guilt before his execution, according to the Commercial Appeal 's somewhat lurid account:

A shell of a man with red-rimmed, haunted eyes and a face like a mask cut out of newsprint, sat in the death house of the Tennessee Penitentiary just before dawn Thursday, calmly related detailed of the murder for which he was about to die, and then walked with firm step to the electric chair.

Marshall Spigner, who spent 23 of his 45 years in penal and correctional institutions, had been willing to live a lie, but he couldn't face death with one on his lips.

Just before treading "the last mile," he broke down and confessed the murder of Mrs. Jewell Tally Roberts at the Claridge in Memphis last August, a crime he had denied until all hopes of executive clemency were gone.

Poker-faced, unemotional, Spigner, convicted once before of first degree murder, was strapped into the electric chair at 5:40 o'clock and was pronounced dead by prison physicians three minutes later.224

4. George Douglass - Rape - Executed 1946

Another Shelby County African-American man executed for the rape of a white woman was George Douglass.225 Information about the crime is sketchy making it difficult to evaluate the evidence against Douglass. The defense counsel's motion for a new trial contained serious allegations of police mistreatment of Douglass:

[The defendant testified that] he was taken to the police station, and en route, was questioned regarding an alleged crime, an attack on a white woman, which he denied; that on his arrival at the City Police Station he was taken to a room on the first floor of the said police station, where he was stripped of his clothing, and where he was questioned regarding the alleged crime, which he continued to deny;

That he was then taken to a room on the second floor of the police station, where, in his nude condition, he was caused to mount a stool, with his arms and hands pinioned behind him with handcuffs, a chain being attached to said handcuffs, after which the stool was kicked out from under him, causing him to be suspended, for a period of approximately ten to twelve minutes. Finally, unable to stand the excruciating pain any longer, he answered the questions as demanded of him by the said Officer Clark; that during this time he had been subjected to force and threats, and struck in the abdomen while so suspended; that after he was removed from this position he was given clothing. . . . [He was taken to the scene of the crime] en route he, the defendant, was told by the said Officer Clark that unless he confessed to the details of the said crime, he the said officer, would shoot to death the defendant, and state that the defendant George Douglass, had attempted to escape; that at the scene of the alleged crime, under threat of being shot to death, the defendant answered what was demanded

of him by the said Officer Clark .... 226

Douglass maintained his innocence to the end. He was electrocuted less than two months after his trial.

5. Thomas Walker and Johnnie Outlaw - Murder - Executed 1946

Thomas Walker and Johnnie Outlaw were executed for the murder of a white man, Andrew J. Mitchison.227 Mitchison was a thirty-four year-old truck driver; he was married and had a two year-- old son, but had filed for divorce from his wife a few days before he was killed. The crime occurred in a deserted area outside of Memphis where Mitchison and a female companion had driven and parked. Two men had approached their car and forced them out. Mitchison was robbed and his throat was cut, apparently when he resisted the robbery. The attackers instructed the woman not to leave the site of the crime for at least half an hour while they made their escape.

Outlaw and Walker were arrested soon after the crime. The evidence showing their involvement in Mitchison's murder was very strong. Walker admitted being present at the crime, but insisted that he had been more a hostage of Outlaw's than a willing participant. Walker gave a detailed account of the crime, including allegations that Outlaw had tried unsuccessfully several times to rape Mitchison's female companion. He repeatedly alleged that Outlaw had threatened him if he did not cooperate, and that he had intervened and protected the woman. Despite their incompatible defense, the two were tried together. The trial jury deliberated only forty-two minutes before returning a guilty verdict in what the Attorney General

called "the most brutal, most atrocious murder I have ever encountered."228 Outlaw and Walker were sentenced to death eighteen days after the crime and were executed eleven months later.

