Aikens v. California, Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas Motion for Leave to File Brief as Amici Curiae and Brief Amici Curiae of the NAACP, National Urban League, SCLC, MALDEF, and National Council of Negro Women

    I n  t h e  ^

g>ttpr?nt? (Eourt at %  Huifrii 81 *97*
October Term, 1971

No. 68-5027
ERNEST JAMES ATHENS, Jr., Petitioner, 

v.
STATE OF CALIFORNIA, Respondent.

ON W RIT OF CERTIORARI TO THE SUPREME COURT OP CALIFORNIA

No. 69-5030
LUCIOUS JACKSON, Petitioner, 

v,
STATE OF GEORGIA, Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

No. 69-5003
WILLIAM HENRY FURMAN, Petitioner,

v.
STATE OF GEORGIA, Respondent.

ON W RIT OF CERTIORARI TO TH E SUPREME COURT OF GEORGIA

No. 69-5031
ELMER BRANCH, Petitioner, 

v.
STATE OF TEXAS, Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF TEXAS

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE AND BRIEF 
AMICI CURIAE OF THE NATIONAL ASSOCIATION FOR THE ADVANCE­
MENT OF COLORED PEOPLE, NATIONAL URBAN LEAGUE, SOUTHERN 
CHRISTIAN LEADERSHIP CONFERENCE, MEXICAN-AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND, AND THE NATIONAL COUNCIL

OF NEGRO WOMEN

Leroy D. Clark
New York University Law School 
New York, New York 10003

Nathaniel R. J ones
National Association for the 
Advancement of Colored People 
1790 Broadway 
New York, New York 10019

Vernon J ordan
National Urban League 
55 East 52nd Street 
New York, New York 10022

Chauncey E skridge
Southern Christian Leadership Conference 
110 South Dearborn Street, Suite 1500 
Chicago, Illinois 60603

Mario G. Obledo
Mexican-American Legal Defense and
Educational Fund
145 Ninth Street
San Francisco, California 94103

Attorneys for Amici



I N D E X
PAGE

Motion for Leave to File Brief Amici Curiae ...............2-M

Brief Amici Curiae.........................................................  1
Statement of Interest..............................................  2
Summary of Argument............................................  7
Argument ....................................................    8

I. Pre-1935 History of the Racially Discrim­
inatory Use of Formal and Informal Cap­
ital Punishment by Whites Against Non­
whites .........................................................  8

A. Slavery 1619-1865 ....................... 8
B. Lynching and Vigilantism 1882-

1935 ................................................  11

II. The Disproportionate Numbers of Non- 
White Persons Executed by Formal Cap­
ital Punishment Constitutes Cruel and 
Unusual Punishment in Violation of the 
Eighth and Fourteenth Amendments of 
the Constitution ......................................... 13

Conclusion .......................................    23

Appendix A:
Pre-Civil War History of Punishment for Rape 
in Southern States and Washington, D.C...... ........ la

T able oe A uthobities

Cases:

Douglas v. California, 372 U.S. 353 (1963) .................  21

Gideon v. Wainright, 327 U.S. 335 (1963) ...................  21



11

PAGE

Maxwell v. Bishop, 398 Fed. 2d 138 (1968) .................  16

Strauder v. West Virginia, 100 U.S. 303 (1879) ..........  18

Trop v. Dulles, 356 U.S. 86 (1958) ............................19, 20

Weems v. United States, 217 U.S. 399 (1910) ..........19,20

Wilkerson v. Utah, 90 U.S. 130, 135-136 (1879) ..........  19

A uthorities

Bedau, The Death Penalty in American Law (paper­
back ed.) (1967) 411-413 ...... .................................... 18

Du Bois, The Suppression of the African Slave Trade 
to the United States of America (1954) p. 6 ..........9,10

Franklin, From Slavery to Freedom—A History of 
Negro Americans, (1966) 3rd ed., 58-59 .................  8

Graham and Gurr, Violence in America—Historical 
and Comparative Perspectives—A Stall Report to 
the National Commission on the Causes and Pre­
vention of Violence, Vol. I (1969) 39 ................. 11,12,13

Greenberg, Race Relations and American Law (1959)
320 .............................................................................12,18

Jordan, White Over Black (1968) 106 ........................  10

Myrdal, An American Dilemma ...................................  14

Stamp, The Peculiar Institution—Slavery in the Ante- 
Bellum South (1956) 210 .......................................... 9



Ill

PAGE

Tannenbaum, Slave and Citizen (1947) 28-29 ..........  8

Report of the National Advisory Commission on Civil 
Disorders (1968) 102 ..............................................12,14

United States Department of Justice, Bureau of Pris­
ons, National Prisoner Statistics No. 45, Capital 
Punishment 1930-1968 (August 1969) 7 ...................  20



I n  the

Ihtprrmr Court of tfjr Initrft States
October T erm, 1971 

No. 69-5027
E rnest J ames A ikens , J r., Petitioner, 

v.
S tate of California, Respondent.

ON W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  COU RT OF CA LIFO R N IA

No. 69-5030
Lucious J ackson, Petitioner,

v.
S tate of Georgia, Respondent.

ON W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  CO U RT OF GEORGIA

No. 69-5003
W illiam H enry F urman , Petitioner,

Y.
S tate of Georgia, Respondent.

ON W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  CO U RT OF GEORGIA

No. 69-5031
E lmer B ranch, Petitioner, 

v.
S tate of T exas, Respondent.

O N  W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  COU RT OF TEXAS



2-M

Motion for Leave to File Brief Amici Curiae

The National Association for the Advancement of Col­
ored People, the National Urban League, The Southern 
Christian Leadership Conference, the Mexican-American 
Legal Defense and Educational Fund, and the National 
Council of Negro Women, respectfully move the court 
for leave to file the attached brief amici curiae. The at­
torneys for the petitioners have consented to the filing, 
but except for the State of California, the attorneys for 
the respondent have refused.

Movants have never before asked leave of this court 
to file an amicus brief on previously presented aspects of 
the administration of capital punishment. We do so now 
because the decision of the court will have an unprece­
dented impact on the manner in which the death penalty 
is imposed upon the downtrodden and deprived minor­
ities of this country, who too often are black.

Counsel for the Petitioners have covered admirably, we 
think, the aspects of the case which deals with funda­
mental violations of the Eighth and Fourteenth Amend­
ments. While we are deeply concerned with those issues, 
we shall, to avoid repetition, treat principally the areas 
that bear with discriminatory harshness upon blacks, Mex­
ican-Americans, the poor and other disadvantaged persons.



3-M

W herefore, movants pray that the attached brief amici 
curiae be permitted to be filed with the Court.

Respectfully submitted,

Leroy D. Clark
New York University Law School 
New York, New York 10003

N athaniel R. J ones
National Association for the 
Advancement of Colored People 
1790 Broadway 
New York, New York 10019

V ernon J ordan
National Urban League 
55 East 52nd Street 
New York, New York 10022

Chauncey E skridge
Southern Christian Leadership 
Conference
110 South Dearborn Street 
Suite 1500
Chicago, Illinois 60603

Mario G. Obledo
Mexican-American Legal Defense 
and Educational Fund 
145 Ninth Street 
San Francisco, California 94103

Attorneys for Amici



I n  the

$upr?m? ©Hurt of %  In it^  States
October T erm, 1971 

No. 69-5027
E rnest J ames A ikens , J r., Petitioner, 

v.
S tate oe California, Respondent.

