As a predicate for his analysis of the “failed promise” of the Fourteenth Amendment, Stuntz describes differences between the administration of justice in the northeastern states and the antebellum South, as well as two different kinds of violence against African-Americans during the early years of Reconstruction.
The three criminal enforcement systems in the antebellum South were the justice of courts, the justice that masters enforced over their slaves, and the justice of the mob. The second came to an end when the Thirteenth Amendment abolished slavery, and it seems clear that the Fourteenth Amendment was intended to end the all-too-common practice of lynching African-Americans and a surprisingly large number of their white sympathizers. Unfortunately, that practice survived the Civil War.
Stuntz provides us with brief descriptions of the two types of mob violence that illustrated the need for federal involvement in the protection of the new class of black citizens. In Memphis and New Orleans, white police officers played an active role in killing blacks, whereas in the tragic Colfax massacre on Easter Sunday in 1873, white Klansmen killed sixty-two black men—some of whom were unarmed and had attempted to surrender—without any active assistance from state officers. Broadly speaking, the Fourteenth Amendment might have been construed generously to authorize direct federal involvement in the prevention of mob violence in both types of cases, or more narrowly only to prevent state action, such as occurred in the Memphis and New Orleans mass murders.
In an Alabama case decided in 1871, then Circuit Judge William Woods interpreted the Equal Protection Clause to support the broader view: “Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect.” Judge Woods also reasoned that because “it would be unseemly for Congress to interfere directly with state enactments,” Congress’s power to enforce the amendment must have been intended to authorize legislation “which will operate directly on offenders and offenses.”
That broader view prevailed in a series of Klan cases, mostly in South Carolina and Alabama, which produced nearly six hundred convictions in federal courts in 1871 and 1872. It seems fairly clear that the large-scale enforcement effort by the Freedmen’s Bureau, federal prosecutors, and federal agents that produced those convictions was faithful to the intent of the Grant administration that had sponsored the Fourteenth Amendment and its implementing legislation.
The broad view, however, was rejected by the Supreme Court in the infamous case of US v. Cruikshank, decided in 1876, that arose out of the Colfax massacre. Stuntz argues that that decision is best understood as the product of political developments following the stock market collapse in 1873 that gave Democrats control of Congress. The opinion in Cruikshank emphasized the Fourteenth Amendment’s limits, concluding that it prohibited only state action and did not “add any thing to the rights which one citizen has under the Constitution against another.” Although I have reservations about accepting a political explanation for a judicial decision, there can be no doubt concerning Cruikshank‘s unfortunate effects. The Court not only set aside the conviction of one of the Colfax massacre’s leaders, who had made a sport out of lining up black men at the parish to see how many he could execute with a single bullet, but its decision also judicially constrained the Fourteenth Amendment’s equal protection principle in a manner that has not been undone.
Stuntz’s description of the Colfax massacre and the Cruikshank decision draws heavily on Charles Lane’s exhaustive research in his recent book, The Day Freedom Died.* Stuntz convincingly explains why the rationale adopted by the Supreme Court was neither necessary nor faithful to the promise of the Fourteenth Amendment, and how it put an end to Klan prosecutions:
The change in the nation’s political tilt wrought by the depression of 1873 was temporary, as such changes always are. The legal change was permanent. The ideal of equal protection—the notion that all Americans are entitled not only to freedom from government oppression, but to a measure of freedom from private violence as well, and the same measure their well-to-do neighbors received—was, for all practical purposes, dead. So were thousands of southern blacks who needed that protection, and needed it badly.
Whether the Cruikshank decision was faithful to the intent of the men who drafted and ratified the Fourteenth Amendment rather than to the Democratic majority that had been elected in 1874 may well be debatable. I have no doubt, however, that the 1954 Supreme Court decision in Brown v. Board of Education, which put an end to segregated public schools, represented an application of the equal protection guarantee that the original authors and ratifiers of the provision did not anticipate. Unlike Cruikshank, Brown gave effect to a broad vision of the equal protection guarantee, although not the particular broad view that Cruikshank had obliterated.
In the US v. Reese case, decided on the same day that the Supreme Court announced Cruikshank, the Court set aside convictions of Kentucky election officials for conspiracy to deprive a black prospective voter of his right to vote. They had refused to register him when he offered to pay his poll tax, but the Court held the statute unconstitutional because it did not require proof that their conduct was racially motivated. After that decision, in Stuntz’s view, “even Klan-influenced government officials were nearly unconvictable, thanks to the requirement that the omnipresent but unprovable discriminatory motive be established in every case.” Stuntz’s criticism of that decision for its overly stringent requirement of proof of motive may be correct, although elsewhere in the book he identifies the requirement for mens rea criminal intent as a valuable limitation upon law enforcement, and its absence in later statutes as a significant contributor to overenforcement of criminal law.
