Legal Lynching

In 2016, a police officer was shot to death in San Antonio. A man was arrested, and 100 miles north, in rural Burnet County, a judge named James Oakley took to Facebook. “Time for a tree and a rope,” he wrote. This was two years after police in Ferguson fatally shot Michael Brown, and four years before Minneapolis police killed George Floyd by asphyxiation. It was the year police shot and killed Alton Sterling and Philando Castile, and then Micah Xavier Johnson killed five police officers in a shooting rampage in Dallas.

At an especially raw moment, the Facebook post from an obscure Texas judge went viral, perhaps because of how it spoke to the deep roots of the racial injustices that saturate the US criminal justice system, shaping these encounters between Black Americans and police that so often turn deadly. In the summer of 2020, when yet another Black man, Daniel Prude, was killed—he died of asphyxiation after police in Rochester, New York covered his head with a hood—his brother, who had called 911, said at a news conference, “I placed a phone call for my brother to get help—not for my brother to get lynched.”

The way Texans talk about their past has played a strange but undeniable role in both the rise of capital punishment within the state and in the rise of mass incarceration across the country.

Before the era of mass incarceration and the so-called war on drugs was the century of Jim Crow, in which Black people were charged with minor “crimes,” such as being unemployed and congregating in public. They were then forced into labor in a system that some historians have called slavery by another name. But more pointedly, Oakley’s “rope” comment evoked the way in which Black men were murdered, not by law enforcement officers but by mobs of lawless White people who abducted them on the thinnest of accusations and tortured them before burning or hanging them in the center of town, as crowds gathered to picnic and maul their bodies for fingers to take home as souvenirs. Many White attendees posed for photos. Every time I’m on a day trip to a small Texas town and drive by a picturesque courthouse square, the experience is tainted by having seen these images.

Oakley apologized. “My comment was intended to reflect my personal feelings that this senseless murder of a police officer should qualify for the death penalty,” he told the state judicial commission. “In my mind, the race/gender of the admitted cop killer was not relevant.”

But Oakley also talked about salsa. He claimed that his “tree and a rope” line was inspired by an ad for Pace Picante sauce that ran in the 1980s and takes place, according to the opening shot, “Somewhere in Texas.” A cowboy learns that he and his friends are eating salsa made in New Jersey (or New York). He looks at the chef and shouts, “Get a rope!”

At a public hearing of an electricity cooperative on whose board Oakley served, a defender of the judge said, “He wasn’t talking about a lynching. He was talking about good West Texas justice.” But another speaker shot back: “For those ignorant of United States history, Black men were lynched to instill fear and compliance in the Black population.”

Over the past 50 years, Texas has been responsible for roughly a third of the country’s 1,500 executions. There are legal, political and even financial reasons for this, but Oakley’s salsa comment spoke to the less-examined cultural aspects of this history. The way Texans talk about their past has played a strange but undeniable role in both the rise of capital punishment within the state and in the rise of mass incarceration across the country.

In 1972, after civil rights lawyers argued that Black prisoners were more likely to be executed than their White counter- parts, the Supreme Court struck down capital punishment laws around the country. Most of the justices did not go so far as to say the laws were discriminatory, but several did agree that the system was arbitrary, that among the hundreds of convicted murderers and rapists who might be executed in any given year, the handful who actually faced the electric chair were unlucky, their fate as random as being “struck by lightning.”

The high court allowed that states could reinstate capital punishment if they rewrote their laws. So in February 1973, a handful of Texas legislators gathered in a small room at the state Capitol in Austin. The building had been constructed from limestone, with an exterior of gorgeous pink granite that seems to glow when the sun is setting. The rock was quarried in the 1880s by state prisoners, some as young as 12, whose labor was sold to private contractors. Most of these prisoners were Black. Many of them died, likely due to the heat or because they were shot while attempting to escape.

Nearly a century later, legislators in that building heard testimony on whether the state should resume executing prisoners. From the hours of grainy recordings, I was especially drawn to the voice of San Antonio lawyer Fred Semaan. He was a study in contradictions, a rakish Perry Mason of San Antonio who claimed to have defended more murderers in the state than anyone but still favored capital punishment. Semaan admitted that racism in the courts was inevitable, because a system run by people was likely to reflect their biases and blind spots. But he thought judges could play a key role in keeping the system fair: “Set up someone somewhere to ride herd on that jury.”

The death penalty became the pinnacle of a system that deemed some people irredeemable, falling hardest on young men already damned to a lower caste.

Semaan proved adept at softening his harsh rhetoric with such folksy phrases. He proclaimed, with no evidence and even less humility, that the death penalty would reduce crime. A legislator responded with real statistics, noting that the number of murders in Minnesota had dropped when the state abolished the death penalty.

