UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW ANDSOCIAL CHANGE Volume 24, Number 3 2021

THE NAACP’S RAPE DOCKET AND THE ORIGINS OF

BY SCOTT W. STERN* Abstract. This Article provides the definitive account of the surprisingly voluminous docket of rape cases argued by the National Association for the Advancement of Colored People (NAACP). It argues, for the first time, that the NAACP’s rape docket was central to the development of modern criminal procedure—to the establishment of the right to counsel, the right to remain silent, the right to a free from mob violence or influence, the right against self-incrimination via a coerced confession, and the right to a of one’s peers selected without discrimination. Drawing on original archival research, this Article demonstrates that all of these rights have their origins in the hundreds of cases argued by the NAACP on behalf of Black men accused of sexual assault by white women.

This Article also argues that these cases were central to the development of the NAACP’s legal department, the relationships between local branches and the national office, and the careers of the famous civil rights attorneys—from Charles Hamilton Houston to Jack Greenberg—who rose to national prominence with the NAACP. Thus, these cases were central to the development of civil rights litigation itself. Indeed, the first significant Supreme Court case argued for the NAACP by a Black attorney was an interracial rape case. The first Supreme Court case ever argued by a Black woman, Constance Baker Motley, was an interracial rape case. The first case that ever argued before the Supreme Court was an interracial rape case. Several scholars have noted how individual rape cases were pivotal in the careers of individual NAACP lawyers, but no scholar has argued that these cases together constituted a significant docket that was pivotal to nearly all of their careers.

Finally, this Article examines cases in which the NAACP advocated for Black women who accused white men of sexual assault. Throughout its history, the national office of the NAACP advocated for Black female rape survivors only rarely. In contrast, the local branches of the Association did advocate for dozens of Black women who had been raped by white men, often pushing the police to investigate, the prosecutors to bring charges, and sometimes even hiring their own attorneys to aid in prosecutions. Yet at no point did NAACP attorneys ever challenge the rape laws that placed punitively high demands on assault survivors and impeded countless prosecutions. This was largely because NAACP attorneys embraced the very politics of respectability that justified sexist rape laws; indeed, NAACP attorneys capitalized on the gendered aspects of these laws in their representation of Black men accused of rape. Although many Black women throughout the decades demanded the NAACP engage more often in anti-rape work, such pleas usually met with silence. Had the NAACP acceded to these demands and pushed for a criminal procedure focused on protecting rape survivors as well as rape suspects, the greater protections that contemporary rape laws now provide for survivors could have come about much sooner.

* Justice Catalyst Fellow, Greenpeace International. JD, Yale Law School, 2020; BA, MA, Yale University, 2015. Thanks to John Witt, who supervised the paper that became this Article and who provided kindness and wisdom throughout my time in law school. For helpful conversations and correspondence, thanks to Charles O’Malley, Crystal Feimster, Lisset Pino, Mara Keire, and Michael J. Churgin. [continued on page 243]

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INTRODUCTION ...... 243 I. THE EARLY YEARS, 1909-1930...... 250 A. The Birth of an Organization ...... 250 B. Exploding the Rape Myth...... 253 C. Nailing These “Rape Lies” ...... 256 D. Giving Assistance in Cases as Atrocious as This One...... 260 II. THE MANY SCOTTSBOROS, 1931-1940...... 264 A. The Association, The Communists, and The Case That Enraptured the Nation ...... 265 B. “A Turning Point in the Legal History of the ” ...... 270 C. The Start of the Marshall Years...... 276 D. Fighting One Double Standard, Entrenching Another...... 285 III. THE WAR YEARS...... 288 A. “Rape by Colored Men, in the American Military Mind, Is Different” ...... 289 B. Blaming “Immoral Little Girls”...... 295 IV. THE ROAD TO BROWN, 1941-1954 ...... 298 A. Fighting in the Criminal Procedure Revolution ...... 298 B. Resisting a “Long-Standing Tradition” ...... 306 V. FIGHT TO THE DEATH, 1955-1977 ...... 311 A. The NAACP’s Rape Docket in the Post-War Years...... 311 B. The Feminist Challenges to Rape Laws and “Rape Lies”...... 316 CONCLUSION ...... 320

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INTRODUCTION

The lynch mob began gathering at dawn. It was Sunday, December 15, 1940, and the dozens, then hundreds, of assembling white men were eager to locate—and —the Black man who was rumored to have raped a young white woman the night before in the small town of Georgetown, .1 As the crowd swelled—eventually reaching 300 and armed with shotguns, rifles, and pistols—several men the sheriff and demanded that he “turn over all the Negro prisoners in the jail, to see if the woman could identify her assailant among them.”2 The sheriff insisted he had not yet captured the assailant but nonetheless complied, and eventually each of the eleven Black men in the jail were brought out and, one-by-one, shown to the white woman, who replied that none of them was her attacker.3 By the time evening fell, thirty-five hastily mobilized state militia members had arrived; they mounted a machine gun on the second floor balcony of the Georgetown jail, which finally dispersed the crowd.4 Yet even as the troops held off the crowd, the sheriff arrested a Black man named George Thomas, claiming he was the rapist, and spirited him off to Columbia.5 In the days that followed, dozens of state troops patrolled the streets as rumors of impending violence led Black and white residents of Georgetown to rush to buy shotgun shells.6 Weeks later, Thomas was convicted of rape by an all-white jury in a specially convened criminal trial, the streets surrounding the courthouse barricaded and heavily guarded.7 The next morning, the presiding judge—a politically ambitious lawyer named —sentenced Thomas to death.8 This scene—a Black man sentenced to death for raping a white woman, an all-white jury, a lynch mob—recurred countless times throughout the in the early- and mid-twentieth century. Yet the case of George Thomas fell into a more rarefied category—a staff member at the National Association for the Advancement of Colored People (NAACP) happened to hear about his

[continued from title page] Thanks as well to my mother, Rhonda Wasserman, who read the massive first draft with care and insight.I am indebted to the staff of the Library of Congress (guardian of the NAACP’s immense archive); to Cody Pomeranz and Zac Krislov, who hosted me as I visited the Library repeatedly; and to the editors of the University of Pennsylvania Journal of Law and Social Change. Finally, I find myself reflecting on words Patricia Williams wrote many years ago: “Since subject position is everything in my analysis of the law, you deserve to know that it’s a bad morning.” In my case, readers deserve to know that I completed the first draft of this Article in June 2020, just as millions across the United States and around the world rose up in support of Black Lives.I dedicate this piece to this ongoing struggle. 1 Mob Outbreaks Flare After Assault Saturday Night; Guardsmen Called,STATE, Dec. 20, 1940 (on file in Folder 8, Box II:B128, NAACP Records, Library of Congress [hereinafter NAACP Records]); Troops Guard Jail as Mob Threatens, N.Y. TIMES, Dec. 16, 1940 (on file in Folder 8, Box II:B128, NAACP Records). 2 Id. 3 Id. 4 Id. 5 Id. 6 Militia Called at Georgetown to Halt Any Riot Attempts,STATE, Dec. 18, 1940 (on file in Folder 8, Box II:B128, NAACP Records). 7 David I. Bruck, The Four Men Strom Thurmond Sent to the Chair,WASH. POST, Apr. 26, 1981, https://www.washingtonpost.com/archive/opinions/1981/04/26/the-four-men-strom-thurmond-sent-to-the-chair/61a15184 -fd6a-40df-a6a8-932358d29ef5/ [https://perma.cc/PW72-UN9E]; Georgetown Court Opens,EVENING DISPATCH, Jan. 27, 1941 (on file in Folder 8, Box II:B128, NAACP Records). 8 Bruck, supra note 7.

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case,9 and the Association’s newly-appointed special counsel, Thurgood Marshall, disbursed funds for the local NAACP branch to hire a lawyer to represent Thomas.10 Starting in the Association’s early days in the 1910s, and continuing up to and beyond its famous victory in Brown v. Board of Education,11 NAACP attorneys represented hundreds of Black men accused of raping white women. This Article tells the story of this surprisingly voluminous rape docket for the first time. It argues that these cases were central to the development of the NAACP’s legal department, the relationships between local branches and the national office, and the careers of the famous civil rights attorneys—from Charles Hamilton Houston to Jack Greenberg—who rose to national prominence with the NAACP. Indeed, the first significant Supreme Court case argued for the NAACP by a Black attorney was an interracial rape case.12 The first Supreme Court case ever argued by a Black woman, Constance Baker Motley, was an interracial rape case.13 The first case that Thurgood Marshall ever argued before the Supreme Court was an interracial rape case.14 Several scholars have noted how individual rape cases were pivotal in the careers of individual NAACP lawyers,15 but no scholar has argued that these cases together constituted a significant docket that was pivotal to nearly all of their careers. Perhaps even more critically, the NAACP’s rape docket was central to the development of modern criminal procedure—to the establishment of the right to counsel, the right to remain silent, the right to a trial free from mob violence or influence, the right to not have a coerced confession used against you, and the right to a jury of your peers selected without discrimination. In 1940, George Thomas’s NAACP lawyer challenged the exclusion of from the grand and petit in Georgetown and also sought a .16 After Thomas was convicted, the lawyer corresponded with Marshall and other attorneys from the Association’s national

9 Letter from George B. Murphy Jr. to Thomas J. Deas (Dec. 16, 1940) (on file in Folder 8, Box II:B128, NAACP Records). 10 Letter from Thurgood Marshall to D.T. Prioleau (Dec. 30, 1940) (on file in Folder 8, Box II:B128, NAACP Records). 11 347 U.S. 483 (1954). 12 Hollins v. Oklahoma, 295 U.S. 394 (1935); Paul Finkelman, Not Only the Judges’ Robes Were Black: African-American Lawyers as Social Engineers, 47 STAN. L. REV. 161, 168-9 (1994). 13 Hamilton v. , 368 U.S. 52 (1961); Shaun Ossei-Owusu, The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel, 167 U. PA. L. REV. 1161, 1200 (2019). 14 Adams v. United States, 319 U.S. 312 (1943). 15 See, e.g.,KENNETH W. MACK, REPRESENTING THE RACE: THE CREATION OF THE CIVIL RIGHTS LAWYER ch. 4 (2012) (arguing that the George Crawford case was important for Charles Hamilton Houston);GILBERT KING, DEVIL IN THE GROVE: THURGOOD MARSHALL, THE GROVELAND BOYS, AND THE DAWN OF A NEW AMERICA (2012) (arguing that the Groveland case was important for Thurgood Marshall); LARRY S. GIBSON, YOUNG THURGOOD: THE MAKING OF A SUPREME COURT JUSTICE 207-09 (2012) (arguing that the William Carter case was important for Thurgood Marshall); Daniel J. Sharfstein, Saving the Race,LEGAL AFFAIRS, Mar./Apr. 2005, at 50 (arguing that the Joseph Spell case was important for Thurgood Marshall); JUAN WILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY 68-69, 119-20, 128-30 (1998) (arguing that the William Carter, Joseph Spell, and Camp Claiborne cases were important for Thurgood Marshall); JACK GREENBERG, CRUSADERS IN THE COURTS: HOW A DEDICATED BAND OF LAWYERS FOUGHT FOR THE CIVIL RIGHTS REVOLUTION 93-99, 133-35, 140-49, 258-59, 440 (1994) (discussing the importance of the Groveland case for his own career). 16 See Motion to Quash Indictment, State v. Thomas (1941) (on file in Folder 8, Box II:B128, NAACP Records); Motion for Change of Venue, State v. Thomas (1941) (on file in Folder 8, Box II:B128, NAACP Records); Letter from Joseph Murray to Thurgood Marshall (Jan. 11, 1941) (on file in Folder 8, Box II:B128, NAACP Records).

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office as he was crafting Thomas’s appeal.17 Their appeal would be based, in part, on the mob atmosphere in Georgetown, but Judge Thurmond sent a statement to supreme court, neglecting to mention the near- in town and claiming instead that Thomas was spirited out of Georgetown because the jail was too “congested.”18 Relying on Thurmond’s statement, the state supreme court affirmed Thomas’s conviction,19 and he was executed a few weeks later.20 Although lawyers for NAACP branches and the national office lost many of the rape cases they took on during these years, they also managed to win a number of key appeals that, over time, would form the basis for many of the criminal procedure protections that are today taken for granted. Many scholars have correctly dated the origins of modern criminal procedure to Moore v. Dempsey,21 a 1923 Supreme Court case brought by the NAACP in the aftermath of a mass lynching, and Norris v. Alabama22 and Powell v. Alabama,23 a pair of cases from the mid-1930s that originated from the attempted legal of the —rape cases in which the NAACP desperately wanted to intervene but was ultimately beaten out by the Communist Party.24 But decades of NAACP rape cases broadened, deepened, and solidified criminal procedure protections in the years that followed. In 1935, for instance, the Association’s first jury discrimination case before the Supreme Court, Hollins v. Oklahoma,25 also a rape case, strengthened the Court’s earlier jury discrimination decision in Norris.26 The Court would then rely on Hollins to create a robust doctrine outlawing in grand and petit jury selection, culminating in the landmark Batson v. Kentucky,27 which cited not just Hollins but also three other NAACP rape cases.28 Between Hollins and Batson, the Court decided many other NAACP rape cases that clarified the rules on jury discrimination.29 The NAACP’s rape cases were not only central to the development of the jury

17 See, e.g., Letter from Leon A. Ransom to Joseph Murray (July 29, 1941) (on file in Folder 8, Box II:B128, NAACP Records); Letter from Joseph Murray to Thurgood Marshall (July 13, 1941) (on file in Folder 8, Box II:B128, NAACP Records). 18 Quoted in Bruck, supra note 7. 19 State v. Thomas, 18 S.E.2d 369 (S.C. 1942). 20 Bruck, supra note 7. It is worth noting that Thomas’s lawyer raised substantial doubts about his guilt. See Murray to Marshall (Jan. 11, 1941), supra note 16. 21 261 U.S. 86 (1923). 22 294 U.S. 587 (1935). 23 287 U.S. 45 (1932). 24 See, e.g.,MEGAN MING FRANCIS, CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE 27 (2014); Anthony O’Rourke, The Political Economy of Criminal Procedure Litigation, 45 GA. L. REV. 721, 751-54 (2011); MICHAEL J. KLARMAN, FROM TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 117-18 (2004); Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 MICH. L. REV. 48, 49 (2000); Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287, 1305-06 (1982). 25 295 U.S. 394 (1935). 26 Id. at 395 (citing Norris, 294 U.S. at 596) (finding unconstitutional discrimination in the jury selection process leading to an all-white jury). 27 476 U.S. 79 (1986). 28 Id. at 84 n.3 (citing Hollins and Patton v. Mississippi, 332 U.S. 463 (1947)); id. at 88 n.10 (citing Sims v. Georgia, 389 U.S. 404 (1967) and Hill v. Texas, 316 U.S. 400 (1942)). 29 See, e.g., Shepherd v. Florida, 341 U.S. 50 (1951); Smith v. Texas; 311 U.S. 128 (1940); White v. Texas, 309 U.S. 631 (1940).

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discrimination doctrine. They also led to important rulings regarding juror bias,30 denial of counsel,31 and coerced confessions,32 the last of which the Court quickly built on to broadly expand defendants’ rights.33 The landmark decision in Miranda v. Arizona34 cited an NAACP rape case35 and another case that itself relied heavily on an NAACP rape case.36 Justice Clark and Justice Harlan both relied on an NAACP rape case in their concurrences in Gideon v. Wainwright.37 In Shepherd v. Florida38—a case NAACP attorneys brought on behalf of the famous Groveland Boys, convicted of raping a white woman39—Justice Jackson wrote a powerful concurrence arguing that the Court should have reversed the Black defendants’ convictions because of mob violence, though he was unable to convince a majority of his colleagues.40 A decade later, however, the Court relied in part on Jackson’s concurrence to hold, in Irvin v. Dowd,41 that a community’s could be so great that the Constitution demanded a change of venue.42 Perhaps most significantly, the NAACP’s rape cases led directly to the Association’s war on , resulting in the temporary halting of the death penalty in Furman v. Georgia43 and the permanent end of the death penalty for rapists in Coker v. Georgia.44 The case of George Thomas also exemplified another reality of so many rape cases from this era, including many of those involving the NAACP: its partisans relied on sexist . Just days after Thomas’s arrest, someone who signed her name only as “A Woman” wrote a letter to the editor of the Georgetown Times asking “one special question for the mothers of Georgetown. It is this:

30 Higgs v. Connecticut, 120 A.2d 152 (Conn. 1956). 31 Hamilton v. Alabama, 368 U.S. 52 (1961). 32 Fikes v. Alabama, 352 U.S. 191 (1957); Reeves v. Alabama, 348 U.S. 891 (1954) (reversing a lower court determination that a confession was constitutionally admissible); Lee v. Mississippi, 332 U.S. 742 (1948). 33 See, e.g., Sims v. Georgia, 389 U.S. 404 (1967) (an NAACP rape case that cited the Fikes decision favorably in determining that an involuntary confession was inadmissible); Clewis v. Texas, 386 U.S. 707 (1967) (citing Fikes favorably in determining that a confession made after defendant was deprived food and sleep and held for a long period was inadmissible); Haynes v. , 373 U.S. 503 (1963) (citing Fikes favorably in decision determining that a confession made when defendant was deprived of ability to make a phone call was inadmissible); Blackburn v. Alabama, 361 U.S. 199 (1960) (citing Fikes favorably in determining inadmissible defendant’s confession obtained after 8-9 hours of interrogation without access to counsel); Spano v. New York, 360 U.S. 315 (1959) (citing Fikes and Lee in line of cases scrutinizing illegal police methods in obtaining confessions); Payne v. Arkansas, 356 U.S. 560 (1958) (citing Fikes in line of cases establishing that confessions obtained coercively are a violation of the Fourteenth Amendment); Thomas v. Arizona, 356 U.S. 390 (1958). 34 384 U.S. 436 (1966). 35 Id. at 446 (citing White v. Texas, 309 U.S. 631 (1940)). 36 Id. at 448 (citing Blackburn, 361 U.S. at 206 (citing Fikes in the same paragraph and throughout the case)). 37 372 U.S. 335, 347 (1963) (Clark, J., concurring) (citing Hamilton v. Alabama, 368 U.S. 52 (1961)); id. at 350 (Harlan, J., concurring) (also citing Hamilton). 38 341 U.S. 50 (1951). 39 See generally KING, supra note 15. 40 Shepherd, 341 U.S. at 54-55 (Jackson, J., concurring). 41 366 U.S. 717 (1961). 42 Id. at 727-28. 43 408 U.S. 238 (1972). 44 433 U.S. 584 (1977).

