State of South Carolina v. Brief Amici Curiae

    No. 88-305
^ 5 / f '

In the
(Umtrt of tit? #tat?n
O ctober Te r m, 1988

State of South Carolina, 

vs.
Petitioner,

D emetrius G athers,
Respondent.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

BRIEF AMICI CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. AND  

THE AMERICAN JEWISH CONGRESS

Julius LeV onne Chambers 
Richard Burr 
G eorge K endall 
Eric Schnapper* *

16th Floor
99 Hudson Street
New York, New York 10013

Attorneys for Amici
* Counsel of Record

V ivian Berger
435 West 116th Street 
New York, New York 10027

Of Counsel



QUESTIONS PRESENTED
(1) May the sentence imposed on a 

criminal defendant be based 
upon an evaluation by a judge 
or jury of the moral or 
societal worth of the crime 
victim?

(2) Did the prosecutor's closing 
argument in this case encourage 
the jury to base its decision 
in favor of capital punishment 
on such constitutionally 
impermissible considerations?

i



TABLE OF CONTENTS

i
Page

Questions Presented 
Table of Authorities
Interest of Amici ................. 1
Summary of Argument ............... 2
Argument ..........................  6

I. The Sentence Imposed on 
a Criminal Defendant May 
Not Be Based on a Juror's 
or Judge's Personal 
Opinion About the Moral 
or Societal Worth of the 
Crime Victim............... 6
A. The Imposition of 

Differing Sentences 
Based on the Perceived 
Moral or Societal Worth 
of Crime Victims Violates 
the Equal Protection
Clause .................. 10

B. The Eighth Amendment
Precludes Basing the 
Magnitude of a Sentence 
on the Perceived Moral 
or Societal Worth of the Victim .................. 3 0

ii



Page
C. The Constitutional Issue 

Presented by this Case 
Should Be Definitively 
Resolved ................ 46

II. The Prosecutor's Closing
Argument Encouraged the 
Jury to Base the Sentenc­
ing Decision on its 
Perception of the Moral 
or Societal Worth of the 
Crime Victim...........  51

Conclusion ....................... 63
Appendix A: Capital Statutes Con­

cerning Public or ■ 
Quasi-Public Officials. la

Appendix B: Capital Statutes Con­
cerning Interference 
With Government 
Functions ............  16a

Appendix C: Hearings of the Joint 
Committee on Recon­
struction ............  22a
(1) References to

"Protection" .....  22a
(2) References to 

Abuses of Union 
Loyalists,
Northerners, and
Other Whites .....  43a

iii



Page
(3) References to Un­

willingness of 
States to Protect 
Lives, Liberty or 
Property ....... 51a

IV



TABLE OF AUTHORITIES
Cases: Page
Batson v. Kentucky,

476 U.S. 79 (1986) ...........  49
Booth v. Maryland, 96 L.Ed.2d 440

(1987) ....................... passim
Brooks v. Kemp, 762 F.2d 1383

(5th Cir. 1985)   52
Caldwell v. Mississippi,

472 U.S. 312 (1980)   57
California v. Ramos,

463 U.S. 992 (1983)  4,30,31,
33,45,46

Donnelly v. DeChristoforo,
416 U.S. 637 (1974)   55

Francis v. Franklin,
471 U.S. 307 (1985)   5,57

Franklin v. Lynaugh,
101 L. Ed. 2d 155 (1988)   52

Furman v. Georgia, 408 U.S. 238
(1972)   4,35

Godfrey v. Georgia,
446 U.S. 420 (1980)  31,39

Gregg v. Georgia, 428 U.S. 153
(1976)  33,35

McCleskey v. Kemp,
95 L.Ed.2d 262 (1987)   11,31,33,

38,56
V



Page
Mills v. Maryland,

100 L. Ed. 2d 384 (1988) ........  9
Moore v Kemp, 809 F.2d 702

(11th Cir. 1987)   38,52
Moore v. Zant, 722 F.2d 640,

(11th Cir. 1984)   38
State v. Gathers, 369 S.E.2d

140 (S.C. 1988)   5,47
Swain v. Alabama,

380 U.S. 202 (1969)   49
Thompson v. Oklahoma,

101 L.Ed. 2d 702 (1988)   40
Vela v. Estelle, 708 F.2d 954

(5th Cir. 1983)   38
Zant v. Stephens, 462 U.S. 862

(1983)  30,31,
33,35

Statutes:
Del. Code Ann, tit. 11

§ 4209 (e) (q) (1982 Supp.) ......  27
S.C. Code Ann.

§ 16-3-20(c)(a)(5)-(7)
(1986)   42

S.C. Code Ann.
§ 16-3-20(0) (a) (7) (1986) .....  43

Wash. Rev. Code Ann.
§ 10.95.020(10) (1981)   45

Other Authorities:
vi



Cong. Globe, 39th Cong., 
1st sess. (1866) .... 4,11-28

W. Blackstone, Commentaries on the
Laws of England (17 65) ........  63

W. Hawkins, A Treatise of the
Pleas of the Crown (1716)   63

W. Rose, A Documentary History 
of Slavery in North America 
(1976)   15

J. ten Broek, Egual Under Law
(1951)   13,14

T. Wood, An Institute of the
Laws of England (3rd ed. 1724).. 63

New York Times, Dec. 17, 1988 ...... 10

vii



BRIEF AMICI CURIAE
OF THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC. and the 

AMERICAN JEWISH CONGRESS

INTEREST OF AMICI
The NAACP Legal Defense and 

Educational Fund, Inc., is a non-profit 
corporation established to assist black 
citizens in securing their constitutional 
rights. In 19 67 the Fund undertook to 
represent indigent death-sentenced 
p r i s o n e r s  for w h o m  a d e q u a t e  
representation could not otherwise be 
found. The Legal Defense Fund currently 
represents several indigent condemned 
prisoners whose cases might be affected 
by the decision in the instant case.1

The American Jewish Congress is an 
organization of 50,000 members formed in

1 Copies of letters from the 
parties consenting to the filing of this 
brief have been filed with the Clerk.



2
1918 to protect the economic, civil, 
religious and political rights of 
American Jews. It has a continuing 
concern that the constitutional 
safeguards of equal protection of the 
law, due process and freedom from cruel 
and unusual punishment are assured all 
Americans. Although it is an
organization which grounds Its public 
policy views in a religious and ethical 
tradition, it believes that in order to 
give effect to these constitutional 
guarantees, a sentence may not be imposed 
on a criminal defendant based on the 
evaluation by a judge or jury of the 
moral or societal worth or religiosity of 
the crime victim.

SUMMARY OF ARGUMENT 
This case, unlike Booth v. Maryland. 

L.Ed.2d 440 (1987), does not concern
whether a sentencing decision may be



3
based in part on the harm suffered by the 
family of a murder victim. The question 
raised by prosecutor's closing argument 
in this case, and by the decision below, 
concerns whether a sentencing decision 
may turn on a jury's opinions about the 
moral worth or value to society of a 
victim.

For a judge or jury to impose a 
greater or lesser penalty in a criminal 
case, according to their opinions about 
the moral or societal worth of the 
victim, would violate one of the core 
meanings of the equal protection clause. 
That clause embodies two distinct 
principles, the familiar anti- 
discrimination doctrine, and an 
affirmative obligation on the part of a 
state to protect with equal vigilance the 
life, liberty and property of every 
person within its jurisdiction. While



4
the anti-discrimination doctrine forbids 
only certain distinctions, the protection 
principle prohibits any distinctions in 
the protection afforded by certain 
criminal and non-criminal laws. As 
Senator Poland insisted, "All the people, 
or all the members of a state or 
community, are equally entitled to 
protection."2

Although the eighth amendment 
permits a jury to consider a myriad of 
circumstances in making a sentencing 
determination, a jury may not utilize 
standards likely to reintroduce the 
arbitrariness condemned in Furman v. 
Georgia. 408 U.S. 238 (1972), or rely on
c o n s t i t u t i o n a l l y  i m p e r m i s s i b l e  
considerations. California v. Ramos, 463
U.S. 992, 1000 (1983). Permitting jurors

Cong. Globe, 39th Cong., sess. 2962 (1866). 1st



5
to base sentencing decisions on their 
opinions about the moral or societal 
worth of a victim would inevitably lead 
to such arbitrariness and improper 
considerations. Neither South Carolina 
nor any other state authorizes a 
sentencing jury to rely on such personal 
opinions. Many states do single out 
specific government positions for special 
protection, but the choice of those 
positions is always made by the 
legislature itself, and never left to the 
whims of particular juries.

The South Carolina Supreme Court, 
after reviewing the text of the 
prosecutor's argument at the sentencing 
hearing, properly concluded that the 
"remarks conveyed the suggestion 
appellant deserved a death sentence 
because the victim was a religious man 
and a registered voter." State v.



6
Gathers. 369 S.E. 2d 140, 144 (S.C. 
1988). The dispositive issue is not 
whether the prosecutor personally 
intended to violate the eighth or 
fourteenth amendment, but how a 
reasonable juror would have understood 
the prosecutor's statements. Francis v. 
Franklin. 471 U.S. 307, 315-16 (1985).

ARGUMENT

I. THE SENTENCE IMPOSED ON A CRIMINAL 
DEFENDANT MAY NOT BE BASED ON A 
JUROR'S OR JUDGE'S PERSONAL OPINION 
ABOUT MORAL OR SOCIETAL WORTH OF THE 
CRIME VICTIM
Two years ago, in a sharply divided 

opinion, this Court held that the 
sentence in a capital case could not be 
based on evidence regarding the harm 
which the crime might have caused to the 
family of a murder victim. Booth v. 
Maryland, 96 L.Ed.2d 440 (1987). This
controversial aspect of Booth is not
involved in the instant case. At the



7
penalty phase of the proceeding below, 
the prosecution neither adduced evidence 
that there had been injury to the family 
of the victim, Richard Haynes, nor 
suggested to the jury that a sentence of 
death was warranted by any such harm. If 
this Court wishes to reconsider the 
holding in Booth that a capital sentence 
may not be based on such harms to family 
members, it must do so in another case 
which actually presents that issue.

The instant case turns on a second, 
considerably less controversial aspect of 
the decision in Booth. The majority 
there also held that a capital sentence 
could not be based on "the character and 
reputation of the victim". 96 L.Ed.2d at 
440. The court reasoned that there could 
be no

justification for permitting such a 
decision to turn on the perception 
that the victim was a sterling 
member of the community rather than



8
someone of questionable character. .
. . We are troubled by the
implication that defendants whose 
victims were assets to their 
community were more deserving of 
punishment than those whose victims 
are perceived to be less worthy. Of 
course, our system of justice does 
not tolerate such distinctions.

96 L.Ed.2d at 450 and n.8. Booth
addressed this issue because the Victim
Impact Statement in that case contained a
substantial and highly -laudatory
description of the victims. 96 L.Ed.2d
at 453, 456.

But the Booth's rejection of such 
character evidence, unlike its 
disapproval of evidence regarding family 
members, involved no rejection of any 
judgment by the state legislature; the 
Maryland statute, in a murder case, did 
not authorize the inclusion in the VIS of 
any personal information about the victim 
except his or her identity. 96 L.Ed.2d 
at 446. In his brief in this Court, the



9
Maryland Attorney General defended the 
capital sentence in Booth solely on the 
basis of the evidence of injury to family 
members, and carefully avoided any 
suggestion that state law authorized, or 
that the federal constitution would 
permit, the imposition of a death 
sentence based on the perceived moral or 
societal worth of the victim. On the 
c o n t r a r y ,  the state in Booth 
affirmatively insisted that it would 
indeed be improper to base a capital 
sentence on the "social status" or 
"religion" of a victim, and went so far 
as to urge that any juror inclined to do 
so ought be removed from the venire.3 The

J Brief for Respondent, No. 8 6- 
5020, p. 36-37. Similarly, in Mills v. 
Maryland. 100 L.Ed.2d 384 (1988), the
state stressed "There was no evidence 
suggesting that the community at large 
suffered.... There was no evidence 
indicating that [the victim] led a life 
to be valued by others." Brief of 
Respondent, No. 87-5367, p. 33.



10
death sentence in this case was grounded 
on precisely the type of criterion which 
the state in Booth expressed acknowledged 
would indeed be improper.

A. The Imposition of Differing 
Sentences Based on the 
Perceived Moral or Societal 
Worth of Crime Victims Violates 
the Equal Protection Clause

A month ago Judge Jack Hampton of the 
Texas District Court openly proclaimed 
that it was his policy to impose lesser 
sentences in murder cases if the victim 
was either a prostitute or a homosexual. 
The Executive Director of the Texas 
Commission on Judicial Conduct, asked to 
comment on that sentencing standard, 
remarked, "I can't right off think of any 
part of the code that might violate."4 
Judge Hampton's sentencing practice, like

4 New York Times, Dec. 17, 1988.



11
the closing argument in the instant case,5 
violates one of the core meanings of the 
equal protection clause.

The debates of the Congress which 
approved the fourteenth amendment make 
clear that the framers understood the 
equal protection clause to embody two 
quite distinct but equally important 
principles. First, of course', the equal 
protection clause was recognized to 
prohibit invidious discrimination, an 
abuse then referred to as the making of 
distinctions on the basis of "class" or 
"caste."6 The second agreed upon meaning

This Court held in McCleskev v. 
Kemp, 95 L.Ed.2d 262, 278 n. 8 (1987), 
that a sentencing decision based on 
unconstitutional distinctions among crime 
victims violates the rights of the person 
so sentenced to equal protection and to 
freedom from arbitrary government action.

Cong. Globe, 39th Cong., 1st 
sess. 537 (Rep. Stevens) (race), 674 (Sen. 
Sumner) (race), 704 (Rep. Fessenden) 
(caste), 707 (Rep. Fessenden) (caste), 
1095 (Rep. Hotchkiss) (class) , 1227 (Sen.



12
was that a state had an affirmative 
obligation to protect from attack or 
invasion by third parties the lives, 
liberty, and property of all persons 
within its jurisdiction. Equal protection 
in this second sense concerned the 
protection accorded by the criminal law 
(e.g. prohibitions against murder, 
kidnapping and theft) and by certain non­
c r i m i n a l  laws (e.g., tort and 
conversion).7 It required a state to 
extend to the life, freedom and property 
of every person the same full measure of 
legal protection that was afforded to the 
lives, freedom and property of others.

Sumner) (caste or color), 2766 (Sen.
Howard) (class), 3035 (Sen. Henderson)
(race), app. 104 (Rep. Yates) (class) 
(1866).

In the hearings of the Joint 
Committee on Reconstruction, which drafted 
the fourteenth amendment, most uses of 
the word "protection" are references to 
government protection against crimes by 
third parties. See Appendix C(l).