Semaan’s retort was surprising: “I don’t think in Maine, New Hampshire, Vermont and those states, people go to a beer joint the way some people do here in Texas, sit there and drink beer, and because somebody goes up and puts the nickel in the jukebox and plays a tune that somebody else don’t like, kill him for it. That’s been done here!”

On the recording, you can hear people chuckling. One legislator says, “Really?”

My only vivid memory from kindergarten is learning how to spell T-E-X-A-S, and I remember two entire years of social studies classes being devoted to the state’s history. I visited the Alamo and the Capitol building multiple times growing up, and I heard about big personalities and righteous violence and hardly anything at all about race. Even in liberal Austin, I was taught that the Civil War was more about states’ rights than slavery. If I learned about Juneteenth—the holiday marking the moment federal troops arrived in Galveston to enforce the Emancipation Proclamation—it was so deemphasized that it did not stick nearly as strongly as the Battle of San Jacinto or the Goliad Massacre, narratives in which the White slaveholders are the heroic protagonists. I wish I could say that I rejected this version of history because of some deep moral compass, or even because I recognized the absurdities at the edges of the myths. (I never heard about a barroom brawl over a jukebox.) But honestly, I just didn’t feel at home in them. My mother was from Connecticut, and my father was from Syria. I was a little envious of people who, despite their family’s newness to the state, dispatched any sense of exile and acted as if their families had been steeped in the culture for centuries. People like Fred Semaan.

Although Semaan’s father, like mine, had come from Syria, his imagery drew on a long line of history books depicting Texas as a frontier society on the edge of lawlessness, where trials and due process couldn’t always be guaranteed because the place was, to put it bluntly, full of hotheads. “Probably a more reckless and vicious crew was seldom gathered,” wrote the landscape architect Frederick Law Olmsted, traveling in Texas in 1857. Over time, the reality and the image informed one another. The legal doctrine declaring that you had “no duty to retreat”—permitting murder with a justification of self-defense—was at one time known as the “Texas Rule.” The first working model of the Colt revolver was referred to as “the Texas.” Slowly, the language muted the role of race in the state’s history, portraying violence as a matter of outbursts by angry White men against one another, rather than against those who were not White.

Even though most Texans now live in cities and probably have never roped cattle or gotten into a jukebox fight, and even though many arrived during the population boom of the 1970s, frontier imagery has continued to appeal to the state’s residents. Many Texans belong to “cowboy churches,” with sermons held in rodeo arenas and baptisms performed in stock tanks. And, of course, they continue to carry handguns for self-defense. Now, at the Capitol building, there is a separate, fast-track entrance line for those with concealed carry permits.

As the death penalty returned in the 1970s, many followed Semaan in tying the need for capital punishment to the violence of frontier culture. When the Supreme Court approved the new Texas law in 1976, Justice Potter Stewart referenced an earlier decision: “When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy—of self-help, vigilante justice and lynch law.”

We conceal the roots of our darkest moments by tying them to our proudest.

Soon thereafter, a government lawyer who was working against the appeals of death row prisoners got this demand from the state governor: “The people of Texas want these people executed.” Crime rates were rising across the country, and the death penalty was an easy way for the state to show the public that it was doing something about it. Many Texas politicians benefited, having already built toughness into their brand. At gubernatorial debates, they argued about who had played a bigger role in executions, and in 1990, Saturday Night Live satirized them with a campaign ad showing a governor sitting atop a stack of coffins. “There is tough,” a lieutenant governor bragged in 2007, “and then there is Texas tough.”

Culture and policy mutually reinforced one another; we kept the death penalty because we needed it and because we liked it and because we’d always had it. “If you come to Texas and kill somebody, we will kill you back,” said the comedian Ron White, holding his trademark cigar and glass of whiskey. As the state’s death row expanded in the 1990s, a federal judge told the New York Times, “Texas is a Western state with a history of using violence to solve problems…. After all, this is where we used to hang horse thieves.” Anthropologist Robin Conley interviewed former jurors in Houston for a 2011 dissertation; one told her about another’s comment: “Down in parts of Texas where I work, we would have a room full of eye-for-an- eye people just wanting to hang this guy.”

As the United States turned to an era of mass incarceration, executions rendered prison sentences of 20, 40, even 60 years lenient by comparison. The death penalty became the pinnacle of a system that deemed some people irredeemable, falling hardest on young men already damned to a lower caste.

***

The reality of lynchings in Texas, and of Texas itself, was more Deep South than Old West. Many early White settlers in the region brought slaves with them, and among their reasons for fighting for independence was Mexico’s opposition to slavery. Texas later joined the Confederacy, and after the Civil War, lynchings were one of the ways White Texans maintained power over the newly free Black population.