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Why do they allow their daughters to wear costumes utterly lacking in dignity and modesty?”45 To this writer, women “wearing shorts and similar garments” were to blame for the “ of evil thoughts” and thus bore “responsibility in leading on evil deeds.”46 Such sentiments were common among NAACP attorneys and, significantly, shaped the legal arguments they raised in so many of these important rape cases. In many appeals on behalf of Black men convicted of raping white women, NAACP attorneys argued that the women were promiscuous, sold sex for a living, or had sexually transmitted infections; these claims, in turn, were used to impugn the women’s trustworthiness. Such arguments went beyond merely defending individual men, many of whom certainly were falsely accused; they also implicitly or explicitly defended the profoundly sexist rape laws of the time. For instance, rape laws across the country demanded that women who accused men of rape be able to prove that they had fought back continuously—the so-called resistance requirement.47 In a memo planning the defense for one Black man accused of rape, NAACP attorney Constance Baker Motley wrote that “from all indications” the alleged victim was a prostitute, and thus “the character of the victim was so low that one can hardly conceive of her offering any resistance at all to sexual intercourse.”48 Another common feature of rape laws was the requirement that each element of the be corroborated by other than the victim’s testimony—the so-called corroboration requirement.49 Decades later, scholars would detail how the corroboration requirement disproportionately harmed Black women.50 Yet, in his book on lynchings, NAACP investigator (and future director) Walter White wrote that white women often “raised charges of rape by Negroes to cover their own misdeeds or when hysterical,”51 and he consequently supported a state law that “requires corroboration, direct or circumstantial; the unsupported word of a woman is not sufficient.”52 This facet of the NAACP’s rape docket matters not merely because of the dignitary harm it inflicted on many women, or the role it played in entrenching many harmful myths about women and rape, or the potential pall it casts on the NAACP’s many precedent-setting criminal procedure cases. It matters because it informed how (and the extent to which) the Association represented Black women who had been raped by white men. As this Article shows, the national office of the NAACP advocated for Black female rape survivors only rarely. Yet the local branches of the Association did advocate for dozens of Black women who had been raped by white men, often pushing the police to investigate, the prosecutors to bring charges, and sometimes even hiring their own attorneys to aid in

45 A Woman of Georgetown Asks a Question,GEORGETOWN TIMES, Dec. 20, 1940 (on file in Folder 8, Box II:B128, NAACP Records). 46 Id. 47 See Susan Schwartz, An Argument for the Elimination of the Resistance Requirement from the Definition of Forcible Rape, 16 LOY. L.A. L. REV. 567, 569 (1983). 48 Memorandum from Constance Baker Motley to Robert Carter (Nov. 10, 1945) (on file in Folder 8, Box II:B163, NAACP Records). 49 Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 YALE L.J. 1365 (1972); Note, The Corroboration Rule and Accompanying Rape, 118 U. PA. L. REV. 458, 458 (1970). 50 See Lisa A. Crooms, Speaking Partial Truths and Preserving Power: Deconstructing , Patriarchy, and the Rape Corroboration Rule in the Interest of Black Liberation, 40 HOW. L.J. 459 (1997). 51 WALTER WHITE, ROPE AND FAGGOT: A BIOGRAPHY OF JUDGE LYNCH 261 (University of Notre Dame Press, 2001) (1929). 52 Id. at 260 (quoting an essay by , the first Black executive secretary of the NAACP).

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prosecutions. This advocacy—while never as consistent or as widespread as the representation of Black men—nonetheless did begin shortly after the NAACP’s founding and continued through its victory in Brown. Yet at no point did NAACP attorneys ever challenge the rape laws that placed such high demands on assault survivors and impeded countless prosecutions. This was largely because NAACP attorneys embraced the very politics of respectability53 that justified sexist rape laws; indeed, NAACP attorneys capitalized on the gendered aspects of these laws in their representation of men accused of rape. It is, perhaps, unreasonable to expect lawyers in the early- or mid-twentieth century to have challenged the gendered aspects of rape laws, or to recognize the unique burdens these laws placed on Black women.54 When, in the 1970s, the journalist Susan Brownmiller asked the lawyer Bella Abzug why she had challenged the exclusion of Black men from one 1940s jury but not the exclusion of women, Abzug replied, “I don’t think it ever came up. In those days we were never consciously raising that issue.”55 Such an explanation is fair; lawyers cannot always be expected to argue far beyond the accepted thinking of their time. Yet, at the same time, it is worth noting that several Black women throughout the decades demanded the NAACP engage more often in anti-rape work— demands that fell upon deaf ears.56 “We colored women are tired of such things,” wrote one Black woman in 1947, referring to the unpunished rapes of Black women, “and seems like all the money we pay in organizations doesn’t remedy the matter.”57 In any case, it is valuable to consider how different the development of criminal procedure would have been had the NAACP’s lawyers focused as much on the singular harms that rape laws caused Black women as they did on the singular harms other criminal laws and procedures caused Black men. At the very least, had the NAACP pushed for a criminal procedure focused not just on protecting rape suspects but also on protecting rape survivors, the greater protections for these survivors that are written into modern rape laws could have come about much sooner. And they could have come about through the development of the —that is, they could have been constitutionalized—rather than having to be inserted through the legislative process. In an analogous work of scholarship, the historian Amy Dru Stanley has shown how the Thirteenth Amendment and other Civil War-era legislative acts liberated Black men yet, at the same, retrenched a gender hierarchy that legally rendered Black women subservient to their husbands.58 Under abolitionist congressional enactments, the freedom of Black women “lay in bonds of marriage

53 The “politics of respectability” refers to the ideology that holds that if marginalized people “uplift” themselves (i.e., alter their behavior to align with bourgeois social and sexual mores), those in positions of power will cease to discriminate against them. See EVELYN BROOKS HIGGINBOTHAM, RIGHTEOUS DISCONTENT: THE WOMEN’S MOVEMENT IN THE BLACK BAPTIST CHURCH, 1880-1920, at 187 (1993) (defining the “politics of respectability” as the “reform of individual behavior . . . as a goal in itself and as a strategy for reform”). 54 See, e.g., Jeffrey J. Pokorak, Rape as a Badge of Slavery: The Legal History of, and Remedies for, Prosecutorial Race-of-Victim Charging Disparities, 7 NEV. L.J. 1 (2006) (noting the lack of criminalization of rape against Black women); Jennifer Wriggins, Note, Rape, Racism, and the Law, 6 HARV. WOMEN’S L.J. 103 (1983) (noting longstanding history of “denials that Black women are raped”). 55 SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 244-45 (Ballantine Books 1993) (1975). 56 See, e.g., infra notes 183-184, 509-510. 57 Letter from Joy B. Jones to Arthur Spingarn (1947) (on file in Folder 6, Box II:B123, NAACP Records). 58 Amy Dru Stanley, Instead of Waiting for the Thirteenth Amendment: The War Power, Slave Marriage, and Inviolate Human Rights, 115 AM. HIST. REV. 732 (2010).

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that paralleled the bonds of slavery.”59 The legal scholar Katherine Franke has similarly shown how grounding the freedom of Black women in marriage—the “gendering of freedom for enslaved women”—created “new vulnerabilities” for them and rendered some of them “worse off” than they had been before.60 “While it was no small thing” that congressional enactments “transformed a woman’s legal identity from that of property to person, it did so by locking her in the identity of a femme covert, a dependent who, like an underage child, had no independent legal identity that would entitle her to make individual claims to rights, protection, or dignity.”61 Thus, at another historical moment, liberatory advocacy in one field (i.e., anti-slavery) reinforced reactionary norms in another (i.e., women’s rights). Likewise, the NAACP’s advocacy on behalf of Black men accused of rape reinforced a legal regime that subordinated the rights of Black women seeking to accuse white or Black men of rape. Part I of this Article recounts the early years of the NAACP’s rape docket, in the 1910s and 1920s, when its anti-rape work was largely accomplished through the guise of anti-lynching work. Part II continues the story through the 1930s, showing how the Scottsboro case—and the Association’s fierce competition with more radical lawyers, such as those of the Communist Party—set the script for all interracial rape cases moving forward. Part III examines how the NAACP’s legal staff responded to a spate of death sentences imposed on Black soldiers and sailors accused of rape during World War II. Part IV tells the story of the apotheosis of the NAACP’s rape docket, during the 1940s and early 1950s, when the Association’s lawyers won a series of precedent-setting victories that would ultimately transform criminal procedure. Following the story forward in the years after Brown, Part V recounts how the Association transitioned away from direct representation for individual Black men (or advocacy on behalf of Black women) and instead toward a strategic campaign against the death penalty in cases of rape. The NAACP’s legal battles in the middle of the twentieth century have taken on such mythic status for good reason: they changed the face of American law—indeed, they altered American society. The Association’s representation also mattered extraordinarily to so many of its clients; some of the families of Black men who were represented by the NAACP saved for generations the letters they exchanged with the Association.62 This Article argues that it is important and revelatory to look specifically and deeply at the NAACP’s rape cases—both appeals brought on behalf of men accused of rape, and advocacy on behalf of women accusing men of rape. Just as Justin Driver has argued that there is something to be gained from understanding modern constitutional law as originating in the classroom,63 and just as Michael Klarman has argued that there is something to be gained from understanding interwar criminal procedure cases as originating in interracial violence

59 Id. at 748-49. See also id. at 760 (“[I]n dissolving the bonds of slavery through marriage bonds, the soldier’s quid pro quo offered the slave wife freedom but withheld the right to an inviolate self.”). 60 KATHERINE FRANKE, WEDLOCKED: THE PERILS OF MARRIAGE EQUALITY 24, 47 (2015) (discussing how grounding the freedom of Black women in marriage created “new vulnerabilities” for Black women and rendered some of them “worse off” than they had been before). 61 Id. at 47-48. 62 ALICE KAPLAN, THE INTERPRETER 168 (2005). 63 JUSTIN DRIVER, THE SCHOOLHOUSE GATE: PUBLIC EDUCATION, THE SUPREME COURT, AND THE BATTLE FOR THE AMERICAN MIND 9 (2019) (“[T]his book argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history.”).

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and near-lynchings in the South,64 I argue that there is something to be gained from understanding early civil rights jurisprudence as originating in rape cases. Just as Danielle McGuire has argued that sexual assault is central to the origins of the ,65 I argue that the same is true for the origins of modern criminal procedure. This Article asks readers to consider how we arrived at the criminal procedure we have now, and what else that criminal procedure could have been.

I. THE EARLY YEARS, 1909-1930

The following Part recounts the early years of the NAACP, when it was still a small organization led largely by elite white liberals. Founded in the aftermath of a false rape accusation and the near-lynching that followed, the NAACP took several years to launch a large-scale legal campaign against discrimination and racist violence, but from the very beginning the Association was concerned with lynching. In the NAACP’s early years, this meant its leaders gathered data, hoping to prove that accusations of interracial rape were not at the root of most lynchings; lobbied against the opening of ; and lobbied for an anti-lynching bill in Congress. Starting in the early 1920s, however, the NAACP’s lawyers began intervening directly in the courts to protect Black men accused of rape by white women. In defending these men, NAACP attorneys often settled on the strategy of showing that their white female accusers were liars. While some of these women undoubtedly were lying, this strategy would have unintended consequences when it came to the Association’s representation of Black women. When, during these years, local branches (and occasionally the national office) advocated for Black women who had been raped by white men, the NAACP’s attorneys called for investigations and prosecutions but would never challenge the sexist rape laws that they relied on in other cases—or the politics of respectability that undergirded these laws.

A. The Birth of an Organization

The NAACP was founded in the aftermath of an accusation of rape. It was the summer of 1908, and Springfield, Illinois, was in the midst of planning the centennial birthday celebration of its most famous inhabitant——when residents of this bustling community, existing at the intersection of farming and merchant, northern and southern, saw banner headlines in the daily newspapers:66 “NEGRO’S HEINOUS CRIME,” read one.67 “DRAGGED FROM HER BED AND OUTRAGED BY NEGRO,” read another.68 According to these press accounts, a Black man had crept into the home of a “quiet, respectable young” white woman and raped her; this accusation came

64 Klarman, The Racial Origins, supra note 24, at 48 (“This Article contends that the linkage between the birth of modern criminal procedure and southern black defendants is no fortuity.”); see also KLARMAN, FROM JIM CROW TO CIVIL RIGHTS, supra note 24, at 225 (“[O]nly southern cases that involved allegations of serious black-on-white crime generated fact patterns that were sufficiently appalling to induce intervention by the high court.”). 65 DANIELLE L. MCGUIRE, AT THE DARK END OF THE STREET: BLACK WOMEN, RAPE, AND RESISTANCE—A NEW HISTORY OF THE CIVIL RIGHTS MOVEMENT FROM TO THE RISE OF xx (2010) (“If we understand the role rape and sexual violence played in ’ daily lives and within the larger freedom struggle, we have to reinterpret, if not rewrite, the history of the civil rights movement.”). 66 John L. Crouthamel, The Springfield Race Riot of 1908, 45 J. NEGRO HIST. 164, 164-67 (1960). 67 Negro’s Heinous Crime,ILL. STATE J., Aug. 14, 1908, at 1. 68 Dragged from Her Bed and Outraged by Negro,ILL. STATE REG., Aug. 14, 1908, at 1.

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on the heels of another alleged rape of a white woman by a Black man just five weeks earlier.69 The police quickly arrested a Black man arriving to mow the lawn near the white woman’s home, and a crowd began assembling around the jail where the Black suspects in the two rape cases were being held. Hoping to prevent a lynching, the police diverted the attention of the crowd by sending fire engines blaring down the street in the opposite direction and used the distraction to spirit the two Black men to a prison out of town. Enraged at having been denied the chance to dispense their own of justice, the crowd became an angry mob and began setting fire to Black businesses and beating and murdering Black passersby. It took four thousand troops to quell the riot that ensued, and, in its aftermath, some two thousand Black people fled Springfield.70 In a tragic irony, the white woman whose allegation had set off the riot soon recanted, revealing that she had actually been assaulted by a white man and that she had lied to protect his identity.71 Observers around the country were outraged by the violence in Springfield, with one quickly labeling the riot a “race war” and calling for a “large and powerful body of citizens” to assemble, ready to defend the nation’s Black people.72 This, in turn, led many of the nation’s most prominent liberal reformers, Black and white, to discuss how exactly such a body might be constituted, eventually converging on in 1909 for what came to be known as the National Negro Conference.73 The crowd of roughly 300 was about evenly divided between Black and white, with people of all races mingling with each other, but the speakers were overwhelmingly white and elite.74 The few Black speakers included W.E.B. Du Bois—the first Black person to earn a doctorate from Harvard—and Ida B. Wells-Barnett—a remarkable journalist who had been born into slavery and eventually ignited a national movement against lynching. In her speech, Wells-Barnett placed the issue of lynching front and center, proposing federal anti-lynching legislation and demanding an investigative bureau to publish information about every lynching.75 Yet to squarely address lynching, she had to address sexual assault. For decades, Wells-Barnett had been denouncing the “old thread- bare lie that Negro men rape white women,”76 which was so often used to justifying lynchings, and this speech was no different; she invoked the Springfield riot—”hundreds of people driven from their homes, all because a white woman said a Negro had assaulted her”—and then launched into “a final and complete refutation of the charge that lynching is occasioned by crimes against women,” summoning years of statistics to show that relatively few lynchings were actually prompted by accusations of rape.77

69 Crouthamel, supra note 66, at 167. 70 Id. at 168-77; PATRICIA SULLIVAN, LIFT EVERY VOICE: THE NAACP AND THE MAKING OF THE CIVIL RIGHTS MOVEMENT 5 (2009). For a deeper investigation of this riot, see generally ROBERTA SENECHAL DE LA ROCHE, IN LINCOLN’S SHADOW: THE 1908 RACE RIOT IN SPRINGFIELD, ILLINOIS (2009). 71 Crouthamel, supra note 66, at 177; SENECHAL DE LA ROCHE, supra note 70, at 158-59. 72 , The Race War in the North,INDEPENDENT, Sept. 3, 1908, at 529-34. 73 SULLIVAN, supra note 70, at 5-8. 74 Id. at 8-11; CRYSTAL N. FEIMSTER, SOUTHERN HORRORS: WOMEN AND THE POLITICS OF RAPE AND LYNCHING 120 (2009). 75 FEIMSTER, supra note 74, at 120. 76 See IDA B. WELLS, SOUTHERN HORRORS: LYNCH LAW IN ALL ITS PHASES ch. 2 (1892); Ida B. Wells, Eight Negroes Lynched Since Last Issue of the Free Speech, Free Speech & Headlight, May 21, 1892, at 2. 77 PROCEEDINGS OF THE NATIONAL NEGRO CONFERENCE 1909, at 175-77 (May 31 to June 1, 1909); 3284 Lynchings in Last 25 Years, Asserts Woman,ST. LOUIS POST-DISPATCH, June 1, 1909, at 15.