ON W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  CO U RT OF C A LIFO R N IA

No. 69-5030
Lucious J ackson, Petitioner,

y.
S tate of 'Georgia, Respondent.

ON W R IT  OF CERTIO RA RI t o  T H E  S U P R E M E  COU RT OF GEORGIA

No. 69-5003
W illiam H enry F urman, Petitioner, 

v.
S tate of Georgia, Respondent.

O N  W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  CO U RT OF GEORGIA

No. 69-5031
E lmer B ranch, Petitioner, 

v.
S tate of T exas, Respondent.

ON W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  COU RT OF TEXAS

BRIEF OF AMICI CURIAE



2

Statement of Interest

This brief amici curiae is tendered by five national civil 
rights organizations which work to obtain, protect, and 
promote equal rights by lawful and peaceful means for 
black, Mexican-American and other minority-American 
citizens.

The National Association for the Advancement of Col­
ored People, the National Urban League, The Southern 
Christian Leadership Conference, the Mexican-American 
Legal Defense and Educational Fund, and the National 
Council of Negro Women, are united by the harsh reality 
that capital punishment has become reserved almost exclu­
sively for our nation’s minorities.

The National Association for the Advancement of Col­
ored People (NAACP) has a membership of 470,000 black 
and white belonging to 1,700 branches and offices through­
out the nation. Since its inception in 1909, the NAACP 
played a key role in securing legislation providing addi­
tional enforcement machinery to deal with extra-legal forms 
of capital pnuishment and bigoted lawlessness. It has also 
songht to end racial discrimination, through our judicial 
system in all aspects of American life. Complementing the 
Association’s legal spearhead are extensive programs to 
deal with racial factors in housing, education, employment, 
voter registration, and the administration of criminal 
justice.

The National Urban League, founded in 1910, is an inter­
racial, non-partisan, non-profit organization. A national 
movement with over 98 autonomous local affiliates, the Na­
tional Urban League seeks social and political equalization 
through channeling contributions received, to innovative



3

projects designed to free blacks and other minorities from 
poor economic opportunities and unfair law enforcement.

The Southern Christian Leadership Conference (SCLC) 
was founded in 1957, and I)r. Martin Luther King was its 
first President. Since its inception, SCLC’s fundamental 
purpose has been the obliteration of all vestiges of racial 
apartheid relying primarily on creative conflict-resolution 
generated by non-violent techniques. Programs of SCLC 
include voter registration, increased participation of blacks 
in economic institutions (“Operation Breadbasket”) and 
projects aimed at the elimination of poverty.

Pounded in 1967, the Mexican-American Legal Defense 
and Educational Fund (MALDEF) is devoted to securing 
the constitutional rights of Mexican-American citizens 
through concerted effort in the courts and by preparing 
young Mexican-Americans for legal careers . . . Since its 
inception four years ago, MALDEF has handled, through 
its four branches 90 per cent of the civil rights litigations 
undertaken in behalf of Mexican-Americans.

The National Council of Negro Women began in 1935, 
now includes a coalition of 25 national organizations and 
concerned individuals; forming a network affiliating it with 
about four million women throughout the United States. 
Its one hundred and thirty-seven (137) sections are in­
volved in innovative program approaches to chronic depri­
vation and need by supporting black women to conduct 
housing, day-care, drug addiction, and self-help economic 
projects, sponsered by the National Council.

Past statements and resolutions adopted by these organi­
zations reflect the united interest of the parties participat­
ing in this brief. Addressing itself to the discriminatory 
application of capital punishment, the 1969 resolution by 
the Board of Directors of the National Urban League 
stated:



4

“There seems little question that the death penalty 
has been applied in a discriminatory fashion. The 
black and the poor suffer the extreme consequence in 
numbers far out of proportion to their rates of crime 
. . . Since 1930 of the nearly 4,000 persons executed 
fifty-five (55) percent have been black, although Ne­
groes make up only eleven (11) per cent of our popu­
lation. Almost without exception, the victims of execu­
tion have been poor. Statistics indicate that discrimi­
nation because of race is rampant and the death penalty 
applied most often in instances of crimes by Negroes 
against whites. It is all too often the poor, the weak, 
the ignorant and the black who have been executed.”

From the facts at hand they were led to conclude:
“Since we are convinced that the death penalty fails 
in its deterrent role; is patently unfair and discrimi­
natory as applied to the poor and the black; distorts 
our legal system and the psychology of our nation; 
and may, in fact, be in violation of the Constitution, 
the National Urban League ardently endorses and sup­
ports all efforts to have this most extreme form of 
punishment abolished.”

In re-acknowledging the commitment of the Association 
against the imposition of capital punishment the 61st An­
nual Convention of the NAACP resolved:

“Whereas, the Constitution of the United States of 
America guarantees all persons without regard to race, 
color, creed or national origin equal protection under 
the law,
Whereas, the sad facts of past and recent history 
clearly demonstrate that the vast majority of people



5

who have received the death penalty or are presently 
held in death row are blacks,
Whereas, many not so held in death row or in other 
facilities for crimes for which they were convicted by 
juries that did not in fact have representatives of that 
person’s peer group.
B e I t T herefore R esolved, that the National Office 
use its prestige and resources to press for the Supreme 
Court of the United States to abolish the death penalty 
as cruel and inhuman punishment violative of the equal 
protection clause and therefore unconstitutional.”

Speaking in behalf of Mexican-Amerieans, caught in the 
criminal process, Mario G. Obledo, General Counsel for the 
Mexican-American Legal Defense and Educational Fund 
(MALDEF) has stated:

“Maldef believed that Mexican-Americans, particularly 
in the Southwestern United States, receive and have 
received the death penalty in greater frequency for 
similar crimes than their Anglo or White counterpart. 
Maldef is deeply concerned that the administration of 
justice system is depriving the Mexican-American of 
basic constitutional rights. The last man to be executed 
in the United States was a Mexican-American.”

SCLC’s position against capital punishment is related to 
its unique national reputation for steadfast espousal of 
non-violence for individuals and the State; its former lead­
er, Dr. Martin Luther King was a victim of a modern style 
lynching while he was in the pursuit of the Ghandian ideals.

SCLC has not been deflected from its committment to the 
non-violent philosophy even in the case of Dr. King’s death. 
On the occasion of the conviction of James Earl Ray for



6

the assassination of Dr. King, Mrs. Martin Luther King 
stated on behalf of the organization: “The death penalty 
for the man who pleaded guilty to the crime would be con­
trary to the deeply held moral and religious convictions of 
my husband and the present President of SCLC, Dr. Ralph 
D. Abernathy . . . Retribution and vengeance have no place 
in our beliefs.”