But over time, this history took a back seat in the collective consciousness. “I don’t think anyone much questioned Texas’s essential Southernness until the twentieth century,” historian Gregg Cantrell told Texas Monthly in 2015. “Defeat, military occupation, Jim Crow and lynching, and all of those unpleasant things that are very much a part of Texas history as a Southern state were things that a lot of Texans would probably just as soon not talk about a lot.” Just as many Texans do not know the Capitol was built by prisoners, they also don’t know that Stephen F. Austin, the state’s founding father, for whom the capital city is named, worried that someday Black Texans might outnumber White Texans and that Black men would rape White women.

The less the old myths appeal, the less contemporary policy decisions will unthinkingly draw on them.

Historians across the country had few incentives to focus on racially motivated lynchings. In the past decade, the Equal Justice Initiative, a nonprofit organization in Alabama, has uncovered more than 800 lynchings that had never been recorded. A few historians have reckoned with their profession’s neglect. “I associated lynching primarily with the frontier,” scholar Joel Williamson wrote in a 1997 essay, describing a childhood memory of watching The Ox-Bow Incident. In the 1943 Western starring Henry Fonda, a small-town posse arrests a group of men. A member of the posse says, “Down in Texas, where I come from, we just go out and get a man and string him up.”

Williamson was blaming Hollywood for this mythology, but in a way, he was also blaming Texas. Tracing the retributive thread in our culture back in time, it has been all too easy for Americans to ignore the ways harsh physical punishments were used not just as a punishment for crimes but to maintain racial hierarchies. One way we’ve done this is by looking to Texas, or rather a mythical version of Texas, the site of a strange cultural alchemy, where harsh punishment was a regrettable necessity and not a means of racial subjugation. We conceal the roots of our darkest moments by tying them to our proudest.

In the archives of the Texas legislature, the counterweight to Fred Semaan’s 1973 statement was Craig Washington, who was in the room for the jukebox comment and may have been the one to respond with incredulity. He was new to the legislature, one of a group of Black representatives from Houston known as the “People’s Five.” When I interviewed him, he said he thought his colleagues in the legislature were all using “coded language” in order to “avoid addressing that the vast majority of executions up to that point had been of Black men.” When the Texas House of Representatives voted to bring back the death penalty, Washington led the last-ditch effort to stop it. He proposed that for every execution, the entire legislature should meet and an electric chair should be placed in the middle of the chamber; all these politicians would be forced to vote for the execution directly. “I say the buck oughta stop here,” he told them, adopting Harry Truman’s folksy aphorism. Some of the legislators laughed.

“Mr. Washington,” one said, “this isn’t serious.”

“It is serious,” Washington insisted.

But Washington didn’t bring up lynchings, not really. I asked him why, and he said that explicit talk of race tended to make his peers nervous and less open to discussion. You couldn’t convince a man of anything, Washington felt, if he thought that you thought he was a racist. This was decades before the New York Times bestseller list was topped by a book titled White Fragility.

Now in 2020, as statutes of Confederate generals come down, as we learn more about Stephen F. Austin’s talk of racial purity and the stories of Texas Rangers wiping out Mexican villages and chasing escaped Black slaves and participating in the genocide of Native Americans, White Texans shouldn’t be able to bask in the luxury of innocence. And yet we do.

The state has yet to open a site like the Whitney Plantation Museum in Louisiana, which focuses on the lived experiences of enslaved people, or the Legacy Museum in Alabama, a former slave warehouse in Birmingham where visitors explore the links between lynchings and the death penalty. Instead, we have the Texas Ranger Hall of Fame and Museum in Waco and the Texas Prison Museum in Huntsville, where Old Sparky, the state’s decommissioned electric chair, was recently used as a decorative display for raffle items.

There are signs of change. A few counties have unveiled historical markers about lynchings, and the Bullock Texas State History Museum in Austin has not shied away from describing violence against Mexicans in the early 20th century. The less the old myths appeal, the less contemporary policy decisions will unthinkingly draw on them.

Across the country, lynchings gave way to state executions, which were legal but also held in public before large crowds. Civic leaders, however, came to find this embarrassing. In the 1920s, the Texas legislature moved executions behind closed doors and opted for the more “modern” method of electrocution. In the 1970s, lawmakers worried that the electric chair still created a circus atmosphere and abandoned it for lethal injection. It is now easy to imagine that lethal injections might suffer a similar fate. In 1999, Texas executed 35 prisoners and issued 48 death sentences. In 2019, the state carried out nine executions and handed out just four new death sentences.

My wife and I recently moved into a house in southwest Austin. It’s not far from what’s known as Convict Hill, where prisoners quarried some of the limestone used to build the Capitol. There are legends of men dying and being buried on the hill—hence the name—although no remains have ever been found. During the coronavirus pandemic, I read about this history as we painted and unpacked and dumped thousands of limestone pebbles into our yard, imagining how to make our small corner of this big, messy place into something new. There is still so much to repair.