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Wells-Barnett was determined to have this new organization take up the torch of her anti- lynching work, and it would—but not immediately, and largely without her. Fearing her radicalism, W.E.B. Du Bois and others excluded Wells-Barnett from the committee that would plan the new organization, which was briefly called the National Negro Committee before becoming, in 1910, the National Association for the Advancement of Colored People.78 In its early days, the NAACP was “a lean operation,” with its few staff members working out of just two rooms on Vesey Street in New York.79 Most of the organization’s leaders were white liberals, with the esteemed lawyer as president and — journalist, activist, and grandson of the legendary abolitionist —as chairman of the executive committee; W.E.B. Du Bois, the director of publications and research, was the only Black person in the organization’s “inner circle.”80 The Association’s first activities were “dictated by efforts to grasp the totality of the challenge the organization faced,” though within just three months Du Bois had begun publishing , to document the NAACP’s work.81 In spite of its lean origins, the NAACP was actively involved in litigation. Its legal work was inaugurated by its petition to the Governor of South Carolina, asking him to Pink Franklin, a Black plantation farm hand who shot and killed a sheriff who had invaded his home in the dead of night, seeking to enforce an “agricultural ” that was akin to slavery.82 “From the beginning,” wrote the historian Patricia Sullivan, “the NAACP focused on the law and the courts as a primary arena for exposing injustices, publicizing its cause, and obtaining the enforcement of basic legal and constitutional guarantees—a new and innovative strategy for a national reform organization.”83 The NAACP’s other legal efforts that first year included “giv[ing] publicity to” the defense of another southern Black farmer who had committed murder in an attempt to escape debt peonage, assisting in the habeas petition of a Black man in New Jersey who had been tortured by the police, and raising awareness of “certain conditions in the New York Courts affecting colored women.”84 In March 1911, the NAACP formalized its commitment to legal advocacy by establishing a Legal Redress Committee, which soon became known as the Legal Bureau; the Bureau’s goal, according to The Crisis, was to assist “in any case where a colored person because of color is denied a right to which he is entitled.”85 The first head of the Committee was the scholar and activist Joel Spingarn, who was white, and the first head of the Bureau was the young lawyer Charles Brinsmade, who was also white.86 Indeed, for its first two decades, the Association’s legal staff would be

78 SULLIVAN, supra note 70, at 12-15; FEIMSTER, supra note 74, at 120. 79 SULLIVAN, supra note 70, at 17. 80 August Meier & Elliott Rudwick, Attorneys Black and White: A Case Study of Race Relations within the NAACP, 62 J. AM. HIST. 913, 914 (1976); NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, FIRST ANNUAL REPORT 1 (Jan. 1, 1911) (on file in Box I:A25, NAACP Records). 81 SULLIVAN, supra note 70, at 17-18. 82 See FIRST ANNUAL REPORT, supra note 80, at 8; see further correspondence in Folders 10-13, Box I:D55, NAACP Records. Although the Supreme Court upheld Franklin’s conviction, Villard “worked through every possible contact he had,” eventually persuading the governor to commute Franklin’s sentence to life, and, in 1919, to pardon him. SULLIVAN, supra note 70, at 18. 83 SULLIVAN, supra note 70, at 18. 84 FIRST ANNUAL REPORT, supra note 82, at 8-9. 85 SULLIVAN, supra note 70, at 19, 42-43 (quoting CRISIS, Jan. 1914, at 139). 86 Id.

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overwhelmingly white. According to the scholars August Meier and Elliott Rudwick, prior to 1930 the Association’s legal work across the country was generally undertaken by “prestigious white lawyers,” characterized by their conservativism and noblesse oblige; their standing in their communities had to be such that they could represent the victims of mob violence or appeal flagrant denials of liberty without worrying they would be run out of town.87 Indeed, in its very first case—the defense of Pink Franklin—NAACP leadership did not trust the competence of Franklin’s Black lawyers and replaced them with prominent white lawyers instead.88 Even Walter White—a Black activist who eventually became the Association’s executive secretary—privately had a low opinion of Black lawyers, although he recognized that, from a public relations perspective, it was important to have at least one per case.89 Nonetheless, the Legal Bureau’s stable of white lawyers achieved many extraordinary victories throughout the 1910s. They challenged racial discrimination in the civil service, in educational institutions, in public accommodations, and especially in residential housing.90 They established a framework for future work, with local branches undertaking more direct representation and the national office undertaking more appeals and seeking to coordinate the work.91 They were inundated by requests for help and gradually began compiling a “card-index digest of the law relating to race prejudice,” hoping to create a veritable law library for future civil rights litigation.92

B. Exploding the Rape Myth

From the very beginning, rape was central to the NAACP’s legal work. Eventually, rape cases came to be the Association’s bread-and-butter, constituting many of its best-known triumphs, hardest-fought defeats, and most bitterly contested battles. Initially, however, this focus on sexual assault was not reflected in the cases the Association took on, at the national or even local level. Yet, from the NAACP’s founding, this focus was plainly evident in another staple of Association activity: its anti-lynching work. For generations, Black activists and journalists had been fighting the epidemic of lawless, public of Black men and women throughout the United States, and the NAACP took up this work with alacrity. As the historian Estelle Freedman has written, “the NAACP anti- lynching campaign provided new avenues for confronting the rape myths at the heart of mob violence.”93 These fights would greatly elevate the NAACP’s status and ultimately lead to its litigation efforts on behalf of Black men accused of rape, which began as extensions of its anti-lynching campaign. Yet they would also set the stage for the NAACP’s litigation strategy: protecting men by proving that many women claiming to have been raped were lying. Throughout the 1910s, the NAACP’s anti-lynching work largely consisted of gathering data. The Association did this for two reasons. The first was to document every lynching in the country, as

87 Meier & Rudwick, supra note 80, at 920. 88 Id. at 923-24. 89 Id. at 930-31. 90 SULLIVAN, supra note 70, at 43-48. 91 Id. at 43-44. 92 Id. at 43, 47;NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, FIFTH ANNUAL REPORT 29-30 (1914) (on file in Box I:A25, NAACP Records). 93 ESTELLE B. FREEDMAN, REDEFINING RAPE: SEXUAL VIOLENCE IN THE ERA OF SUFFRAGE AND SEGREGATION 244 (2013).

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they happened, thus fulfilling Ida B. Wells-Barnett’s call, at the NAACP’s founding meeting, for a bureau of investigation and publication.94 The Crisis and innumerable pamphlets became an effective means for documentation and publicity,95 and the NAACP’s leaders hoped this information could be used to “force lynchers into the courts.”96 The second was to “explod[e] the rape myth,” as one NAACP campaigner put it97—to refute what Wells-Barnett called the “old thread-bare lie” that Black men compulsively raped white women.98 For centuries, this lie had justified the murders of individual Black men and the broader regime of terror under which Black people lived.99 To the NAACP, combating lynching meant mobilizing mass support against lynching, and to do this meant refuting the rape myth once and for all.100 To do that, the NAACP needed data. Wells-Barnett had long relied on statistics to show that relatively few lynchings were actually prompted by interracial rape allegations,101 but the Association wanted to be as comprehensive as possible. So NAACP officials began writing to local court clerks around the country, asking for information about rape indictments within their jurisdiction.102 In 1919, the Association’s director of publicity wrote to state secretaries of state, asking about indictments for first-degree rape, and adding that if “any classification has been made according to race, we should appreciate that also.”103 NAACP field staff also began investigating lynchings that had ostensibly been justified by instances of Black-on-white rape, looking to disprove that such a rape had occurred. In the mid-1910s, a white, female field worker launched an undercover investigation of a lynching in Waco, gaining information suggesting that the murdered Black man had not been guilty of rape; the next year, James Weldon Johnson, then a field secretary, investigated the burning and dismemberment of another supposed rapist in Memphis, again finding evidence casting doubt on his guilt.104 In 1915, D.W. Griffith’s feature , The Birth of a Nation, hit theaters, stunning audiences with its masterful cinematography and high-tech special effects, and also reproducing some of the most racist imagery ever to appear on the silver screen.105 The film glorified the , depicted emancipation as ushering in widespread Black lawlessness, and contained a full four minutes of a white actor in attempting to rape the white female lead. The leaders of the NAACP

94 See supra note 75. 95 See FREEDMAN, supra note 93, at 243. 96 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, SEVENTH ANNUAL REPORT 6 (1917) (on file in Box I:A25, NAACP Records). 97 Quoted in JONATHAN MARKOVITZ, LEGACIES OF LYNCHING: RACIAL VIOLENCE AND MEMORY 11 (2004). 98 See supra note 76. 99 See FREEDMAN, supra note 93, at ch. 5. 100 Id. at 243-45. 101 See, e.g.,PROCEEDINGS OF THE NATIONAL NEGRO CONFERENCE 1909, supra note 77, at 176; JACQUELYN DOWD HALL, REVOLT AGAINST CHIVALRY: AND THE WOMEN’S CAMPAIGN AGAINST LYNCHING 149 (1974). 102 See correspondence in Folder 13, Box I:C265, NAACP Records. 103 See, e.g., Letter from Herbert J. Seligman to Secretary of State (Oct. 15, 1919) (on file in Folder 12, Box I:C265, NAACP Records). 104 FREEDMAN, supra note 93, at 244-45. 105 See generally MELVYN STOKES, D.W. GRIFFITH’S THE BIRTH OF A NATION: A HISTORY OF “THE MOST CONTROVERSIAL MOTION PICTURE OF ALL TIME” (2007).

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initially viewed the film warily, but the extremity of its portrayal—and particularly its trafficking in the Black rapist trope—forced Du Bois and others to begin a campaign seeking to censor The Birth of a Nation.106 As the historian Stephen Weinberger has argued, although this campaign failed, it “made the NAACP a truly national and dynamic organization,” transforming the fledgling group into the premier vehicle of Black liberation.107 Capitalizing on this success, and on their data-gathering prowess, the NAACP’s leaders organized a two-day Anti-Lynching Conference in 1919.108 A month before the Conference, the Association published a landmark study analyzing 3,224 lynchings over the past thirty years, showing that only 19 percent of “colored victims” had even been accused of rape, with an additional 9.4 percent accused of “attacks upon women.”109 Speaking before a huge, integrated crowd at the Conference, James Weldon Johnson marshalled these statistics to decry “the idea that rape and the lynching of Negroes in the South bear the relationship of cause and effect.”110 The Conference concluded with a resolution to support a bill, recently introduced into Congress by Leonidas Dyer, a white representative from Missouri, which would make lynching (and failing to make a reasonable effort to prevent lynching) a federal crime, thus putting lynching within the purview of federal authorities, as opposed to the state and local authorities that routinely ignored lynchings (or even participated themselves).111 Over the next three years, the NAACP became consumed with the fight to pass the Dyer bill.112 James Weldon Johnson—who was appointed the Association’s first executive secretary in 1920—spent months at the Capitol, lobbying representatives and senators, writing speeches for his allies, and, most pivotally, informing the uninitiated that only one sixth of lynching victims had even been accused of rape.113 The NAACP ran ads in major newspapers, explicitly declaring that rape was not the true cause of lynching,114 and Dyer himself invoked such statistics on the House floor.115 Thousands of Black spectators marched around the Capitol and , packing the viewing galleries and hissing at the bill’s opponents.116 Yet the Southern opposition to the Dyer bill was fierce

106 Stephen Weinberger, The Birth of a Nation and the Making of the NAACP, J. AM. STUDS. 77, 86-87 (2011); W.E.B. DU BOIS, DUSK OF DAWN: AN ESSAY TOWARD AN AUTOBIOGRAPHY OF A RACE CONCEPT 240 (1968); NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, SIXTH ANNUAL REPORT 11 (1915) (on file in Box I:A25, NAACP Records). 107 Weinberger, supra note 106, at 93. 108 FREEDMAN, supra note 93, at 244-45. 109 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, THIRTY YEARS OF LYNCHING IN THE UNITED STATES, 1889-1918, at 7-10 (Apr. 1919). More recent scholarly studies have borne out these figures. See, e.g., W. FITZHUGH BRUNDAGE, LYNCHING IN THE NEW SOUTH: GEORGIA AND VIRGINIA, 1880-1930, at 263 tbl. 3 (1993). 110 Nation Should Stop Lynching, Says Hughes, N.Y. TRIB., May 6, 1919, at 12. 111 FREEDMAN, supra note 93, at 244-46. Claudine Ferrell has pointed out that, while the Dyer bill did demand that state officials afford “equal protection,” it did not specifically mention race as a basis for equal protection; this, Ferrell contends, was an awkward attempt to avoid angering southern legislators. CLAUDINE L. FERRELL, NIGHTMARE AND DREAM: ANTILYNCHING IN CONGRESS, 1917-1921, at 201 (1986). 112 H.R. 13, 67th Cong., 1st Sess. (1921). 113 JAMES WELDON JOHNSON, ALONG THIS WAY 362-65 (1933). 114 See, e.g., The Shame of America, N.Y. TIMES, Nov. 23, 1922, at 19. 115 62 CONG. REC. 787 (1921). 116 SULLIVAN, supra note 70, at 107-08.

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and, inevitably, centered around the threat of Black rapists.117 It was, declared a senator from Arkansas, a bill “to make rape permissible, and to allow the guilty to go unpunished if that rape should be committed by a negro on a white woman in the South.”118 Another senator from Mississippi ignited the crowd by crying, “I would rather the whole black race of this world were lynched than for one of the fair daughters of the South to be ravished and torn.”119 In the end, the campaign was doomed; the southern senators were willing to invoke the filibuster—the first time it was used to derail a significant piece of legislation.120 Although the Dyer bill passed the House early in 1922,121 the NAACP could not get it through the Senate, and the bill was dead by the end of that year.122 Nonetheless, the fight further elevated the NAACP’s standing; its newspaper advertisements in particular had electrified the public.123

C. Nailing These “Rape Lies”

In the aftermath of these public fights over lynching—and thus over rape—the NAACP began turning to a new venue: the courts. By intervening directly in cases of Black men accused of rape by white women, the NAACP could “explode the rape myth” by convincing courts that these Black men were innocent. The Association’s litigation campaign inaugurated a strategy that would eventually revolutionize the field of criminal procedure but that would also entrench the idea that women routinely lied about being raped. According to this strategy, in order to show that these Black men were telling the truth, the NAACP and its lawyers had to show that their white female accusers were liars. The NAACP’s earliest direct interventions into rape occurred at the level of the local branches. In 1921, for instance, after a Black man in West Virginia named Harry Lattimer was accused of raping an eight-year-old white girl and was tried and sentenced to death within twenty-four hours, the unusually active NAACP branch in Charleston immediately found him a (white) attorney to handle his appeal.124 That same year, the Little Rock NAACP branch raised thousands of dollars

117 Southerners also argued that the bill exceeded Congress’s authority to police private acts under the Fourteenth Amendment and that the bill was an intrusion into state sovereignty, in violation of the Eleventh Amendment.FERRELL, supra note 111, at 205-06. 118 Sen. Thaddeus Caraway, on November 29, 1922, 67th Cong., 3rd sess., Congressional Record 63, pt. 1, 400. 119 Sen. Thomas Sisson, on Jan. 25, 1922, 62 Cong. Rec. 1721. Perhaps the most “emotionally charged” speech was given by South Carolina Senator , who called the bill a “black flag . .. black as melted midnight, black as the dust on the hinges to the gates of hell, black as the face and heart of the rapist . .. who deflowered and killed [the young white girl].” Quoted in William F. Pinar, The N.A.A.C.P. and the Struggle for Antilynching Federal Legislation, 1917-1950, at 706-07, in THE GENDER OF RACIAL POLITICS AND VIOLENCE IN AMERICA: LYNCHING, PRISON RAPE, AND THE CRISIS OF MASCULINITY (2001). 120 SULLIVAN, supra note 70, at 109. 121 62 CONG. REC. 1794-96 (1922). 122 See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1900-1950, at 65-71 (1980). Barbara Holden-Smith has argued that, “[m]ore broadly, the Democrats opposed the Dyer Bill not only because they believed that lynching combatted black rapists, but because they feared that the Bill would serve as a license for Blacks to demand social equality.” Lynching, Federalism, and the Intersection of Race and Gender in the Progressive Era, 8 YALE J.L. & FEMINISM 31, 58-59 (1996). 123 See W.E.B. Du Bois, Opinion,CRISIS, Jan. 1923, at 103-06; JOHNSON, supra note 113, at 371-73. 124 Thomas J. Edge, “An Arm of God”: The Early History of the NAACP in Charleston, West Virginia, 1917-1925, 7 W. VA. HIST. 1, 20 (2013).

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for the defense of Emmanuel West, a Black man in Little Rock charged with raping a white woman, and soon hired a prominent white lawyer to defend him at trial; even though the lawyer put on thirty Black witnesses to testify that West was elsewhere on the night in question, he was convicted—but, in a “compromise,” he was sentenced only to life in prison.125 In Duluth, Minnesota, a local NAACP branch was formed specifically to defend several Black men who had been accused of raping a white woman and had narrowly escaped being lynched.126 Indeed, almost every Black man the NAACP defended on rape charges during the 1920s had nearly been lynched.127 Sometimes, local branches intervened in interracial rape cases at the instigation of the national NAACP office, establishing a pattern that would hold for decades to come. As the historian Estelle Freedman has argued, the national office began intervening in local rape cases as part of its strategy to use “every opportunity to undermine the association of rape and lynching.”128 In 1921, for example, two Black men were convicted of raping a white woman and sentenced to death in Savannah, Georgia; the uncle of one of the men wrote to the national office, asking for help, and the national office, in turn, asked the Savannah branch to investigate.129 The Savannah branch, “convinced that injustice had been done,” hired a lawyer to represent the two men on appeal and also worked with the national office to raise nearly a thousand dollars for their defense.130 Yet the relationship between the national office and the local branches was not without tension. In many rape cases from this era, the local branches begged the national office for funds to assist in defense work, but they were rarely successful.131 This simply was not how the national office operated during the 1920s; as the historian Patricia Sullivan has noted, “[w]hile the national office provided little if any financial support for such cases, it publicized the work of individual branches in these areas, helping to encourage similar efforts elsewhere and forging a sense of common purpose.”132 In nearly all of the cases from this era in which the NAACP intervened to defend alleged Black rapists, the Association entered the proceedings after a conviction; thus, the NAACP, and the

125 Story L. Matkin-Rawn, “We Fight for the Rights of Our Race”: Black Arkansans in the Era of Jim Crow 186 (2009) (unpublished Ph.D. dissertation, University of ) (on file with author); Letter from W.A. Singfield to National Office of NAACP (July 29, 1921) (on file in Folder 8, Box I:G12, NAACP Records); West had very nearly been lynched before trial. Todd E. Lewis, “Through Death, Hell, and the Grave”: Lynching and Antilynching Efforts in Arkansas, 1901-1939, at 153, in BULLETS AND FIRE: LYNCHING AND AUTHORITY IN ARKANSAS, 1840-1950 (Guy Lancaster ed., 2018). 126 Several other Black men, also accused of rape, had been lynched before the NAACP could intervene. See Telegram from “Jim” to J. Rosamond Johnson (Aug. 25, 1920) and other correspondence (on file in Duluth Folders, Box I:G103, NAACP Records); FREEDMAN, supra note 93, at 247. See also JOHN D. BESSLER, LEGACY OF VIOLENCE: LYNCH MOBS AND EXECUTIONS IN MINNESOTA ch. 8 (2003) (discussing NAACP involvement around the ). 127 See, e.g., supra notes 124-126 and infra notes 129-130. 128 FREEDMAN, supra note 93, at 246-47. 129 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, THIRTEENTH ANNUAL REPORT 29 (1922) (on file in Box I:A25, NAACP Records). 130 The lawyer secured a stay of execution for the two men and appealed their case to the state supreme court, which reaffirmed their death sentence. Before they could be executed, however, a mob seized the two men and lynched them. See id.; J. WILLIAM HARRIS, DEEP SOUTHS: DELTA, PIEDMONT, AND SEA ISLAND SOCIETY IN THE AGE OF SEGREGATION 288 (2001). After they were lynched, the national office called on the governor to demand consequences for those responsible. See N.A.A.C.P. Protests Lynchings,SAVANNAH TRIB., July 13, 1922, at 1. 131 See, e.g., Meeting Minutes, Charleston, WV, NAACP Branch (Feb. 7, 1922) (on file in Charleston, WV, NAACP Branch Records, WVU Regional History Center) (the Charleston branch asking the national office for additional funding). 132 SULLIVAN, supra note 70, at 115.