The individual petitioners before this Court are engaged 
in a grim struggle for their lives and will undoubtedly 
seek to explore every facet of their case before this Court 
and any other public body or official whose actions may 
spare them. The undersigned, however, through their long, 
unceasing and continuing fight to erase the stain of racism 
from America, have a broader and more protective concern, 
for they speak not only on behalf of the instant petitioners, 
all of whom are black, but for the disproportionate number 
of disadvantaged minority group members who will in the 
future, if the past is any predictor, face the ultimate penalty.

It is only through organizations such as the undersigned 
that ethnic groups who have been peculiarly subjected to 
discrimination, but who still look to the constitution to 
protect their young from an unjust penalty, can have their 
day in Court, to state what they—who have been subjected 
to much of this society’s inhumanity—believe are minimal 
standards for civilized administration of criminal justice. 
The undersigned organizations, because of their unique 
goals, have a special responsibility to place the death pen­
alty before this Court within the full context of the struggle 
for racial justice.



7

Summary of Argument

I.
The total history of the administration of capital punish­

ment in America, both through formal authority, and in­
formally, is persuasive evidence, that racial discrimination 
was, and still is, an impermissible factor in the dispropor­
tionate imposition of the death penalty upon non-white 
American citizens.

II.
A. The available social science data is sufficient to sub­

stantiate the assertion that the death penalty is discrimina- 
torily imposed in contravention to the Equal Protection 
Clause of the Fourteenth Amendment. However, where an 
inference exists that an impermissible factor is a basis for 
the imposition of the death penalty, the burden shifts to 
the state to refute that inference. To take a life, without 
refutation of that impermissible factor is inconsistent with 
the “cruel and unusual punishment” clause of the Eighth 
Amendment.

B. In view of the trend away from the imposition of 
formal and informal punishment on alleged black offenders, 
any lingering executions which “prima facie” have been 
affected by racial discrimination, violate contemporary 
American standards for civilized criminal justice; thereby 
constituting cruel and unusual punishment.



8

I.
Pre-1935 History of the Racially Discriminatory Use 

of Formal and Informal Capital Punishment by Whites 
Against Non-Whites.

A. Slavery 1619-1865.

The Court is faced with the ultimate in the use of pub­
lic authority over its citizens—four black defendant’s lives 
hang in the balance. The amici curiae, wish to place the 
penalty predicament of these four defendants within the 
total historical context of the infliction by whites of pun­
ishment upon non-whites, both through the formal public 
authority, and informally, in an attempt to assert that 
the contemporary phenomenon, capital punishment, is 
merely the grossest (because irremediable) and contem­
porary evidence, of continued racial discrimination oper­
ating to impose heavier burdens on the non-white popula­
tion in the criminal process.

No attempt will be made here to focus on unprovoked, 
near-genocidal behavior, such as that which occurred in 
crossing the Atlantic during the slave trade,1 or the near 
extinction of the American Indian due to systematic forays 
by white settlers on the western frontier. Nor will we 
cover the black fatalities due to white inflicted race riots, 
where the black victims were largely the by-product of 
general random violence, which, as they progressed, be­
came hysterical reactions and not responses to specific 
offenses. We will concentrate on that form of racial hos-

1 Accurate figures with respect to the total number of slaves 
imported to the country do not. exist, but estimates range up to 
fourteen million. “From Slavery to Freedom—a History of Negro 
Americans”, pages 58-59, 3rd Edition (1966), John Hope Franklin. 
It has been further estimated that one-third of the blacks taken in 
Africa died on the coast and another third in crossing the ocean. 
“Slave and Citizen”, pages 28-29 (1947), Frank Tannenbaum.



9

tility, approved or by the white majority, which controlled 
the dispensation of fatal penalties for alleged perpetrators 
of crime.

The most brutal and inhumane forms of punishment- 
crucifixion, burning and starvation—were legal under the 
slave codes in the early colonies and were used extensively 
because imprisonment would have been a reward, giving 
the slave time to rest, and fines could not be collected 
from unpaid laborers.2 While one would imagine that the 
fact that the slave was conceived of as primarily an eco­
nomic unit would make him totally immune to capital 
punishment, in fact, he was exposed to a higher liability 
than non-slaves in this regard under formal statutes:

“State criminal codes dealt more severely with slaves 
and free Negroes than with whites. In the first place, 
they made certain acts felonies when committed by 
Negroes; and in the second place, they assigned heavier 
penalties to Negroes than whites convicted of the same 
offense. Every southern state defined a substantial 
number of felonies carrying capital punishment for 
slaves and lesser punishments for whites. In addition 
to murder of any degree, slaves received the death 
penalty for attempted murder, manslaughter, rape 
and attempted rape upon a white woman, rebellion 
and attempted rebellion, poisoning, robbery, and 
arson. A battery upon a white person might also 
carry a sentence of death under certain circum­
stances.” 3

2 “The Suppression of the African Slave Trade to the United 
States of America”, page 6 (1954), W. B. B. du Bois.

8 “The Peculiar Institution-—Slavery in the Ante-Bellum South”, 
page 210 (1956), Kenneth M. Stamp.



10

This pervasive authorization of capital punishment was, 
ironically, due to the fact that the slave trade was so 
thriving; often the masters of the slaves were so largely 
outnumbered that there was always the fear of violent 
rebellion.4 The intense fear of violent reaction by blacks 
had its roots in the real security problems of the slave 
owners, but it has spread to the general populace in the 
South and to the North as blacks migrated and has had 
a continual impact on the white public’s view of blacks 
charged with crimes against whites.

Capital punishment was also freely authorized for whites 
who interfered with slave discipline. North Carolina made 
death the penalty for concealing a slave “with the intent 
and for the purpose of enabling such slave to escape,” 
and Louisiana made it a capital offense to use “language 
in any public discourse, from the bar, the bench, the stage, 
the pulpit, or any place whatsoever” that might produce 
“insubordination among slaves.” The only brake on the 
actual imposition of capital punishment was the interest 
of the slave-owner in maintaining continuing production, 
but encouragement to use the penalty for slaves seen as 
particularly obstreperous existed by way of reimburse­
ment of the owner for any slaves so disposed of.6 Further, 
formal capital punishment was not needed to control 
slave rebellions for these were largely responded to with

4 Indeed, this appears to be the prime factor in abatement of the 
slave trade after the Eighteenth Century. This attessts to the 
intensity and depth of the fear of blacks-—because slavery was 
highly profitable for the whites involved. “The Suppression of the 
African Slave Trade”, supra, p. 6.

6 “White Over Black”, p. 106 (1968), Winthrop Jordan.



11

immediate and ruthless counter-violence on the spot.6 Such 
was the formal, explicit utilization of capital punishment 
during the slavery period—a use which was totally un­
related to the gravity of the crime, dangerousness of the 
offender, or any of the other oft asserted, superficially 
plausible justifications for the death penalty. The prime 
and express purpose of capital punishment in this context 
was to maintain the maximum threat for any reaction 
against the caste-like slave system.

