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Race, Rape, and Injustice

Documenting and Challenging Death Penalty Cases in the Civil Rights Era

Barrettt J. Foerster

Publication Year: 2012

This book tells the dramatic story of twenty-eight law students—one of whom was the author—who went south at the height of the civil rights era and helped change death penalty jurisprudence forever.
    The 1965 project was organized by the NAACP Legal Defense and Educational Fund, which sought to prove statistically whether capital punishment in southern rape cases had been applied discriminatorily over the previous twenty years. If the research showed that a disproportionate number of African Americans convicted of raping white women had received the death penalty regardless of nonracial variables (such as the degree of violence used), then capital punishment in the South could be abolished as a clear violation of the Fourteenth Amendment’s Equal Protection Clause.
    Targeting eleven states, the students cautiously made their way past suspicious court clerks, lawyers, and judges to secure the necessary data from dusty courthouse records. Trying to attract as little attention as possible, they managed—amazingly—to complete their task without suffering serious harm at the hands of white supremacists. Their findings then went to University of Pennsylvania criminologist Marvin Wolfgang, who compiled and analyzed the data for use in court challenges to death penalty convictions. The result was powerful evidence that thousands of jurors had voted on racial grounds in rape cases.
    This book not only tells Barrett Foerster’s and his teammates story but also examines how the findings were used before a U.S. Supreme Court resistant to numbers-based arguments and reluctant to admit that the justice system had executed hundreds of men because of their skin color. Most important, it illuminates the role the project played in the landmark Furman v. Georgia case, which led to a four-year cessation of capital punishment and a more limited set of death laws aimed at constraining racial discrimination.

A Virginia native who studied law at UCLA, Barrett J. Foerster (1942–2010) was a judge in the Superior Court in Imperial County, California.

MICHAEL MELTSNER is the George J. and Kathleen Waters Matthews Distinguished Professor of Law at Northeastern University. During the 1960s, he was first assistant counsel to the NAACP Legal Defense Fund. His books include The Making of a Civil Rights Lawyer and Cruel and Unusual: The Supreme Court and Capital Punishment.


Published by: The University of Tennessee Press

Title Page, Copyright, Dedication

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pp. 2-7

Contents

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pp. vii-9

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Foreword

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pp. ix-xiii

After his first year in law school at UCLA, Barrett Foerster volunteered along with twenty-seven other law students for a summer internship collecting data on the sentencing practices of southern juries in rape cases. The year was 1965, the height of the civil rights movement, and...

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1. A Showdown Looms

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pp. 1-14

The moon, partly hidden behind dense clouds, cast but a faint light onto the open fields racing by the windows of the green Buick. No street lamps pierced the Mississippi darkness. In fact, only a dim line of pebbles on the shoulder made the edges of the country road distinguishable....

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2. Into the Southern Cauldron

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pp. 15-30

We were drawn from different reaches of the country. Three of us came from UCLA—Phil Brown, Tim Brayton, and myself. Henning Eikenberg, a German student who had graduated from the University of Heidelberg in 1964, came from New Haven, where he had just received a master’s...

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3. Meeting the Klan

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pp. 31-46

In 1965 it was the Ku Klux Klan and its many klaverns sprinkled across the southern countryside that posed the greatest threat to our mission and our safety. Had their members been made aware that the objective of our survey was to nullify the death penalty in the South, we would...

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4. The “Underground” Mobilizes

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pp. 47-64

In 1965 almost anyone with authority in the Deep South, whether police officers, judges, attorneys, or politicians, was white and staunchly opposed to integration of the races. Some wore “Never” buttons on their lapels and blamed the Great Communist-Zionist Conspiracy for...

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5. Wolfgang Fuels the Assault

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pp. 65-81

Jack Greenberg, the Legal Defense Fund’s director in New York City, had assigned Frank Heffron to oversee the law students’ research efforts in the South. Heffron had been an editor of the Columbia Law Review, and his first job was as a Fund staff attorney. A “straight arrow”...

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6. Maxwell Climbs the Appellate Ladder

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pp. 83-96

Anthony Amsterdam knew Wolfgang as a teaching colleague at the University of Pennsylvania. He was aware, of course, of Wolfgang’s fame as a criminologist with a global reputation, and he admired his intellect. So, soon after Amsterdam was approached by Fund lawyers to...

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7. Momentum Builds, Then Stalls

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pp. 97-108

Justice William O. Douglas sat quietly, watching this public display of bantering and cajoling. A fury enveloped him, and he knew in such times that it was best not to speak. Otherwise, his anger would surface much like lava struggling through the earth’s crust, finally unleashing...

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8. The High Court Acts

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pp. 109-123

Whether or not Justice Hugo Black believed in the efficacy of the death penalty, he was sure that neither the Constitution’s promise of equal protection of the laws nor the Eighth Amendment’s ban on cruel and unusual punishments abolished it. To Black, arguments against capital...

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9. What the Law Students Set in Motion

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pp. 125-141

For days the news agencies laid siege to the Supreme Court building in Washington, D.C. Reporters camped outside, waiting for any announcements. Finally, Thursday, June 29, 1972, arrived, the last day that the court would convene for its 1971–72 term.1 Attorneys, litigants, the press,...

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10. To Save a Mockingbird

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pp. 143-156

Yet another domino—a last piece of unfinished business from the law students’ 1965 survey of southern rape cases—needed to fall. Of the sixteen states that had authorized death for the crime of rape in 1971, only three states, Georgia, North Carolina and Louisiana, included rape among...

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Epilogue: Where Are They Now?

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pp. 157-165

After the tumultuous summer of 1965, the twenty-eight law students, most toughened and touched by the experience, returned to law school to complete their educations and launch careers in the law. In the intervening decades, they took on all manner of roles. Some gravitated to...

Notes

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pp. 167-193

Index

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pp. 195-208

Production Notes

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pp. 210-225


E-ISBN-13: 9781572339224
E-ISBN-10: 1572339225
Print-ISBN-13: 9781572338623
Print-ISBN-10: 1572338628

Page Count: 224
Publication Year: 2012

Research Areas

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Subject Headings

  • Race discrimination -- Law and legislation -- United States -- History.
  • African Americans -- Civil rights -- History.
  • Capital punishment -- United States -- History.
  • United States -- Race relations.
  • African Americans -- Civil rights -- Southern States -- History.
  • Rape -- Southern States -- History.
  • Civil rights movements -- United States -- History.
  • Foerster, Barrett J., 1942-2010.
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