From the early 1900s until 1938, the NAACP flew an anti-lynching flag from its Manhattan headquarters.
On June 2 Jasmine Richards, founder of the Pasadena, California, chapter of Black Lives Matter, was convicted of “felony lynching” and sentenced to ninety days in prison and three years on probation. The case sets a dangerous precedent, and its legal aspects are crucial to understanding its significance.
Richards was arrested in September 2015 following an incident two days earlier in which a woman was accused by a local restaurant owner of not paying her bill and of assaulting the owner and employees. At a park across the street from the restaurant, Black Lives Matter activists happened to be protesting unjustified arrests and excessive police force. After observing the arrival of the police and their physical treatment of the woman at the restaurant, the activists, led by Richards, attempted to remove the woman from police custody.
Richards was charged and convicted under California Penal Code 405a, which creates a special category of offense for “a person who participates in the taking by means of a riot of another person from the lawful custody of a peace officer.” Richards did in fact interfere with a police action on the part of a person who might have committed a crime, and other protesters apparently verbally supported her. So the charge appears to make sense. Why then should her arrest and conviction trouble us? In order to understand the irony of Richard’s conviction, we must examine the origins of such anti-lynching laws, which were originally enacted to protect black people from regimes violent enforcement.
On May 15, 1916, Jesse Washington, a black teenager, was tortured and lynched in Waco, Texas. Having been charged with murder, he was one of a rare few to get the opportunity to stand in a courtroom and in front of a jury, though the circumstances could not have been more antagonistic to the idea of a fair trial. After a handful of witnesses testified, Washington is said to have quietly admitted to the crime of murdering Lucy Fryer, a white woman. Before court officials could secure Washington, a posse of local residents forcibly removed him from the courthouse, placed a chain around his neck, and dragged him through town while beating and stabbing him. They tortured and dismembered him for hours before suspending him over a bonfire to slowly burn to death. As was a common practice at lynchings, pieces of Washington’s body were taken by participants—numbering as many as 15,000—as keepsakes and to be sold as memorabilia.
The use of lynching laws to suppress black activists is a great betrayal of American democracy and freedom.
Besides the awful barbarity of Washington’s killing, there is the procedural issue: a mob removed him from a trial and subjected him to their own brand of murderous justice. It is to such actions of extrajudicial killing that the term “lynching” refers. Anti-lynching laws such as California’s were adopted to make it easier to bring charges against those who participated in mob murders. California’s lynching laws were specifically enacted after two men—white men, notably—were lynched in the state in 1933.
Many have noted the irony that Richards, a leader of a movement dedicated to ending the state-sanctioned murder of black people, has been convicted on a charge associated with lynching. Meanwhile, Daniel Pantaleo, the officer who choked Eric Garner to death, walks free—as do nearly all police who kill black people “in the line of duty.” Lynching was, after all, largely (though not exclusively) a tool of white control against blacks, part of a coordinated campaign of terror. By some counts, more than 3,400 blacks died of lynching between 1862 and 1968. In the introduction to her autobiography, Ida B. Wells recalls encountering a young woman who was unfamiliar with her work to bring national attention to lynching: “I realized that one reason she did not know was because the happenings about which she inquired took place before she was born. Another was that there was no record from which she could inform herself.” Today we do have the record, but it doesn’t have the power it ought to because we have been quick to relegate the barbarity of lynching to a distant past, to a time before any of us were born. This is a mistake.
But Richards’s case moves beyond irony. Just two months before her arrest, California governor Jerry Brown signed legislation introduced by state senator Holly Mitchell that cut the word “lynching” from the penal code. The bill was introduced after Maile Hampton, another Black Lives Matter protester, was charged for the same offense, though a deputy district attorney wound up downgrading the charges to misdemeanor interference with an officer, citing the law’s “racially charged and inflammatory terminology.” In a statement about the legislation to revise the language of the law, Mitchell explained that “‘lynching’ has such a painful history for African Americans that the law should only use it for what it is—murder by mob.”
Some have applauded the revision of the penal code, but removing the word has two worrying repercussions. First, the law has lost its ability to call an actual lynching what it is—a crime of hate most often motivated by race. Even worse, the revision erases the expressive power and intent of the original law. As USC law professor Jody Armour said, “The precise evil that the lawmakers designed the law to punish and prevent was lynching, not just the taking of a person from police custody, but in order to murder them.” However, Richards did not intervene to harm the women under arrest, as a lynch mob might have, but to protect her. The state has thus inverted a law intended to protect blacks from mob violence: blacks themselves can now be easily accused of lynching—though perhaps, out of misguided political correctness, it may be called something else, as in California. In effect, the revised law makes a dangerous elision between the civil disobedience of social justice protestors and the deadly threat of those who once removed blacks from police custody in order to murder them. Richards’s conviction makes it seem that mob rule—the removal of blacks from civic life—has been institutionalized by the state to suppress organized resistance to unjust state power. Fortunately Richards was released earlier this week—thanks, it seems, to the outpouring of concern for her—but her conviction sets a dangerous precedent, and future activists charged with “lynching” are unlikely to be lucky enough to have their plight receive national attention.
At the turn of the century, Wells called on the national conscience to reject mob rule and violence. Actions of contemporary activists have injected a historical understanding of how the law works against the interests of blacks. They are the black community’s most precious asset, our mockingbirds. The state’s use of the language of lynching to suppress their activism would strike Wells as a great betrayal of American democracy and freedom: “We have reached the unprecedented low level; the awful criminal depravity of substituting the mob for the court and jury, by giving up the jail keys to the mob whenever they are demanded.” Richards’s conviction raises the specter of court and jury using the jail keys of lynching charges whenever no other charge will stick, thus abusing the power of the state to forcibly interfere—as during lynching times—with the quest for social justice.