13
The anti-discrimination principle applies 
to all forms of state action, but forbids 
only certain invidious distinctions; the 
protection principle applies only to state 
actions related to the protection of life, 
liberty and property, but forbids a state 
to deny full and equal protection on any 
basis whatever.

The phrase "equal protection of the 
laws" was originally coined by 
abolitionists early in the nineteenth 
century to refer to the protection 
principle; the history of the phrase and 
concept are detailed by Professor ten 
Broek in Equal Under Law (1951). Slavery 
was said to deny "equal protection" 
because it permitted some individuals, the 
slaveowners, to steal the property, 
violate the liberty and take the lives of 
others, the slaves. This argument was 
reiterated time and again by abolitionists



14
in the decades before the Civil War. In
an 1837 address to the Massachusetts
legislature, for example, Henry B. Stanton
complained that a slave was denied

all the protection of the law as 
a man. His labor is coerced 
from him.... No bargain is 
made, no wage is given....
There is not the shadow of legal 
protection for the family state 
among slaves ... neither is 
there any real protection for 
the limbs and lives of 
slaves.... [T]he slave should
be protected in life and limb, 
in his earnings, his family, and 
social relations.... To give 
impartial real protection ... to 
all ... inhabitants would 
annihilate slavery. Give the 
slave then, equal protection 
with his master, and at its 
first approach slavery and the 
slavery trade flee in panic, as 
does darkness before the full- 
orbed sun.8

Although under the slave codes some
attacks on slaves and their property were 
forbidden, the law fixed lesser penalties 
for a crime against a slave or free black

Quoted in J. Ten Broek, Equal 
Under Law. 46-67 (1951).



15
than for the same offense against a
white.9

This doctrinal derivation of the 
equal protection clause is reflected in 
the first draft of section one debated by 
the House of Representatives in 1866; that 
proposal would have given Congress 
authority to secure "to all persons in the 
several States equal protection in their 
rights of life, liberty and property."10 
Representative Wilson referred to the more 
elaborate theory familiar to congressmen
on both sides of the aisle when he
asserted

"the right of being protected in 
life, liberty, and estate is due 
to all, and cannot be justly 
denied to any...." [T]he State 
that does not give protections 
to the life, liberty, and

See W. Rose, A Documentary 
History of Slavery in North America. 193- 
94 (1976) (text of Alabama Slave Code).

10 Cong. Globe, 39th Cong., 1stsess. 1034.



16
property of all men violates its 
duty, because every person has 
this due him for his allegiance 
to the Government. . . .11

Even some who opposed the fourteenth
amendment agreed that every state had a
duty to give full and equal protection to
the lives, liberty and property of all;
they objected only that any needed
corrective measures should come from the
states themselves.12

The debates on the fourteenth
amendment, to be sure, reveal as well a
universal understanding that it would
prohibit invidious discrimination. But it
is entirely clear from those debates that
the phrase "equal protection of the laws"
was understood to encompass at least two
distinct doctrines, entitlement to full
and equal protection of life, liberty and

11 Id. at 1225.
12 Id. at 1064 (Rep. Hale) , App.138 (Rep. Rogers).



17
property, and a prohibition against 
invidious discrimination. Representative 
Eliot, for example, described section one 
as including several distinct components, 
p r o h i b i t i n g  " S t a t e  l e g i s l a t i o n  
discriminating against classes of citizens 
or depriving any persons of life, liberty, 
or property without due process of law, or 
denying to any persons within the State 
the equal protection of the laws."13 
Representative Rogers, who evidently 
agreed with the protection principle, 
nonetheless refused to accept the non­
discrimination principle, arguing in favor 
of governmental racial discrimination in 
other areas, such as marriage and school 
segregation.14

Insofar as the protection by a state

13 Id. at 2511.
14 Compare id. at app. 13 4 with id. at app. 138.



18
of life, liberty and property is 
concerned, the equal protection clause is 
not a provision which tolerate some but 
not other distinctions, but a prohibition 
against any distinctions whatsoever. 
Senator Wilson emphasized that the state's 
obligation to provide protection extended 
to all men, women and children in the 
jurisdiction; "Every human being in the 
country, black or white, man or woman, or 
little child in the cradle, has a right to 
be protected in life, in property, and in 
liberty."15 16 Senator Poland insisted "All 
the people, or all the members of a State 
or community, are equally entitled to 
protection."15 Senator Stewart recognized 
"the obligation of full protection for all 
men."17 The requirement that blacks

15 Id. at 1255.
16 Id. at 2952.
17 Id. at 2964.



19
receive equal protection was merely an 
incidental application of the general rule 
that all persons were to be so treated:

[W]e do say that all men areequally entitled • • • to theprotection of the law, and thatthe weak need the protection of
the law more than the strong; 
and we do say now that the negro 
in the south is manumitted . . . 
he must be protected....18

Representative Pomeroy stressed that the
degree of protection afforded to life,
liberty and property could not vary in any
way from person to person: "[E]very
person should have the safeguards of law
weighed out in equal and exact
balances."19 Representative Bingham

Id. at 3528 (Sen. Stewart).
id. at 1182; see also id. at 

2459 (Rep. Stevens) (Congress must assure 
"that the law which operates upon one man 
shall operate equally upon all.... 
Whatever means of redress is afforded to 
one shall be afforded to all.") (emphasis 
in original), 2539 (Rep. Farnsworth) ("Is
it not the undeniable right of every 
subject of the government to receive 
'equal protection of the laws' with every



20
called on Congress to guarantee "equal, 
exact justice" by assuring "that the 
protection given by the laws of the State 
shall be equal in respect to life and 
liberty and property to all persons."20

When Representative Hale stated that 
he understood "the whole intended 
practical effect" of the first draft of 
section 1 to be "the protection of 
'American citizens of African descent'", 
Representative Bingham immediately rose to 
disagree, explaining that the Joint 
Committee on Reconstruction —  which 
reported both that and the final version 

the fourteenth amendment —  was equally 
concerned to afford protection to the 
hundreds of thousands of loyal white 

citizens" facing abuse in the south.21

other subject?")
20 Id. at 1094.
21 Id. at 1065.



21
The hearings of the Joint Committee, which 
were reprinted for and referred to by 
other members of Congress, contained 
extensive testimony regarding attacks on 
union loyalists in the former rebel 
states,22 and concerning the unwillingness 
of local officials to protect their lives, 
liberty and property.23 The report of the 
Joint Committee which accompanied the 
final draft of the fourteenth amendment 
emphasized the need to deal with this 
problem.24 The congressional debates on 
the fourteenth amendment contained 
frequent references to the mistreatment of

^  See Appendix C(2).
23 See Appendix C(3).
24 Report of the Joint Committee on 

Reconstruction, 39th Cong., 1st sess. xvi 
(southern loyalists "denounce[d] and 
revile[d])," xvii ("without the protection 
of United States troops, Union men, 
whether of northern or southern origin, 
would be obliged to abandon their homes"), 
xviii (southern loyalists "bitterly hated 
and relentlessly persecuted").



22
and southern hostility towards union 
supporters.25 Proponents of the equal 
protection clause stressed that it would 
protect unionists who had remained in the 
south, union sympathizers who had fled 
north, former Union soldiers, and 
northerners visiting the south.26 No one, 
however, described hostility to these 
groups as being based on "class" or 
"caste" —  the terms of that era for 
invidious discrimination. Union

Cong. Globe, 39th Cong., 1st 
sess. 739 (Sen. Lane), 834 (Sen. Clark),
1091-94 (Rep. Bingham), 1182 (Sen. 
Pomeroy), 1184 (Sen. Henderson), 1228 
(Sen. Sumner) , 2535 (Rep. Eckley) , 2537
(Rep. Beaman), 2542 (Rep. Bingham), 2800 (Sen. Stewart) .

26 Id. at 1066 (Sen. Clark) 
(northerners), 1084-85 (Sen. Davis) 
(loyalists), 1094 (Rep. Bingham) (union
soldiers), 2536 (Rep. Eckley) (union 
refugees), 2537 (Rep. Beaman) (loyalists), 
2540 (Rep. Farnsworth) (loyalists), 2798
(Sen. Stewart) (loyalists); also id. at 
1090 (Rep. Bingham) (aliens), 1757 (Sen.
Trumbull) (aliens), 2890 (Sen. Howard) 
(aliens), 2891 (Sen. Cowan) (aliens).



23
supporters and northerners were to receive
equal protection against attacks on their
lives, liberty and property, not because
of the motives behind those attacks or the
official indifference to them, but because
everyone was entitled to that protection,
regardless of why he or she might need it.

The most detailed and impassioned
explanations of the concept of equal
protection denounced differences based on
the wealth and status of the victim.
Representative Bingham, one of the framers
of section one, argued:

[A]11 men are equal in the 
rights of life and liberty 
before the majesty of American 
law. Representatives, to you I 
appeal, that hereafter, by your 
act and the approval of the 
loyal people of this country, 
every man in every state of the 
Union, in accordance with the 
w r i t t e n  w o r d s  of your 
Constitution, may, by the 
national law, be secured in the 
equal protection of his personal 
rights ... no matter what his 
color, no matter beneath what 
sky he may have been born, no



matter in what disastrous 
conflict or by what tyrannical 
hand his liberty may have been 
cloven down, no matter how poor, 
no matter how friendless, no 
matter how ignorant.27

Senator Wilson deplored the social and
legal system of the south as a vestige of
the worst of old world "aristocracies or
oligarchies," which raised or lowered
criminal punishments according to whether
the victim was a "noble" or a "plebian."28
Representative Donnelly asked

Are [the] sacred pledges of 
life, liberty and property to 
fall to the ground? Shall the 
old reign of terror revive in 
the South, when no northern 
man's life was worth an hour's 
purchase. Or shall that great 
Constitution be what its 
founders meant it to be, a 
shield and a protection over the 
head of the lowliest and poorest

27 Id. at 1094.



25

citizen in the remotest region of the 
nation?29

Senator Howard, observed that the equal 
protection clause of the Fourteenth 
Amendment,

establishes equality before the 
law, and it gives to the 
humblest, the poorest, the most 
despised of the race the same 
rights and the same protection 
before the law as it gives the 
most powerful, the most wealthy, 
the most haughty.30

In demanding protection for freedmen
facing oppression in the former
confederate states, Senator Wilson relied
not on the anti-discrimination principle,
but on the protection doctrine embodied in
the equal protection clause:

[T]he poorest man, be he black 
or white, that treads the soil 
of this continent, is as much 
entitled to the protection of 
the law as the richest and

Id. at 586.
Id. at 2 766; see also id. at app. 256 (Rep. Baker).



26
proudest man in the land....
[T]he poor man, whose wife may 
be dressed in a cheap calico, is 
as much entitled to have her 
protected by equal law as is the 
rich man to have his jeweled 
bride protected by the laws of 
the land.... [T]he poor man's 
cabin, though it may be the 
cabin of a poor freedman in the 
depths of the Carolinas, is 
entitled to the protection of 
the same law that protects the 
palace of a Stewart or an 
Astor.. . .31

That is the meaning of the words engraved 
over the portico of the building in which 
this Court sits.

This concept of equal protection is 
utterly incompatible with any notion that 
a statute, judge or jury might value the 
lives of some persons more highly than the 
lives of others.32 Representative Baker

Id. at 343.
This aspect of equal protection 

does not, of course, preclude special 
treatment of murders which not only take a 
life but which also, in the judgment of a 
legislature, seriously interfere with the 
functioning of government, see Appendices 
A and B, or are perpetuated against



27
insisted that " [t]rue democracy, like true 
religion, recognizes the inherent and 
immeasurable value of man, and of all 
men."33 Senator Clark acknowledged that 
society might be more affected by the 
death of one person than by that of 
another, but insisted that the law could 
not on that account treat the killing of 
one person as less blameworthy than the 
killing of another:

Was not your Government 
founded upon that idea —  the 
idea of political equality of 
all men? Is [a black man] not 
entitled to his life as clearly 
and fully as the white man?
That life may not be of the same 
consequence in the community as 
another life, but be it of more 
or less value, is not the negro 
just as such entitled to it as 
any other man can be to his?

particularly vulnerable victims. See Del. 
Code Ann. tit. 11, § 4209 (e) (q) (1982
supp.) (aggravating circumstance if "[t]he 
victim was severely handicapped or severely disabled.")

Cong. Globe, 39th Cong. 1st 
sess. app. 257 (emphasis in original).



28
And has he not a right just as 
qood to have it protected by law?34
A sentencing procedure which 

effectively required, or even allowed, a 
defendant to argue or seek to prove that 
his victim was of inferior moral or 
societal worth, entitled to only half­
hearted protection by the legal system, 
would be more than a dangerous diversion 
from legitimate considerations, Booth v. 
Maryland, 96 L.Ed.2d at 451; to put the
very victim of a crime on trial in this 
manner would offend one of the central 
guarantees of the fourteenth amendment.

As individuals we mourn with special 
sorrow the death of men and women whose 
particular gifts and promise we may have 
valued most highly. But the Constitution 
knows no such distinctions. The
Fourteenth Amendment attaches to the

34 Id. at 833 (emphasis added).



29
lives of those born in the opulence of 
Park Avenue, Palm Beach and Beverly Hills 
precisely the same immeasurable value that 
it recognizes in the lives of those who 
sleep on the heating vents on the Mall, 
who carry all their worldly possessions in 
a shopping cart, or who speak in 
unintelligible cadences to voices that 
none other hear. In other lands and under 
other legal systems, the measure of 
redress and punishment may yet be 
calibrated to the status and stature of 
the interested parties, but in the United 
States of America victim and perpetrator 
alike are neither rich nor poor, black nor 
white, revered nor reviled, believer nor 
heretic, but only persons whose greatest 
birthright is their equality.



30

B. The Eighth Amendment Precludes Basina 
the Magnitude of a Sentence on the 
Perceived Moral or Societal Worth of 
the Victim
Six years ago this Court held in 

California v. Ramos. 463 U.S. 992 (1983),
that the range of factors which might be 
considered by a sentencing jury, although 
extremely broad, was nonetheless subject 
to several specific constitutional 
constraints. Ramos recognized that 
individualized sentencing decisions would 
require a jury "to consider a myriad of 
factors to determine whether death is the 
appropriate punishment," 463 U.S. at 1008, 
and Zant v. Stephens. 462 U.S. 862 (1983), 
made clear that a state was not required 
to spell out in a statute every 
aggravating consideration which a jury 
might take into account. 462 U.S. at 875. 
On the other hand, Ramos squarely held 
that the eighth amendment did impose



31
"substantive limitations on the particular 
factors that a capital sentencing jury may 
consider." 463 U.S. at 1000. One such 
constitutional constraint, Ramos noted, 
was that a jury could not utilize a 
standard which "might lead to the 
arbitrary and capricious sentencing 
patterns condemned in Furman [v. Georgia, 
408 U.S. 238 (1972)]." Id:; see also
Godfrey v. Georgia. 446 U.S. 420, 428
(1980). Zant held that a state could not 
"attac[h] the 'aggravating' label to 
factors that are constitutionally 
impermissible or totally irrelevant to the 
sentencing process, such as for example 
r a c e ,  r e l i g i o n ,  or p o l i t i c a l
affiliation---" 462 U.S. at 885. See
also McCleskev v. Kemp. 95 L.Ed.2d 262, 
278 n. 8 (1987); Gregg v. Georgia. 428 
U.S. 153, 198 (1976).