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lawyers it hired, devoted much of their energy to the appeals.133 The bases for such appeals varied, from arcane evidentiary technicalities134 to a “bloodthirsty mob spirit permeat[ing] the atmosphere of the trial.”135 But these were not yet the grand, precedent-setting battles over criminal procedure that the NAACP’s rape cases would later become. And more often, the true basis of the NAACP’s legal arguments was “evidence of female duplicity.”136 In the case of Harry Lattimer, his lawyer had argued on appeal that the victim’s “story is unbelievable.”137 In the Duluth lynching case, the attorney hired by the NAACP wrote that he was looking for “anything that shows that the story given by the girl is untrue.”138 In another case, an NAACP official claimed that the white woman had charged rape “to save her own reputation.”139 In still another, the Black press emphasized that the Black man was “an honor student at Meharry Medical College” while implying that his accuser was only claiming rape in order to distract from her extramarital affair with another man.140 A typical rape case from this period was that of Luther Collins. After a white woman in Houston claimed a “yellow negro, about five feet ten inches tall,” had raped her, the police quickly arrested Collins, who was “six feet five inches tall.”141 The Houston branch of the NAACP “fought this case single-handed ever since its inception,” raising more than a thousand dollars to finance Collins’s appeal.142 (The Crisis also raised publicity for the case, stating that Collins was “accused of rape by a white woman of known questionable character.”143) The grounds for Collins’s appeal were twofold, based first on the evidentiary record and second on the alleged victim’s supposed

133 But see LISA LINDQUIST DORR, WHITE WOMEN, RAPE, AND THE POWER OF RACE IN VIRGINIA, 1900-1960, at 123 (2004) (discussing a request from a defendant’s sister that the NAACP enter at the trial stage; the man’s lawyer ultimately told the NAACP its services were not required because he did not “think it is a rape case as the character of the girl is doubtful”). 134 Collins v. State, 274 S.W. 586, 587 (Tex. Crim. App. 1925) (reversing the conviction of a Black man who’d been accused of raping a white woman because the state had improperly impeached its own witness, who had changed his testimony during a retrial). 135 State v. Lattimar, 111 S.E. 510, 511 (W. Va. 1922). See also T. Edward Hill, The Mob Spirit: Harry Lattimer Saved From It,CLEVELAND GAZETTE, Apr. 8, 1922, at 4. Lattimer was found guilty in his retrial, but was sentenced not to death but to eighteen years in prison. See Edge, supra note 124, at 20. 136 FREEDMAN, supra note 93, at 247. See also Unusual Endings to the ‘Usual Crime’ Told by NAACP,ATLANTA DAILY WORLD, Aug. 1, 1934, at 6 (noting many cases of alleged interracial rape in which the NAACP intervened and saved the Black men by proving that the white women were lying, including Turley Wright (1929) and Jack Ross (1930)). 137 Letter from Thomas West to T.G. Nutter (Jan. 30, 1922), reprinted in Meeting Minutes, supra note 131. 138 Quoted in FREEDMAN, supra note 93, at 247. 139 Quoted in id. The NAACP’s argument was correct, as the woman recanted her accusation after the Black man, Ben Bess, had served more than a decade in prison. See NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, A YEAR’S DEFENSE OF THE NEGRO’S AMERICAN CITIZENSHIP RIGHTS: BEING THE 19TH ANNUAL REPORT 8-9 (1928) (on file in Box I:A25, NAACP Records); Bess v. Pearman, 150 S.E. 54, 59 (S.C. 1929); correspondence, filings, and clippings (on file in Columbia, SC, Branch Folders, Box I:G196, NAACP Records). 140 Meharry Student Said to Be Victim of “Hello Girl” Plot,, Apr. 26, 1924, at 9. See also Unusual Endings to the ‘Usual Crime’ Told by NAACP, supra note 136, at 6 (“Durant was a man of splendid reputation, a brilliant student and hailed from one of the finest colored families in South Carolina.”); FREEDMAN, supra note 93, at 247. 141 Collins v. State, 254 S.W. 805, 806 (Tex. Crim. App. 1923). 142 In Texas,CRISIS, Aug. 1923, at 165. 143 Id.

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promiscuity. His lawyer sought a new trial on the grounds of “newly discovered evidence.”144 Much of this evidence consisted of affidavits impugning the white woman’s character, which the appeals court refused to consider, but the court was persuaded by an affidavit from the principal witness in the case, recanting his testimony, and reversed Collins’s conviction.145 The case worked its way through the courts for several more years, before Collins was ultimately set free.146 In the aftermath of the Houston NAACP’s triumph, the press labeled his accuser “a white woman of ill repute,”147 and Walter White wrote to a Houston official: “History has been made in nailing these so-called ‘rape lies’ as you express it and every Negro in the United States owes you a vote of thanks.”148 Throughout the 1920s, the NAACP continued investigating lynchings, often looking into mob violence motivated by charges of rape and just as often finding evidence of white female mendacity.149 In the aftermath of the lynchings and near-lynchings in Duluth, for instance, the national office partnered with the St. Paul branch to hire a private detective to investigate the violence and seek to identify the main assailants.150 The detective also turned up considerable evidence that served to impugn the sexual morality of the white ostensible rape victim.151 A few years later, after interracial rape accusations in Coffeyville, Kansas, nearly led to a mass lynching of local Black men, an NAACP investigator determined that the true assailant was a white man, and the white woman was brought up on charges.152 And after Walter White, the NAACP field investigator who was so light-skinned that he could infiltrate lynch mobs, risked his life repeatedly to investigate several dozen instances of mob murder, he concluded that white women routinely “raised charges of rape by Negroes to cover their own misdeeds or when hysterical, or excited by newspaper or other reports of alleged attacks upon other women.”153 Thus White was undoubtedly pleased to report “a growing scepticism [sic] regarding charges by women of rape or attempted rape.”154

144 Collins, 254 S.W. at 807. 145 Id. 146 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, 17TH ANNUAL REPORT 8-9 (1926) (on file in Box I:A25, NAACP Records). The NAACP took enormous satisfaction in the fact that the prosecutor who had originally brought charges against Collins later joined the Association after Collins was freed. See Press Release, Defeated in Court Battles, Texas Prosecutor Joins N.A.A.C.P. (Mar. 19, 1926) (on file in Houston, TX, February-December 1926 Folder, Box I:G203, NAACP Records). 147 Houston, Texas, N.A.A.C.P. Wins Fight Freeing Condemned Negro,CAL. VOICE, Oct. 1, 1926 (on file in Houston, TX, February-December 1926 Folder, Box I:G203, NAACP Records). 148 Letter from Walter White to E.O. Smith (Apr. 9, 1924) (on file in Houston, TX, January-November 1924 Folder, Box I:G203, NAACP Records). 149 See, e.g.,THIRTEENTH ANNUAL REPORT, supra note 129, at 30. 150 MICHAEL FEDO, THE LYNCHINGS IN DULUTH 115-16 (2d ed. 2016). 151 BESSLER, supra note 126, at 199-200. 152 See Coffeyville Riot Cass on Trial Calendar, N.Y. AMSTERDAM NEWS, July 13, 1927, at 12; Rape Story That Caused A Near Riot Explodes,NORFOLK NEW JOURNAL & GUIDE, June 11, 1927, at 1. 153 WHITE, supra note 51, at 261. 154 Id.

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D. Giving Assistance in Cases as Atrocious as This One

Just as the NAACP’s legal work on behalf of alleged Black rapists emerged from the Association’s anti-lynching work, so too did a movement organizing against white rapists emerge from anti-lynching activism. This second movement coalesced in the 1880s, when the journalist Ida B. Wells (later Wells-Barnett) began publishing an explosive series of editorials challenging the very foundations of Jim Crow society, using statistics and reportage to disprove the claim that Black-on- white rape caused lynchings, and suggesting that “the focus and attention placed on the alleged black rapist masked the rape of black women.”155 As the historian Crystal Feimster has noted, “Wells drew no distinctions between white men who raped black women and those who lynched black men”—for Wells, fighting for Black men necessitated advocating for Black women.156 During the last decades of the nineteenth century, Wells-Barnett joined other female activists in the anti-lynching and Black clubwomen movements to campaign for the rights and sexual autonomy of Black women.157 Yet, when it was founded in 1909, the NAACP excluded Wells-Barnett and, to a large extent, marginalized her work.158 Some NAACP officials felt that her exposés had “succeeded only in hardening southern defensiveness about lynching.”159 “Taking cues from the obstacles Wells-Barnett faced,” wrote the historian Patricia Schechter, “the NAACP represented a commitment to progress and social harmony rather than radical social critique or armed resistance.”160 More pointedly, the scholar Hazel Carby has argued that “patriarchal notions of women being, at best, not entirely unwilling accomplices, if not outwardly inviting sexual attack” prevented “the institutionalized rape of black women [from becoming] as powerful a symbol of black oppression as the spectacle of lynching.”161 Nonetheless, the NAACP did gradually begin advocating on behalf of Black women who had been raped by white men. Initially, this had been a bridge too far for the Association; in the 1910s, the NAACP routinely declined to advocate on behalf of Black women who had been raped if they seemed to be anything less than impeccably respectable.162 But in the late 1910s and throughout the 1920s, a strategy emerged that both helped individual Black women and raised the Association’s profile. Local branches of the NAACP began urging law enforcement officials to prosecute the white assailants of Black women; this often entailed hiring their own investigators to dig up evidence and hiring local white lawyers to assist the prosecutors.163 It also entailed defending the women’s

155 FEIMSTER, supra note 74, at 92. 156 Id. 157 See id. at 107-24 (discussing Wells’s involvement with other activists within the clubwomen movement); PATRICIA A. SCHECHTER, IDA B. WELLS-BARNETT AND AMERICAN REFORM, 1880-1930, at 123-24 (2001). Such anti-rape activism among Black women stretched back to the early days of Reconstruction. See FREEDMAN, supra note 93, at ch. 4 (discussing the growth of early movements for black women’s sexual autonomy). 158 See FEIMSTER, supra note 74, at 120; see also PAULA J. GIDDINGS, IDA: A SWORD AMONG LIONS: IDA B. WELLS AND THE CAMPAIGN AGAINST LYNCHING 7 (2008) (“[T]he NAACP marginalized Wells- Barnett’s contributions, even while it adopted her strategies and perspectives.”). 159 SCHECHTER, supra note 157, at 122. 160 Id. 161 HAZEL V. CARBY, RECONSTRUCTING WOMANHOOD: THE EMERGENCE OF THE AFRO-AMERICAN WOMAN NOVELIST 39 (1987). 162 See, e.g., FEIMSTER, supra note 74, at 122-23. 163 See infra notes 166-170.

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reputations against allegations of sexual impropriety.164 In the course of this work, the NAACP entrenched the idea that only some rape survivors were worthy of seeing their claims vindicated in court, defending some Black women against charges of immorality and promoting images of them as compliant with bourgeois social and sexual mores. Yet, in spite of the demands of activists, the NAACP did not challenge rape laws that harmed these specific women, and hurt Black women more broadly. This was apparently because NAACP officials believed many of the sexist myths about rape survivors that were dominant at this time—and have remained dominant in the decades since.165 The NAACP’s advocacy on behalf of Black female rape survivors generally originated with local branches, not the national office. In the summer of 1918, for instance, members of the Charleston, South Carolina, branch lobbied for law enforcement officials to arrest and prosecute a white man accused of attempting to rape a ten-year-old Black girl; although they succeeded in initiating a prosecution, the man was not convicted.166 A decade later, a Black domestic servant named Irene Miller accused a white man of raping her after she answered an inquiry for a maid job; the local NAACP branch hired an attorney to advocate on Miller’s behalf at trial, and, after the judge dismissed charges against the white man in spite of considerable evidence of his guilt, the NAACP successfully pressured the prosecutor’s office to reopen charges against him.167 In at least one case, however, the national office took the lead. After ten white men raped a fourteen-year-old Black girl named Ruby Edmonds in 1926, the national office advocated prominently for the men’s prosecution and hired an attorney to assist the district attorney.168 The national office also paid Edmonds’s mother to travel from Virginia to New York for the trial, and for detectives “to secure all possible evidence” against the men.169 James Weldon Johnson proudly told the press that this represented the Association branching out, apparently making the case to prospective donors that greater giving could enable more such representation:

Heretofore the N.A.A.C.P. has been compelled to forego giving assistance in a number of cases as atrocious as this one. Now, however, with the Defense Fund so generously contributed, which has been set aside and held in trust solely for legal defense, the Association is enabled to widen its legal activities in behalf of the race.170

The national office’s consistent reluctance to get involved in other, similarly “atrocious” cases again Black women and girls in the future would cast some doubt on Johnson’s claim. Ironically, considering the NAACP’s own strategy in defending Black men, defense

164 See infra notes 175-177. 165 See infra note 185. 166 PETER F. LAU, DEMOCRACY RISING: SOUTH CAROLINA AND THE FIGHT FOR BLACK EQUALITY SINCE 1865, at 42 (2006). 167 Theresa Napson-Williams, Violating the Black Body: Black Women, White Men and Sexual Violence, 1920-1952, at 14-15 (Ph.D. dissertation, Rutgers University, 2007) (on file with author). 168 Id. at 75. 169 Letter from Walter White to Mrs. L.A. Houston (Feb. 10, 1926) (on file in Folder 3, Box I:D55, NAACP Records). 170 Press release, Defense Fund Enables N.A.A.C.P. to Join in Prosecution of White Rapists (Feb. 5, 1926) (on file in Folder 3, Box I:D55, NAACP Records).

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attorneys in these cases nearly always attempted to impugn the Black women’s sexual propriety. In the prosecution of Irene Miller’s white assailant, for instance, the defense’s principal strategy was to invoke “stereotypes of black female sexuality to undermine Miller’s claim,” noted the historian Theresa Napson-Williams.171 The defense attorney implied that she was a prostitute, that she was a degenerate, and that her promiscuity had broken up her marriage; in the wake of such questioning, and in spite of considerable evidence of the white man’s guilt, the jury acquitted him.172 In the trial of one of Ruby Edmonds’s assailants, the defense attorney (and newspapers) seized on evidence that the girl was “bad”—she sometimes misbehaved and may have been sexually promiscuous—and used these intimations to secure an acquittal.173 In response to this strategy of impugning Black women’s virtue, the NAACP routinely asserted these women’s respectability as a way of attesting to their veracity. In 1928, two Black women in Virginia testified against a white man charged with rape; after he was convicted, the local authorities apparently retaliated against the Black women by prosecuting them for .174 The local NAACP branch ended up spending at least $2,000 defending the women, and, in reporting on the case, the national office emphasized that they were “two colored women, of excellent repute.”175 When, two years later in New Orleans, a white male police officer was accused of sexually victimizing and then murdering Hattie McCray, a fourteen-year-old Black girl, a coalition of groups, including the NAACP, gathered to represent the interests of this “virtuous girl who chose to work honestly for a living, rather than throw herself away in the slums of the city.”176 The historian Michelle Grigsby Coffey has noted that this coalition, which was advocating for the prosecution of the police officer, held together while the press portrayed McCray as “a powerful symbol of Black womanhood in need of protection,” but “when rhetoric emphasizing respectability and the need for the sexual protection of womanhood disappeared from popular portrayals of the crime, the McCray coalition crumbled.”177 The NAACP’s advocacy on behalf of Black women during this era almost always came in the form of pushing for the prosecution of their assailants. But the Association could have done more; it could have made legal arguments on their behalf, challenging the sexist laws governing sexual assault. Such a judgment is not ahistorical—some individuals implicitly raised it at the time. In the trial of the assailants of Ruby Edmonds, for instance, the attorney hired by the NAACP informed the national office of the challenges of securing a conviction; New York law at the time demanded “strict proof of actual penetration” and explicitly stated that every element of the crime had to be corroborated by evidence other than the woman’s testimony.178 After the state did indeed fail to

171 Napson-Williams, supra note 167, at 15. 172 Id. at 14-15. 173 Id. at 78-81. 174 A YEAR’S DEFENSE OF THE NEGRO’S AMERICAN CITIZENSHIP RIGHTS, supra note 139, at 10. 175 Id. 176 Quoted in Michelle Grigsby Coffey, The State of v. Charles Guerand: Interracial Sexual Mores, Rape Rhetoric, and Respectability in 1930s New Orleans, 54 LA. HIST. 47, 55 (2013). 177 Id. at 48. 178 Napson-Williams, supra note 167, at 76-77. On the penetration requirement, see N.Y. PENAL LAW §§ 2010-11 (Birdseye 1925); People v. Seaman, 137 N.Y. Supp. 294, 295 (N.Y. App. Div. 1912) (requiring proof of penetration for rape); People v. Kline, 137 N.Y. Supp. 296, 297 (N.Y. App. Div. 1912) (requiring proof of penetration for statutory rape). On the corroboration requirement, see N.Y. PENAL LAW § 2013 (Birdseye 1925); People v. Page 56 N.E. 750 (N.Y. 1900) (holding that the corroboration requirement extends to every material fact essential to constitute the crime).