B. Lynching and Vigilantism 1882-1935.

Immediately after slavery, when the freed men in the 
South came into economic cempetition with the white poor, 
and no longer could rely on the protection of their lives 
by white plantation owners, violence in the form of lynch­
ing—the informal mob resort to summary capital punish­
ment for real or alleged crimes—increased sharply in 
severity:

“From 1882 to 1903 the staggering total of 1,985 Ne­
groes were killed by Southern mobs. Supposedly the 
lynch-mob hanging (or, too often, the ghastly penalty 
of burning alive) was saved for the Negro murderer 
or rapist; but the statistics show that Negroes were 
frequently lynched for lesser crimes or in cases where 
there was no offense at all or the mere suspicion of 
one. Lynch-mob violence became an integral part of 
the post-Reeonstruction system of white supremacy.” 7

During this period 1,169 whites were also lynched, but 
the proportion of non-whites was approximately 60% of the

6 “Violence in America—Historical and Comparative Perspec­
tives—a Staff Report to the National Commission on the Causes 
and Prevention of Violence”, p. 39, Vol. I (1969), Hugh Graham 
& Ted Gurr.

7 “Violence in America”, Vol. I, page 38.



12

total [this includes 108 non-whites who were not black], a 
figure roughly paralleling the 53% of non-whites executed 
by way of capital punishment post-1930.8

Between 1903 and 1935, it has been estimated that an 
additional 1,015 blacks were lynched by white mobs. These 
figures do not include kangaroo court actions, unreported 
murders, or blacks killed in race riots.9 It is clear, however, 
that by 1935 the recorded and easily identifiable lynchings 
were sharply in abatement. From a high of 130 killed in 
1901,10 and 70 in 1918,11 lynching became almost non-exis­
tent, with 2 killed in 1950, 1 in 1951 and 1 each in the years 
1957 through 1959.

We have been using the term “lynching” primarily based 
on the definition by the recent Violence Commission Re­
ports ; “The practice or custom by which persons are pun­
ished for real or alleged crimes without due process of 
law . . .  an unorganized, spontaneous, ephemeral mob which 
comes together briefly to do its fatal work.” Other non- 
white ethnic groups have been murdered primarily by 
another form of white lawlessness, namely Vigilante vio­
lence, a more organized and systematic usurpation of the 
functions of law and order. It was supported often by men 
occupying the high office of Senator and Congressman, and, 
when not being used to check horse thievery, it was used for 
racial intimidation of Mexican-Americans, Chinese and 
Indians.12

8 “Violence in America”, Vol. I, supra, p. 57, footnote 27.
9 “Violence in America”, page 344, Vol. II (1969).
10 “Race Relations and American Law”, page 320 (1959), J. 

Greenberg.
11 “Report of the National Advisory Commission on Civil Dis­

orders”, page 102 (1968).
12 “Violence in America”, Vol. I, supra, footnote, pages 40, 52.



13

“Not unmixed with vigilantism is frequently a fair 
share of racism, which has its own curious history on 
the American frontier. In some ways the frontier was 
the freest of places in which a man was judged on the 
quality of his work and his possession of such abstrac­
tions as honesty, bravery, and shrewdness. The Chi­
nese merchant, the Negro cowboy, the Indian rider 
all were admired because of what they could do within 
the frontier community and not because of their pig­
mentation. On the other and, the only good Indian was 
a dead Indian, ‘shines’ could seldom rise above the 
worker level, and ‘coolies’ wrere something to take 
potshots at without fear of retribution, either civic or 
conscience. Just as lynching a Negro in parts of the 
South was no crime, so shooting an Indian or beating 
an Oriental or a Mexican was equally acceptable. Like 
all societies, the frontier had its built-in contradic­
tions.” 13

II.
The Disproportionate Numbers of Non-White Persons 

Executed by Formal Capital Punishment Constitutes 
Cruel and Unusual Punishment in Violation of the Eighth 
and Fourteenth Amendments of the Constitution.

The above material now brings us down to 1930, which 
is the earliest date for which statistics are available on 
persons executed after a formal trial. It is the thesis of 
this brief that this Court must evaluate the constitutional 
question of the arbitrary application of the death penalty 
within the context of prior history of official and non-official 
racial violence, and that the figures on capital punishment 
post-1930 can only be explained as a residual end product

13 “Violence in America”, Vol. I, supra, footnote, page lOo.



14

of the prior practices of meting out the severest penalty on 
racial grounds. The capital punishment statutes under 
slavery would, by today’s standards, clearly be unconstitu­
tional, both as a denial of equal protection of the laws and 
as cruel and unusual punishment under the Federal Consti­
tution. The Civil War has precluded that question from 
reaching this Court, but we see that historically, lynching 
and vigilantism, while technically not authorized by State 
statutes, historically performed the same function of domi­
nation and subjection on nonwhites by a white majority. 
When lynching and vigilantism were subsiding, the white- 
initiated race riot continued to play the lawless function of 
intimidation by fatalities in the early 1900’s. [In time, that 
form of technically unapproved mass execution fell rapidly 
into disuse, but it is unbelievable that a society with such 
a history of ingrained and widespread use of violence 
against nonwhites as a prime reaction to perpetration of 
crime, could suddenly cease injecting racist considerations 
into the formal administration of justice.] It must be noted 
that all social science examination of the extent and depth 
of racial hostility by whites against nonwhites have re­
ported that it has been pervasive and intense,14 and as late 
as 1968, the National Advisory Commission on Civil Dis­
orders could conclude:

“Our Nation is moving toward two societies, one black, 
one white—separate and unequal.” 16

But the fact of the historical continuity need not rest on 
assertion of generalized racism in American society, for the 
current data creates the clear, to date, unrefuted inference 
that disproportionate imposition of the death penalty upon

14 See generally, “An American Dilemma”, Myrdal, G.
16 Report of the National Advisory Commission on Civil Dis­

orders, page 1.



15

blacks and other minorities is a function of racial discrimi­
nation.

Based upon statistics compiled by the Federal Bureau of 
Prisons, 3,859 persons were executed in this country be­
tween 1930-1968. Of these 2,066 were blacks; 1,751 were 
whites and 42 were of other minority groups.16 Proportion­
ately, more than one half of the prisoners executed in this 
country were black during a period in which blacks consti­
tuted less than one tenth of the nation’s population. More 
persuasive however, are the figures of persons executed 
for rape and murder. Of the 3,334 persons executed for 
murder, almost one half, 1,630 were blacks. Shocking how­
ever, is the fact that 1,231 of the blacks executed for murder 
were from the South.17

16 The figures below illustrate the racial composition of the pris­
oners executed between 1930-1967:

Rape
Murder
Other

Black White Other Total
405 (89.0%) 48 (10.6%)

1630 (48.9%) 1665 (49.9%)
31 (44.3%) 39 (55.7%)

2 (0.4%) 455 (100%)
40(1.2% ) 3334 (100%)

0(0.0% ) 70 (100%)

Total 2066 (53.1%) 1751 (45.4%) 42 (1.1%) 3859 (100%)

17 The following is a breakdown by region, of prisoners executed 
for crimes of murder and rape, 1930-1968;. 98% of the executions 
in the U.S. were for rape and murder.