32

Petitioner appears to contend that 
the constitution permits a capital 
sentencing decision to be based on the 
personal opinions of individual jurors 
regarding the value to society or the 
moral worth of a murder victim. That 
guestion arises in the instant case 
because the prosecution's closing argument 
appealed to the jury to base its sentence 
on just such opinions. See part II, 
infra. The constitutional issue here is 
the same as that which would arise if the 
judge had expressly instructed each juror 
to make a personal evaluation of the 
character and societal worth of the 
victim, and to consider that opinion in 
deciding on the appropriate sentence. We 
urge that the use of such personal 
opinions to decide whether a capital 
defendant will live or die is inconsistent



33
with Ramos, Zant and Gregg. See McCleskev 
v . Kemp. 95 L.Ed.2d 262, 278 n. 8 (1987).

If a deliberate attempt were to be 
undertaken to reintroduce into the capital 
sentencing process all the arbitrariness 
and potential for bias that flawed the 
pre-Furman capital punishment schemes, it 
would be difficult to concoct a more 
effective scheme for doing so than 
petitioner's proposal that jurors base 
sentencing decisions on their personal 
opinions about the character or value to 
society of a murder victim. This is not a 
case in which a legislature has determined 
that a specific governmental function, 
such as that of a police officer, is of 
unusual importance to society, and a jury 
has been authorized to make a factual 
determination as to whether the victim was 
in fact a police officer killed in the 
course of his or her duties. Rather, what



34
petitioner proposes is that each 
particular jury or other sentencing 
authority, choose for itself, from among 
the universe of personal characteristics 
and societal roles, those which it thinks 
are deserving of special protection. 
Petitioner asks, not that the jury in this 
case be permitted to implement a decision 
of the South Carolina legislature to 
extend such heightened protection to 
certain positions, but that each and every 
jury in South Carolina be permitted to 
make such legislative decisions for 
itself.

The statutes sustained in Gregg and 
its progeny were upheld because the 
objective standards they contained 
substantially reduced the danger that 
jurors would ground sentencing decisions 
on their personal social, political, or 
economic views, opinions often irrelevant



35
to the sentencing process and in many 
instances constitutionally impermissible. 
But a rule that based a sentencing 
decision on the "personal characteristics" 
or "value to society" of the victim would 
not simply permit, but quite literally 
require jurors to use such social, 
political, economic beliefs to decide 
which defendants would live and die. 
There is probably no question about which 
Americans are more likely to disagree than 
the identity of the individuals, other 
than certain critical government 
officials, who are of greatest value to 
our society, and whose deaths would be a 
particularly serious loss. The personal 
opinions which Furman. Gregg and Zant 
insist ought be irrelevant to the 
sentencing process would have to be relied 
on by a juror asked to assess the value to 
society, for example, of a union shop



36
steward, a venture capitalist, a newspaper 
columnist, a television evangelist, a 
professional lobbyist, a tobacco company 
lawyer, or a gun store owner.

A sentencing process based on such 
jury determinations would readily, perhaps 
inexorably, be tainted by considerations 
that w o u l d  be c o n s t i t u t i o n a l l y  
impermissible. That problem would 
inevitably extend to and taint the jury 
selection process; a prosecutor would 
naturally select a venue and exercise his 
peremptory challenges in order to craft a 
jury whose political, economic and social 
views would lead them to place particular 
value on the contributions of the victim. 
Regardless of the prosecutor's actions, a 
capital punishment statute would often 
have a different meaning in various parts 
of a single state depending on local mores 
and interests; thus within New York the



37
societal function deemed by local juries 
to be of particular value might be apple 
farmers in Cortland, oysterman on Long 
Island, the ski patrol in the Catskills, 
and Transit Authority workers in 
Manhattan. At best such a sentencing 
scheme would be a lottery, in which the 
life or death of a capital defendant would 
turn on the particular mix- of social, 
economic and political views that chanced 
to prevail among the randomly selected 
jurors passing on his fate.

A sentencing decision based on the 
"personal characteristics" —  as distinct 
from value to society, to the extent that 
such a distinction could be made —  would 
be even more arbitrary. The personal 
characteristics on which a jury or judge 
might choose to rely are virtually



38
limitless.35 In the instajst csss® life® 
prosecutor focused on the vijusî nm ”̂ s m  

religious person and the possessor raff 
voter registration card". (ffitef:.., 'M. 3sr̂  
49) . The Victim Impact Statement &h Stexdt3b 
stressed that the victims iShsetr®1 "Sits®; 
worked hard . . . attended ihfee grernfforar 
citizens' center and made many dfe®qsSte®3S 
friends" 96 L.Ed.2d at 453. dEm W / m n m  v/.,, 
Kemp, 809 F.2d 702 (11th Cir.- lift®
state emphasized that the vidt&m Braffl f t m e m  

"an honor graduate in high school '• sas
about to enter college.36 A piroser;

See McCleskey v„
L. Ed. 2d 262, 295 n. 4 (1987) (("•SSmmsB
studies indicate that . . . of fsatSersi vWhxss' 
victims are physically attractive xcBCjedwr 
harsher sentences than defsaffcasstss wiifBh, less attractive victims.")

3 6 8 09 F.2d at 7 i 3;- 4% m»31S
(Johnson, J., concurring and da'SsenrtiiHg)),7 
see also Moore v. Zant. 722 F«,kd ©a®,, ®5i- 
52 (11th Cir. 1984) ; Vela v. EsteJle„ TOD®
F.2d 954 (5th Cir. 1983) (vikcfcim <& stfflrr
athlete and social worker: ?a$s»iistti2ingi
underprivileged children).



39
well find virtually incomprehensible a 
request that he or she decide which of 
these personal characteristics militated 
for or against the death penalty. It is 
difficult to imagine how a juror, or a 
member of this Court, would go about 
deciding whether, and if so to what 
degree, a sentence of death would be 
supported by evidence that the victim was 
pious, diligent, friendly, a registered 
voter, a regular participant in senior 
citizen activities, or had good grades. 
It is equally difficult to imagine how an 
appellate court could "rationally 
review[]" the correctness of a capital 
sentence that turned on a jury's 
assessment of the moral or societal value 
of the victim. Godfrey v. Georgia. 446 
U.S. 420, 428 (1980).

In assessing whether a particular 
sentencing system comports with the eighth



40
amendment, this Court refers it® 
values reflected in state 
Thompson v. Oklahoma. 101 L.EduSHfi WGS2„ TflblD 
(Stevens, J.), 739-42 fSa33Bliiaiw
dissenting) (1988). V i e s i s ®  ttarf 
context, a sentencing scdasme. wimssfe 
permitted jurors to rely on t&aaiisr gjsxsGjsafl 
opinions about a victim's chmasEssfeKr <amii 
value to society would be ® u$mikcpe_:,, awB 
virtually unprecedented, 3BSsEEi53aifcilarm.» 
Among the 37 states which afflSiksrEEiis?̂: ttfee 
imposition of capital punishirceitfc,, ttherte iiis 
not a single statute which aiî Hataariî ss sb 
sentencing jury or judge to cxamsiidter iites 
"personal characteristics" off .the vcictnap,,- 
or to assess the victim 's? "*s?asIhsBB ttss 
society." The South CarolLiiarra (ÊpiiitailJ 
statute does not authorize a jjjiiry it® 
attempt to consider such f aethers «

Many states, as Justice White 
observed in Booth, 96 L.Ed.2d at 458 n.2.



41
do single out certain primarily 
governmental positions, particularly 
police officers, for special treatment, 
either in defining capital murder or in 
the statutory list of aggravating 
factors.37 But these statutes share two 
characteristics which emphasize the 
constitutional defects in petitioner's 
proposal. First every one of these 
statutes identifies specifically which 
government functions may —  and by 
omission may not —  be accorded particular 
value in the sentencing process, leaving 
the jury or judge no discretion whatever 
in the matter. In South Carolina, for 
example, the legislature has specified 
that the killing of a police officer, a 
judge or a prosecutor is an aggravating 
factor. S .C . Code Ann. § 16 — 3 —

' We set forth a list of those statutes in Appendix A.



42
20(c) (a) (5) — (7) (1986). If neither these
nor any of the other statutory aggravating 
factors is present, a South Carolina jury 
cannot impose the death penalty, 
regardless of whether it believes the 
murder victim —  a mayor, for example—  
was of great value to society; conversely, 
if the victim was a police officer, the 
jury must find the presence of an 
aggravating factor, even though it may 
believe the particular officer involved 
was so corrupt or inept that he should 
have been dismissed.

Second, all of the state capital 
statutes concerning killings of police, 
corrections, judicial and prosecution 
officials apply only to murders occurring 
in the course of, or in connection with, 
the victim's duties. Thus in South 
Carolina the killing of a police officer 
is only an aggravating factor if the



43
officer was murdered "while engaged in the 
performance of his official duties". S.C. 
Code Ann. § 16-3-20(c)(a)(7).38 These 
statutes protect essential government 
functions, they do not attach increased 
importance to the lives of individuals as 
such. No state in the union attaches 
greater culpability to the killing of an 
adulterer by a jealous spouse', or to the 
random killing of a man on a park bench, 
solely because the victim was an off duty 
police officer.

In his dissent in Booth Justice White 
argued that "determinations of appropriate 
sentencing considerations are peculiarly 
questions of legislative policy". 96 
L. Ed. 2d at 458. It is precisely that

38 See Appendix A. A number of 
other states address this issue, not by 
referring to the killing of certain 
officeholders, but by attaching special 
significance to any murder committed for 
the purpose of interfering with a 
governmental activity. See Appendix B.



44
legislative policy that is absent in this 
case. The Attorney General of South 
Carolina argues that a jury ought treat as 
an aggravating factor the "status" of the 
victim as "a judge, a policeman, or a 
street minister". (Pet. Br. 56). The 
simple answer is that the South Carolina 
legislature has made a different choice, 
to treat as an aggravating factor only the 
killing of judges and policemen, but not 
the murder of a "street minister," and to 
do so, not for every individual who has 
that particular "status", but only for 
individuals killed during or in connection 
with the conduct of their official duties. 
Petitioner asks this Court to authorize 
jurors in South Carolina to "substitute 
their own views for those of the state 
legislature as to the particular 
substantive factors to be considered in 
sentencing a capital defendant."



45
California v. Ramos, 463 U.S. 992, 1000
(1983) .

We do not suggest that the South 
Carolina legislature could not extend such 
special protection to additional functions 
which it thought of critical value to 
society. Other states have constitu­
tionally chosen to do so, treating as 
aggravating factors the killing, in 
connection with their official duties, of 
witnesses, jurors, and defense lawyers. A 
state legislature might choose to attach 
particular value to a non-governmental 
function; a Washington statute, for 
example, treats as an aggravating factor 
the killing of a reporter in order to 
hinder an investigation of the killer. 
Wash. Rev. Code Ann. § 10.95.020(10)
(1981). But the selections of the public 
or quasi-public functions deserving such 
special protection "are peculiarly



46
questions of legislative policy." 
California v. Ramos. 463 U.S. at 1000. 
Neither Sought Carolina nor any other 
state treats as an aggravating factor the 
killing of a minister or registered voter, 
and it is entirely inconceivable that any 
legislature in the United States would 
authorize a jury, in deciding whether to 
impose the death penalty, to consider 
whether the victim was or was not 
religious, or adhered to a particular 
religious creed. To uphold a death 
sentence based on considerations which no 
legislature has authorized or would 
approve would be to stand eighth amendment 
jurisprudence on its head.

C. THE CONSTITUTIONAL ISSUE 
PRESENTED BY THIS CASE SHOULD BE 
DEFINITIVELY RESOLVED

Because no statute authorizes a 
sentencing decision to be based on a 
jury's or judge's personal opinions about



47
what constitutes moral or societal worth, 
there are only a handful of reported cases 
in which a prosecutor sought to win a 
capital sentence on such a basis. The 
instant case is particularly unique 
because the prosecutor asked the jury to 
ground its sentencing decision on the fact 
that the victim was "a religious person". 
State v. Gathers. 369 S.E.2d 140, 143 
(S.C. 1988). Although that argument 
raises serious problems under the 
Establishment Clause, we believe it would 
be inappropriate to resolve this case on 
first amendment grounds; to do so would be 
to require respondent to run the risk that 
on remand the prosecutor would again urge 
the jury to impose the death penalty 
because the victim in this case was a 
registered voter. That argument violated 
the eighth and fourteenth amendment when 
it was advanced at the original sentencing



48
hearing, and the Court should not leave 
the prosecutor free to repeat that 
violation.

Equally importantly, the efficient 
administration of justice would be ill- 
served by a decision in this case which, 
rather than addressing the permissi­
bility as such of basing a sentencing 
decision on the perceived- moral and 
societal worth of the victim, dealt only 
with the particular personal characteris­
tics —  piety and voter registration —  on 
which the prosecutor happened to rely in 
this case. A decision by this Court 
leaving open the possibility that other 
personal-characteristic arguments might be 
upheld would inevitably encourage a form 
of abuse that has hitherto been com­
paratively rare; the capacity of a 
constitutional decision to actually 
encourage misconduct was well illustrated



49
by experience under Swain v. Alabama. 380 
U.S. 202 (1965). See Batson v. Kentucky.
476 U.S. 79 (1986).

In the absence of a definitive 
resolution of the constitutionality of 
personal characteristic arguments, the 
prosecutor on remand in this case, like 
prosecutors in literally thousands of 
capital cases in years ahead, would be 
invited to seize upon some other personal 
characteristic of the victim as a basis 
for a sentence of death. A decision on 
eighth or fourteenth amendment will 
pretermit this entire problem, but a 
decision addressing only the specific 
prosecution arguments in this case would 
in all probability launch a major new 
branch of constitutional jurisprudence, 
requiring the courts to assess on a case 
by case basis the constitutionality of 
sentences based on every conceivable



50
function valuable to society that a given 
victim might have played, and on any 
imaginable laudable personal character 
trait that a particular victim might have 
possessed.

