WRONGFUL CONVICTIONS IN CAPITAL CASES AND THE LEGACY OF LYNCHING

by WILLIAM M. HOLMES

College of Public and Community Service

University of Massachusetts at Boston

Presented at the annual meetings of the American Society of Criminology, Chicago, 2002.

ABSTRACT

Wrongful convictions in capital cases has sometimes been called "Legalized Lynching." This research examines whether there is an association between the use of capital punishment and a history of lynching for states in the continental U.S. It tests the hypotheses that capital punishment is used more often in states in which lynching was more prevalent and that wrongful convictions in such cases are more frequent in these states.

Data are used from the Prisoners on Death Row series, 1972-1999, collected by the U.S. Department of Justice and archived in the National Criminal Justice Data Archive at the University of Michigan. Statistics on lynching aggregated by state are used from historical studies by the NAACP, the Southern Poverty Law Center, and the Tuskegee Institute.

Analysis of the data support the hypothesis that capital punishment is more likely to be legalized in states in which lynching was more prevalent. Capital punishment is not used at all in states with little or no history of lynching.

Wrongful capital convictions are also associated with a history of lynching. The rate of wrongful capital convictions is greater in states that have a stronger history of lynching. The results offer evidence that wrongful capital convictions are related to a state's history of lynching.

WRONGFUL CONVICTIONS IN CAPITAL CASES AND THE LEGACY OF LYNCHING

Capital punishment has been called "legalized lynching" because of the disproportionate numbers of African Americans who are executed and the mistakes that have been made in their cases (Clarke,1998; Jackson Sr, Jesse L; Jackson Jr, Jesse L; and Shapiro, Bruce, 2001; Williams, Yohuru R., 2001). The racial disparity of capital punishment holds as well for lynching. In the words of Tolny and Beck (1997), there were 2805 [documented] victims of lynch mobs killed between 1882 and 1930 in ten southern states. Although mobs murdered almost 300 white men and women, the vast majority (almost 2,500) of lynch victims were African-American. Of these black victims, 94 percent died in the hands of white lynch mobs. The scale of this carnage means that, on the average, a black man, woman, or child was murdered nearly once a week, every week, between 1882 and 1930 by a hate-driven white mob (ix).

It is one thing to say informally that capital punishment is "legalized lynching." It is another to provide more evidence than the common tie of racial disparity. It has been argued that a subculture of violence and a belief in retribution supported lynching in the past and supports capital punishment today (Clark, 1997). If the argument has merit, then there should be a link between capital punishment and a history of lynching in a state. That is, states with greater prevalence of lynching should be more prone to legalizing capital punishment today. In addition, there should also be a relationship between higher levels of lynching in a state in the past and current high levels of using capital punishment today. I.e., among the states where capital punishment is legal, it should be used more often in states that have a stronger history of lynching. Even though lynching may be quite rare a practice today, it would have a legacy of encouraging the current use of capital punishment.

One of the notorious aspects of lynching is its disregard for due process and the right of the accused to offer evidence that he is innocent. Without due process, many innocent victims were lynched, often for acts that were not capital offenses under law. In essence, a "wrongful conviction" (by the public) was endemic to lynching. If capital punishment is a legacy of lynching, higher rates of wrongful convictions can be expected in states that had more lynchings.

The purpose of this research is to address the issues of whether there is an association between lynching, capital punishment, and wrongful convictions. If these are related, future research will need to explore why that is the case.

QUESTION AND HYPOTHESES

The research question for this study is whether there is an association between the use of capital punishment and a history of lynching for states in the continental U.S. To answer this question, the following hypotheses are posed:

• Capital punishment is more likely to be legalized in states with a history of lynching.

• Capital punishment is used more frequently in states in which lynching was more prevalent.

• Wrongful convictions in capital cases are more prevalent in states where lynching was more prevalent.

TESTS OF HYPOTHESES

The three hypotheses will be tested using data on capital punishment and on lynching. These hypotheses concern state level characteristics. To test the hypotheses, state level data will be used. Each state will be coded on whether it allows executions, what the execution rate has been during the period of 1973 to 1999, and what its wrongful conviction rate in capital cases has been. Data for the twenty-six year period is aggregated because the absolute number of executions in any year has, until recently, be relatively small. If a state changes whether it allows executions during this period, it is coded as an executing state, and the execution rate is adjusted for the number of years in which capital punishment was allowed. The capital punishment and wrongful conviction data will be compared with statistics on lynchings in these states for the period 1880 to 1930, the period when lynching was the most frequent. Using data on lynchings from an earlier period is justified because the research issue concerns the legacy of lynching, what happens in states even after lynching has apparently ended.