M u rd e r R ape
R eg io n T o ta l W h ite  B la ck O th er T ota l W h ite B lack O ther

Northeast
(9 States) 606 422 177 7 - - -

Northcentral
(12 States) 393 254 137 2 10 3 7 -

South
(16 States) 1,824 585 1,231 8 443 43. 398 2

West
(13 States) 496 393 82 21 - - - -

Federal 15 10 3 2 2 2 - -

Total 3,344 1,664 1,630 40 455 48 405 2



16

Equally as significant are the rape statistics, nationally 
455 persons were convicted of rape. Of these 405 or 89% 
were black. As the figures indicate below, 443 convicted 
rapists were executed in the South, of these 398 were black.

Although the foregoing statistics give the overall impres­
sion that racial discrimination in the United States is the 
root cause of the disproportionate imposition of the death 
sentence on blacks and other minority groups, a systematic 
and extensive examination of differentials in capital sen­
tencing was undertaken in the summer of 1965 by Dr. 
Marvin Wolfgang, a professor of Sociology at the Univer­
sity of Pennsylvania.18 Briefly, the study was a survey of 
rape convictions during the period 1945-1965 of nineteen 
randomly selected counties in the State of Arkansas. The 
study compared the rate of death sentencing for black and 
white defendants all of whom were convicted of the crime 
of rape. The approach was to develop a “null hypothesis” 
that there is no difference in the distribution of the sentence 
of death or life imprisonment imposed upon black and white 
defendants. The principal variables considered were the 
race of the defendant, of the victim, and sentence. However, 
other data ranging from family status to circumstances at 
the trial were gathered and analyzed. Prom the Arkansas 
data, and his survey, Dr. Wolfgang concluded “that Negro 
defendants who rape white victims have been dispropor­
tionately sentenced to death by reason of race during the 
years 1945-1965 in the State of Arkansas.”

The Wolfgang survey, although limited to the crime of 
rape, clearly substantiates the fact that the death penalty 
has been diseriminately applied over the years in those 
states which retain the death penalty.

18 Dr. Marvin Wolfgang’s study was extensively reviewed and 
discussed in Maxwell v. Bishop, 398 Fed. 138.



17

The above data confirms the hypothesis of the amici 
curiae, especially with respect to the data drawn from the 
South, that current figures showing the large proportion 
of nonwhites who were executed is merely the present phe­
nomenon of racial discrimination being exercised against 
the nonwhite. Slavery was exclusively a Southern phe­
nomenon, lynching was primarily a Southern phenomenon, 
and the general data with respect to all crimes, and par­
ticularly the crime of rape,19 indicates that the South has 
been the prime contributor to the disproportionate applica­
tion of the death penalty to blacks. If this data is coupled 
with other material showing the explicit Southern legisla-

19 The history of the South’s use of the death penalty in rape 
cases during the period preceding the civil war, unmistakably shows 
the original official empathis for this region’s discriminatory appli­
cation of capital punishment. Of 15 jurisdictions which had sepa­
rate penal laws for free persons and for slaves, in 9 jurisdictions 
(Alabama, District of Columbia, Georgia, Kentucky, Mississippi, 
Missouri, [the mandatory penalty for blacks was not death, but 
castration], Tennessee, Texas and Virginia). Rapes committed by 
whites were not punishable by death, while in the cases of rapes or 
attempted rapes upon white women committed by black men, the 
death penalty was mandatory. In Louisiana and Maryland the 
crime of rape committed by whites was punishable by death or 
terms of imprisonment, while in the case of blacks the death penalty 
was mandatory for the crime of rape or attempted rape upon a 
white woman. In the four remaining jurisdictions, Arkansas, 
Florida, North Carolina, and South Carolina, assault with intent 
to commit rape upon a white woman was a capital offense for a 
black man, but not for a white man. It is to be noted that in every 
jurisdiction but the District of Columbia and Mississippi, the 
statutes imposing more severe penalties for the crime of rape, or 
attempted rape, or assault with intent to commit a rape not only 
applied to slaves, but also expressly applied to “free persons of 
color”, furthermore, in each one of the 15 jurisdictions the death 
penalty was mandatory (except in Missouri where the mandatory 
penalty was castration), for the crime of attempted rape upon a 
white woman by a black man, in none of these jurisdictions punish­
able by death if committed by a white man upon any woman, white 
or black, nor was that crime punishable by death if committed by a 
black man upon a black woman. The source of the above summary 
is included in Appendix A.



18

tion excluding blacks from juries80 and, where that no 
longer obtained, the racial exclusion of blacks in adminis­
tration of jury selection,21 we know that the capital pun­
ishment figures are explained in part by the fact that the 
bulk of the white population from 1930 through the 50’s had 
not totally expunged its racial prejudice, and was probably 
allowing the race of the defendants to affect their judg­
ment. It is precisely because of this phenomenon that some 
of the amicus curiae have worked actively to reverse the 
trend of the exclusion of non-whites from juries. To vote 
to put a man to death requires the juror to place some 
distance between himself and the defendant, and this proc­
ess is facilitated if he can, because of some perception of 
the defendant, dehumanize him—racial prejudice can play 
exactly that function.

Amici curiae submit that the above data is sufficient to 
raise a claim on behalf of the instant petitioners that the 
application of the death penalty has been discriminatory 
and violative of the equal protection clause of the Federal 
Constitution. However, because some experts have ques­
tioned the definitive and conclusive nature of the data22 
showing the role race has played in the application of the 
death penalty, amici curiae assert that the cruel and un­
usual punishment provisions of the Federal Constitution are 
flexible enough to sustain this Court in voiding the death 
penalty in its present state of application on the basis of 
two propositions: (1) that where a defendant faces an 
irreversible penalty, and creates, through maximum devel­
opment of contemporary social science data within his lim-

20 See, eg., Strauder v. West Virginia, 100 U.S. 303 (1879).
21 Race Relations in American Law, supra, footnote —, pp. 323- 

328.
22 The Death Penalty In America (paperback edition), (pp. 

411-413).



19

ited resources, an inference that an impermissible factor 
has controlled or modulated the imposition of such penalty, 
the burden shifts to the State to refute that inference, and 
in lieu of such refutation, it is cruel and unusual punish­
ment to put the defendant to death. (2) The current trend 
of white imposition of formal and informal punishment on 
alleged black offenders shows a movement away from ex­
plicit, and lawless racial violence, a progressive reduction 
of the factor of race in meting out formal punishment such 
that any lingering executions which prima facie have been 
affected by race, would violate contemporary American 
standards for civilized criminal justice and constitute cruel 
and unusual punishment.