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secure a conviction, the attorney attributed this in part to the inability to firmly establish penetration and corroboration.179 As Napson-Williams has noted, the “NAACP believed that its organization and the State of New York did everything possible to win the case.”180 Yet Napson-Williams argues that the Association could have done more:

the NAACP could have challenged the bias against black women and black women rape victims that was evident in the legal proceedings. It could have challenged prevailing rape laws that [proved to be] inadequate for a fair and successful prosecution. Most importantly, the NAACP failed to launch a systematic crusade against the daily sexual violence that black females endured because they did not see Ruby Edmonds as a representative victim of it.181

Specifically, the NAACP could have challenged the penetration and corroboration requirements that so obviously hindered the prosecution of Edmonds’s assailants. Indeed, the Association itself noted in a press release that “the provisions of the New York Law governing rape” made it “virtually impossible to prove rape.”182 It is clear, however, that NAACP officials resented calls from women to challenge these discriminatory laws. When, for instance, Althea Hart, a sixteen-year-old Black girl, wrote to The Crisis in the wake of the rape and murder of Hattie McCray, requesting the national NAACP’s assistance and arguing that “far too many of our people have suffered the same injustices as this girl and the same thing will continue if our people doesn’t stand behind us and fight for the best results,” the local NAACP branch expressed irritation with her presumptuousness.183 The branch president dismissed her for daring to “sit supinely by and whine for somebody else to do something. .. . Rest assured we are looking after this case and will continue to fight, even without the help of Miss Althea Hart and her kind.”184 And, perhaps more importantly, at least one NAACP official avowedly believed in aspects of these laws. In his book recounting his undercover lynching investigations, Walter White noted approvingly that New York “requires corroboration, direct or circumstantial; the unsupported word of a woman is not sufficient.”185 Such was necessary to protect Black men against unfounded accusations of rape. In his post-mortem following the acquittal of Edmonds’s attacker, the NAACP lawyer

179 Napson-Williams, supra note 167, at 81; Letter from Alan Dingle to Walter White (Mar. 23, 1926) (on file in Folder 4, Box I:D55, NAACP Records). See also Letter from Alan Dingle to Walter White (Mar. 24, 1926) (on file in Folder 4, Box I:D55, NAACP Records) (noting that he had talked to several jurors who told him that they refused to convict because of the absence of evidence of “actual penetration”). 180 Napson-Williams, supra note 167, at 82. 181 Id. at 83. 182 Press Release, N.A.A.C.P. Reports on Bronx Assault Case (Apr. 2, 1926) (on file in Folder 4, Box I:D55, NAACP Records). 183 Coffey, supra note 176, at 53-54; Letter from Althea Hart to W.E.B. Du Bois (Feb. 11, 1930) (on file in New Orleans, LA, January-April 1930 Folder, Box I:G82, NAACP Records). 184 Coffey, supra note 176, at 54-56; Letter from G.W. Lucas to Walter White (Feb. 21, 1930) (on file in New Orleans, LA, January-April 1930 Folder, Box I:G82, NAACP Records). 185 WHITE, supra note 51, at 260.

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assisting the prosecution added, “At no time did any racial issue come up.”186 Yet this was a self- evidently false statement; rape was a “racial issue.” White men had long used the rape of Black women and girls as a “weapon of terror” to preserve white patriarchal power and maintain their political and economic clout.187 This was well-known at the time; Black women had been speaking out about such sexual abuse for generations.188 Indeed, Ida B. Wells-Barnett, who was an NAACP executive member, had long argued that the “rape of helpless Negro girls, which began in slavery days, still continues without reproof from church, state or press.”189 Challenges against the sexist demands of rape laws would have disproportionately benefited Black women and girls. But, as this Article will show, penetration and corroboration were far from the only legal issues that existed at the intersection of race and gender discrimination that the NAACP could have challenged.

II. THE MANY SCOTTSBOROS, 1931-1940

The decade covered in the following Sections was when the NAACP truly found its footing—it transformed into a nationally powerful, financially secure, Black-led, mass organization with a significant legal practice. A script also emerged that transformed the NAACP’s rape docket. In the early 1930s, the Association battled with the Communist Party for control of the case of the Scottsboro Boys. After the Communists won out, competition impelled the NAACP to take on more interracial rape cases. By the mid-1930s, Scottsboro became the lens through which NAACP lawyers understood other rape cases, and the strategy deployed to great success in Scottsboro became an even more dominant strategy moving forward: impugning the alleged victim’s sexual propriety in order to impeach her credibility. This shaped not only the rape cases the NAACP took—some of which became significant early criminal procedure precedents—but also shaped the Association’s ongoing advocacy on behalf of Black women. Over the course of the 1930s, the NAACP’s legal staff expanded, matured, and settled into its routines. By the time Thurgood Marshall became the NAACP’s head lawyer in 1940, the Association’s legal staff had established the patterns of their practice—especially on interracial rape cases—for years to come.

186 Dingle to White, Mar. 23, 1926, supra note 179. 187 See, e.g.,MCGUIRE, supra note 65, at xviii; TERA W. HUNTER, TO ‘JOY MY FREEDOM: SOUTHERN BLACK WOMEN’S LIVES AND LABORS AFTER THE CIVIL WAR 10-11 (1997) (discussing the sexual exploitation of Black women under slavery); JACQUELINE JONES, LABOR OF LOVE, LABOR OF SORROW: BLACK WOMEN, WORK, AND THE FAMILY FROM SLAVERY TO THE PRESENT 149 (1985) (explaining the sociosexual implications of the nineteenth century South’s racial caste system); Jacqueline Dowd Hall, The Mind That Burns in Each Body: Women, Rape and Racial Violence, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 328-30 (Ann Snitow, Christine Stansell & Sharon Thompson eds., 1983) (discussing lynching as a form of racial control bound up with the politics of sexuality);GERDA LERNER, BLACK WOMEN IN WHITE AMERICA: A DOCUMENTARY HISTORY 172-93 (1973) (explaining how the combined sexual oppression of Black women, as well as the efforts to prevent Black men from defending their families from it, in effect amounts to sexual assault on all Black people). 188 MCGUIRE, supra note 65, at xix; FREEDMAN, supra note 93, at ch. 4; see MARIA BEVACQUA, RAPE ON THE PUBLIC AGENDA: FEMINISM AND THE POLITICS OF SEXUAL ASSAULT 21-24 (2000) (discussing instances in the late nineteenth century of Black women beginning to speak out against sexual assault);PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 86 (1984). 189 Quoted in GIDDINGS, supra note 188, at 31.

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A. The Association, The Communists, and The Case That Enraptured the Nation

As the NAACP entered the 1930s, it was an organization in flux. In the Association’s early years, most of its leaders had been wealthy, white liberals; now, its senior ranks were fully dominated by Black men.190 By the end of the previous decade, the Association had solidified its national reputation and its financial footing, but the Great Depression would hit the NAACP’s donor base particularly hard, and by 1931 the Association was “perched on the edge of bankruptcy.”191 Finally, in March 1931, Walter White was elevated to the position of executive secretary, replacing the storied James Weldon Johnson.192 White, brilliant and ambitious, immediately clashed with the Black elite’s senior statesman, W.E.B. Du Bois, who launched an unsuccessful attempt to oust him later that year.193 Instead, White would remain atop the NAACP’s hierarchy until 1955.194 It would thus be White, and a new generation of Association staff, who would lead the NAACP through the period characterized by its most famous legal battles. For the Association’s legal department, the early 1930s were also a time of upheaval and great potential. The scholars August Meier and Elliott Rudwick have identified the early 1930s as the “decisive turning point” in the history of the NAACP’s legal work.195 Previously, the Association had employed almost exclusively white lawyers, and during the early years, an undercurrent of dissatisfaction had coursed through the NAACP’s staff, leading many of the rank and file to push White and other leaders toward employing greater numbers of Black lawyers.196 Criticism from without also turned the NAACP away from its near-exclusive reliance on white lawyers. In 1931, the National Bar Association adopted a resolution condemning (unnamed) legal defense organizations for not employing Black lawyers and then pointedly sent a copy to the NAACP.197 In 1932, White elevated a number of Black lawyers to serve in the national office.198 In 1933, after Nathan Margold—the white lawyer whom White had placed atop the Association’s legal apparatus—left to take a position with the Interior Department, White began turning to prominent Black lawyers like Charles Hamilton Houston and William Henry Hastie for “important” cases.199 In the meantime, the Association’s battles with Communists and other radical activists during this time would shape its legal department throughout the 1930s and beyond. These battles began on March 25, 1931, when authorities in Jackson County, Alabama, arrested nine Black youths (ages thirteen to twenty) for allegedly raping two white women on a

190 Simon Topping, “Supporting Our Friends and Defeating Our Enemies”: Militancy and Nonpartisanship in the NAACP, 1936-1948, 89 J. AFR. AM. HIST. 17, 17-19 (2004). 191 SULLIVAN, supra note 70, at 151. 192 Id. at 152. 193 Id. at 152-53. 194 See KENNETH ROBERT JANKEN, WHITE: THE BIOGRAPHY OF WALTER WHITE, MR. NAACP 358-359 (2003) (discussing White’s involvement in the NAACP up until his death in 1955). 195 Meier & Rudwick, supra note 80, at 915. 196 Id. at 933-34. 197 Id. at 934. 198 SULLIVAN, supra note 70, at 159. 199 Meier & Rudwick, supra note 80, at 938.

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train.200 Narrowly avoiding a lynching, the sheriffs took the youths to the county seat of Scottsboro; the arrested men and boys would soon be collectively known as the “Scottsboro Boys.”201 The Alabama authorities quickly organized several trials for rape in the midst of “an atmosphere of tense, hostile, and excited public sentiment.”202 At their respective trials, the Scottsboro Boys’ hastily dragooned attorney settled on a strategy of trying to show that the two white women were “of less than exemplary character”—that is, they were promiscuous, and possibly even prostitutes—but the judge did his best to shut down this line of questioning.203 The attorney also used the testimony of doctors who had examined the women to cast doubt on their veracity and respectability.204 Nonetheless, the Scottsboro Boys were quickly convicted, and all but the youngest of them were sentenced to death.205 Even as the trials were still ongoing, the Communist Party of the United States had begun organizing on behalf of the Black defendants. Communist-affiliated newspapers almost immediately began raising awareness of the “legal lynching” happening in Scottsboro; members of labor and leftist organizations began rallying around the country and flooding Alabama with outraged correspondence; and the International Labor Defense (ILD)—a Communist-affiliated legal advocacy organization—quickly dispatched attorneys and organizers to represent the Boys and rile up the community.206 In contrast, the Black establishment—including the NAACP—was initially reluctant to get involved on the Black defendants’ behalf. As the historian Robin D.G. Kelley has pointed out, Alabama’s “traditional black leaders” were leery of the defendants’ quick association with Communists, as many in the South believed that Communists were sexually promiscuous, promoters of “free love”; many whites claimed that Black people were only attracted to communism because of their desire to “make women public property, available to all irrespective of race.”207 For his part, Walter White followed the case in the newspapers and concluded that the Scottsboro Boys were ably represented.208 Further, he and other NAACP officials were reluctant “to identify the Association with a gang of mass rapists unless they were reasonably certain the boys were innocent or that their constitutional rights had been abridged.”209 Yet the NAACP was soon inundated with inquiries about the case, many of them raising the alarm that the Communists might be seizing—and bungling—the

200 See DAN T. CARTER, SCOTTSBORO: A TRAGEDY OF THE AMERICAN SOUTH 3-25 (2007) (discussing the origins of the Scottsboro case and the accused Boys); JAMES E. GOODMAN, STORIES OF SCOTTSBORO 3-5, 11-12 (1994) (discussing the number of Boys and their initial detainment). 201 See CARTER, supra note 200, at 5-10 (explaining how the Boys were taken to Scottsboro). For one of the earliest uses of the phrase, see Mobilize for May 1 in N.Y.,DAILY WORKER (Apr. 23, 1931), at 2 (calling for the freedom of the Scottsboro Boys). 202 Powell v. Alabama, 287 U.S. 45, 52 (1932). 203 CARTER, supra note 200, at 26, 36. 204 Id. at 27. 205 Id. at 37, 48. 206 Id. at 49-55; GOODMAN, supra note 200, at ch. 4; Hugh T. Murray Jr., The NAACP Versus the Communist Party: The Scottsboro Rape Case, 1931-1932, 28 PHYLON 276, 277-78 (1967). 207 ROBIN D.G. KELLEY, HAMMER AND HOE: ALABAMA COMMUNISTS DURING THE GREAT DEPRESSION 79-80 (1990). 208 See CARTER, supra note 200, at 52 (explaining that White reached his conclusion from false information). 209 Id. at 52-53.

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representation. In response, White hurriedly hired his own local lawyers.210 Over the next several months, the NAACP and ILD battled fiercely for control of the Scottsboro Boys’ case, badmouthing the other side to the defendants’ families and even sending dueling lawyers to try to get the other excluded in court.211 The Association and the Communists also disagreed vehemently on whether to hold rallies and demonstrations in addition to representing the Boys legally. The ILD was in favor, while the NAACP worried that doing so would get “these lads murdered.”212 In the end, the NAACP lost the support of the Boys and their families and was forced to withdraw.213 This was a bitter defeat, casting a shadow on White’s early tenure atop the NAACP214 and leaving the Communists to represent these nine youths in a years-long series of appeals and retrials that resulted in two landmark Supreme Court rulings but that did not lead to the last of the Scottsboro Boys being freed from prison for several years.215 Even more significantly, the trials and tribulations of the Scottsboro Boys would generate a “wave of protest from millions of Americans,” until eventually “the name ‘Scottsboro’ became synonymous with Southern racism, repression, and injustice.”216 The Scottsboro affair fundamentally changed criminal procedure.217 The first Supreme Court decision to emerge from the case was Powell v. Alabama, in which the Supreme Court reversed four of the defendants’ convictions on the ground that they had been denied their right to counsel, which was a vital part of the due process right for capital cases.218 Powell marked the first time the Court had ever overturned a state conviction because of a violation of the right to counsel.219 Three years later, in Norris v. Alabama, the Court overturned the conviction of another of the defendants— and, with it, decades of Jim Crow precedent220—on the ground of race discrimination in jury selection, which violated equal protection.221 The legal scholar Michael Klarman has persuasively argued that the Court was convinced to so dramatically expand constitutional protections to criminal defendants because of the “[a]ppalling facts” present in these cases, as well as the Scottsboro Boys’ obvious innocence and a turn in the tide of national opinion.222 The Court would not have been

210 Id. at 53, 56-57; KELLEY, supra note 207, at 80-81. 211 CARTER, supra note 200, at 57-78; Murray, supra note 206, at 279-83. 212 Murray, supra note 206, at 282; see also Kenneth W. Mack, Law and Mass Politics in the Making of the Civil Rights Lawyer, 1931-1941, 93 J. AM. HIST. 41, 41 (June 2006) (discussing the debate over the roles of law and mass politics in the civil rights movement); GOODMAN, supra note 200, at 32 (explaining Walter White’s preference to keep discussion about the case within the court). 213 CARTER, supra note 200, at 102; Murray, supra note 206, at 283. 214 SULLIVAN, supra note 70, at 152-53. 215 See Norris v. Alabama, 294 U.S. 587 (1935) (holding that the wholesale exclusion of Black jurors is unconstitutional); Powell v. Alabama, 287 U.S. 45 (1932) (finding a right to counsel in capital cases); Murray, supra note 206, at 287 (highlighting the multiples cases that the Boys went through). 216 CARTER, supra note 200, at 50. 217 For more on pre-Scottsboro criminal procedure see JOHN BRAEMAN, BEFORE THE CIVIL RIGHTS REVOLUTION: THE OLD COURT AND INDIVIDUAL RIGHTS 87-115 (1988). 218 287 U.S. at 69-73. 219 KLARMAN, supra note 24, at 124. 220 Id. at 125-26. 221 294 U.S. 587, 591, 596-99 (1935). 222 KLARMAN, supra note 24, at 117-18, 133.

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willing to “take this leap” but for “flagrant injustices” that were only common “in the South, in cases involving black defendants charged with serious interracial crimes, usually rape or murder.”223 In particular, Klarman posited that the evidence of the two white women’s mendacity and promiscuity was likely significant to the justices.224 In its future rape cases, the NAACP would capitalize on these important precedents, expanding on the rights won by Communist lawyers. In the decades since the Scottsboro trials, scholars and commentators have fought bitterly over how to interpret the fight between the ILD and NAACP. In the first few decades following the trials, W.E.B. Du Bois,225 Walter White,226 ,227 and many historians condemned the Communists for duping the Scottsboro Boys and exploiting their story in an attempt to make them martyrs for the cause of leftist propaganda, bungling their defense in the process.228 But, beginning in the 1960s, many scholars started to push back against this interpretation.229 Hugh Murray, for instance, surveyed the existing evidence and concluded that “the of communists” presented in much of the scholarship on Scottsboro was “false,” and the ILD did indeed save the Boys’ lives and open “new avenues of protest to Negroes.”230 Subsequent scholars have reiterated this more generous interpretation and have generally been friendlier to the NAACP’s foes.231 Yet, style and extralegal tactics aside, the differences between the NAACP’s and the Communists’ legal approaches can be overstated; it is not obvious that the NAACP’s legal representation of the Boys would have differed significantly from the ILD’s. In one joint appearance in court, lawyers for the ILD and the NAACP both made the argument that the mob domination of the trials had deprived the defendants of their rights to due process under the Fourteenth Amendment.232 The ILD also seized on a tactic long-employed by the NAACP: impugning the

223 Id. at 48-49. 224 Id. at 125. 225 W.E.B. DU BOIS, DUSK OF DAWN: AN ESSAY TOWARD AN AUTOBIOGRAPHY OF A RACE CONCEPT 297-98 (1940). 226 WALTER WHITE, HOW FAR THE PROMISED LAND? 215 (1955). 227 LANGSTON HUGHES, FIGHT FOR FREEDOM: THE STORY OF THE NAACP 87 (1962). 228 See, e.g.,ARTHUR SCHLESINGER, THE POLITICS OF UPHEAVAL 429 (1960) (describing the Communist exploitation of the case to raise money for the party);IRVING HOWE & LEWIS COSER, THE AMERICAN COMMUNIST PARTY: A CRITICAL HISTORY, 1919-1957, at 212-16 (1957) (describing the Communist appropriation of the Scottsboro case);WILLIAM A. NOLAN, COMMUNISM VERSUS THE NEGRO 75 (1951) (noting the ILD’s development of the slogan—Free the Scottsboro Boys—as part of efforts to further their movement); WILSON RECORD, THE NEGRO AND THE COMMUNIST PARTY 34 (1951); see also Carroll Van West, Perpetuating the Myth of America: Scottsboro and Its Interpreters, 80 S. ATLANTIC Q. 36, 41 (1981) (“During the forties, fifties, and early sixties, the literature about Scottsboro attempted to transform the tragedy into a symbol of communist aggression. Not surprisingly, the outcome of this false issue was a general indictment of radicalism.”). 229 Van West, supra note 228, at 43. 230 Murray, supra note 206, at 287. 231 See, e.g.,CARTER, supra note 200, at 102-03 (crediting the ILD’s bold and aggressive tactics);GOODMAN, supra note 200 (crediting the ILD’s cases for confirming the integrity of the courts in the mind of the public); KELLEY, supra note 207, at ch. 4 (citing the widespread attention that the ILD brought to the case);MARK SOLOMON, THE CRY WAS UNITY: COMMUNISTS AND AFRICAN AMERICANS, 1917-1936, at 191-203 (1998) (describing the Communists’ successful tactics of combining legal defense with mass action); See generally WALTER T. HOWARD, ED., BLACK COMMUNISTS SPEAK ON SCOTTSBORO: A DOCUMENTARY HISTORY (2007). 232 CARTER, supra note 200, at 78.