Since lynchings and capital punishment are more prevalent in the Southern region of the United States, it might be thought that any association between lynching, capital punishment, and wrongful convictions is an artifact of their joint occurrence in Southern states. Consequently, region will be used as a control variable to determine whether any association remains after controlling for a possible "Southern" effect.

Since this is a descriptive study concerned with determining the association between variables, correlation analysis will be used to test the hypothesis. Both parametric Pearson's correlations and non-parametric Kendall's tau will be used. The limited sample size (the number of states) may lead one to question whether parametric statistics are appropriate. A comparison of the parametric and non-parametric analysis will help determine whether the association is independent of the statistical procedure.

State level lynching statistics will be correlated with presence or absence of a capital punishment statute (treating it as a dummy variable) and will also be subject to a t-test to determine whether lynching was more prevalent in states with capital statutes. The correlation analysis will be replicated using Kendall's tau.

The second hypothesis concerns the relationship between the prevalence of state lynching and execution. The execution data is not subject to undercounting (all legal executions are publically recorded). The number of executions will be correlated with the prevalence of lynching to see if more lynching is associated with more executions. Non-execution states will have their number of executions coded as zero.

The third hypothesis concerns risk of wrongful convictions in capital cases. States that did not allow capital punishment cannot, by definition, have any wrongful capital convictions. Their wrongful capital conviction rate will be coded as zero. Partial control variables will be used in testing the third hypothesis. The region in which the state is located will be statistically controlled.

CAPITAL PUNISHMENT DATA

This study will utilized data from the Prisoner on Death Row series (BJS, 2001). It provides information on over 7,300 prisoners sentenced in the United States between 1973 and 1999, as well as offenders on death row in 1972. Disposition information is available for inmates removed from death row due to a wrongful conviction (Holmes, 2001), as well as information on which prisoners were executed. It represents the entire population of persons sentenced to death during this period.

LYNCHING DATA

Data on lynchings in the United States are notoriously incomplete; since some lynchings are not made public, reported to the police, or have stories written about them in local newspapers. No database for the population of lynchings is available. A notable attempt has been made by the National Association for the Advancement of Colored People (Tolny and Beck, 1997) and the Tuskegee Institute (British Library, 2001) to obtain extensive information on lynchings. While no data source is likely to be complete in listing all lynchings in a state, they still indicate the relative prevalence of lynching between states. In states where lynching was more acceptable, the under reporting is likely to be less. It was not uncommon that newspapers during the lynching era ran stories praising the lynching, rather than condemning it, though there were exceptions. Those states where lynching was very prevalent will still appear as high lynching states, even if some of the lynchings are not recorded. Those with few or no lynchings will still be counted as having few or no lynching. For purposes of between state comparisons, the undercounting is unlikely to alter the results of whether there is an association.

CAPITAL PUNISHMENT AND LYNCHING

States were coded yes or no on whether they allowed capital punishment in the period 1972 to 1999. Forty states were coded as "yes" and ten as "no." A t-test comparison of lynching prevalence is given in Table 1. This is true both for total lynchings and for black lynchings alone. States using capital punishment averaged 116 lynchings per state between 1882 and 1930. Whereas, those not using capital punishment had an average of 10 per state for the 1882 to 1930 period. Overall, lynchings were twelve times more prevalent in executing states than non-executing states. An examination of Black lynchings shows and even stronger difference. Executing states averaged 85 lynchings of African-Americans. Non-executing states averaged 3 lynchings. For Black Americans, lynching was 24 times as prevalent in executing states than non-executing states.

[Insert Table 1 here]

When having capital punishment is treated as a dummy variable and correlated with total lynching, as well as with lynching of Blacks, a similar result obtains. Pearson correlations are .30 and .26, respectively-both statistically significant at .05 alpha level using a one-tailed test (see Table 2). Kendall's tau_b correlations are .37 and .31, also significant. The data clearly support accepting the hypothesis that there is an association between lynching and allowing capital punishment.

EXECUTION PREVALENCE AND LYNCHING

The second hypothesis is that the prevalence of lynching has a positive association with the prevalence of capital punishment. Black lynching and Total lynching both correlated positively with the number of death row cases. The Pearson correlations are .43 and .45, respectively (see Table 2). The Kendall's Tau_b correlations are .45 and .40. All of these correlations are statistically significant at the .01 level using a one-tailed test. The data support the hypothesis that the more the lynching in a state, the more the use of capital punishment.

[Insert Table 2 here]

WRONGFUL CONVICTION AND LYNCHING

The third hypothesis is that wrongful convictions would be more prevalent in states that had a stronger history of lynching. This was examined by correlating the number of Black and total lynchings with the number of wrongfully sentenced to death (using the numbers calculated in Holmes, 2001). Both Pearson's r and Kendall's tau were used to assess correlation.