Equally seriously, for this Court to 
suggest that the lives of some human 
beings may constitutionally be accorded 
greater value and protection would 
necessarily legitimize and encourage the 
view that other lives are entitled to 
less. The dangers with which the framers 
of the equal protection clause were 
concerned remain real, if more complex, 
today. The failure of the criminal 
justice system to provide protection for 
wives from spousal abuse, for example, 
remains a widespread problem. Judicial 
suggestions that lethal attacks on certain 
types of individuals are less deserving of 
punishment would inevitably shape the



51
willingness of the police to investigate 
such crimes, and would imply to members of 
the public that such murders enjoy a 
degree of official sanction or tolerance. 
II. THE PROSECUTOR'S CLOSING

ARGUMENT ENCOURAGED THE JURY TOBASE THE SENTENCING DECISION ON
ITS PERCEPTION OF THE MORAL ORSOCIETAL WORTH OF THE CRIMEVICTIM
Booth, of course, did not hold that 

evidence regarding the personal 
characteristics of a victim may never be 
introduced or referred to by a prosecu­
tion; on the contrary the Court observed 
in Booth that in a particular case such 
evidence may be relevant to a material 
issue regarding either guilt or 
sentencing. 96 L.Ed.2d at 451 n.10.
Evidence regarding the religious views of 
a victim, or defendant, may in some 
instances be relevant to such a legitimate



52
issue.39 Booth admonished, however, that 
the courts must assure that the probative 
value of evidence regarding the personal 
characteristics of a victim outweighs any 
prejudicial effect. Id.40 The courts 
must also be certain that the purported 
relevance of personal-characteristic

In a murder prosecution arising 
out of a fight between the* victim and 
defendant, for example, it might be of 
controlling importance which participant 
had initiated the fight and which was 
defending himself; in resolving that issue 
a jury might well consider whether either 
participant adhered to moral views—  
whether of a sectarian or secular origin 
—  which condemned violence other than in 
self defense. At a sentencing hearing a 
defendant's attitude towards violence 
would be material to his future 
dangerousness, Franklin v. Lvnaucrh. 101
L.Ed.2d 155, 168 (White, J.) (1988), and
that attitude might be demonstrated by the 
moral tenets to which he adhered, whether 
they were the principles of his purely 
personal philosophy, of the Ethical 
Culture Society or of an organized religious group.

Brooks v. Remo. 762 F.2d 1383, 
1409 (5th Cir. 1985); Moore v. Kemo. 809
F* 2d 702, 748 (11th Cir. 1987) (Johnson,
J., concurring and dissenting).



53
evidence or argument does not itself turn 
on unreliable or class based stereotypes 
or assumptions.41

The instant case involves, not the 
admissibility of evidence, but the content 
and likely impact on the jury of the 
prosecutor's argument at the penalty phase 
of the trial. A substantial portion of 
the prosecutor's closing argument dwelt on 
the religious views of the victim. The 
South Carolina Supreme Court concluded 
that "[t]hese remarks conveyed the 
suggestion appellant deserved a death

41 In the instant case, for 
example, the South Carolina Attorney 
General appears to suggest that detailed 
comments about the religious character of 
the victim were appropriate because that 
evidence indicated that the victim was 
less able or inclined to defend himself as 
a result of his piety. If religious 
belief actually tended to render the pious 
incapable of using force against others, 
the United States Army would not have a 
large corps of chaplains, and words like 
"crusade" and "jihad" would not be part of 
our vocabulary.



54
sentence because the victim was a 
religious man and a registered voter." Id. 
Petitioner does not dispute this 
description of the unavoidable effect on 
the jury of the state's closing argument, 
and could not plausibly do so. The
prosecutor's closing remarks are devoid of 
any contention that the victim's piety or 
voter registration were evidence of some 
other legally relevant fact; the 
prosecutor baldly dwelt at length on 
several aspects of the victim's character, 
and admonished the jury to consider them 
when deciding on the appropriate sentence. 
In the absence of a clear and unequivocal 
argument specifically relating a victim's 
personal characteristics to some other 
factor which a jury might legitimately 
consider, any prosecutorial reference to 
such characteristics will necessarily 
suggest that the characteristics are



55
sufficient by themselves to support a 
sentence of death. No juror could have 
understood the prosecutor's remarks in the 
instant case in any other way.

Petitioner urges, however, that the 
validity of the jury's sentencing decision 
does not depend on the objective meaning 
of the prosecutor's closing remarks, but 
turns instead on the subjective intent 
with which the prosecutor spoke. (Pet. Br. 
45). So long as the prosecutor did not' 
actually intend to encourage the jury to 
vote for death because of the victim's 
piety and voter registration, the state 
appears to contend, it simply is not 
relevant that the actual remarks made by 
the prosecutor had precisely that effect. 
Petitioner relies heavily on the decision 
in Donnelly v. DeChristoforo. 415 U.S. 637 
(1974) , that the courts will not "lightly 
infer that a prosecutor intended" to



56
violate the constitutional rights of a 
defendant. (Pet. Br. 45).

The bona fides of the prosecutor's 
argument in this case, we submit, are not 
the controlling issue. It was the jury, 
not the prosecuting attorney42, which 
fixed the sentence of death, and if there 
was a significant danger that the jury 
based its decision on a constitutionally 
impermissible consideration —  as was 
surely the case here —  it would be of no 
significance that the prosecutor harbored 
deeply felt but never articulated hope 
that the jury would not do so. "The 
guestion ... is not what" the prosecutor 
intended, "but rather what a reasonable 
juror could have understood the [argument]

Of course, if a prosecutor's decision to seek the death penalty were 
tainted by a constitutionally imper­
missible consideration, that penalty could 
not stand. See McCleskev v. Kemp. 95 L.Ed.2d 262 (1987).



57
as meaning." Francis v. Franklin. 471 
U.S. 307, 315-16 (1985); see California v. 
Brown. 93 L.Ed.2d 934, 940 (1987). This
case, unlike Donnelly. 416 U.S. at 613, 
does involve the violation of a specific 
substantive constitutional rights, not 
merely a general claim of unfairness., 
See Caldwell v, Mississippi. 472 U.S. 320, 
339-40 (1980) . We urge that the South
Carolina Supreme Court correctly focused 
on the objective meaning of the 
prosecutor's closing remarks, and properly 
eschewed any inguiry into the prosecutor's 
subjective intent.

Our advocacy of this objective 
standard, however, should not be 
understood to suggest that there is any 
possibility that the prosecutor in this 
case did indeed act in good faith. On the 
contrary, the record reveals a consistent 
and extraordinarily persuasive effort to



58
bias the jury's decision —  at the guilt 
as well as the penalty phase —  with 
concern for the religious views of the 
victim. Although the victim in this case 
had no religious training or position, the 
prosecutor referred to him as "Reverend" 
or "Reverend Minister" Haynes on 4 
occasions in his opening statement, 13 
times in his closing statement on guilt, 
and 16 times during his closing statement 
regarding penalty.43 At the beginning of 
the trial the prosecutor emphasized to the 
jury that the victim was "a very, very 
religious person" who "had many, many

43 Tr. 554-55, 1036-56, 1205-11. 
The only foundation of these references 
was an isolated statement by the victim's 
mother that the victim liked to call 
himself Reverend Minister. Id. at 563. 
Neither the victim's mother nor any other- 
witness ever themselves referred to the 
victim as Reverend. In colloquy with the 
trial judge outside of the presence of the 
jury, the prosecutor referred to the 
victim simply as "Richard Haynes." id. at



59
religious items —  Bibles, rosaries, 
statues."44 In his closing argument at 
the end of the guilt phase, the prosecutor 
urged:

[P]ut in your mind's eye, if you 
would, the perspective of 
Reverend Minister Rickey Haynes.
What do we know about him? ....
[H]e was a religious person.
You will have his Bibles there.
You will see his rosary beads.
His statues of little angels.45

The critical factual issue at the guilt 
phase was whether Gathers was actually the 
person who stabbed and sexually assaulted 
the victim;46 the Bibles, angels and 
rosary beads obviously could not help to 
identify the victim's assailant. Even if 
the victim's religious views had been

44 Tr. 553; see also id. at 554 
("This religious person —  who, by the 
way, called himself Reverend Minister 
Haynes.")

45 Tr. 1051.
46 Tr. 1032-77.



60
relevant to some issue at the penalty 
phase —  which they clearly were not —  no 
legitimate purpose was served by the 
prosecutor's insistence on reading to the 
jury the full text of a prayer that had 
been in the victim's possession, or by the 
repeated references to the religious 
objects in the victim's possession at the 
time of the killing. It is not unduly 
cynical to suggest that none of this would 
have occurred had the victim adhered to 
non-orthodox religious views, and had in 
his possession not an angel, a bible, and 
the Game Guy's Prayer, but a voodoo doll, 
a satanic tract, and a blessing written by 
the Ayatollah Khomeini.

The state's effort to justify the 
prosecutor's conduct is entirely 
unavailing. In this Court the state does 
not even attempt to provide any 
explanation of the reading of the Game



61
Guy's Prayer, the repeated reference to 
the victim's bibles, rosary beads, and 
angels, or the closing argument about 
Haynes' voter registration card. The 
Attorney General asserts that some 
reference to the victim's religion was 
appropriate because "[s]imply put, it was 
the state's theory of the case that the 
motive and reason that Ricky Haynes was 
assaulted and murdered was because he .... 
was willing to talk to people all the time 
about the Lord from the park bench." (Pet. 
Br. 46) . In fact the theory of the case 
which the prosecutor actually presented to 
the jury was precisely the opposite—  
that Haynes was attacked after he refused 
to talk to his assailants,47 and that 
Gathers was particularly culpable because 
he was indifferent to the fact that his

47 Tr. 554, 631, 1053-54.



62
victim happened to be a religious 
person.48

The state urges, in the alternative, 
that under Booth a prosecutor may indeed 
urge a jury to impose the death penalty 
based on the personal characteristics of 
the victim, so long as the evidence on 
which the prosecutor relies was first 
introduced for some other reason. (Pet. 
Br. 22, 24, 47, 50). Once testimony
regarding Haynes' religious views had been 
admitted for another purpose, the state 
suggests, the prosecutor was free to argue 
that it was a more serious crime to kill a 
pious man than to kill an atheist or an 
agnostic. Were that the law, a prosecutor 
could constitutionally urge a jury to 
impose capital punishment because the

Tr. 1208 ("[T]his defendantDemetrius Gathers cared little about the 
fact that [Haynes] is a religious person").



63

victim was white, or belonged to the same 
religious denomination as the jurors or 
supported a particular political party, so 
long as the underlying facts had already 
been disclosed to the jury for other 
reasons.

CONCLUSION
When most of North America was still 

an untamed wilderness, Sir Wil-liam Hawkins 
wrote that it was equally murder to kill 
"any person, whatsoever nation or religion 
he be of, or of whatever crime attainted." 
A Treatise of the Pleas of the Crown, v. 
1, p. 80 (1716).49 Two and a half

4y See also W. Blackstone, 
Commentaries on the Laws of England, v. 
iv, pp. 197-98 (murder includes the
killing of any person "'under the Kings 
peace,' at the time of the killing. 
Therefore to kill an alien, a Jew, or an 
outlaw, who are all under the King's peace 
and protection, is as much murder as to 
kill the most regular-born Englishman") 
(1765) ; T. Wood, An Institute of the Laws 
of England. 352 (murder to kill any 
"reasonable creature, man or woman, 
subject or alien; whether attainted of



64
centuries of jurisprudence have not 
improved upon that formulation. This case 
does not call for the invention of any 
new, unprecedented legal theory; we ask 
only that the Court adhere to principles 
of justice that were already of ancient 
vintage when they were written into the 
Constitution by the framers of the eighth 
and fourteenth amendments. The decision

treason or felony, . . . Christian or 
heathen. And the reasonable creature must 
be born alive.") (3rd ed. 1724).



65
of the South Carolina Supreme Court should 
be affirmed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
RICHARD H. BURR, III 
GEORGE H. KENDALL 
ERIC SCHNAPPER*

16th Floor
99 Hudson Street
New York, New York 10013

Attorneys for Amici
*Counsel of Record

VIVIAN BERGER
435 West 116th Street 
New York, New York 10027

Of Counsel



A P P E N D I X



APPENDIX A
CAPITAL STATUTES CONCERNING 

PUBLIC OR QUASI-PUBLIC OFFICIALS

Alabama Code (1982)
§13A—5-40 (a)(5) (law enforcement official 

when "on duty or because of some 
official or job related act")

§13A-5-40(a)(7)(present or former federal 
or state official if murder "stems 
from or is related to his official 
position act or capacity"*)

Arkansas Code Annotated (1987 Supp.)
§5-10-101(a)(3)(law enforcement or correc­

tions officer, firefighter, judge, 
court official, parole or probation 
officer, or military personnel "when 
such person is acting in line of 
duty")

§5-10-101(a)(5)(holder of any public
office "filled by election or ap-

la



pointment or a candidate for public 
office")

California Penal Code (1987 Supp.)
§190.2(a)(7)(peace officer whom defendants 

"knew or should reasonably have 
known" was "engaged in the perform­
ance of his duties" or who was killed 
"in retaliation for the performance 
of his official duties")

§190.2(a)(8)(federal or state law enforce­
ment officer whom the defendant "knew 
or should reasonably have known" was 
"engaged in the performance of his 
duties" or who was killed "in 
retaliation for the performance of 
his duties")

§190.29a)(9)(fireman whom defendant "knew 
or reasonably should have known . . . 
was a fireman engaged in the perform­
ance of his duties")

2a



§ 190.2(a) (10) (witness killed to prevent or 
in retaliation for testimony)

§ 190.2(a) (11) (prosecutor killed "in reta­
liation for or to prevent the per­
formance of the victim's official 
duties")

§190.2(a)(12) (present or former judge
killed "in retaliation for or to 
prevent the performance of the 
victim's official duties")

§ 190.2(a) (13) (present or former federal, 
state or local official killed "in 
retaliation for or to prevent the 
performance of the victim's official 
duties")

Colorado Revised Statutes (1986)
§ 16-11-103(6) (c) (firefighter, elected

official, state or local peace
officer, present or former federal 
law enforcement officer "killed . . . 
while such person was engaged in his

3a



official duties, and the defendant 
knew or reasonably should have known 
that such victim was such a person 
engaged in the performance of his 
official duties, or the victim was 
intentionally killed in retaliation 
for the performance of his official 
duties.)