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ostensible victims’ character in order to cast doubt on their allegations. From the start, the ILD fixated on the two white women’s promiscuity, venereal disease, and past sexual histories.233 In the retrials, ILD attorneys attempted to humiliate the two women, investigators dug into their pasts, and even the prosecutor regarded them as “women of a very low type.”234 In their brief to the Supreme Court, the Scottsboro Boys’ attorneys argued “that the trials were not in the constitutional sense ‘fair and impartial,’” and presented as evidence the fact that “[t]he girls were not ‘hysterical over it at all.’”235 Similarly, in the NAACP’s 1931 annual report, Association officials wrote: “Of the girls, one had a police record and the other was of low intelligence.”236 In the years that followed, Scottsboro became the narrative through which the NAACP’s lawyers—and much of the nation—interpreted Black-on-white rape cases. Many of the rape cases the Association took on in the 1930s and thereafter were explicitly compared to Scottsboro, which had become a byword for Jim Crow injustice.237 The standard defense in the wake of Scottsboro was shaped by the defense in Scottsboro: NAACP attorneys invoked both newly expanded constitutional protections for criminal defendants and evidence of white female promiscuity or mendacity. “For decades the black press had taken the lead in exposing false rape accusations and championing defendants in interracial rape cases,” noted Estelle Freedman. “Scottsboro provided further fuel for this publicity.”238 The case of the Scottsboro Boys had begun to convince many southerners—white as well as Black—that white women did sometimes lie about being raped. As Freedman has argued, “Black men now had legal resources and public support; far fewer faced lynching; and in much of the nation a rape accusation no longer meant an automatic death sentence.”239 The prosecution, judge, and white press in Scottsboro also set the script for the state response to the NAACP’s future rape cases. In the Scottsboro trials, the prosecutors pleaded with the jury to convict in order to make sure “it doesn’t happen to some other woman”; in his charge to the jury, the judge “remarked that when a white woman had intercourse with a black man, the

233 Id.; see also GLENDA GILMORE, DEFYING DIXIE: THE RADICAL ROOTS OF CIVIL RIGHTS: 1919-1950, at 120-21 (2008) (describing the Communists’ focus on the women’s history of sexually promiscuous behavior). 234 CARTER, supra note 200, at 80-84, 210, 233-34, 448, n.44. 235 Brief for the Petitioners at 28, Powell v. Alabama, 287 U.S. 45 (1932) (Nos. 98, 99, 100). 236 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, 22ND ANNUAL REPORT 11 (1931) (on file in Box I:A25, NAACP Records). 237 See, e.g., Charles H. Martin, Oklahoma’s “Scottsboro” Affair: The Jess Hollins Rape Case, 1931-1936, 79 S. ATLANTIC Q. 175, 175-76 (1980) (noting an Oklahoma rape case that was compared to Scottsboro); Trenton 6 Called “Frame-Up,” ARK. STATE PRESS, May 27, 1949, at 1 (“Northern Scottsboro”) (describing a case involving men framed for rape as a “northern Scottsboro”); Seek Immediate Release of Two Men in Army “Scottsboro” Affair,ATLANTA DAILY WORLD, May 4, 1945, at 1 (describing a Scottsboro-like case of men charged with rape in spite of clear exculpatory evidence); Used Third Degree In Army “Scottsboro Case,” PITTSBURGH COURIER, Feb. 5, 1944, at 12 (noting another rape case described as a Scottsboro analogue); It Can Happen Here! New York Scottsboro Case Thwarted (1940) (on file in Folder 4, Box II:B128, NAACP Records); Baltimore Has Its “Scottsboro” Farce,NORFOLK J. & GUIDE, Feb. 8, 1936, at 5 (comparing another rape case to Scottsboro); Mary D. Brite, Kentucky’s Scottsboro Case,CRISIS, Apr. 1936, at 105, 114 (noting the NAACP’s involvement in a case in Kentucky that bore similarities to Scottsboro); New “Scottsboro” Case Hinted In Jersey Town,AFRO-AMERICAN, Oct. 12, 1935, at 6 (noting a New Jersey case in which two boys claim they were falsely accused of rape); Arkansas Youths Face Legal Lynching,THE PITTSBURGH COURIER, Sept. 28, 1935, at 5 (describing a “Second Scottsboro” in Arkansas involving a rape accusation with suspect evidence). 238 FREEDMAN, supra note 93, at 256-57. 239 Id. at 258.

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presumption must be that she had been raped.”240 Victoria Price, one of the Scottsboro Boys’ accusers, “might be a fallen woman,” commented one spectator, “but by God she is a white woman.”241

B. “A Turning Point in the Legal History of the Negro”

The Scottsboro affair profoundly shifted the NAACP’s focus, pushing it toward ever more aggressive confrontations with the Communists, and toward taking on ever more rape cases. As Estelle Freedman has argued, Scottsboro moved the NAACP “beyond its earlier focus on lynching by expanding support for black men charged with rape.”242 Scottsboro also convinced the national office of the need for “centralized supervision of its legal efforts,” as the Association began to formulate formal criteria to determine how to select cases.243 As Walter White wrote to an acquaintance years earlier (echoing what would become a common refrain):

Many persons are under the impression that the Association interests itself whenever a Negro is arrested and charged with a crime. This, as you well know, is not true as we are interested only in cases where, first, it is clearly evident that grave injustice has been done or is about to be done on account of race or color prejudice and, second, where entrance by the Association into such a case will clearly establish a precedent affecting the rights of colored people in general.244

Yet, in its fights with the ILD throughout the 1930s, the NAACP frequently took cases not to advance some grand legal principle but to try to gain a competitive edge in the battle for dominance against the Communists.245 In spite of this, the Communists continued to critique the NAACP’s model of change as too predicated on the courts and insufficiently invested in organizing the people.246 The Communists had a point. During the early 1930s, a new generation of lawyers took command of the NAACP’s legal apparatus.247 Led by Charles Hamilton Houston, these lawyers perfected a strategy of not raising every civil rights issue in every civil rights case; rather, they would pick their tactics very carefully, only pushing constitutional arguments in the strongest possible cases—something the Communists delighted in pointing out.248 In the aftermath of its humiliation in Scottsboro, the NAACP was desperate to seize the spotlight—and the mantle of guardians of the race—from the Communists, especially in interracial

240 HALL, supra note 101, at 204. 241 Id. 242 FREEDMAN, supra note 93, at 257. 243 ERIC W. RISE, THE MARTINSVILLE SEVEN: RACE, RAPE, AND CAPITAL PUNISHMENT 59 (1995). 244 Letter from Walter White to John M. Adkins (Oct. 15, 1924) (on file in Houston, TX, January-November 1924 Folder, Box I:G203, NAACP Records). 245 See infra notes 249, 252-255, 257-260. 246 See infra note 263. 247 See Meier & Rudwick, supra note 80, at 943-44. 248 See infra notes 316, 325-326.

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rape cases.249 Their first chance came in the case of Willie Peterson, a Black man accused of raping and murdering two white girls in Alabama in the fall of 1931, as Scottsboro was still an ongoing national spectacle. Although he did not match the description of the alleged rapist, Peterson had been arrested and then almost murdered in his jail cell.250 His first trial ended with a hung jury, but the prosecution managed to secure a conviction in a second trial in early 1932 after adding a charge of rape to the original charge of murder.251 Throughout both trials, the local ILD and NAACP officials had fought doggedly for control of the case.252 To Walter White, this was absolutely vital for the Association’s viability in the South; he believed that a successful defense of Peterson would “materially affect public opinion and really show up the I.L.D. in their handling of the Scottsboro cases.”253 Days later, he found himself fantasizing about the NAACP acquitting Peterson while the ILD bungled the Scottsboro cases, remarking that “there is nothing that would be more effective in showing colored people and the country at large the soundness of our criticism of the I.L.D.”254 Eventually, the NAACP wrested control of the Peterson case from the Communists, although, like Scottsboro, this case too would on for years.255 The next front in the battle between the NAACP and ILD came in Oklahoma in early 1932 when police dragged Jess Hollins, a poor Black man, from his bed to jail and coerced into confessing to raping a white woman with whom he’d been having a consensual affair; his trial lasted just an hour before he was sentenced to die.256 Again, the ILD and NAACP fought for control for what came to be called “Oklahoma’s ‘Scottsboro’ Case.”257 The Association’s national office believed the case was “a perfect illustration of the tactics of the Communists .. . who make a lot of noise and many promises but who do nothing,”258 and that an NAACP victory could expose the Communist duplicity.259 Again, the Association managed to secure control of the case, however tenuously, from

249 See SULLIVAN, supra note 70, at 178-79. 250 KELLEY, supra note 207, at 83. 251 Letter from Paul Blanshard to Walter White (Feb. 2, 1932) (on file in Willie Peterson, Feb. 1-16, 1932, Folder, Box I:D65, NAACP Records) [hereinafter Blanshard to White]; NAACP To Press Fight for Full Willie Peterson Freedom,PHIL. TRIB., Mar. 29, 1934, at 16. 252 KELLEY, supra note 207, at 83-84. 253 Letter from Walter White to Charles McPherson (Feb. 1, 1932) (on file in Willie Peterson, Feb. 1-16, 1932, Folder, Box I:D65, NAACP Records) [hereinafter White to McPherson]. Initially, however, White felt forced into this position; he wrote to a local NAACP official that he wished the local branch had “stayed out of the [Peterson] case” since it was difficult and he worried the Communists will “use this to the utmost.” Letter from Walter White to Charles McPherson (Oct. 5, 1931) (on file in Willie Peterson, March-December, 1931, Folder, Box I:D65, NAACP Records). 254 Letter from Walter White to Will Alexander (Feb. 5, 1932) (on file in Willie Peterson, Feb. 1-16, 1932, Folder, Box I:D65, NAACP Records). 255 KELLEY, supra note 207, at 83-84, 89-90. 256 See Roger W. Cummins, “Lily-White” Juries on Trial: The Civil Rights Defense of Jess Hollins, 63 The CHRONICLES OF OK. 166, 168 (1985); Charles H. Martin, Oklahoma’s “Scottsboro” Affair: The Jess Hollins Rape Case, 1931-1936, 79 S. ATLANTIC Q. 175, 175-76 (1980). 257 Cummins, supra note 256, at 167, 169-74; Martin, supra note 256, at 176-78. 258 Letter from to Roscoe Dunjee (Aug. 15, 1932) (on file in Folder 7, Box I:D59, NAACP Records). 259 See Letter from Walter White to Roscoe Dunjee (Oct. 10, 1932) (on file in Folder 9, Box I:D59, NAACP Records).

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the ILD.260 At the same time, in , the police arrested a Black man named Willie Brown for allegedly raping and murdering a seven-year-old white girl and then beat a confession out of him.261 In this case, the ILD immediately began organizing rallies on Brown’s behalf, claiming that not just the white authorities but also the “Negro reformists and Negro newspapers” were conspiring to see Brown railroaded.262 The Daily Worker specifically indicted the NAACP for failing to assist in the Willie Brown case and other “attempted legal lynchings of Negro workers,” claiming this exposed the Association’s elite leaders “as assistant hangmen of the imperialists.”263 For its part, the NAACP closely monitored the Brown case but declined to take an active role, its leaders feeling this was merely “a typical case of police brutality.”264 White told Brown’s lawyer (a close NAACP ally) that they were just too “swamped with work” to take an active role,265 and just months after securing Brown a new trial, the lawyer switched his allegiance to the ILD.266 The Peterson and Hollins cases dragged on for years, through multiple appeals and retrials, but together they would signal a turning point in the history of the NAACP legal department, in large part because of the lawyer who ended up spearheading them. Charles Hamilton Houston, the pioneering dean of Howard Law School and the first Black editor on the Harvard Law Review,267 had first begun working for the NAACP in 1933, when he took charge of its defense of George Crawford, a Black man charged with murdering two white women in Virginia despite claiming to have been in at the time.268 Long an admirer of the ILD’s bold tactics,269 Houston asked White if perhaps the Communists might be better for Crawford, but, to White, scooping the ILD was the point.270 So Houston set off for Boston to investigate, accompanied by his 25-year-old law student, Thurgood Marshall.271 When the case moved from Boston to Virginia, White wanted to hire local white lawyers, but Houston asked to stay on the case with an all-Black defense team, arguing this would “mark a turning point in the legal history of the Negro.”272 White agreed, and Houston gave a

260 Martin, supra note 256, at 178-79. 261 MACK, supra note 15, at 61-62, 71; Mack, supra note 212, at 44; Letter from Raymond Alexander to Walter White (Mar. 25, 1932) (on file in Philadelphia, PA, March-May, 1932, Folder, Box I:G188, NAACP Records). 262 MACK, supra note 15, at 164; Mack, supra note 212, at 45-52. 263 Communism and the Negro,DAILY WORKER, Apr. 28, 1932, at 4. 264 Letter from Arthur Spingarn to Walter White (Mar. 30, 1932) (on file in Philadelphia, PA, March-May, 1932, Folder, Box I:G188, NAACP Records); see also Letter from Herbert Millen to Walter White (Mar. 18, 1932) (on file in Philadelphia, PA, March-May, 1932, Folder, Box I:G188, NAACP Records). 265 Letter from Walter White to Raymond Alexander (Mar. 17, 1932) (on file in Philadelphia, PA, March-May, 1932, Folder, Box I:G188, NAACP Records). Subsequent correspondence in this folder does, however, make clear that White remained interested in the case and resented the Philadelphia branch’s hasty decision not to get involved. See, e.g., Memorandum from Walter White to Arthur Spingarn, Herbert Seligmann, & Roy Wilkins (Mar. 29, 1932) (on file in Philadelphia, PA, March-May, 1932, Folder, Box I:G188, NAACP Records). 266 Mack, supra note 212, at 51. 267 See generally GENNA RAE MCNEIL, GROUNDWORK: CHARLES HAMILTON HOUSTON AND THE STRUGGLE FOR CIVIL RIGHTS 13-75 (1983). See also SULLIVAN, supra note 70, at 159-61. 268 Meier & Rudwick, supra note 80, at 938. 269 SULLIVAN, supra note 70, at 162. 270 Id. at 166. 271 Id. 272 SULLIVAN, supra note 70, at 182-83; MCNEIL, supra note 267, at 90; Meier & Rudwick, supra note 80, at 939.

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dazzling performance, convincing a Virginia jury to spare Crawford’s life, sentencing him to life in prison instead.273 Communist critics were deeply displeased that Houston did not appeal the exclusion of Black people from the grand jury,274 but, as the legal scholar Kenneth W. Mack has argued, this case represented a milestone in demonstrating to the nation that a Black lawyer could excel in a southern courtroom.275 Walter White was thrilled by Houston’s performance, and, although he had originally planned to indict the Jim Crow justice system for railroading Crawford, he changed his public posture to instead emphasize Houston’s historic achievement.276 In the case’s aftermath, White began relying on Houston in other high-profile cases.277 Among these were the Association’s ongoing rape cases, where Houston’s representation would showcase his canny legal mind, always searching for the perfect case to advance the NAACP’s cause. The matter of Willie Peterson was not such a case. On behalf of the NAACP, Houston traveled to Alabama to investigate the Willie Peterson case personally.278 He quickly settled on a less combative strategy than many of the Association’s critics would have favored. “In a notable contrast to the ILD,” Sullivan noted, “Houston appealed to a sense of fairness and justice among southern whites and their own interest in maintaining civil order.”279 NAACP officials believed that convincing the courts and the governor of the “social implications of the case” would be an effective strategy.280 This “resulted in token concessions,” and when the Supreme Court refused to hear the case, the governor commuted Peterson’s death sentence to life in prison.281 The ILD (as well as Peterson’s family) was irate that the Association pushed only for clemency and not for freedom, especially after the NAACP agreed to have Black people barred from the clemency hearings.282 But the Association had been terrified at the possibility of Peterson being executed, which, White feared, “would give Communists the most powerful argument they have ever had for propaganda among Negroes.”283 Rather, White felt more comfortable “keeping the case within the orderly, respected and dignified channels.”284 The case of Jess Hollins, on the other hand, was a far more promising avenue for radical

273 SULLIVAN, supra note 70, at 185. As Sullivan and Mack note, Houston had begun to believe Crawford was actually guilty. Id. at 184-85; MACK, supra note 15, at 99-102. 274 SULLIVAN, supra note 70, at 186; Martha Gruening, The Truth About the Crawford Case: How the N.A.A.C.P. “Defended” a Negro Into a Life Sentence,NEW MASSES (January 8, 1935), 9-15. Such criticism would continue for years, much to Houston’s annoyance. MACK, supra note 15, at 173-80. 275 MACK, supra note 15, at ch. 4. 276 Id. at 107. 277 Meier & Rudwick, supra note 80, at 939-41; see also SULLIVAN, supra note 70, at 181, 186-87; MACK, supra note 15, at 108. 278 SULLIVAN, supra note 70, at 171-72. 279 Id. at 184. 280 Letter from Walter White to Charles Hamilton Houston (Oct. 6, 1933) (on file in Willie Peterson, Oct. 3-30, 1933, Folder, Box I:D66, NAACP Records). 281 SULLIVAN, supra note 70, at 187; see also NAACP To Press Fight for Full Willie Peterson Freedom, supra note 251. In spite of the NAACP’s continued efforts to win his freedom, Peterson died in prison just a few years later. Peterson, Who Cheated Death, Dies in Prison,PITTSBURGH COURIER, July 13, 1940, at 5. 282 KELLEY, supra note 207, at 89-90. 283 Id. (quoting the NAACP in the midst of its representation of Peterson). 284 Id.