Both measures of correlation support the third hypothesis. Black lynchings and total lynchings have Pearson correlations of .48 and .47 with the number of wrongful capital convictions in a state (see Table 2). Their Kendall's correlations are .49 and .45. All of these correlations are statistically significant at the .01 level using a one-tailed test. There is an association between wrongful capital convictions and a state's history of lynching.

THE SOUTHERN EFFECT

Differences between region may confound the relationship between lynching and wrongful capital convictions. Lynchings were more frequent in the South and so is the use of capital punishment. To examine this confounding effect, the states were classified into four regions: north, west, border south, and deep south. The codes for the regions were rank ordered on their proximity and similarity to the deep south. Analysis of variance with a test for linearity found a significant linear relationship between regional classification, lynching, and capital punishment. Consequently region and lynching were entered in a regression analysis predicting capital punishment and wrongful convictions.

Table 3 presents the results for predicting total capital sentences with region and Black lynching or total lynching. When the effect of lynching is controlled, there is no significant difference between regions in the use of capital punishment. The association between lynching and capital punishment does not disappear when the effect of region is controlled. It is not an artifact of a "Southern Effect." Hypothesis 2 continues to be supported when regional effects are controlled.

[Insert Table 3 here]

Table 4 presents the results for predicting wrongful capital convictions with region and Black lynching and total lynching. Controlling for "Southerness" does not eliminate the association between lynching, capital punishment, and wrongful convictions, irrespective of whether one uses Black lynchings or total lynchings as a measure of lynching. In fact, the association between the Southern region and wrongful convictions disappears when the history of lynching in a state is controlled. Hypothesis 3 continues to be supported when regional effects are controlled.

[Insert Table 4 here]

SUMMARY AND CONCLUSIONS

Three hypotheses were presented regarding the association between lynching, capital punishment and wrongful convictions. The analysis consistently supports the following conclusions.

• Capital punishment is more likely to be used in states with a history of lynching

• Capital punishment is used more frequently in states in which lynching was more prevalent

• Wrongful capital convictions are more prevalent in states in which lynching was more prevalent.

The purpose of this analysis was to determine whether there is an empirical association between lynching, capital punishment, and wrongful convictions. That purpose has been fulfilled. The results of this analysis, however, are descriptive. No claim of a causal influence is made. Many possible confounding variables that might explain this association were not controlled. One may also revise the number of lynchings based on more extensive research. This study has documented that one legacy of lynching might be the use of capital punishment and a tendency toward wrongful conviction of defendants. Future studies will have to examine other explanatory variables to examine the extent to which this is the case.

*Total documented lynchings by state. Differences in means are significant at P<.001.

TABLE 2: CORRELATIONS BETWEEN LYNCHING, CAPITAL PUNISHMENT, AND WRONGFUL CONVICTIONS*
	BLACK LYNCHING		TOTAL LYNCHING
	r	tau	r	tau
Capital Statute	.30*	.37*	.26*	.31*
Capital Sentences	.43*	.45*	.45*	.40*
Wrongful Convictions	.48*	.49*	.47*	.45*

*Correlation is significant at P<.01, one-tailed test.

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REFERENCES

Brazil, Jana Evans. (2002). "History of Lynching in the United States." (Electronic document) URL=http://www.umass.edu/complit/ACLATest/USLynch.html.

British Library. (2001). "Tuskegee Institute News Clippings Files." (Electronic document) URL=http://www.bl.uk/collections/tuskegee.html.

Clarke, James W. (1998). Without Fear or Shame: Lynching, Capital Punishment and the Subculture of Violence in the American South. British Journal of Political Science 28, no. 2: 269-289.

Holmes, William. (2001). "Wrongful Conviction and Sentences to Capital Punishment." Chapter in Wrongfully Convicted, edited by Saundra Westerveldt and John Humphrey. Rutgers University Press.

Jackson Sr, Jesse L; Jackson Jr, Jesse L; Shapiro, Bruce. (2001). "Legal Lynching: The Death Penalty and America's Future." The New York Times Book Review. (October 7): 12.

Tolny, Steward and Beck, Edward. (1997). Festival of Violence: An Analysis of Southern Lynching, 1882-1930. Urbana: University of Illinois Press.

U.S. Department of Justice, Bureau of Justice Statistics. (2001). Capital Punishment in the United States, 1973-1999 [Computer file]. Compiled by the U.S. Dept. of Commerce, Bureau of the Census. ICPSR ed. Ann Arbor, MI: Inter-university Consortium for Political and Social Research [producer and distributor].

Williams, Yohuru R. (2001). Permission to Hate: Delaware, Lynching, and the Culture of Violence in America Journal of Black Studies 32, no. 1: 3-29.