The cruel and unusual punishment provisions of the 
Eighth Amendment to the United States Constitution can 
best be described as dynamic, subject to interpretation based 
on the realities as existing in society, and the state of men’s 
m i n d s  when its interpretation is before the Court. This 
Court has long ago acknowledged that great “difficulty 
would tend the effort to define with exactness the extent of 
the constitutional provision which provides that cruel and 
unusual punishment shall not be inflicted.” Wilkerson v. 
Utah, 90 U.S. 130, 135-136, 25 L. Ed. 345 (1878). Despite 
the difficulty in interpreting the “cruel and unusual pun­
ishment” clause this Court in Weems v. United States, 217 
U.S. 399, 30 S.Ct. 544 (1910) held that a section of the 
Philippine Legal Code which imposed punishment dispro­
portionately to the crime was likewise violative of the cruel 
and unusual clause. The Court clearly stated that the defi­
nition of cruelty shall be governed by the “contemporary 
standards.” In Weems, the Court stated: “the clause of 
the Constitution in the opinion of commentators, may be 
therefore progressive and is not fashioned to be obsolete, 
but may acquire meaning as public opinion becomes en­
lightened by humane justice” 217 U.S. at 378. In Trop v.



20

Dulles, 356 U.S. 86, 78 S.Ct. 90 (1958), the Court in holding 
that de-nationalization for wartime desertion was cruel and 
unusual punishment, reaffirmed the “flexibility” of the 
Eighth Amendment as stated in Weems, and provided a 
new formula. It stated: “The Amendment must draw mean­
ing from the evolving standards of decency that mark the 
progress of a maturing society,” 356 U.S. at 101, 78 S.Ct. 
at 598.

Amici curiae assert that the clear sweep of American 
history, running from the period of slavery through the 
extra-legal and racially motivated lynchings, vigilantism 
and race riots shows an unmistakable and contemporary 
trend toward disuse and relinquishment of race as a basis 
for taking a man’s life. White America has released its 
blacks from their status as slaves who faced official dis­
criminatory application of the death penalty. There is 
no more Western frontier to conquer to act as the excuse 
for extermination of additional American Indians. Whites 
no longer organize vigilante parties against the rest of. 
its Spanish-speaking and Oriental population : and, they 
have given up taking to the streets to murder blacks in 
race riots. It is true that white Americans left the street 
and entered the jury box to continue to exercise their 
racial animosity, but even this phenomenon has been on 
the decrease as the jury population recoiled from the ap­
plication of capital punshment in general. From 1940 
through 1960 more blacks were executed than whites each 
year. From 1951 to 1961, a higher number of blacks than 
whites were executed for 7 of the 10 years. Since 1962 
there has been a reversal in this trend and for 5 of the 
6 years more whites were executed than blacks, and in the 
last year (1967) the executions were even—1 white and 
1 black.23

23 National Prisoner Statistics (1968), p. 7.



21

Racism, from which many receive concrete economic 
benefits and psychic sustenance, subsides with great re­
sistance—especially given the current attempts by irres­
ponsible politicians to revive fears in the white populace 
of the “black rebel” with the code words of “Law and 
Order.” There is, however, some indication, that white 
America regardless of the continued racial discrimination 
in many facets of American life, desires,—at least with 
respect to capital punishment,—not to take a man’s life 
simply because the color of his skin differs from theirs. 
It remains only for this Court to validate that direction.

We re-assert that this Court may find the continued ap­
plication of the death penalty within the American con­
text, as cruel and unusual punishment without a finding 
that race has controlled the death decisions to a statis­
tical certainty. I t need only find that the defendants 
have marshalled enough evidence, within the available 
social science data bearing on the subject, to create an in­
ference that race has affected the application of the death 
penalty to the overwhelming number of men now on death 
row and that to execute the defendants under this state 
of the evidence is cruel and unusual punishment. We 
hasten to remind the Court that the overwhelming number 
of non-whites in this country, Indians, Black, Puerto Ri­
cans and Mexiean-Americans are poor, and that another 
inference created by the current social science data is 
that the class of the defendant, again an irrelevant factor 
in any rational criminal law system, may be a contribut­
ing element to their receipt of the death penalty. Another 
clear and unmistakable contemporary standard which this 
Court has consistently, and with elaboration begun to an­
nounce is that the indigency of a defendant should not 
be allowed to affect the outcome in a criminal prosecu­
tion. Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas 
v. California, 372 IT.S. 353 (1963). This standard should



22

reinforce the holding which amici curiae argue for, namely 
that defendants’ inability, due to their indigency and conse­
quent lack of resources, to produce statistically certain 
proof of the discriminatory application of the death pen­
alty cannot be allowed to cause their deaths. To place 
a burden of proof on indigent defendant beyond that 
which he has resources to sustain,24 especially where he has 
established a prima. facie case that an irreversible penalty 
will be applied to him unconstitutionally, is itself cruel 
and unusual punishment. This Court can legitimately take 
the small step of merging its evolving protection for blacks 
and indigents under the equal protection clause, with the 
announcement of this minimal civilized standard for con­
trolling the ultimate penalty available in a criminal justice 
system. To look back twenty years from now when the 
statistical data is in an even more developed shape and to 
find that post 1971 men had still been put to death for being 
non-white, and not possessed of sufficient resources to give 
further proof of it, would be a travesity of justice.

24 There is also some serious question as to whether any defendant, 
even with unlimited resources, could offer proof beyond that which 
is current that the death penalty has been applied discrimjnatorily. 
Record keeping has varied over the years, trial transcripts do not 
reveal all the pertinent data. If proof of past jurors’ subjective 
state of mind were required, that would be impossible. The vast 
number of variables which impinge upon any complex human 
behavior make it difficult to isolate one as a single causative factor 
in explaining any human event. But where the cost to the defen­
dant is so total, and the interest of the State so minimal, the Court 
must find some formula for giving credence to maximum amount ot 
information which defendant facing terminal penalty could pro­
duce, given the inherent compromises on ideally definitive data.



23

CONCLUSION

Capital Punishment clearly violates the equal protection 
clause of the Fourteenth Amendment, and the cruel and 
unusual clause of the Eighth Amendment, it should on 
that basis be ruled unconstitutional.

Respectfully submitted,

L eroy D. Clark
New York University Law School 
New York, New York 10003

N athaniel R. J ones
National Association for the 
Advancement of Colored People 
1790 Broadway 
New- York, New York 10019

V ernon J ordan
National Urban League 
55 East 52nd Street 
New York, New York 10022

Chatjncey E skridge
Southern Christian Leadership 
Conference
110 South Dearborn Street 
Suite 1500
Chicago, Illinois 60603

Mario G. Obledo
Mexican-American Legal Defense 
and Educational Fund 
145 Ninth Street 
San Francisco, California 94103

Attorneys for Amici



Appendix A

Pre-Civil War History of Punishment for Rape in Southern 
States and Washington, D.C.

A labama

whites: An act of 1802 provided that rape shall be 
punished by death. Harry Toulmin, Digest of the 
Laws of the State of Alabama 207 (1823). In 1841, 
the punishment for rape was changed to life im­
prisonment. C. C. Clay, Digest of the Laws of the 
State of Alabama 414 (1843).

slaves, free negroes, and mulattoes: An act of 1814 
provided that a slave convicted of an attempt to 
rape a white woman shall suffer death. Harry 
Toulmin, Digest of the Laws of the State of Ala­
bama 185 (1823). The 1841 Penal Code of Slaves 
and Free Negroes provided that a slave, free negro 
or mulatto convicted of the crime of rape upon, 
or an attempt to rape upon, a white woman shall 
suffer death. C. C. Clay, Digest of the Laws of the 
State of Alabama 472 (1843).