Stuntz identifies three Supreme Court decisions from the last three decades that he perceives to exemplify the impact of the errors that infected Cruikshank and Reese. I found that discussion especially interesting because although I had written a dissenting opinion in each of those three cases, I had not cited Cruikshank or Reese in any of those dissents. In McCleskey v. Kemp, in 1987, the Court rejected convincing evidence that in Georgia a black killer of a white victim more often receives the death penalty than when the victim is black or the killer is white, because the defendant had failed to prove a discriminatory motive by any relevant decision-maker in his own case. In US v. Armstrong, decided in 1996, the Court found insufficient justification for allowing discovery procedures in a trial judge’s firsthand knowledge about drug prosecutions, where such discovery almost certainly would have confirmed that the government tended to federally prosecute drug defendants who were black but to permit more lenient state court prosecution of those who were white. In Castle Rock v. Gonzales, decided in 2005, the Court found no constitutional violation where police failed to enforce a restraining order obtained by a mother against her estranged husband, who ultimately killed their three children.
McCleskey and Armstrong do indeed support the thesis that the Court has tolerated law enforcement practices that are discriminatory against African-Americans, but I do not re- member discrimination to be at issue in the outrageous failure of the police to do their duty in Castle Rock. Perhaps Stuntz means to suggest—consistent with his thesis earlier in the book—that the discretion afforded to law enforcers by Castle Rock, which found no constitutional entitlement to police protection, facilitates the unequal offering of police protection to crime victims of different races.
After the Court’s decision in Cruikshank, the federal government was not a major participant in law enforcement for decades. Stuntz describes the expansion of federal criminal law through the culture wars of the early twentieth century concerning lotteries, polygamy, prostitution, opium, and alcohol. In his discussion of harmful addictive substances, he does not mention tobacco but does contrast Prohibition with today’s continuing war on drugs.
Stuntz explains, “The chief drug war of the early twentieth century concerned alcohol, not any of the range of narcotics that so obsessed the late twentieth-century legal system.” Prohibition, authorized by the Eighteenth Amendment and the Volstead Act, is generally regarded as a “great disaster,” but was in fact more effective and a lesser cause of crime than often assumed. Among the benefits that Stuntz identifies were a decrease in alcohol consumption, caused in part by the significant increase in its price (a quart of gin, for example, rose from 95 cents to $5.90), and open discussion of the pros and cons of using alcohol.
While “the law of Prohibition may have been foolish,” it was also far less severe than the modern war against drugs. It did not prohibit the mere possession or consumption of alcoholic beverages, only their manufacture, sale, and transport; it exempted use in private homes and service to “bona fide guests”; and doctors were expressly permitted to prescribe the use of alcoholic drinks for therapeutic purposes. Today prison sentences are imposed for simple possession of marijuana and a long list of other controlled substances, and federal law (as upheld by the Court in a 2005 opinion that I wrote, Gonzales v. Raich) even bars possession of home-grown marijuana prescribed to combat the nausea that attends most cancer treatments.
Stuntz describes some harms of alcohol consumption and criticizes Prohibition, but he does not address facts about Prohibition’s enforcement costs or the consequences of its repeal. Those consequences obviously included the replacement of significant litigation and imprisonment costs with generous tax revenues, and expansion of profitable commerce in the production and marketing of alcoholic beverages. On the other hand, as Stuntz’s own reasoning suggests, those consequences also likely included an increase in alcohol consumption, which continues to have serious adverse social effects today.
Such a discussion of the pluses and minuses of the repeal of Prohibition might have provided information relevant to a debate on the wisdom of current drug enforcement policies. As Stuntz mentions, the absence of developed debate among present-day political leaders about drug policies is striking in light of the openness of the debate among political leaders in the 1920s and early 1930s—such as Al Smith, the Democratic presidential candidate in 1928—about the wisdom of prohibiting alcohol. In short, while Stuntz’s discussion of Prohibition is interesting and informative, it omits a potentially valuable assessment of how the lessons from Prohibition’s repeal might bear upon, and inform political debate about, the current war on drugs.
Extending his criticism of our system’s focus upon criminal procedure rather than substance, Stuntz’s eighth chapter concerns “Earl Warren’s Errors.” That chapter title is both misleading and inaccurate. It is misleading because much of the chapter does not describe “errors,” but rather unintended consequences of decisions—Mapp v. Ohio (1961) and Miranda v. Arizona (1966)—that I think were clearly correct.
Stuntz argues that because those decisions were unpopular, they undoubtedly provided ammunition to politicians who campaigned on promises to be “tough on crime” if elected, and that the success of their campaigns in turn led to the enactment of more and harsher criminal laws, such as the exceptionally severe drug laws sponsored by men like Nelson Rockefeller. It is quite unfair to criticize Earl Warren for his “poor timing” just because the Court found it necessary to make unpopular decisions when the public was especially concerned about rising crime rates. Indeed, a paramount obligation of the impartial judge is to put popularity entirely to one side when administering justice.
* The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Holt, 2008). ↩
The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Holt, 2008). ↩