§ 16-11-103(6) (k) (witness to a criminal 
offense killed to prevent arrest or 
prosecution)

Delaware Code Annotated Title 11 (1979)
§636(a)(4)(law enforcement or corrections 

officer or fireman "while such 
officer is in the lawful performance 
of his duties")

§4209(e) (1) (c) (law enforcement or correc­
tions officer or fireman "while such 
victim was engaged in the perform­
ance of his official duties")

4a



§4209(e)(1)(d)(prosecutor, judge or state 
investigator "during, or because of, 
the exercise of his official duty") 

§4209(e)(1)(g)(witness killed to prevent 
testimony regarding a crime)

Georgia Code Annotated (1979)
§27-2534.1(b)(5)(present or former judge 

or prosecutor "during or because of 
the exercise of his official duties") 

§27-2534.1 (b) (8) (peace or corrections
officer or fireman "while engaged in 
the performance of his official 
duties")

Idaho Code (1982)
§ 18-4003(b) (judge, executive officer,

police officer, fireman, prosecutor 
or court officer "who was acting in 
the lawful discharge of an official 
duty, and was known or should have 
been known by the perpetrator of the 
murder to be an officer so acting")

5a



§19-2515(g)(9)(present or former peace 
officer, judge or prosecutor killed 
"because of the exercise of official 
duty")

§ 19-2515(g) (10) (witness or potential wit­
ness in a criminal or civil proceed- 
ceeding "because of such proceeding")

Illinois Annotated Statutes. Chapter 38
(1987 Supp.)
§9-1(b)(1)(peace officer or fireman killed

(1987)

"in the course of performing his
official duties" if defendant "knew
or should have known that the
murdered individual was a peace
officer or fireman")

§9-1(b) (2) (corrections official killed "in 
the course of his official duties") 

§9-1(b)(8)(witness or informant against 
defendant in a criminal proceeding)

6a



Indiana Code Annotated (1987 Supp.) 
§35-50-2-9(c)(b)(murder of "a corrections 

employee, fireman, judge, or law en­
forcement officer and either (i) the 
victim was acting in the course of 
duty or (ii) the murder was motivated 
by an act the victim performed while 
acting in the course of duty") 

Kentucky Revised Statutes Annotated (1981) 
§532.030(a) (5) (prison employee killed

while "engaged . . .  in the perform­
ance of his duties" by an inmate)

§532.030(a)(7)(police officer "engaged at 
the time of the act in the lawful 
performance of his duties")

Louisiana Revised Statutes (1982)
§14.30(2)(law enforcement corrections, 

parole or probation officer, judge or 
prosecutor while "engaged in the 
performance of his lawful duties")

7a



Art. 27 §413(d)(1)(law enforcement officer 
"murdered while in the performance of 
his duties")

Missouri Annotated Code (1987 Supp.)
§565.012(2)(5)(present or former judge, 

prosecutor or elected official 
"during or because of the exercise of 
his official duty")

§565.012(2)(8)(peace or corrections offi­
cer or fireman "while engaged in the 
performance of his official duty") 

Montana Code Annotated (1985)
§46-18-303 (6) (peace officer "killed while 

performing his duty")
Nebraska Revised Statutes (1985)
§29-2523(1)(g)(any official "having cus­

tody of the offender or another") 
Nevada Revised Statutes Annotated (1986) 
§200.033(7)(peace officer or fireman 

"killed while engaged in the perform-

Maryland Code Annotated (1987)

8a



ance of his official duty or because 
of an act performed in his official 
capacity, and the defendant knew or 
reasonably should have known that the 
victim was a peace officer or fire­
man" )

New Mexico Statutes Annotated (1978)
§31-20A-5(A)(peace officer "acting in the 

lawful discharge of an official duty 
when he was murdered)

§31-20A-5(D)(corrections official killed 
by prison inmate)

§ 31—20A-5(F) (witness to a crime to
prevent, or in retaliation for
testimony)

New Jersey Statutes Annotated (1988 Supp.)
§2C:11-3(c)(4)(b)(certain public servants 

killed "while the victim was engaged 
in the performance of his official 
duties or because of the victim's 
status as a public servant")

9a



North Carolina General Statutes (1981 
Supp.)
§15A-2000(e)(g)(law enforcement or 

corrections official, or present or 
former judge, prosecutor, juror or 
witness against perpetrator if killed 
"while engaged in the performance of 
his official duties because of the 
exercise of his official duty")

Ohio Revised Code Annotated (1982)
§2929.04(A)(1)(president, president-elect, 

vice-president, vice-president-elect, 
governor, governor-elect, lieutenant- 
governor, lieutenant-governor elect, 
or candidate for any of those 
offices)

§2929.04(A)(6)("law enforcement officer 
whom the offender knew to be such, 
and either the victim was engaged in 
his duties at the time of the 
offense, or it was the offender's

10a



specific purpose to kill a law 
enforcement officer")

Oklahoma Statutes (1987)
§701.12(law enforcement or corrections 

officer killed "while in performance 
of official duty")

Pennsylvania Consolidated Statutes Anno­
tated (1982)
§9711(d)(1)(law enforcement or corrections 

officer or fireman "killed in the 
performance of his duties")

§9711(d)(s)(witness to felony committed by 
perpetrator, killed to prevent testi­
mony)

South Carolina Code Annotated (1986 Supp.)
§16-3-20(a)(5)(judge or prosecutor "during 

or because of the exercise of his 
official duty")

§16-3-20(a)(7)(law enforcement or correc­
tions officer or fireman "while

11a



engaged in the performance of his 
official duties")

South Dakota Codified Laws (1988) 
§23A-27A-1(4)(present or former judge or 

prosecutor while "engaged in the 
performance of his official duties or 
where a major part of the motivation 
for the offense came from the 
official actions of" the victim) 

§23A-27A-1(7)(law enforcement or correc­
tions officer or fireman "while 
engaged in the performance of his 
official duties")

Tennessee Code Annotated (1982)
2-203 (i) (9) (law enforcement or cor-
rections officer or fireman "who was
engaged in the performance of his
duties, and the defendant knew or
reasonably should have known that
such victim was a peace officer, 
corrections official, corrections

12a



employee or fireman engaged in the 
performance of his duties")

§39-2-203(i)(10)(prosecutor or present or 
former judge killed, "due to or 
because of the exercise of his 
official duty or status and the 
defendant knew that the victim 
occupied said office")

§ 39-2-203 (i) (11) (elected official killed 
"due to or because of the official's 
lawful duties or status, and the 
defendant knew that the victim was 
such an official")

Vermont Statutes Annotated (1982 Supp.)
Title 13, §2303(c)(law enforcement or 
corrections officer killed "while in 
the performance of the duties of his 
office")

Washington Revised Code Annotated (1982) 
§10.95.020(1)(law enforcement or correc­

tions officer or firefighter "who was

13a



performing his or her official duties 
at the time of the act . . .and . . . 
was known by the person to be such at 
the time of the killing")

§10.95.020(6)(judge, prosecutor, defense 
attorney, probation or parole 
officer, present or former juror, 
present or former witness whose 
murder "was related to the exercise 
of official duties performed or to be 
performed by the victim") 

§10.95.020(10)(news reporter killed "to 
hinder the investigative, research, 
or reporting activities of the 
victim")

Wyoming Statutes (1983)
§6-4-102(h)(vii)(judge or prosecutor "dur- 

"ing or because of the exercise of 
official duty")

14a



United States Code
18 U.S.C. §3 51 (a) (member of Congress, 

member of Congress elect, agency 
heads, Supreme Court Justice)

18 U.S.C. §175(a)(president, president­
elect, vice-president, vice-president 
elect, and certain White House 
employees)

15a



APPENDIX B
CAPITAL STATUTES CONCERNING 

INTERFERENCE WITH 
GOVERNMENT FUNCTIONS

Alabama Code (1982)
§ 13A-5-49(5) (murder to avoid arrest or

effect escape from custody)
Arkansas Code Annotated (1987)
§ 5-4-604(5) (murder to avoid arrest or

escape from custody)
§ 5-4-604(7) (murder "for the purpose of

disrupting or hindering the lawful 
exercise of any government or 
political function")

California Penal Code (1987 Supp.)
§ 190.2(a)(5) (murder to avoid arrest or

effect escape from custody)
Colorado Revised Statutes (1986)
§ 16-11-103(6)(k) (murder to avoid arrest 

or prosecution or to effect escape 
from custody)

16a



§ 636(a)(7) (murder to avoid arrest or
effect escape)

§ 4209(e)(1)(b) (murder to avoid 
arrest or effect escape)

Florida Statutes Annotated (1985)
§ 921.141(5)(e) (murder to avoid 

arrest or effect escape)
§ 921.141 (5) (g) (murder "to disrupt hinder 
the lawful exercise of any government 
function or the enforcement of the laws") 
Georgia Code Annotated (1979)
§ 27-2534.1(b)(10) (murder committed to

avoid or interfere with arrest or 
lawful custody of a police officer) 

Idaho Code (1982)
§ 18-4003(f) (murder while escaping from a 

penal institution).

Delaware Code Annotated Title 11 (1979)

17a



Maryland (1982)
§ Art. 27, § 413(d)(3) (murder "in

furtherance of an escape" from 
custody)

Mississippi Code Annotated (1987 Supp.)
§ 99-19-101(5)(e) (murder to avoid arrest 

or escape from custody)
§ 99-19-101(5)(g) (murder "to disrupt or

hinder the lawful exercise of any 
governmental function or the 
enforcement of laws")

Missouri Annotated Code (1987 Supp.)
§ 565.012(2)(10) (murder to avoid arrest 

or escape from custody)
Nebraska Revised Statutes (1985)
§ 29-2523(1)(h) (murder "to disrupt or

hinder any governmental function or 
the enforcement of the laws")

18a



§ 200.033(5) (murder to avoid lawful
arrest or to effect escape from 
custody)

New Hampshire Revised Statutes Annotated 
(1986)

§ 630.5(II)(a)(5) (murder to avoid arrest
or to effect escape from lawful 
custody)

New Jersey Statutes Annotated (1988 Supp.)
§ 2C:ll-3(c) (4) (f) (murder to escape

detection, apprehension; trial or 
confinement for another offense)

North Carolina General Statutes (1981 
Supp.)

§ 15A - 2000(e)(4) (murder to avoid
arrest or escape from custody)

§ 15A - 2000(e)(7) (murder "to disrupt or 
hinder the lawful exercise of any 
governmental function or the 
enforcement of laws")

Nevada Revised Satutes Annotated (1986)

19a



Oklahoma Statutes (1987)
§ 701.12(5) (murder to avoid arrest or

prevent prosecution)

South Dakota Codified Laws (1988)
§ 23A-27A-1(9) (murder to avoid

lawful arrest or to interfere with 
lawful custody)

Tennessee Code Annotated (1982)
§ 39-2-203(i)(6) (murder to avoid or

interfere with lawful arrest or 
prosecution)

Utah Code Annotated (1987 Supp.)
§ 76-5-202(1)(e) (murder to avoid arrest 

or escape from lawful custody)
§ 76-5-202(1)(h) (murder to prevent person 
from testifying, or participating in any 
l e g a l  p r o c e e d i n g  or o f f i c i a l  
investigation)

20a



§ 10.95.020(7) (murder committed to
conceal the commission of a crime or 
the identity of the perpetrator) 

Wyoming Statutes (1977)
§6-4-102 (h) (v) (murder to avoid arrest 

or effect escape from custody)

Washington Revised Code Annotated (1982)

21a



APPENDIX C m
HEARINGS OF THE JOINT 

COMMITTEE ON RECONSTRUCTION

(1) References to "Protection"
In each quotation the emphasis is

added.
Part I, pp.107-08 (Major General Hatch):
"A: [T]he negro knows that without his

rights secured, and his life and 
property secured, he is not safe from 
the poor whites. He understands 
their antipathies towards him as well 
as any one does ....

Q: They need the government for their
protection.

A: Yes, sir."
Part I, p .109 (Major General Thomas):

"[I]f the affairs of the Freedman's 
Bureau can be administered for 
another year in the way they have 
been administered for the last six 
months, mutual confidence would be 
restored between the whites and the 
blacks; and I am very much in hopes 
that the freedmen could then be left 
to the protection of the civil 
authorities of the State."

22a



"A: The great mass of freedmen in the
State of Tennessee ... need the 
protection of the government very- 
much . . .

Q: Why do they need it.
A: On account of the opposition of the

people freedmen and justice to the 
negro."

Part I, p .114 (Major General Fisk):
"Q: Is there now safety to the Union

people of the State of Tennessee?
A: ... A large delegation of the

citizens of Memphis waited on me not 
long ago and stated that they were 
cruelly oppressed by the rebel 
element of the population in that 
section, and they feared the military 
protection was to be withdrawn from 
the state; and they stated to me that 
if the military was withdrawn those 
persons in most portions of West 
Tennessee who had been early and con­
sistent friends of the government, 
and loyal to it, would be compelled 
to withdraw with the military."

Part I, p .119 (Lt. Colonel Cochrane):
"Q: Are the lives, and is the property of

Union people of the State who have 
borne arms in the federal cause safe 
and protected at this time?

A: Yes, sir. I do not know how it would
be if the troops were taken away from 
the State.

Q: Do you believe the troops could be
safely withdrawn at this time?

A: I do not ...."

Part I, p .112 (Major General Fisk):

23a



"Q: Is it your opinion that [the Union
people] are thoroughly protected in 
all their rights and privileges?

A: I think they have their rights and
privileges by sufferance.

Q: What is the condition of the freed-
men in Tennessee . . . are they now 
protected in their rights of person 
and property?

A: As a general thing, I think they are
by their employers."

Part II, p .4 (Major General Turner):
"All the people [of Virginia] are 
extremely reluctant to grant to the 
negro his civil rights —  those 
privileges that pertain to freedom, 
the protection of life, liberty and 
property before the laws .... They 
are all very reluctant to concede 
that; and if it is ever done, it will 
be because they are forced to do it."

Part II, p .7 (Judge John Underwood):
"[T]he condition of the loyal white 
man in Virginia at this time is worse 
even than the condition of the 
colored man, inasmuch as the colored 
roan is protected by the military 
authority, while the white man is not. "

Part II, p.19 (Dr. G.F. Watson):
"Q: Suppose the restraint arising from

the presence of Union forces in 
Virginia was withdrawn, and suppose 
the Freedmen's Bureau was withdrawn,

Part I, p .121 (Lt. Colonel Barnard):

24a



what would be the condition of the 
loyalists and freedmen in Virginia?

A: There would be no protection for
Union men, and the freedmen would 
necessarily suffer much.

Q: Would there be scenes of riot and
violence?