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arguments. Not only had Black people been excluded from the jury, but the prosecutors had also made remarkably prejudicial and inflammatory statements, about “defenseless little white girls” like “your girls or mine” being “assaulted by some Negro.”285 Houston appealed Hollins’s conviction all the way to the Supreme Court—resulting in Hollins v. Oklahoma,286 the “first significant Supreme Court victory by a Black attorney representing the NAACP.”287 It was also the first jury discrimination case the Association argued before the Court.288 In Hollins, the Court unanimously confirmed the principle, established in Norris, that the systematic exclusion of Black people from a jury was a violation of equal protection.289 (The Court did not mention the racist comments.) In years to come, the Court would repeatedly rely on Hollins to construct a powerful common law bulwark against jury discrimination.290 The victory did not, however, mean much to Hollins, who at his retrial was convicted and sentenced to life in prison, where he would die in 1950.291 Swamped with responsibilities, Houston had been too busy to continue representation himself.292 The Peterson and Hollins cases were not the Association’s only rape cases during these years, simply the best-known. Many of the others, too, exemplify how the NAACP used rape cases, carefully but deliberately, in their battle for supremacy with the ILD. When, for instance, a Black man named Tom Carraway was sentenced to die for raping a white woman in Mississippi, the local branch refused to raise money on his behalf, writing to the national office that “[i]t would be suicidal to undertake to raise money here. It would get out and a race issue would then be created.”293 Fearing that the Communists would publicize “that the N.A.A.C.P. had abandoned a helpless Negro in the state of Mississippi because it refused to dig up a few hundred dollars,” staff from the national office got involved themselves,294 and eventually succeeded in getting Carraway’s sentence commuted to life imprisonment.295 The rape cases from this era also demonstrate how the Association continued to employ the strategy it had used since the 1920s and which had become the dominant script following Scottsboro: it called the women liars. In the Hollins retrial, for instance, the NAACP’s defense focused on the alleged victim’s morality; they found several Black witnesses to testify that she “had frequented Negro dance halls and did not have a good reputation among area residents.”296 The prosecution struck

285 Quoted in Meredith Clark-Wiltz, Persecuting Black Men and Gendering Jury Service: The Interplay Between Race and Gender in the NAACP Jury Service Cases of the 1930s, in CAROL FAULKNER & ALISON M. PARKER, EDS., GENDER AND RACE IN AMERICAN HISTORY 174 (2012). 286 295 U.S. 394 (1935). 287 Finkelman, supra note 12, at 169. For more on Houston’s work on this case, see MCNEIL, supra note 267, at 121- 22. 288 Clark-Wiltz, supra note 285, at 170. 289 295 U.S. at 395. 290 See, e.g., Batson v. Kentucky, 476 U.S. 79, 84 (1986); Patton v. Mississippi, 332 U.S. 463, 465 (1947). 291 Clark-Wiltz, supra note 285, at 174; Martin, supra note 256, at 185. 292 Martin, supra note 256, at 182. 293 August Meier, untitled notes (1934) (on file in Folder 21, Box 143, Meier Papers). 294 Letter from Roy Wilkins to Arthur Spingarn (Aug. 13, 1934) (on file in Folder 21, Box 143, Meier Papers). 295 Press release, N.A.A.C.P. to Seek Carraway Pardon; Spent $1215.17 to Save His Life 9 Times (June 7, 1935) (on file in Folder 21, Box 143, Meier Papers). For more details on the Carraway case, see correspondence on file in Carraway v. Mississippi Folder, Box 31, Arthur Spingarn Papers, Library of Congress [hereinafter Spingarn Papers]. 296 Martin, supra note 256, at 180.

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back, claiming that the victim was “as pure as any woman in Oklahoma,” and that for any Black man to have sex with her was to “rob her of the most precious thing God Almighty gave her.”297 After Hollins was again convicted and again granted a new trial, local NAACP allies continued to dig up evidence of the white woman’s “low reputation.”298 In the Peterson case, one NAACP ally wrote to White, “there is something inherently incredible in saying that one man could rape a tolerably athletic young woman in the presence of two other young women who were perfectly able-bodied.”299 For his part, White repeated a rumor implying (euphemistically) that the women had been killed for “being out there for purposes other than the ones which they have stated.”300 This strategy remained dominant in less publicized cases as well. In 1931, defending a Virginia man accused of raping a white woman, the Norfolk NAACP secured a new trial and helped find witnesses who testified that the woman “had been seen in a North Carolina dance hall drunk on the night of the alleged attack.”301 “How many times have [Black men] been railroaded to prison or to the electric chair because bad women wanted to cover up their own misdeeds?” asked one newspaper.302 “These questions are disquieting in the extreme and all the more so because .. . under section 4415 of the Code a woman may accuse of a man of rape and, with the of the court, may make a deposition and not appear in court against him,” wrote another.303 “Virginia is determined to protect its women, of course, but there should be equal determination to see that the innocent shall not suffer.”304 By 1934, the NAACP’s rape cases were starting to impress observers. That summer, the Atlanta Daily World ran a lengthy summary of the Association’s many victories on behalf of Black men and concluded, “Thanks to the efforts of the N.A.A.C.P., Negroes accused of raping white women are not always lynched or sentenced to death.”305 At the same time, a generational and organizational shift within the NAACP was nearing completion. That summer, W.E.B. Du Bois, frustrated by his own marginalization and the Association’s shift toward liberal integrationism, departed, allowing Walter White to consolidate his power.306 And, after Karl Llewellyn, a prominent white law professor, turned them down, the NAACP’s directors reluctantly made Houston the organization’s first special counsel (its chief lawyer).307 The permanent presence of a special counsel at the New York office made it easier for civilians and branch officials to seek advice and direction, allowing the national

297 Clark-Wiltz, supra note 285, at 173. 298 Martin, supra note 256, at 182-83; Cummins, supra note 256, at 181. Even after mostly moving on from the case, Houston advised the local NAACP president, “Get a medical expert, or two, best obtainable, to testify about the effect of forcible rape on a woman’s body and nervous system. Contrast this with the actual testimony which the State was able to produce.” Letter from Charles Hamilton Houston to Roscoe Dunjee (June 1, 1935) (on file in Hollins Folder, Box 32, Spingarn Papers). 299 Blanshard to White (Feb. 2, 1932), supra note 251. 300 White to McPherson (Oct. 5, 1931), supra note 253. 301 22ND ANNUAL REPORT, supra note 236, at 8. 302 Quoted in The Harper Case,STAUNTON NEWS LEADER, Mar. 9, 1931, at 4. 303 Quoted in id. 304 Id. 305 Unusual Endings to the ‘Usual Crime’ Told by NAACP, supra note 136, at 6. 306 See SULLIVAN, supra note 70, at 198-203. 307 Meier & Rudwick, supra note 80, at 943-44;MCNEIL, supra note 267, at 115.

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office to coordinate a national legal campaign against segregation and Jim Crow injustice.308 In the years that followed, Houston would recruit many of his protégés from Howard, several of whom would become the Association’s most storied lawyers; finally, the litigation efforts of the nation’s premier organization for the advancement of colored people would be undertaken primarily by people of color.309 Many scholars have framed this transition as the start of the Association’s definitive turn toward legalism and away from radical direct action, exemplified in its focus on battling segregation in the courts rather than the streets.310 Kenneth Mack has argued that this is a misinterpretation, that “[w]hen the African American bar leaders finally took control of the NAACP’s litigation program, it was less a victory of legalism over mass politics than an attempt to fuse the two into a new civil rights paradigm.”311 Looking specifically at the NAACP’s rape docket, this transition heralded something slightly different: a rapid escalation in the number of sexual assault cases that the Association handled, which would have significant—and gendered—ramifications for criminal procedure.

C. The Start of the Marshall Years

Under the leadership of Charles Hamilton Houston, the NAACP’s legal department matured and expanded. Houston quickly built up the national office’s staff of lawyers and developed a national network of lawyers and investigators to implement a broad legal attack on Jim Crow injustice.312 He also remade the legal department in his ideological image; Houston believed that the NAACP could achieve change only by “slowly building precedents to support equality,” while radical action or moving too fast would be counterproductive.313 It was during these years that the Association launched its now-legendary drive against school segregation in earnest,314 and fine-tuned its criteria for taking criminal cases. In the face of ever-increasing calls for assistance,315 the Association announced that it would only aid in matters that would “establish a precedent for the benefit of Negroes in general.”316 In practice, this meant taking a lot of cases on behalf of Black men accused of rape by white women—a lot more than in years previous. In defending these men, the Association continued invoking many of the tropes that had featured prominently in Scottsboro— especially the idea of female mendacity—further entrenching the importance of respectability in rape cases. By the time Thurgood Marshall took over the NAACP’s legal work in 1940, the script had been

308 MCNEIL, supra note 267, at 132. 309 See Meier & Rudwick, supra note 80, at 943-44; see also SULLIVAN, supra note 70, at 202-03, 229-30. 310 Mack, supra note 212, at 38 (writing that the belief that “the movement’s turn to law, encapsulated in the NAACP litigation against segregation, represented a turn away from direction action” has “become an article of faith” among most scholars, “with little sustained analysis of lawyers’ everyday work”). 311 Id. at 39. 312 See SULLIVAN, supra note 70, at 229-30. 313 See MCNEIL, supra note 267, at 135. 314 See generally id. at ch. 10; MARK TUSHNET, THE NAACP’S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987). 315 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, ANNUAL REPORT FOR 1940, at 20-21 (1940) (on file in Box II:K1, NAACP Records). 316 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, 29TH ANNUAL REPORT 16 (1938) (on file in Box II:L269, NAACP Records).

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written for years to come. Throughout the mid- and late-1930s, the NAACP was inundated with letters pleading for help in rape cases. Many came from the defendants themselves,317 often telling horrifying stories of poverty and abuse: “I am 24 years old. Have a baby going on 4 years old. My father is dead and my mother is getting old and she is poor and can’t do nothing for myself,” wrote one man in 1939.318

[B]efore my trial they would take me out of my cell and beat me unmerciful trying to get me to say I was the boy that committed the crime but I say no I don’t know what you are talking about. They almost beat me to death but I prayed so and ask the Lord to help and take care of me. . . . Colored people down here is treated like dogs in a case like this. And there is nothing they can do for theirself. So I want you all to hurry and do something for me before it is too late.319

Sometimes the letters came from family members.320 Sometimes they came from relatives seeking justice after Black men who had allegedly raped white women were lynched.321 The NAACP had become the place to turn. “We are two boys in jail, accused of rape. They beat us and try to make us say things that we did not do. We did not rape anybody, but they are trying to send us up for it,” two young men wrote to the Afro-American in 1935.322 “Will you please inform the NAACP?”323 During these years, the national office under Houston began developing a system for responding to this flood of pleading inquiries. Upon receiving a request for aid in one’s defense, the national NAACP would typically reach out to branch offices to investigate “whether or not it is the type of case which our association can handle.”324 In general, the Association only wanted to intervene in cases involving innocent men.325 Branch lawyers would speak with relatives and do research to determine “whether there has been a probable ” and “whether the Association should be officially interested,” and then make a recommendation.326 Sometimes, the national office dispatched its own investigators,327 and sometimes, if the men had not yet been

317 See, e.g., Letter from James Gannaway & Fred Alderson to Walter White (May 31, 1940) (on file in Folder 6, Box II:B122, NAACP Records). 318 Letter from Oscar Fields to “WHO IT MAY CONCERN” (Dec. 16, 1939) (on file in Folder 1, Box II:B123, NAACP Records). 319 Id. 320 See, e.g., Letter from Clara Jordan to “Sir” (July 9, 1939) (on file in Folder 10, Box II:B124, NAACP Records). 321 See, e.g., Letter from W.A. Ables to E.M. Martin (Oct. 18, 1940) (on file in Folder 5, Box II:B124, NAACP Records). 322 New “Scottsboro” Case Hinted in Jersey Town,AFRO-AMERICAN, Oct. 12, 1935, at 6. 323 Id. 324 See, e.g., Letter from Roy Wilkins to John Prim (June 10, 1940) (on file in Folder 6, Box II:B122, NAACP Records); Letter from Roy Wilkins to T.M. Alexander (Dec. 29, 1939) (on file in Folder 1, Box II:B123, NAACP Records). 325 MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936- 1961, at 28-29 (1994). 326 See, e.g., Letter from A.T. Walden to T.M. Alexander (Jan. 5, 1940) (on file in Folder 1, Box II:B123, NAACP Records). 327 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, 28TH ANNUAL REPORT 17 (1937) (on file in Box

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convicted, local branches would dispatch lawyers to assist in their defense.328 “It is quite unfortunate that in nearly all types of cases of this kind the parties do not find out about our Association until they are in their extremities and have exhausted whatever meager resources that [they] have,” wrote one local activist.329 “Nevertheless, we feel that we ought to look into such matters in order to prevent, if we can, any flagrant miscarriage of justice.”330 Occasionally, local branches sought to raise publicity on behalf of accused men; in the sensational case of fifteen-year-old Joseph Mickens, for instance, the NAACP chapter in West Virginia held a mock funeral for Mickens, which succeeded in “arousing protest among the student body.”331 By 1935, with Houston the permanent special counsel, this cycle of request and investigation had settled into a stable pattern. When, that summer, a man named James Poindexter wrote to the NAACP from in Maryland—where he had been convicted of raping a white woman—asking the Association to “send one of your lawyers to investigate my case and see if I can get a fair trial,” the national office turned to a young lawyer affiliated with the local branch whom they were increasingly relying on: Thurgood Marshall.332 Though Marshall had only been practicing law for less than two years, he had been Houston’s star student at Howard, and he was eager to assist in civil rights cases.333 Over the course of five days, Marshall investigated the Poindexter case, concluding that the defendant was probably “guilty as Hell.”334 The young lawyer recommended that the NAACP not get involved, although he did write a letter to the governor requesting clemency, “not because of the trial or the record but on the basis that the death penalty seems to be for Negroes alone.”335 The NAACP was impressed,336 and the national office began turning more and more to Marshall for Maryland representation.337 By this time, Marshall had considerable experience working on rape cases and rape law. In law school, Marshall had taken a job with the library, which gave him considerable time with nothing to do but research: “I didn’t have nothing to do but read law,” he remembered. “Sometimes we’d take the rape cases and read all the rape cases.”338 In late 1934, White wrote to Marshall—just a year out of law school and trying to make it on his own, handling divorces, personal injuries, murders, and

I:A25, NAACP Records). 328 Branch News,CRISIS (May 1936), 153. 329 Letter from A.T. Walden to T.M. Alexander (Jan. 5, 1940) (on file in Folder 1, Box II:B123, NAACP Records). 330 Id. 331 Letter from Earl G. Davis to Madison S. Jones Jr. (Jan. 14, 1941) (on file in Folder 9, Box II:B125, NAACP Records); see also Letter from Earl G. Davis to Roy Wilkins (Jan. 20, 1941) (on file in Folder 9, Box II:B125, NAACP Records) (reporting students “vigorously protest[ing]”). 332 GIBSON, supra note 15, at 201-02. 333 MACK, supra note 15, at 111-19; RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY 185 (2004);WILLIAMS, supra note 15, at 69, 75-82. For more on the relationship between Houston and Marshall, see generally RAWN JAMES JR., ROOT AND BRANCH: CHARLES HAMILTON HOUSTON, THURGOOD MARSHALL, AND THE STRUGGLE TO END SEGREGATION (2010). 334 GIBSON, supra note 15, at 202-03. 335 MACK, supra note 15, at 122; see also GIBSON, supra note 15, at 203-04. 336 MACK, supra note 15, at 122. 337 See id. at 122-27. 338 WILLIAMS, supra note 15, at 56.

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rape cases339—asking the young lawyer to compile statistics on rape in Baltimore, broken down by race; such statistics would “be used in the fight for the passage of the [federal] Anti-lynching Bill.”340 White noted that James Weldon Johnson had done this years earlier, but now the Association was “very anxious to bring the figures up to date for the purpose of nailing once again the notion that most lynchings are for rape.”341 Marshall quickly complied.342 Just days later, at the behest of local NAACP branch members in Baltimore, Marshall began investigating the case of William Carter, a Black man accused of raping a white woman on night.343 Marshall interviewed witnesses and the lawyers, keeping the NAACP’s national office apprised, and eventually concluded, to his surprise, that Carter was probably guilty.344 Marshall nonetheless attended the trial, reporting to the NAACP that Carter received a good defense and that he was privately glad the man was convicted.345 This did not dissuade Marshall from working on more rape cases in his personal practice—in the space of just a few months, between late 1935 and early 1936, Marshall won two separate acquittals for Black men charged with rape.346 One of the last significant cases Marshall worked on before joining the NAACP full-time was dubbed the “Maryland ‘Scottsboro’ case”—it involved four Black youths who were detained and held incommunicado for allegedly raping a white woman.347 The president of the local NAACP branch assured the press that this was just “another case where a Negro is grabbed up and accused of something that a member of another race has done.”348 According to Marshall biographer Larry S. Gibson, “He determined that the woman’s story could not be true.”349 Marshall capitalized on his good relationship with local white authorities to quietly broker a deal assuring the defendants’ immediate release.350 Over the next few months, however, Marshall’s local law practice floundered— clients sometimes refused to pay, and he was devoting too much time to the NAACP—so in the fall of 1936 Marshall gave it up and began working with Houston in the national office full-time.351 After investigating alleged rape cases, the national office might get involved in a variety of ways. Marshall or another national lawyer might travel to meet with the defendant’s counsel and

339 Id. at 65. 340 Letter from Walter White to Thurgood Marshall (Nov. 11, 1934) (on file in Thurgood Marshall, Sept. 1935 to May 1936 Folder, Box I:C84, NAACP Records). White sent similar letters to other young men across the country. See correspondence in Folder 14, Box I:C265, NAACP Records. 341 Letter from Walter White to Thurgood Marshall, supra note 340. 342 Letter from Thurgood Marshall to Walter White (Nov. 23, 1934) (on file in Thurgood Marshall, Sept. 1935 to May 1936 Folder, Box I:C84, NAACP Records). 343 GIBSON, supra note 15, at 207-08;MACK, supra note 15, at 120; WILLIAMS, supra note 15, at 68-69. 344 GIBSON, supra note 15, at 208; MACK, supra note 15, at 120-21; WILLIAMS, supra note 15, at 69. 345 MACK, supra note 15, at 121. Mack has cast some doubt on the fairness of Carter’s trial and the certainty of his guilt. See id. 346 GIBSON, supra note 15, at 209. 347 MACK, supra note 15, at 128;GIBSON, supra note 15, at 214. 348 Baltimore Has Its “Scottsboro” Farce,NORFOLK J. & GUIDE, Feb. 8, 1936, at 5. 349 GIBSON, supra note 15, at 214. 350 MACK, supra note 15, at 127-28. 351 WILLIAMS, supra note 15, at 82-85; SULLIVAN, supra note 70, at 229.

