Injustice and Resistance in the Jim Crow Era

In 2018, the Civil Rights Cold Case Records Collection Act was passed by Congress and signed into law by then-President Trump. The National Archives and Records Administration or NARA (yes, that NARA) is charged with creating the Civil Rights Cold Case Records Collection, which will house records of unsolved racial violence from 1940 through 1979. The Civil Rights Cold Case Review Board, appointed by President Biden, will review the records brought before them and, among other things, determine if any should be made available to the public. It is on this board that Northeastern University School of Law Professor Margaret A. Burnham sits. Her latest book, By Hands Now Known, is a stunning work of scholarship on racially motivated violence in America during the Jim Crow era. This is a truly important work, arriving at a pivotal moment in our own time.

For this project, Professor Burnham undertook, along with her colleagues and students, over a decade of intense scholarship. This was done chiefly through the Civil Rights and Restorative Justice Project at Northeastern University School of Law which she founded and co-directs. Each page of this work is imbued with the expertise that comes from a lifetime spent immersed in such difficult subject matter.

The book can feel, at times, like a morbid litany of murder and grave injury, and, to some extent, that is what it is. Horrific in both its ferocity and randomness, the violence visited upon ordinary citizens who were Black by those who were white was pervasive and went unpunished so often that it became normalized. This was particularly so in the South, and it is here that the book focuses its attention on cases from the mid-twentieth century.

The book is divided into seven parts, six of which focus on different aspects of Jim Crow violence while the seventh draws important lessons for the future. The first part deals with the practice of rendition or extradition from one jurisdiction into another (usually the former home state) for prosecution. These may be the least familiar of the chapters to readers. One of the many modes of resistance in the Jim Crow era was to prevent the extradition of those Black men and women who had fled to the North during the Great Migration back to the South for criminal prosecution, often on incredibly flimsy or outright fabricated evidence. The NAACP figures prominently in preventing Black citizens from being rendered back to the South, where there was the real possibility of being lynched before ever facing a jury. Even if a Black defendant evaded a lynch mob, a fair trial usually was not the alternative.

To prevent this cycle of violence from playing out, citizens, judges, and even governors banded together to stop the would-be defendants from ever being transported back to the South to begin with. The stories of cities like Detroit and the role its citizens played in protecting Black men and women in these instances are remarkable and heroic. It shows the power of collective resistance in fighting for a higher purpose. Time and again, the persistence of these groups in arguing for fairness and equal treatment under the law is inspiring. It did not always work, but it illustrated the possibilities in a nation ruled by laws and the Constitution.

Once the book moves more solidly into the South and Deep South, the legal victories evaporate. Jim Crow is seen for what it was: an extension of slavery, a way to siphon off free labor, and a means to control Black citizens, thereby stripping them of any meaningful citizenship. These chapters follow the mundane routines of daily life that, for Black people of that era, became a gauntlet of horrors: taking a city bus, walking on a sidewalk with other people, going into a store, strolling with a girlfriend, taking their family to church. An interaction that could lead to violence and death might be with a police officer, a lawfully armed bus driver, a sailor on leave, a shop clerk, or really, any white person. There was no way to know. If there are still those that deny the crimes of this era, then it is difficult to imagine the level of delusion it would take to cling to those beliefs after reading this book.

In the final part, Professor Burnham makes a strong case for various legal and political remedies that seek to move the families of the victims and the country itself forward in a meaningful and healing way. As an attorney, former judge, and distinguished law professor, Burnham frames the entire work with the promise that the rule of law provides. Throughout this history, those citizens and organizations that resisted the violence of the era turned again and again to the rule of law for protection, for a way out. But if the rule of law represented an ideal and a hope, it also, in many instances, was the road not taken. Laws that existed from as far back as Reconstruction could have held violent perpetrators accountable, thereby deterring the kind of behavior that came to be viewed as normal and even justified.

The warning that echoes down from the Jim Crow era is this: Citizens who are endowed, whether in fact or by law, with the power to terrorize fellow citizens and then go unpunished by the rule of law will create a society that simply is not a democracy.

Ultimately this is a collection of stories of extreme courage by those who, in many cases, lost everything and whose families and communities never received any justice. The ability to match their courage, to fulfill the promise of democracy’s exceptionalism was right there in the letter of the law, but it was often left untouched.