A: I think it probable."
Part II, pp.23-24 (George Tucker):

"The freedman ... a Yankee ... a 
native-born citizen of Virginia who 
has been a loyal man . . . all of 
them, will be compelled to leave 
[Virginia], just as soon as they 
cease to be protected by the national 
power. They cannot stay there. I am 
intimately acguainted with the Union 
men of Fairfax County . . . and I do 
not know one of them who does not 
feel that he has got to' leave ... .
[I]f they understood that they would 
be surely protected in their natural 
and political rights, they would ... 
remain."

Part II, p .20 (Josiah Millard):
"A: ... [U]nless Congress relieves us by

giving us some other kind of 
government .. . that will protect the 
Union men, the firm Union men, who 
have been firm to the government, 
have got to leave Virginia and the 
south. They cannot remain there. It 
would not be safe for me to go back 
on my farm and reside there.

Q: What have you to apprehend?
A: From their threats I apprehendpersonal violence.

25a



Q: Are such threats of frequent
occurrence?

A: Very frequent."
Part II, p .32 (Joseph Stiles):
"A: Some persons have looked to immigra­

tion from the northern states into 
the south to neutralize, in great 
measure this rebel sentiment; but 
unless there is protection given to 
it, it never will be ...

Q: In case the troops were withdrawn,
would you anticipate scenes of 
violence and riot?

A: Yes, sir,towards loyal men and freed-
men I would anticipate the expulsion 
of loyalists."

Part II, pp.34-35 (Jonathan Roberts):
"You asked me whether Union men would 
be protected and allowed to live 
quietly if the troops were withdrawn. 
I have got one thing to say in that 
respect. If it was known publically 
that I came here and made this 
statement before you, I would not be 
safe one hour .... [The former 
rebels] are especially revengeful 
just as far as they think they can 
escape the law. All the northern 
people . . . will tell you the same 
thing ... [T]hey would come and tear 
down my fences, and turn in their 
hogs and stock, and do all they could 
to injure me. The Union men will 
have no kind of show at all unless 
the government will protect them."

26a



"I have come to the conclusion, from 
travelling through the country, that 
[the] feelings [of the former rebels] 
towards the freedmen, are more 
hostile today than they were at the 
close of the rebellion ... I do not 
regard the [Union] troops as a 
nuisance, because I believe they are 
necessary for my protection .... I 
knew damned well that I couldn't 
stand there twelve hours if the 
troops were gone .... It is a common 
saying, and they believe it, that we 
cannot stay there any longer than we 
are protected by the military."

Part II, p .47 (E.O. Dunning):
"[T]here is as bitter feeling 
prevalent among the people against 
the Union citizens at the south—  
those who sided with the Union cause 
in the rebellion —  as there was 
during the war. I do not think that 
the Union men can stay there, unless 
they are protected by the United 
States soldiers."

Part II, pp.49-50 (Calvin Pepper):
"Q: Suppose the Union forces were

withdrawn from those localities, what 
result would it have?

A: I do not believe there would be
protection to the colored people or 
to the loyal white men, or that it 
would be safe for a loyal white man 
to reside there.

Q: What would the rebels do?

Part II, p .40 (Watkins James):

27a



A: I think we would not be safe in
property, liberty or life.

Q : You mean to say that you apprehend
scenes of violence and outrage?

A: Yes, sir."
Part II, p . 55 (Madison Newby, a recently 

freed slave):
"A: ... In Surrey County they are taking

colored people and tying them up by 
the thumbs ...

Q: Do they whip them just as much as
they did before the war?

A: Just the same; I do not see any
alteration in that. There are no 
colored schools down in Surrey
County; they would kill anyone who
would go down there and establish 
colored schools. They patrol our
houses just as formerly ... A party 
of twelve or fifteen men go around at 
night searching the houses of colored 
people, turning them out and beating 
them. I was sent here as a delegate 
to find out whether the colored 
people down there cannot have pro­
tection. They are willing to work
for a living; all they want is some 
protection ...

Part II, p . 57 (Alexander Dunlop, a free
black):
"Q: Are you a delegate to the President

of the United States?
A: Yes, sir; I was sent by my people

convened at a large mass meeting.
Q: For what purpose?
A: My purpose was to let the government

know our situation,and what we desire 
the government to do for us if it can

28a



do it. We feel down there without 
any protection.

Q: Do you feel any danger?
A: We do.
Q: Danger of what?
A: We feel in danger of our lives, of

our property, and of everything else.
Q: Suppose the protection of the

Freedmen's Bureau was withdrawn, and 
the Union troops were withdrawn, what 
would be the treatment of the whites 
towards the blacks?

A: In my candid opinion, the condition
of the blacks would be worse than 
slavery .... The protection of the 
Freedmen's Bureau does not extend as 
generally throughout the country as 
it is hoped it will; and in some of 
these places where the bureau does 
not extend these people are treated 
very badly."

Part II, p .72 (John F. Lewis):
"I think that the sending of troops 
to our country immediately after the 
surrender of General Lee's army was a 
great protection and security to the 
Union people there. There were a
parcel of marauders in the country 
who were giving a great deal of
trouble."

Part II, p . 97 (See C(3) (Protection of
civil rights).

Part II, p .127 (Colonel Brown):
"Q: In the case of the removal of the

[Freedmen's] Bureau, would you 
apprehend a great increase of those

29a



scenes of violence towards the blacks?
A: I should.
Q: What would it result in?
A: I think it would eventually result in

an insurrection on the part of the 
blacks; ... they will not endure 
those outrages, without any 
protection except that which they 
obtain from Virginia."

Part II, p . 141 (See C(3) (Protection by 
courts of rights of union men.)

Part II, p .143 (General Terry):
"Q: In case of the withdrawal of military

protection from Virginia what would 
be the condition of the loyal people 
in Virginia and of the blacks?

A: I think they would be in a lamentable
condition. Such is the prejudice 
entertained, especially against those 
who were faithful to their 
obligations to the government during 
the war, that I do not think they 
would receive any adequate protection 
for their rights of person or 
property from the people or from the 
courts; and I think that they would 
be persecuted through the machinery 
of the courts as well as privately."

Part II, p .149 (Protection of rights in 
state court) (See C(3)).

Part II, pp.187-89.
A report reprinted here regarding 
Freedmen's Bureau activities in North 
Carolina contained, in a section 
headed "Protection", a summary of

30a



Bureau activities to protect Freedman 
from murder, beatings, whipping and 
thefts by whites, and to punish such 
offenses. The section concludes, 
"The efforts of the bureau to protect 
the freedmen have done much to 
restrain violence and injustice."

Part II, p.197.
Newspaper account of the killing by 
rebels of a foreman Union scout, 
criticizing the local Union comman­
der. "If he has troops enough at his 
command he should send a sufficient 
number to protect the government's servants."

Part II, p .199 (Newspaper account quoting
letter from North Carolina):

"The government still continues its 
protection, and the troops appear at 
places where there is any danger of a 
collision of the races. The time has 
not yet come to wholly withdraw all 
military protection."

Part II, pp.202-03 (Homer Cooke):
"Q: What is [the white] treatment gener­

ally of the freedmen?
A: ... [T]he freedmen are treated much

better when they are near where the 
Union troops are stationed; but, from 
all the evidence that I can gather, I 
believe that outside, when there is 
no arm to protect them, they are 
treated with great cruelty in some cases.

Q: Do you hear of cases of maltreatment
of blacks, such as flogging ...

31a



A: I have heard of numerous cases.
Q: How do the secessionists regard the

efforts to establish schools among 
colored people?

A: They are not at all pleased, so far
as my observations extend; and it has 
been very difficult to establish 
schools, excepting where they are 
directly under the military 
protection.

Q: Without that protection. would it be
impossible in many localities in 
North Carolina to keep up a colored 
school at all?

A: I do not think it would.
Q: Would not the secessionists disperse

scholars, drive out the teacher, and 
tear down the school?

A: I think so."
Part II, p .207 (Reverend Bain):

"I do not think it safe for the 
negroes to be [in North Carolina] 
unless some strenuous effort is made 
for their protection. and for the 
protection of loyal men. We are 
classed together. About three weeks 
ago a mob passed by my house, calling 
out for the 'old gray-headed son of a 
bitch of a Yankee sympathizer' .... 
I really think they will burn my house yet."

Part II, pp.207-09 (Dexter Clapp):
"These would be great danger to any 
northern man when military protection 
is withdrawn .... I think that all 
northern men would be in great danger 
of personal injury, and that the 
freedmen would be without any

32a



protection whatever, and subject to 
great oppression and wrongs of all 
kinds. I think that killing freed- 
men would be the rule .... The high 
price of cotton is the only 
protection. aside from the military 
authorities, that I know of for the 
freedmen."

Part II, pp.218-21 (General Saxton):
"I believe that if the army were 
removed, the situation of northern 
men, if they expressed Union 
sentiments, would be perilous; they 
could not remain there. Teachers of 
colored schools throughout the State 
give it as their opinion that they 
would be unable to remain there for a 
day but for the protection of the 
United States troops .... If it were 
not for the protection "afforded by 
those troops the officers of the 
Freedmen's Bureau could not remain 
there .... There is nothing to fear 
for the future of the freedmen if the 
government, which has set them free, 
protects them, by standing between 
them and those who sought to destroy 
this nation and keep them in slavery

 ̂tl

Part II, p.223 (report of Freedmen's
Bureau in South Carolina):

"Two freedmen were whipped by their 
master, who took them to the 
commanding officer at Barnwell .... 
This officer is reported to pay no 
attention to the complaints of 
freedmen. With such an officer in

33a



power, it is hardly possible to 
protect them from abuse."

Part II, p . 2 3 0 (Freedmen's Bureau
Circular):

"[A]11 commissioners are required to 
p r o t e c t  those w ithin their 
jurisdiction in the enjoyment of 
their rights."

Part II, p. 239 (Captain Ketchum):
"Q: Suppose the protection [freedmen] now

enjoy from the presence of federal 
troops and from the Freedmen's Bureau 
should be withdrawn, and they should 
be exposed to the consequences of 
State legislation and to the 
prejudice and injustice which it is 
natural to suppose would be exercised 
toward them by whites; what, in your 
judgment, would be the result in the 
end?

A: I think, in the end, there would be a
conflict.

Q: Could they do otherwise than arm
themselves to defend their rights?

A: No, sir .... They could not do other­
wise than organize to protect them­
selves . "

Part II, p.269 (See C (3)(protection of 
property rights).

Part III, pp.5-6 (Major General Hatch):
"I do not believe the Union men could 
remain [in Mississippi] if there were 
no federal troops there to protect 
them. There is a great deal of 
private enmity and intense personal

34a



dislike to them .... In the mountain 
region of Alabama there are a great 
many loyal people .... Between them 
and the people of the other portions 
of Alabama there is a great deal not 
only of animosity in regard to the 
question of secession, but of private 
animosity. The loyal men in that 
part of the State may be strong 
enough to protect themselves, as they 
have gone home with their arms."

Part III, p .15 (J.J. Gries):
"[T]he freedmen will have to be 
guarded for a while, and the 
Freedmen's Bureau will have to throw 
some protection around them."

Part III, p .17 (Mordecai Mobley):
"A: [A] planter ... drew back and struck

the negro as hard a blow as he could 
with his fist, and then tried to kick 
him off the platform while the 
[railroad] car was in motion ....

Q: Did the white man offer to interfere
and protect the negro or his property?

A: No, sir .... The truth of the matter
is, the southern people don't care 
anything about it ...."

Part III, p .25 (Ezra Hienstadt):
"The first great requisite, that 
which I imagine would have the best 
influence in settling the state of 
things in Louisiana, would be to 
maintain there for some years a rigid 
administration of the Freedmen's 
bureau, to protect the blacks in

35a



their rights .... I consider that 
such an establishment would stand as 
a barrier to the encroachments of one 
class upon the rights of another."

Part III, pp.31-32 (Major General Fisk):
"Q: What, in your opinion, would be the

result of withdrawing the troops from 
Georgia, Alabama and Mississippi, and 
of suspending the operations of the 
Freedmen's Bureau?

A: I think it would be disastrous ....
The freedmen would not remain there 
.... Unless the laborer is assured 
that he has a government agent set 
for his protection and defense, he 
would withdraw, and the condition of 
things would be too unpleasant for 
northern men of enterprise to live in 
that section of the country."

Part III, p .37 (see C(3)).
Part III, p .47 (Union army report concern­ing Georgia and Florida):

"In order adequately to protect the 
persons and property of freedmen . . . 
the present number of [Freedmen's 
Bureau] agents should be increased 
.... [T]he troops should remain for 
the protection of northern immi­grants .

Part III, pp.61-63 (Mailton Safford):
"There is no question that but for 
the protecting power of Congress [the 
southerners] would really or virtual­
ly reenslave the freedmen again .... 
I think norther men would prefer to

36a



look to Congress than to the public 
sentiment of Alabama for protection."

Part III, p.101 (Major General Saxton):
"A: ... [T]he general impression among

all northern men who have gone into 
business [in Georgia] is that they 
are persecuted simply because they 
are northern men and Union men. I 
think that among the great majority 
of the white population there, hatred 
to 'the Yankees', so called, is 
thorough and intense.

Q: If the military forces of the United
States were to be withdrawn, what 
would be the condition of the avowed 
Union men and northern men there?

A: I think their position there would be
such that it would be hardly possible 
for them to remain .... I do not 
think they would be ‘ allowed to 
express openly their Union sentiments 
without the protection of the United 
States troops."

Part III, p.133 (1865 amendment to Missis­sippi constitution) :
"[T]he legislature ... shall provide 
by law for the protection and 
security of the person and property 
of the freedmen of this State."

Part III, p .147 (report of Freedmen's
Bureau official concerning Mississippi):

"In view ... of the terribly vindic­
tive passions ... controlling the 
minds of [the southern whites], 
permit me to respectfully recommend 
that troops be stationed in that

37a



section of the country, or that the 
freedmen be protected in removing to 
some locality where their lives, at 
least, will be secure."

Part III, p .161 (Alexander Stephens):
"Q: ... [W]hat are the leading objects

and desires of the negro population, 
at the present time, in reference to 
themselves?

A: It is to be protected in their rights
of persons and property —  to be 
dealt by fairly and justly."

Part III, p.183 (Message of Governor ofMississippi):
"The negro is free, whether we like 
it or not; we must realize that fact 
now and forever. To be free,
however, does not make him a citizen, 
or entitle him to social or political 
eguality with the white man. But the 
constitution and justice do entitle 
him to protection and security in his 
person and property, both real and personal.

In my humble judgment, no 
person, bond or free, under any form 
of government, can be assured of 
protection or security in either 
person or property, except through an 
independent and enlightened judi­
ciary. The courts, then should be 
open to the negro .... [Wjhether for 
the protection of the person or the 
property of the freeman, or for the 
protection. of society, the negro 
should be allowed and required to testify."