6. Bruce Watson - Rape - Executed 1949

The last person from Shelby County to be executed was Bruce Watson.229 Watson was convicted of the rape of a white woman in October of 1947. There was substantial evidence against Watson: his hat and fingerprints were found in the victim's home, and she identified him as her attacker. Watson admitted breaking into her home, but claimed he had gone in only to steal whiskey, and had not assaulted her. When Watson was arrested, the police took his wife, sister, and brother-in-law into custody as material witnesses, and threatened to jail his mother as well. Watson signed a confession while in police custody but later repudiated it, and said that he had cooperated in order to gain his family's release. The police said that he "freely and voluntarily" gave his statement to them and the judge admitted it into evidence.230

Watson was "tried and convicted in one of the speediest trials in Shelby County."231 His lawyers appealed his case to the Tennessee Supreme Court, and then requested clemency from the governor. Watson's father wrote the governor requesting mercy for his son. Governor Browning responded:

Dear Sir:

I have your letter of the 24th and assure you that I sympathize with you in your impending troubles. I will go out and talk to Bruce the first day it is possible after I

finish reading his record, which I am about two-thirds through. My task is a difficult one and I will be as careful as I can to do all in my power to see that justice is carried out, and assure you again that I know your road is hard.232

About three weeks before the execution, Watson's father wrote again:

Deare Governer:

Just a few words to see what have done in my boys case. My boy writes me - the Lawry write him it is nessery for me - to get up $250.00 to carry his case to higher court it is hard for me to raise money. Woul you please write and tell me if it is nessery to do so. Please let me here frome you soon - Frome

Osker Watson

P.S. Please write me what you thank of my boys case.233

The Governor replied:

Dear Sir:

I have your letter of the 19th, and have been advised that the time has passed for an appeal to the United States Supreme Court to be effected. I have written the Attorney, Mr. Roberts, who seems to have done the best job for you anyone could have, and have tried to explain to him that I knew of nothing further I could do in the case.

Naturally I regret these things occur, but I have read the record as carefully as I could, and have not found any way to give you any encouragement.234

Watson was executed on June 10, 1949. The night before his execution his only visitors were two ministers and the prison chaplain.235

A review of the death penalty statutes in Tennessee provides a window through which the political and social forces operating in the nineteenth and twentieth centuries may be viewed. The separate laws governing the behavior of slaves and free blacks on the one hand and whites on the other clearly indicate that the criminal justice system reflected the political and economic systems of the time. Even after the distinctions based on race were removed from the law, the de facto practice of discrimination continued in Shelby County as blacks were exclusively selected for execution for rape, and accounted for nearly 90% of those executed for murder during the years 1916-1949.

Despite the fact that the historical record of Shelby County indicates that both legal executions and lynchings were largely reserved for black defendants, Tennessee provides an interesting contrast to the other southern states. Tennessee is the only southern state to abolish capital punishment for murder for a period of time in the early twentieth century and was the last of the southern states to re-institute executions in the modern era. Many of the leading political figures in the state throughout the nineteenth and twentieth centuries publicly voiced opposition to capital punishment and proposed its abolition.

Scholars generally have studied capital punishment at the state level, leaving a dearth of county-level analyses. This review of the death penalty in Tennessee, with a focus on Shelby County, provides an indication that both historical and geographically specific analyses can provide valuable insights. In Tennessee, a state marked by three grand regional divisions, further research comparing historical and contemporary practices among different counties is needed to better understand the diversity of attitudes and practices within the state.

MARGARET VANDIVER*

MICHEL COCONIS**

* Associate Professor, Department of Criminology and Criminal Justice, University of Memphis.

** Assistant Professor, School of Social Work, Grand Valley State University. The authors wish to thank the staff of the Shelby County Archives, especially Vincent L. Clark, Ann Johnson, and John Dougan. We are deeply grateful to Mr. Dougan, whose interest, enthusiasm, and knowledge have guided us at every stage of this project. We thank Julia Rather at the Tennessee State Library and Archives in Nashville, Edwin G. Frank and the staff of the Mississippi Valley Collection at the University of Memphis, Wayne Dowdy at the History Department of the Memphis/Shelby County Public Library and Information Center, and Candy N. McAdams at the Ned McWherter Weakley County Library. We thank the graduate students who have helped us with this project: Bryan Boyd, Nick Herfordt, Danyelle Pickens, Mary Ann Ring, Dulcy Stout, Amy Webber, and especially Mary Elizabeth Moore. Thanks to Martha Deaderick for providing a valuable source and David J. Giacopassi for his comments and suggestions. We especially wish to acknowledge the debt this project owes to the research and scholarship of M. Watt Espy, Jr., the death penalty's premier historian.

Copyright University of Memphis Summer 2001
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