A rkansas

whites: The punishment for rape is death. Act of Dec. 
14, 1842 in Josiah Gould, A Digest of the Statutes 
of Arkansas 334 (1858).

negroes and mulattoes: The punishment for rape is 
death; the punishment for attempted rape of a 
white woman is death. Id. at 335.

D istrict of Columbia

whites: A Code of Laws for the District of Columbia 
published in 1819 by the Judges of the Circuit

la



2a

Court and the Attorney for the District of Colum­
bia, who had been authorized by Congress to pre­
pare a code of jurisprudence for the District, rec­
ommended that free persons convicted of the crime 
of rape be punished with two to twenty (20) years 
of imprisonment. This Code was not adopted. 
W. Cranch, Code of Laws for the District of 
Columbia 235 (1819).
A Penal Code published by order of the Senate 
on February 28, 1833, provided that rape was pun­
ishable by life imprisonment. A System of Civil 
and Criminal Law for the District of Columbia 367 
(1833).
The penal law in effect in 1857 provided that rape 
of a man’s daughter or sister shall be punished by 
life imprisonment and rape of any other woman 
or child shall be punished by five to twenty (20) 
years imprisonment, for the first offence, and life 
imprisonment for the second offence. Devised Code 
of the District of Columbia 518-519 (1857). An 
assault with intent to commit a rape was punish­
able by three (3) to fifteen (15) years imprison­
ment. Id. at 58.

slaves: The punishment for attempting to commit a 
rape upon a white woman is death. Worthington 
G. Snethen, Black Code of the District of Colum­
bia 18 (1848).

F lobida

whites: The punishment for rape is death. Act Feb. 
10, 1832, §2 in Leslie A. Thompson, Manual or 
Digest of the Statute Law of the State of Florida 
490 (1847).



3a

slaves, free negroes, or mulattoes: An act of 1828 pro­
vided that any negro or mulatto who assaults a 
white woman or child with intent to commit a rape 
shall be cropped, branded or suffer death, at the 
discretion of the court. Acts of the Legislative 
Council of the Territory of Florida, 1827-8, 109 
(1828). An act of 1840 provided that the punish­
ment for rape or assault with intent to rape a white 
woman shall be death. Act March 2, 1840, §2 in 
Leslie A. Thompson, Manual or Digest of the Stat­
ute Law of the State of Florida 538 (1847).

Georgia

whites: Punishment for rape is imprisonment at hard 
labor for not less than seven nor more than sixteen 
years. Lucious Q. C. Lamar, Compelation of The 
Laws of Georgia 552-1821. In 1816, the penalty for 
rape in the penal code was changed to imprison­
ment for not less than two nor more than twenty 
years, and a section was added punishing at­
tempted rape by imprisonment by for not less than 
one nor more than five years.
Lamar, supra p. 571.
Between 1816-1861 a rape by a wdiite person upon 
a free white female remained punishable by im­
prisonment for no less than two, nor more than 
twenty years; I'ape upon a slave or free person 
of color was made punishable by fine and imprison­
ment at the discretion of the Court.
An assault with intent to commit rape remained 
punishable with one to five years of imprisonment. 
Clark, Cobb, Irwin, Code of The State of Georgia, 
Penal Code, §§4248-4250, p. 824 (1861).



4a

slaves, free negroes: In 1816 the punishment for the 
crime of rape or attempted rape of a free white 
female was death. Lamar, supra, p. 804.
Between 1816-1861 rape upon a free white female 
remained punishable by death. Attempted rape 
upon a free white female was punishable by death 
or such other punishment as the Court might pre­
scribe. Clark, Cobb, Irwin, Penal Code For Slave 
and Free Persons of Color, §§ 7704, 4708, page 918 
(1861).

K entucky

whites: An act passed in 1798 provided that rape shall 
be punished by imprisonment for four to twenty- 
one (21) years. Morehead and Brown, Digest of 
the Statute Laws of Kentucky, Yol. II, 1265 (1834). 
In 1801 the penalty for rape was changed to im­
prisonment from ten to twenty-one (21) years. Id. 
at 1269. In 1813 an act was passed which made 
rape “upon the body of an infant under the age 
of twelve years” punishable by death. Littell and 
Swigert, Digest of the Statute Law of Kentucky, 
Vol. II, 1009 (1822).
The Revised Statutes of Kentucky in force from 
July 1, 1852, and published in 1867, retain the 
death penalty for a rape upon an infant under 
the age of twelve years. Richard H. Stanton, Re­
vised Statutes of Kentucky, Vol. 1, 379 (1967). 
Rape of a white woman is punishable by imprison­
ment from ten to twenty years, the same punish­
ment applies to carnal knowledge of a white girl 
under the age of ten years. Id. at 379-80.

slaves and free negroes: The act of 1801 provided that 
slaves shall be punished by death for rape com-



5a

mitted upon a white woman. Morehead and Brown, 
Digest of the Statute Laws of Kentucky, Vol. II, 
1282 (1834). In 1811, an attempt to commit a rape 
upon a white woman by a slave was made punish­
able by death. Id. at 1288.
By 1867, free negroes as well as slaves were pun­
ished by death for rape upon a white woman or an 
attempt to commit such rape, or for being an 
accessory before the fact to either of these crimes. 
Richard H. Stanton, Revised Statutes of Kentucky, 
Yol. II, 375 (1867).

L ouisiana

whites: A proposed System of Penal Law published 
in 1833 as a result of a commission from the 
General Assembly of Louisiana provided that the 
punishment for rape should be life imprisonment. 
Edward Livingston, A System of Penal Law for 
the State of Louisiana 435 (1833).
An act passed in 1855 provided that the punish­
ment for rape shall be death. However, a com­
panion provision gave juries the power to sub­
stitute life imprisonment for the death penalty. 
Acts [1855], Nos. 120, §4 and 121, §25. In 1855, 
the maximum penalty for assault with intent to 
commit a rape was two years imprisonment. U. B. 
Phillips, Revised Statutes of Louisiana 136 (1856).

slaves and free colored persons: An act passed in 
1855 provided that slaves and free colored per­
sons shall be punished by death for rape upon or 
attempted rape upon a white female. Acts [1855] 
No. 308 §6.