38a



Part III, p .185 (Georgia Constitution of
1865):

"It shall be the duty of the general 
assembly ... to provide by law for 
the government of the free persons of 
color; for the protection and secur­
ity of their persons and property..."

Part IV, p .4 (John Recks):
"Q: What protection would there be [in

Florida] for colored people if the 
troops were withdrawn entirely from 
the State?

A: In the only portion I have any
knowledge of, there would be a 
sufficient number of colored people 
to thrash them out, with a good 
commander. Were there not a majority 
of them, their condition would be 
very bad."

Part IV, pp.10-11 (Rev. L.M. Hobbs):
"I hear them making their threats, 
and saying that if they could get the 
military taken away, 'there would be 
plenty of dead niggers lying around 
in the woods' .... [T]he negroes 
would be shot down like sheep .... If 
the [Freedmen's] bureau is withdrawn 
there will be no safety for the 
freedmen at all; he will not be safe 
unless there is some protection of 
that kind for him .... The freedmen 
must be protected. or else giving him 
his freedom will be but a farce. The 
Freemen's Bureau will not be 
expensive if it is known it is to be 
kept there and will be used for the

39a



protection of the negro in his just 
rights."

Part IV, p .45 (Lt. Miller):
"[T]he Freedmen's Bureau ... is 
necessary ... as a protection to the 
freedmen against imposition on the 
part of their employers, whether 
southern or northern men .... With­
out some such institution as the 
Freedmen's Bureau, to protect the 
freedmen in his rights, his chance 
for justice with either party would 
be very small .... Without the 
presence of the Freedmen's Bureau, 
and an armed force to back it, I do 
not think the life of a freedman 
coming in the way of one of the 
disbanded rebel soldiers ... would be worth a cent."

Part IV, p .46 (Lt. Col. Hall):
"Q: What would be the state of the 

country in which you have been, 
should the military force ... and the 
officers of the Freedmen's Bureau be 
... withdrawn?

A: ... I would say there would be
neither safety of person nor of 
property for men who had been loyal 
during the war; and there would be no 
protection whatever for the negro 
.... He would be liable to worse 
treatment than ever before —  to 
assaults in many instances, and even to murder."

40a



Part IV, p .60 (D.E. Haynes):
"Q: State whether, in your opinion, it is

now safe for Union men in Louisiana 
without the military protection of 
the government.

A: It is not safe."
Part IV, p .68 (Rev. Joseph Roy):

"I found the [Freedman's Bureau 
officials] everywhere seeking to 
promote the physical comfort of the 
negroes, and to secure their 
protection from violence .... [M]any 
citizens who were not distinguished 
for their loyalty, also said that the 
bureau was a necessity for the pro­
tection of white people."

Part IV, pp.72-76 (Major General George
Custer):
"Q: What would be the condition of the

loyal men in Texas now, in case the 
military protection now afforded were 
withdrawn from the State?

A: I would not consider it safe for a
loyal man to remain in Texas. ... 
[T]he freedmen . . . realize, as all 
Union men in the State do, that their 
only safety and protection lies in 
the general government; and they 
realize, too, that if the troops are 
withdrawn, they will be still more 
exposed than they are now."

Part IV, pp.80-83(Thomas Conway):
"I think that Union men in 
[Louisiana] would not be safe in 
their property or in their persons

41a



without the aid of the military. The 
negroes, without military aid, or 
without the aid of the government, 
would not be able to secure their 
wages; no justice would be shown 
them, and they would be murdered .... 
[T]he negro race would be 
exterminated unless protected by the 
strong arm of the government."

42a



APPENDIX C m
(2) References to Abuses of Union 

Loyalists, Northerners, and Other 
Whites

Part I, p. 114 (see C(l)) (southern 
loyalists).

Part I, p. 119 (see C(l)) (former Union 
soldiers).

Part II, pp. 34 (Major General Turner):
"Union men who have lived in 

Virginia all their lives tell me they 
will have to leave as soon as our 
troops are withdrawn.. . . These 
people are now persecuted to death, 
one might say, by the rebels."

Part II, p. 7 (see C(l) and C(3)) (union 
man, northerners).

Part II, pp. 16-17 (George Smith):
"Q: How do [the people of Virginia] feel

generally towards the freedmen?
A: Hatred. Their hate, first, is to the

citizen Union men; their next hate is 
to the negro; their last is to the 
Yankees, as they call them.

Q: If left to themselves, what would
they do with the negro?

43a



A: They would entirely extirpate him
from the face of the earth. They 
would first commence with the Union 
men, and then they would take the 
negro.... It is ... the Union men 
who has lived among them and taken an 
active part against them whose life 
is in jeopardy.

Part II, p. 18 (Dr. G. F. Watson):
"[The people of Virginia] despise ... 
and will handle roughly ... Union 
white men."

Part II, p. 23 (see C(l), C(3)) (southern 
loyalists, northerners).

Part II, p. 29 C(l), C(3)) (southern
loyalists).

Part II, p. 32 (see C(l), (3)) (southern
loyalists, northerners).

Part II, pp. 33-35 (see C(l), C(3))
(southern loyalists).

Part II, p. 40 (See C(l)) (union men).
Part II, p. 43 (Watkins James):

"A few days ago an anonymous letter 
was dropped in the post office, 
notifying the teacher of the 
freedmen's school that he must leave 
or take the consequences. About the 
same time ... two United States 
detectives were run from New Market. 
A man named Lamberson . . . was shot 
twice.... This man's offence is, he 
served in the Union army. The Union

44a



men feel there is great danger. 
About the same time a teacher of 
freedmen . . . was called on some time 
in the night by fifteen or twenty 
persons . . . taken to the Shenandoah 
river . . . and held under water some 
time . . . and then threatened, if he 
did not leave the county in three 
days, he would be shot dead."

Part II, p. 47 (see C(l)) (union men).
Part II, p. 10 (E. V. Dunning):
"Q. ... [D]o [the rebel people] appear to

hate the north as a community?
A: Yes, sir; decidedly.
Q: In case of the removal of the

military forces of the United States 
from these communities, is it likely, 
in your mind, that there would be 
scores of violence and riot?

A: I have no doubt of it.
Q: What would be the special object of

such violence?
A: I think it would manifest itself

against Union citizens and against 
colored people."

Part II, pp. 49-50 (see C(l)) (loyal 
whites).

Part II, p. 61 (D. B. White);
"The person who is now deputy sheriff 
of Elizabeth City county ... 
expressed his wish to ... drive out

45a



of that part of the country every 
Union man, whether of the south or of 
the north."

Part II, p. 63 (D. B. White):
"Q: In case a northern man should

purchase real estate among [the 
secessionists], would he be safe in 
the enjoyment of his property?

A: I think he would not."
Part II, p. Ill (see C(3)).
Part II, p. 125 (Colonel Brown):
"Q: How are northern men treated inVirginia?
A: Northern men are treated better than

Union Virginians. I do not think they 
would be well treated if the troops 
were withdrawn."

Part II, P- 141 (See C (3)) (Union men) .
Part II, P- 143 (see C(l)) (loyal people).
Part II, P- 153 (Frederick Bruce):

"[I]f the troops were withdrawn from 
the city [of Lynchburg] no man 
connected with the United States 
government would be safe in walking 
in the streets after dark."

Part II, p. 201 (Homer Cooke):
"Q: Suppose the military forces should be

removed entirely from North Carolina?

46a



A: I think the northern people would be
compelled to go with them or very 
soon after....

Q: In such an event would you apprehend
violence towards northern men on the 
part of secessionists?

A: ... [T] o a greater or less extent,
either by destruction of their 
property or by some other means."

Part II, p. 207 (see C(l)) (loyal men).
Part II, p. 208 (see C(l)) (northern men).
Part II. p. 214 (J. A. Campbell):

"I think that if the United States 
troops were withdrawn from North 
Carolina the property of loyal men 
and the persons of freedmen would not 
be safe."

Part II, p. 218-21 (see C(l) and C(3))
(unionists, teachers in schools for 
freedmen, agents of the Freedmen's 
Bureau).

Part II, p. 244 (see C(3)) (northerners).
Part III, p. 3 (Albert Kelsey):

"I know the general feeling among 
northern men [in Georgia] is that 
they are not safe; that they are 
liable not only to be robbed, but to 
be killed at any moment."

Part III, pp. 5-6 (see C(l))

47a



Part III, pp. 6-7 (Major General Hatch):
"Q: How would it be in Georgia with

northern men who might go out there 
to live?....

A: I do not think they can live there
after our troops shall have been 
taken away.

Q: How would it be with Union men who
are natives of the country, should 
our troops be taken away?

A: They would suffer more than the
northern men.... The feeling towards 
them is more bitter than towards northern men."

Part III, p. 14 (see C(3))
Part III, P. 24 (Ezra Hienstadt):
"Q: Would it or not, in your judgment, be

safe for the loyal people of 
Louisiana, both white and black, to 
withdraw from that State at this time 
the military power and supervision of the federal government?

A: I unhesitatingly say that I do not
consider it would be safe for them to 
do so. My opinion is, that if the 
entire force of the federal 
government were withdrawn from the 
State of Louisiana the Union men, as 
we call those who were loyal during 
the rebellion, would be driven from 
almost all the rural portions of the State at least...."

Part III, p. 27 (see C(3)).
Part III, pp. 30-31 (See C(l)).

48a



Part III, p. 70 (Brigadier General 
Brisbin):

"Q: What would be the effect of
withdrawing the national troops from 
[Arkansas]?

A: I think it would lead to the
expulsion of Union men, and 
especially of northern men who might 
desire to go there and settle."

Part III, p. 10 (see C(l))
Part IV, p. 2 (John Recks):
"Q: Do you think the presence of a 

military force in Florida is or is 
not necessary to secure the rights of 
property and the lives of citizens, 
white or black?

A: I do ... I think ... that if they had
the power, they would use it to 
destroy Union men."

Part IV, p. 8 (Rev. L.M. Hobbs):
"Q: What would be the condition of the

Union men [in Florida] should the
military be withdrawn?

A: It would be intolerable; they could
not remain there in safety; they 
would be compelled to leave the
State. Northern men, especially 
those who have been in the United
States service, could not live there 
at all.... [T]here is a class of
boys ... who would put a bowie-knife 
or a bullet through a northern man as

49a



soon as they would through 
dog."

mad

50a



APPENDIX C m
(3) References to Unwillingness of States 

to Protect Lives. Liberty and 
Property

Part II, p. 4 (See C(l)) (freedmen).
Part II, p. 7 (Judge John Underwood):
"A: I do not believe, from what I have

seen, that a Union man could expect 
to obtain justice in the courts of 
[Virginia] at this time, certainly 
not if his opponent was a rebel. The 
bitterness of feeling is very great, 
and I think the jury would be at 
least nine-tenths rebel, and the 
influence of the court would be the
SdltlG • • • •

Q: Would these prejudices against a
Union man, and particularly a 
northern man, operate so far with a 
Virginia jury as to lead them to deny 
him ordinary justice in a matter of 
private right?

A: I think they might."
Part II, p. 17 (George Smith):
"Q: What chance does the negro stand to

obtain justice in the civil courts of 
Virginia?

A: Not a particle —  no more than a
rabbit would in a den of lions; nor a 
Union man, either."

Part II, p. 18 (G.F. Watson):
"A: ... There is one ... thing of which

I feel fully satisfied; that is, that 
the loyal men of [Virginia] cannot

51a



get justice in the reconstructed 
disloyal courts.

Q : Why not?A: For the reason of the disloyalty of
the jurors and lawyers."

Part II, pp. 23-25 (George Tucker):
"The Freedmen before any [Virginia] 
juries stands no chance of obtaining 
his rights, although he will stand as 
good a chance as a Yankee will, or as 
a native-born citizen of Virginia who 
has been a loyal man. The latter 
even stand a worse chance. "... 
[WJhites have not any idea of 
prosecuting white men for offenses 
against the colored people; they do 
not appreciate the idea."

Part II, p. 29 (Josiah Millard):
"Q: Suppose you should be murdered by an

ex-rebel out of revenge and from 
dislike to you as a Union man, and 
suppose your murderer should be 
indicted and prosecuted in the proper 
court the district, and a jury should 
be called under the existing laws of 
Virginia, have you not grounds to 
suppose that, in case the evidence 
was plain and clear, the jury would 
convict that man?

A: That would depend upon the
circumstances very materially. If 
the case was very plain and clear, 
and there was no possible chance to 
cover it up, the jury might bring in 
a verdict of guilty, but it would be 
very pressing circumstances that 
would compel them to do it. [I]f 
there was no possible chance to avoid

52a



it. I have seen cases tried 
which, to me, were as plain as the 
sun that shines, and the verdict was 
entered quite the reverse.

Q: And that you suppose, is owing to the
prejudice felt generally by rebels 
against Union men?

A: Yes."
Part II, p. 32 (Joseph Stiles):
"Q: What chance does a Union or a

northern man stand in [Virginia] 
State courts?

A: No chance at all.
Q: Why not?
A: The popular feeling is against him

altogether.... [T]here is no show 
for justice to Union men in any case 
that affects rebels.

Q: What chance does a freedman stand for
justice at their hands?

A: As a general thing, he does not stand
any chance for justice at all."

Part II, p. 33 (Jonathan Roberts):
"Q: How much chance is there for a Union

man in the courts of [Fairfax County, 
Virginia] who should be a party 
against a rebel in a suit?

A: None; not so far as justice goes ....
[W]hen we come to a jury, we have to 
take the masses as they come, and 
there is no chance at all for 
justice....

[T]here was a case tried of a 
returned rebel who shot a Union man 
at Falls Church.... The evidence was 
just as plain and positive as it 
could be —  indeed, the facts were 
admitted; and yet the jury brought in

53a



a verdict of manslaughter, with one 
year's imprisonment. Nine of them 
went for acquitting him entirely; but 
the three Union men would not agree 
to it, and finally they compromised 
with one year's imprisonment. If it 
had been the other way, or if a rebel 
had killed a rebel, there would have 
been no doubt at all about his 
conviction."

Part II, p. 38 (J. J. Henshaw):
"Q: Would you not feel pretty safe in any

of the civil courts of Virginia—  
you, a Union man; would you not 
expect impartial justice from a court 
and jury if you were an accused 
person in the court, or were suing 
there for redress of any of your wrongs?

A: I do not believe that you could get
an impartial jury hardly in our 
county to try a case between an 
avowed Union man and an avowed secessionist."

Part II, p. 50 (Calvin Pepper):
"Q: How much chance does a northern

Unionist stand in a State court in 
Virginia in the prosecution of his rights?

A: A very poor chance.
Q: In an ordinary suit between a

loyalist, whether northerner or 
southerner, and a rebel, would you 
expect that justice would be fairly 
administered by a State court and a jury in Virginia.

A: As a general rule, I do not___
Within the last six months I have had

54a



more than a hundred complaints made 
to me with reference to the abuse of 
freedmen by the rebels, or at their 
instigation. They have been beaten, 
wounded, and in some instances 
killed; and I have not yet known one 
white man to have been brought to 
justice for an outrage upon a colored 
man."

Part II, p. 63 (D. B. White):
"Q: What chance has a northern man or a

Unionist for justice in the State 
courts of Virginia?

A: He has not any chance at all. I
would not go before one of those 
courts, if I could avoid it, under 
any circumstances, because there is 
no justice there at all.

Q: When you say there is no chance, do
you mean to say that the bias and
ill-feeling on the part of court and 
jury are so great against the 
Unionists north and south that they 
would not be able to obtain their 
rights?

A: Yes, sir. The bias is so great that
they could not even entertain a hope
of getting justice according to their 
interpretation of their own State 
laws."

Part II, p. 97 (Lieutenant W. L. Chase):
"Q: Are not the civil rights of the

people protected there in the State 
courts?

A: I do not think a loyal man could get
his rights in the courts, there is 
such a prejudice against refugees and 
against the northern men.

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Q: Do you think that prejudice would
affect the mind of the court and 
jury?

A: Yes, sir; I think it would."
Part II, p. Ill (William Dews):
"Q: What chance does a Unionist stand to

get justice in the State courts?
A: I should not suppose, with perhaps a

few exceptions, that he would have 
any chance; that is the impression of 
all the Union mean.... [T]hey are 
convinced that they cannot have 
justice done them on account of the 
prejudice against them."

Part II, p. 127 (Colonel Brown):
"Q: Would the negro stand any chance of

obtaining justice in the courts?
A: I have the assurance of one of the

first lawyers in the city of Richmond 
that his opinion is that the negroes 
could not obtain justice before a 
Virginia jury.

Q: Justice to the negro and justice to
the white man are different articles, 
I suppose; it changes with the 
complexion?

A: Yes, sir."
Part II, p. 141 (General Terry):
"Q: Are Unionists secure in the enjoyment

of their rights in the midst of a 
secession community there?

A: I do not think they are.
Q: Can they safely rely on the State

courts for justice to themselves and 
for protection of their rights?

A: No, sir. I think not.
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Q: How would it be, for instance, in a
suit between a strong Union man, 
whether residing there or from a 
loyal State, and a secessionist. 
Would you apprehend that a jury, 
called in the regular way in Virginia 
would be prejudiced against a Union 
man?A: ... [S]uch is my impression in regard
to the feelings of secessionists 
towards Union men that I think that 
the rights of the latter, under these 
circumstances, would not be secured."

Part II, p.143 (see C(l)).
Part II, p. 149 (Manasseh Blackburn):
"Q: What chance does a black man or a 

Unionist stand in the State courts 
for justice and the protection of his 
rights?A: I would doubt whether a Unionist can
get justice. He might in some 
pecuniary matters get justice, but I 
doubt whether in other things he 
could. I think that, as far as the 
blacks are concerned in the valley, 
they would in pecuniary matters get 
justice —  they could collect bills, 
or anything of that kind."

Part II, p. 150 (Rev. Hunnicutt):
"Q: Do you think that Union men, whether

from the north or residents in the 
neighborhood, are secure in the civil 
courts of justice of the State?

A: I do not believe that any of us will
get justice done.... [T]he testimony 
of negroes will not be worth a snap 
of your fingers.... [T]here are the

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judges, the lawyers, and the jury 
against the negro, and perhaps every 
one of them is sniggering and 
laughing while the negro is giving 
his testimony."

Part II, p. 153 (Frederick Bruce):
"Q: How much chance does a Union man

stand in that region for obtaining 
justice in the courts of the State?

A: My honest impression is that a 
leading Union man —  one who had made 
himself notorious or conspicuous as 
such, as against a southern man who 
had been in the rebellion —  would 
not have an equal show in the courts 
of justice.... [Tjhere are men there 
who would not under any circumstances 
do justice to a Union man in a 
controversy between him and a 
secessionist."

Part II, p. 169 (Rev. James Sinclair):
"Q: Under the present laws, and with the

present courts in North Carolina, how 
much security is there for 
commercial men of the north in the 
transaction of their business?

A: I reckon they would have no securityat all just now....
Q: Take the case of a northern man who

is a suitor before the courts for his 
rights, with a case that is to be 
tried before a jury; would he stand a 
fair chance against his opponent 
should his opponent be a rebel?

A: No chance at all for a citizen of the
State, in my opinion, if he is 
obnoxious to the people politically."Part II, p. 175 (Lt. Sandeson):

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"[If the union forces were withdrawn] 
the freedmen ... would have no chance 
in court . . . he could not enforce 
contracts if he made them, and no 
jury that could be impanelled would 
give a verdict in his favor."

Part II, p. 209 (Dexter Clapp):
"A: ... of the thousand cases of murder,

robbery and maltreatment of freedmen 
that came before me, and of the very 
many cases of similar treatment of 
Union citizens in North Carolina, I 
have never yet known a single case in 
which the local authorities or police 
or citizens made any attempt or 
exhibited any inclination to redress 
any of these wrongs or to protect 
such persons ....Q: Do you suppose that the omission on
the part of the authorities to 
interfere and enforce justice arises 
from their own fears of the ruffians, 
or from their sympathies with the 
ruffianism?A: I think it comes from both causes....

Q: How did Governor Holden demean
himself towards such outrages; did he 
make any efforts as governor of the 
State to punish them?A: I know of no such efforts that he has
made.... I have known of several 
instances in which outrages were 
committed, and in which he exerted 
his influence with the military 
authorities to have them passed 
over."

Part II, p. 215 (J. A. Campbell):

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"Q: Are the rights of Unionists from the
north and south safe in the Sate 
courts of North Carolina?

A: ... I do not think they would be.
If I had any property I would not 
trust it before the courts there as 
against a rebel.

Q: ... Would a unionist be likely to
receive an impartial verdict at the 
hands of a North Carolina jury?

A: I do not think he would."
Part II, p. 218 (General Saxton):
"Q: What chance do Unionists, especially

Unionists from the north, stand for 
protection and security in the State courts of South Carolina?

A: ... It is my opinion they would stand a very poor chance. ...
Northern men would probably fare just 
as bad in the courts as freedmen, and 
it is my belief that there are large 
numbers in South Carolina who would 
consider it no greater crime to kill 
an agent of the Freedmen's Bureau than to kill a negro."

Part II, p. 225 (Report of Freedmen's
Bureau in South Carolina):

"It is stated that the superior 
provost court here is outrageously 
unjust towards freedmen and northern 
whites whenever they are opposed by 
secessionists. That the court being 
violently secession in sentiment, 
while allowing negro testimony gives 
it no weight whatever if white 
witnesses appear on the other side. 
A case is reported where a horse in 
the possession of a freedman was

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taken from him and given to a late 
rebel soldier, the cost of court, ten 
dollars . . . being adjudged against 
the freedman, although the freedman 
brought full proof that the horse 
came into his possession a longtime 
previous to the date given by the 
soldier as the time he lost him."

Part II, p. 244 (J. V. Alvord):
"Q: Do you regard it as safe, as a

general rule, for northern men to go 
down [south] and attempt to settle 
and become residents?

A: It would not be for those who favored
the government and the interests of 
the freedmen, if the military were 
withdrawn; it would be very unsafe.

Q: Would such settlers probably be
subjected to violence and insult?

A: To all sorts of insult, and probably
to violence in very many cases.

Q: Would they not be able to obtain
justice in the southern courts if 
they were thus treated?

A: They would probably obtain a hearing,
but I think they would hardly secure 
justice.

Q: Why not?A: From the strength of southern
prejudice against northern people.

Q: You think that prejudice would
pervade seen the juries who would be 
called to try the case?

A: I think it would.
Q: Do you think it would generally

affect the decisions of the judges 
upon the bench?

A: I should fear it might. I learned of
cases where the court was very 
partial to the old class of

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southerners who came into litigation 
with northern-born men or negroes."

Part II, p. 269 (Lt. Colonel Beadle):
"Q: By the laws of North Carolina, would

a free black man be allowed to own 
land?

A: They have been, and some now do, ...
but their protection is very 
uncertain, and I have had cases where 
colored persons had great difficulty 
in retaining the property. It had 
passed into hands of agents, lessees, 
and others; and the colored man once 
losing possession, has great 
difficulty in obtaining redress from 
a civil court....

Q: Have you discovered such a prejudice
against the black man in North 
Carolina as would restrict his rights 
in the State courts?

A: Yes, sir....
Q: In your judgment, does that prejudice

infect the judges themselves; or is 
it confined to the juries?

A: There is hardly a southern man . . . 
but is prejudiced against allowing a 
colored man egual civil rights, 
equality before the courts, in fact (though they may do it in form)."

Part III, p .14 (J.J. Gries):
"Q: What would be the condition of the 

loyal men of Alabama . . . should the 
Union troops be withdrawn?

A: They could not live there at all. I
have been driven from my home for 
three years .... When I returned they 
took by civil law all the corn raised 
on my place .... They took it by

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false testimony. ... Every judge in 
our State is a rebel .... We could 
fill a book with facts of wrongs done 
to our people there ... A great many 
. . . were robbed by friend and foe 
almost."

Part II, p .27 (Major General Thomas):
"Q: If the national troops and the

Freedman's Bureau were removed from
Alabama, what results would you 
anticipate in regard to freedmen?

A: If that were done at this time, I do
not believe that the freedmen or that 
Union men could have justice done
them.

Q: What form would the injustice be
likely to take?

A: It would commence with suits in the
courts for petty offenses, and 
neighborhood combinations to annoy
them so much . . . that they could not 
live there in any peace and comfort."

Part III, p .37 (Brigadier General Howard):
"Q: Suppose the shield of legal protec­

tion should be thrown around [the] 
domestic relations [of freedmen], 
would that protection be respected by 
the whites in South Carolina practi­
cally?

A: If it were mere law, I should
apprehend that it would be entirely 
inadequate in the present state of 
public sentiment. In fact, I may say 
generally that laws may be made 
impartially in South Carolina, but 
with the existing public sentiment 
they would not be sufficient for the

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protection of the negroes in their rights.
Q: Suppose a white man should dishonor a

black husband, by having illicit 
intercourse with his wife, obtained 
either by violence or seduction, 
would the black husband, in a South 
Carolina court, have much prospect of 
obtaining redress?

A: I think not.
Q: Would a white jury give him damages?
A: I think not, sir .... I feel certain

that he could not get adequate 
redress. They might award him some­
thing as a cover, for the appearance of the thing ...

Q: Suppose a black man should bring suit
in a State court there for the 
redress of any other wrong to his 
person or property, would he be 
likely to obtain adequate redress.A: I believe not ..."

Part III, p .47 (Union army report concern­ing Georgia and Florida):
"Public sentiment is such that evenshould the laws be made impartial,the negro could not obtain redressfor wrong 
property."

done him in person or

Part III, p .184 (report of Freedmen'sBureau concerning Mississippi):
"The negroes of this section have 
remained on their former plantations 
since the surrender; but when the 
crops were gathered many were driven 
away by threats or abuse, and all law 
that protects the freemen and insures 
compensation to the laborer has been

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withheld from them. They are 
absolutely without law. The codes of 
Mississippi direct that in order to 
prosecute a claim, or bring suit 
against any party, the plaintiff must 
give security for the cost, should 
the case be decided against him —  a 
condition that, perhaps out of the 
entire population of the blacks in 
the State, not one in a hundred would 
be able to comply with, while the 
remaining ninety and nine are left to 
the caprice of the capitalist."

Part IV, pp. 60 (D.E. Haynes):
"[Several former rebels] beat me 
violently .... The occasion was that 
I had been in the Union army. ... I 
... went to Alexandria, and while 
there endeavored to employ a lawyer 
.... He would not take the case ... 
I found that the reason why he would 
not take the case was that he would 
lose caste in that community by 
allowing himself to be employed by a 
Union man. My intention was to 
prosecute these rebels, two of whom 
had shot me, and others had committed 
a violent assault and battery upon my 
person, and still others had robbed 
my wife.... [A]ll those I consulted 
told me it was no use to sue for 
damages; that no Union man could get 
damages...."

Part IV, p. 75 (Major General George
Custer):

"[T]he great mass of the people [in 
Texas] seem to look upon the freedmen 
as being connected with, or as being

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the cause of, their present 
condition, and they do not hesitate 
to improve every opportunity to 
inflict injuries upon him in order, 
seemingly, to punish him for this. 
This feeling exists to a certain 
extent, and is often manifested in 
their courts.... [S]ince the
establishment of the provisional 
government in Texas the grand juries 
throughout the State have found 
upwards of five hundred indictments 
for murder against disloyal men, and 
yet in not a single case has there 
been a conviction, while in one 
judicial district ... the judge ... 
stated that fourteen negroes had been 
tried within his jurisdiction for 
various slight offenses; that the 
fourteen had all been convicted and 
sentenced to various terms in the 
State prison. And to dhow you the 
manner in which justice is meted out 
in their courts towards the freedmen, 
one was tried and convicted of steal­
ing one bushel of sweet potatoes, and 
sentenced to the penitentiary for two 
years. ... [I]t is of weekly, if not 
of daily, occurrence that freedmen 
are murdered.... [Sjometimes it is 
not known who the perpetrators are; 
but when that is known no action is 
taken against them. I believe a 
white man has never been hung for 
murder in Texas, although it is the law."

Part IV, p. 89 (John T. Allen):
"If it be left entirely to the 
verdict of a jury, as in cases 
between white man and white man, it

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will be found that jurors ... cannot 
entirely rid themselves of their old 
prejudices. ... I have seen men who 
were just as good jurymen as I would 
wish to have in a jury box in 
ordinary cases pay no attention to, 
but utterly disregard, the evidence 
in a case where a white man and a 
black man were concerned."

Part IV, p. 153 (T. J. Mackey):
"Q: In the rural districts of Texas are

the lives and property of freedmen 
secure as against the prejudices and 
feelings of the people?

A: They are not; they are very far from
being secure.

Q: Have you heard of many homicides
being committed upon the freedmen.

A: Yes, sir; of many.
Q: And do the State authorities

interfere in those cases?
A: Wherever the case is brought to the

attention of the civil authorities, 
action is taken so far as to issue 
writs of arrest; but it is almost, if 
not quite, impossible to secure the 
necessary testimony to convict 
parties.... [I]n Louisiana ... the 
prevailing sentiment is so adverse to 
the negro that acts of monstrous 
crime against him are winked at."

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