6a

Maryland

whites: By an act of 1810, the punishment for rape 
was death or imprisonment for not less than one 
year nor more than twenty-one (21) years, at the 
discretion of the court-. Kilty, Harris and Wat­
kins, The Laws of Maryland, Yol. IV, Nov. 1809, 
Ch. 138 §4. In 1860 the punishment for rape was 
death or imprisonment for not less than eighteen 
months nor more than twenty-one (21) years at 
the discretion of the court. Scott and M’Cullough, 
The Maryland Code, Yol. I, 242 (1860). The pun­
ishment for assault with intent to rape was im­
prisonment for not less than two nor more than 
ten (10) years. Scott and M’Cullough, Revised 
Laws of the State of Maryland 209 (1859).

negro or mulatto slave: An act of 1819 made it un­
lawful for a court to sentence any negro or mu­
latto slave to imprisonment, and in effect made 
the death penalty mandatory in case of rape. 
Kilty, Harris and Watkins, The Laws of Mary­
land, Vol. VI, 1818, Ch. 197 §1. For an assault 
with intent to rape, the court had discretion, under 
the terms of this act, to sentence any slave to 
be whipped or to banishment from the state. Id., 
2. The law in 1860 provided where the punishment 
would be imprisonment were the defendant white, 
the negro slave shall be sentenced to be sold out 
of the state for such term as he may have to 
serve. Scott and M’Cullough, The Maryland Code, 
Vol. I, 250 (1860). In the case of a free negro, 
he shall be sentenced to be sold either in or out 
of the state, at the discretion of the court, for 
such term as a white man for the same offense 
would be sentenced to imprisonment. Ibid.



7a

negroes or mulattoes (free or enslaved): In 1859 the 
punishment for impregnation of a white woman 
was that he he sold beyond the limits of the state 
as a slave for life. Scott and M’Cullough, Re­
vised Laws of the State of Maryland 242 (1859).

Mississippi

whites: An act passed June 14, 1822, provided that 
the punishment for rape shall be death and the 
punishment for assault with intent to rape shall 
be a fine and not more than imprisonment for 
one year. Revised Code of the Laws of Missis­
sippi, Ch. 54, §§6 and 11, 297, 298 (1824).
In 1839 the punishment for rape was changed to 
not less than ten (10) years imprisonment. 1839 
Laws (Adjourned Session, Jan. 7 to Feb. 16, 
1839), Ch. 66, 116. The penal laws were expressly 
extended to all free persons of color. Id. at 190.
By 1857 the punishment for rape had been changed 
to life imprisonment. Revised Code of the Stat­
ute Laws of the State of Mississippi, Art. 218, 608 
(1857).

slaves: The act of June 18, 1822, provided that the 
punishment for an attempt to rape a free white 
woman or child shall be death. Revised Code of 
the Laws of Mississippi, Ch. 73, §55, 381 (1824). 
Slaves were not affected by the act of 1839 which 
eliminated the death penalty for rape. 1839 Laws 
(Adjourned Session, Jan. 7 to Feb. 16, 1839), Ch. 
66, 190. The Revised Code of 1857 provided that 
slaves shall suffer death for rape upon or an at­
tempt to rape any white woman, or for having 
“carnal connexion” or attempting to have “such



8a

connexion” with any white female child under the 
age of fourteen years. Revised Code of the Stat­
ute Laws of the State of Mississippi, Art. 68, 248 
(1857).

M issouri

whites: In 1818, the law of the Missouri Territory 
provided that the punishment for rape shall he 
castration. Henry S. Geyer, Digest of the Laws of 
Missouri Territory 137 (1818).
In 1825, after Missouri had become a state, rape 
remained punishable by castration, and an assault 
with intent to rape was punished by imprisonment 
for not more than seven (7) years. Laws of the 
State of Missouri: Revised and Digested, Yol. I, 
283 (1825).
In 1835, the punishment for rape was changed to 
imprisonment for not less than five (5) years. The 
Revised Statutes of the State of Missouri 170 
(1835).

slaves, negroes, or mulattoes: The law of the Mis­
souri Territory punished rape by a slave with 
castration. Henry S. Geyer, Digest of the Laws 
of Missouri Territory 158 (1818).
In 1825, the law of the State of Missouri provided 
that in the case of slaves, rape upon any person, 
or attempt to commit a rape upon a white woman, 
shall be punished by castration. Laws of the State 
of Missouri: Revised and Digested, Yol. I, 283 
(1825).
In 1835, when the punishment for rape by whites 
was changed to a term of imprisonment, rape upon, 
or an attempt to commit a rape upon, a white fe­



male by any negro or mulatto was made punish­
able by castration. The Revised Statutes of the 
State of Missouri 170-71 (1835).

N evada

An act passed in 1861 provided that the punishment for 
rape shall be imprisonment for not less than five 
years to life imprisonment, and the punishment 
for assault with intent to rape shall be not less 
than one nor more than fourteen years imprison­
ment. Bonnifield and Healy, Compiled Laws of 
the State of Nevada, 1861-1873, Vol. I 557 (1873).

N orth Carolina

whites: The punishment for rape was death. Revised 
Statutes of the State of North Carolina, Vol. I, 
192 (1837).

“persons of color” : The punishment for rape or for 
an assault upon a white female with intent to com­
mit a rape was death. Id. at 590.

S outh Carolina

whites: An act enacted in 1712 provided that rape shall 
be punished by death. Thomas Cooper, Statutes 
At Large of South Carolina, Vol. II, 498 (1837).

slaves or free persons of color: By an act enacted in 
1843, the punishment for an assault upon a white 
woman with intent to rape is death.

Tennessee

whites: Rape was punished by imprisonment for not 
less than ten nor more than twenty-one (21) years. 
Assault with intent to commit a rape was pun-



10a

ished by imprisonment for not less than two nor 
more than ten (10) years. Meigs and Cooper, Code 
of Tennessee 830 (1858).

slaves and free persons of color: Rape upon or an 
assault with intent to commit rape upon a free 
white female, and having or attempting to have 
sexual intercourse with a free white female under 
twelve years of age, were punished with death. 
Id. at 509, 524.

T exas

whites: An act of Aug. 28, 1856 provided that the pun­
ishment for rape shall be not less than five nor 
more than fifteen years imprisonment. Oldham 
and White, A Digest of the General Statute Laws 
of the State of Texas, Penal Code Art. 529, p. 523 
(1859).

slaves and free persons of color: An act of Feb. 12, 
1858 provided that the punishment for rape, as­
sault with intent to rape, or attempted rape upon 
a free white woman is death. Id., Art. 819 and 
Art. 823, 562-63.

V irginia:

whites: An act passed in 1819 provided that the pun­
ishment for rape shall be imprisonment for a 
term not less then ten nor more than twenty-one 
(21) years. Revised Code of the Laws of Vir­
ginia, Vol. I, 585 (1819). A Code published in 
1860 states that rape is punishable by imprison­
ment for not less than ten nor more than twenty 
(20) years. Code of Virginia (2d ed.) 785 (1860).

slaves and free negroes: The act of 1819 provided that 
in the case of slaves, the punishment for rape shall



11a

be death and the punishment for attempted rape 
upon a white woman shall be castration. Revised 
Code of the Laws of Virginia, Vol. I, 585 (1819). 
The Code of 1860 provided that in the case of 
slaves, rape upon or attempted rape upon a white 
woman shall be punished by death, and in the 
case of free negroes, rape upon or attempted rape 
upon a white woman shall be punished by death 
or by imprisonment for not less than five nor 
more than twenty (20) years, at the discretion of 
the jury. Code of Virginia (2d ed.) 815-16 (1860).



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