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discuss strategy.352 Sometimes, the national office assisted in fundraising, but other times Marshall and Houston felt they could do more good by devoting their energy to lobbying for executive clemency.353 Most often, however, when the lawyers at the national office felt their intervention was justified, they assisted with the appeal.354 Houston, Marshall, and their colleagues were eager to build upon and expand the two Scottsboro decisions—Powell,355 the denial of counsel case, and Norris,356 the jury discrimination case—as well as Moore v. Dempsey,357 a case the NAACP had taken to the Supreme Court in the early 1920s—before the Scottsboro cases—which “sparked the modern revolution in criminal procedure doctrine.”358 In Moore, Black men charged with murder had been tortured into confessing and then sentenced to die in a mob-dominated trial that lasted just forty-five minutes.359 The Court reversed the lower court’s denial of a petition for a writ of habeas corpus, holding for the first time that the due process protections contained in the Fourteenth Amendment applied in state criminal trials, and that federal courts could review whether defendants had indeed been given such protections.360 In their appeal, the Scottsboro defendants had relied heavily on Moore,361 and the NAACP was keen to use it and the other early procedure decisions to flesh out just what due process meant for Black men facing “legal lynchings” in Jim Crow America. Association lawyers helped with research and writing, assisting in briefs to state and federal appellate courts. In the appeal of Bubbles Clayton and Jim X. Caruthers—whose Arkansas rape case came to be known as the “Second Scottsboro”362—the NAACP argued that the two were inadequately represented by counsel, that they “were denied the privileges and immunities guaranteed them under the Constitution of the United States, the rights of a trial by a jury of their peers in that no negroes were on the [jury and that] this was discrimination against them on account of their race and color and a violation of the Fourteenth Amendment to the Constitution of the United States and a denial of their rights under the ‘due process clause’ thereof.”363 In a petition to the Supreme Court for a stay of execution in the Joseph Mickens case, the Association cited the coercive nature of the questioning, the “danger of mob violence” at the trial, and also the fact of “the punishment of death inflicted on petitioner, a mere child, is a shock to all kindly and righteous thinking people.”364

352 See, e.g., Boy May Get a New Trial in Kentucky,PITTSBURGH COURIER, May 27, 1939, at 3. According to Sullivan, “Houston and Marshall functioned as field-workers... . Marshall described traveling in the South with Houston in Marshall’s ‘little old beat up ‘29 Ford,’ with Houston typing out briefs while Marshall navigated southern roads.”SULLIVAN, supra note 70, at 230. 353 See, e.g., August Meier, untitled notes (1937) (on file in Folder 11, Box 144, Meier Papers). 354 See SULLIVAN, supra note 70, at 230. 355 287 U.S. 45 (1932). 356 294 U.S. 587 (1935). 357 261 U.S. 86 (1923). 358 FRANCIS, supra note 24, at 27. 359 KLARMAN, supra note 24, at 117-18. 360 See id. 361 Brief for Petitioners at 36-47, Powell v. Alabama, 287 U.S. 45 (1932) (Nos. 98, 99, 100). 362 Arkansas Youths Face Legal Lynching,PITTSBURGH COURIER, Sept. 28, 1935, at 3. 363 Statement, Abstract and Brief of Appellants at 38, Clayton & Caruthers v. Arkansas (1935) (on file in Special Collections, University of Arkansas at Little Rock). 364 Petition for a Stay of Execution, Mickens v. Virginia (1941) (on file in Folder 9, Box II:B125, NAACP Records); Clayton v. State, 89 S.W.2d 732, 733 (Ark. 1935).

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Such appeals met with mixed success. Clayton and Caruthers lost their appeal and were executed in 1939;365 Mickens too lost his appeal, but, in light of his age, the governor commuted his sentence to life imprisonment.366 In one case in which the Association succeeded in securing a reversal, the state appellate court was convinced that an angry mob had influenced the jury’s decision.367 “However much we may regret to reverse cases of this character, yet, when the accused has not had a trial according to the laws of the land, it is the duty of this Court, under their solemn oath, to see that it is accorded to him.”368 In another case, the NAACP appealed on a number of bases, including the exclusion of Blacks from the jury, the fact that the defendant’s confession had “been extorted from him by means of a whipping and violence,” and highly prejudicial remarks from the prosecutor, but, while tacitly acknowledging that all of this had happened, the Texas state appellate court concluded that none of these justified reversing the verdict.369 The lawyers also challenged the testimony of a doctor who testified “to the lady’s highly nervous condition,” as well as some speculative evidence about seminal fluid.370 The court held that “the objection to the testimony would apply to its weight rather than to its admissibility.”371 Yet the court was obviously influenced by the defendant’s race and the nature of his crime: “We think that the facts unerringly point to the appellant as the assailant of this lady, and that they exclude every other reasonable hypothesis than his guilt.”372 Another hallmark of the NAACP’s rape cases during these years were battles over money. Local branches almost always requested additional funds to finance a defense or appeal; the national office almost always pleaded poverty in response.373 “Our defense fund is exhausted and this office is unable to make any contributions to criminal cases at this time,” Marshall wrote to one lawyer.374 “We have had so many cases in the past year in the Supreme Court and other courts that our defense fund is exhausted,” he wrote a few months later to another.375 “The only way we have been able to handle criminal cases for the last three months has been by raising money in the local communities where the cases have been tried.”376 The national office did sometimes manage to find some money for the local branches,377 while often Marshall appealed to other local branches to contribute, in one case

365 Acting Governor Relieved by Carruthers’ Confession,ARK. GAZETTE, July 4, 1939, at 3. 366 MARGARET EDDS, WE FACE THE DAWN: , SPOTTSWOOD ROBINSON, AND THE LEGAL TEAM THAT DISMANTLED JIM CROW 107 (2018). 367 See White v. State, 117 S.W.2d 450, 451-53 (Tex. Ct. App. 1938). 368 Id. at 453. 369 White v. State, 128 S.W.2d 51, 54-55 (Tex. Ct. App. 1939). 370 Id. at 55. 371 Id. 372 Id. at 57. 373 See, e.g., Letter from Thurgood Marshall to A. Maurice Mackel (Jan. 21, 1941) (on file in Folder 2, Box II:B128, NAACP Records); Letter from Thurgood Marshall to H.A. Merchant (Dec. 24, 1940) (on file in Folder 2, Box II:B123, NAACP Records). 374 Letter from Thurgood Marshall, Special Counsel, NAACP, to Leon P. Miller (Dec. 1, 1939) (on file in Folder 10, Box II:B124, NAACP Records). 375 Letter from Thurgood Marshall, Special Counsel, NAACP, to John D. Stith (May 29, 1940) (on file in Folder 10, Box II:B124, NAACP Records). 376 Letter from Marshall to Miller (Dec. 1, 1939), supra note 374. 377 See, e.g.,NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, ANNUAL REPORT FOR 1941, at 21 (1941)

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explaining that it was “absolutely necessary for a proper defense.”378 In another case, the local lawyer hired by the national office refused to file an appeal until he received a check for fifty dollars.379 And, of course, another hallmark of these cases was the NAACP’s continued reliance on impugning the veracity or respectability of white female accusers. In its annual report, the NAACP routinely wrote about intervening to protect Black men from “false rape charges.”380 NAACP attorneys (and attorneys hired by the NAACP) often referred to women as “hysterical”381 or doubted them because they “did not appear to be excited or nervous.”382 In its brief in the Clayton/Caruthers case, the NAACP invoked Matthew Hale’s infamous comment that rape “is an accusation easily to be made and hard to be proved,”383 while in another brief the Association argued that the white woman had gone to the defendant’s house to procure an abortion.384 In yet another case, the attorney hired by the NAACP wrote to Marshall: “The woman stated on the stand that she was menstruating at the time of the alleged attack and under the questioning of the defense attorneys, she stated that she was flowing freely. The defense attorneys stressed the point that it would have been impossible for an attack to be made without the attacker getting blood on his clothes.”385 The Black press enthusiastically repeated these charges. In reporting on “Kentucky’s Scottsboro Case,” the Crisis claimed that the woman “made use of the old southern psychology to rid herself of a relationship that had become irksome to her”; it also described her as “hysterical” and referred to her as “the victim(?).”386 Two years later, the Afro-American ran an article titled, “Modern Bathsheba Causes Lynching,” wherein it recounted the story of a Black man who was on his way to the well when he saw a white farmer’s wife “taking a bath in the doorway of her home . . . She screamed that she had been raped,” and the Black man was quickly lynched.387 In a case from 1934, the Black press framed the accused as “a reputable colored citizen and business man .. . successful

(on file in Box II:K1, NAACP Records). 378 Letter from Thurgood Marshall, Special Counsel, NAACP, to C.M. Bolen (Jan. 2, 1941) (on file in Folder 2, Box II:B123, NAACP Records); Letter from Thurgood Marshall, Special Counsel, NAACP to J.J. Jackson (Jan. 2, 1941) (on file in Folder 2, Box II:B123, NAACP Records). 379 Letter from Joseph Murray to Roy Wilkins, Editor, The Crisis (Sept. 29, 1941) (on file in Folder 8, Box II:B128, NAACP Records). 380 See, e.g.,NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, 27TH ANNUAL REPORT 19 (1936) (on file in Box I:A25, NAACP Records). 381 Letter from Oliver W. Hill to Thurgood Marshall, Special Counsel, NAACP (Jan. 9, 1941) (on file in Folder 9, Box II:B125, NAACP Records). 382 Letter from Vance W. Good & Ben Guider to F.E. Pinson & A.A. Cosey (Dec. 29, 1940) (on file in Folder 2, Box II:B128, NAACP Records). 383 Supplemental Brief for Appellant at 2, Clayton v. State, 89 S.W.2d 732, 733 (Ark.1935). 384 See NAACP Wins Case,WICHITA NEGRO STAR, Jan. 10, 1936, at 1; Fight to Free Illinois Woman Accused of Rape, AFRO-AMERICAN, July 27, 1935, at 6 (stating that petitioner’s brief asserted there was “no evidence of rape and that the white girl voluntarily submitted” to the accused to obtain an abortion); see also People v. Thompson, 199 N.E. 783 (Ill. 1935); cf. Supreme Court Reverses 3 Ranz Rape Convictions,CHI. DEFENDER, Dec. 28, 1935, at 1 (explaining that, on appeal, the NAACP argued that prosecutors “fomented” prejudice, specifically during their direct examination, by repeatedly referencing the races of the accused). 385 Letter from Merchant to Marshall (Dec. 24, 1940), supra note 373. 386 Brite, supra note 237, at 105. 387 Modern Bathsheba Causes Lynching,AFRO-AMERICAN, Sept. 24, 1938, at 1.

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and respected,” while “the charge against him clearly grows out of his demand that the [white] woman vacate quarters owned by him and her failure to do so after he had called a constable.”388 (In contrast, the Black press might emphasize a Black defendant’s poverty and ignorance, to highlight the unfairness of the Jim Crow legal system. In one case from 1938, the Afro-American called the accused an “illiterate backwoods farm hand.”389) Several of these cases became national sensations, further entrenching the post-Scottsboro narrative. In 1940, for instance, a wealthy white woman in Connecticut accused her Black chauffeur, Joseph Spell, of raping her; Spell maintained they’d had a consensual dalliance.390 Marshall took a personal interest in this case and traveled to Connecticut to assist in the Spell defense personally.391 The press covered the trial ravenously—the Defender ran a front-page story titled, “Probe Casts Doubt on Socialite’s Rape Story”392—especially after Marshall helped secure an acquittal.393 As one observer of the trial later wrote to White, the victim “lost her case by the discrepancies between her foggy story before the jury, and her precise though fantastic yarn to the police. The rape on the beach-chair in the cellar was her masterpiece of invention.”394 He added, “Recall that I am an expert psychologist, on this and on the conduct of sensation-seeking women, including the teaser type, who falsely charge rape; and, if I can ever be of aid as expert in any such case, call on me.”395 To the legal scholar Daniel J. Sharfstein, the Spell case “reveals the underappreciated importance of the NAACP’s litigation in the North,”396 but to Marshall’s biographer, Juan Williams, it also reveals something about where Marshall’s interests lay: Marshall “liked” interracial rape cases and other “sensational criminal case[s],” Williams wrote, because they were interesting and explosive, neither dry nor abstract.397 The mid- and late-1930s also marked a transition in the NAACP’s relationship with its antagonists from Scottsboro. Gradually, the two sides reached an uneasy détente and began more easily collaborating on rape cases—likely due, at least in part, to the fact that Marshall had less hostility for the Communists than did other NAACP leaders.398 One Black man charged with rape in Indiana in 1935 was represented by two lawyers: one hired by the local NAACP branch, and another hired by the ILD.399 In a widely publicized case in California, the ILD began working on the man’s

388 NAACP to Aid Frameup Victim,KANSAS CITY PLAINDEALER, June 29, 1934, at 2. This man, Samuel Smith, was convicted of assault with intent to rape, but the Pennsylvania Superior Court quickly reversed his conviction. See Pennsylvania Court Spurns Rape Charge,AFRO-AMERICAN, Dec. 22, 1934, at 15, and within months he “ha[d] been completely exonerated,” H.T. Sims, World’s Flashlight,WICHITA NEGRO STAR, Mar. 1, 1935, at 4. 389 Texas Rape Trial Unfair, Says NAACP,AFRO-AMERICAN, Mar. 19, 1938, at 15. 390 Sharfstein, supra note 15, at 50. 391 Id. 392 Probe Casts Doubt on Socialite’s Rape Story,CHI. DEFENDER, Dec. 28, 1940, at 1. 393 ANNUAL REPORT FOR 1941, supra note 377, at 19–20. 394 Letter from Clement Wood to Walter White, Executive Secretary, NAACP (Feb. 3, 1941) (on file in Folder 14, Box II:B127, NAACP Records). 395 Id. 396 Sharfstein, supra note 15, at 50. 397 WILLIAMS, supra note 15, at 119. 398 See TUSHNET, supra note 325, at 44-45. 399 Indiana Rape Case Is Flop in Court,CHI. DEFENDER, July 27, 1935, at 2.

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appeal at his family’s request,400 yet while the ILD remained his primary representation—and while they provided assistance the NAACP never would, such as placing the defendant’s wife and two children “on the I.L.D. relief roles”401—the local NAACP was also involved in the case,402 filing an amicus brief403 and joining the fight to secure a gubernatorial pardon.404 Even in the case of the Scottsboro Boys, the national office reluctantly began contributing money toward their defense.405 And when two of the Boys were charged with rape in the years that followed, the NAACP quietly represented them.406 At the same time, the fight for a federal anti-lynching bill resumed during these years, after a decade of inactivity.407 Once again, the Association lobbied strenuously for its passage, with Houston testifying before the Senate and invoking the statistic that only a sixth of lynchings had even allegedly been prompted by rape.408 For a time, at least, these efforts distracted from the NAACP’s legal work: “We are all up in the air at the present time on the Antilynching Bill,” Marshall wrote to an acquaintance in 1937, “and I doubt whether [Houston] will be able to take care of the matters you mention until he returns to the office.”409 But, as before, the Association could not push the bill over the finish line due to staunch southern opposition. Late in 1939, after the Internal Revenue Service ruled that the NAACP would have to start paying tax on the money contributed to the Association for its high-profile cases—as the NAACP’s anti-lynching work made it a lobbying group—Marshall decided to set up a new, separate, legal branch of the NAACP with no involvement in lobbying.410 Thus, on March 20, 1940, the NAACP Legal Defense and Educational Fund came into existence; because Houston was ready to leave and

400 Meeting Minutes, National Resident Board, International Labor Defense (Sept. 26, 1951) (on file in File 0375, Folder a7, Box 1, International Labor Defense Papers, Cornell University Library). 401 Id. 402 See I.L.D. Joins in Fight to Save Rape Suspect,CHI. DEFENDER, July 5, 1941, at 8. 403 N.A.A.C.P. Joins Appeal for Coleman,CHI. DEFENDER, Jan. 24, 1942, at 9. 404 Spur Drive for Coleman on W. Coast,CHI. DEFENDER, May 1, 1943, at 7. 405 CARTER, supra note 200, at 247–48. 406 See Albany Jury Frees Scottsboro Boy,WICHITA NEGRO STAR, Feb. 29, 1952, at 1 (defense of Andrew Wright); NAACP to Defend Scottsboro Boy,ARK. ST. PRESS, Aug. 3, 1951, at 7 (defense of Andrew Wright); FREEDMAN, supra note 93, at 265–66 (defense of Olen Montgomery). Nonetheless, some tensions remained. In seeking commutations for Clayton and Caruthers, Marshall and other NAACP allies worried that pleas from Communists might “do more harm than good.” Letter from Cassandra E. Maxwell to Thurgood Marshall, Special Counsel, NAACP (June 29, 1939) (on file in Folder 14, Box D50, NAACP Records); Telegram from Thurgood Marshall, Special Counsel, NAACP to John A. Hibbler (June 22, 1939) (on file in Folder 14, Box D50, NAACP Records). White sought to make sure the NAACP—not the radicals—received credit for their defense. Letter from Walter White, Executive Secretary, NAACP to David Beardsley (June 22, 1939) (on file in Folder 14, Box D50, NAACP Records). 407 At least one scholar has argued that this lull made the Association’s legal activity possible.MARY JANE BROWN, ERADICATING THIS EVIL: WOMEN IN THE AMERICAN ANTI-LYNCHING MOVEMENT, 1892-1940, at 171–72 (2000). 408 Robert L. Zangrando, The NAACP and a Federal Antilynching Bill, 1934-1940, 50 J. NEGRO HIST. 106, 107-08 (1965); see MCNEIL, supra note 267, at 97. 409 Letter from Thurgood Marshall, Special Counsel, NAACP to Charles A. Chandler (Jan. 6, 1937) (on file in Box I:C69, NAACP Records). 410 WILLIAMS, supra note 15, at 104; TUSHNET, supra note 325, at 27.

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return to private practice, Marshall became LDF’s first director-counsel.411 By this time, wrote historian Patricia Sullivan, “Houston’s vision had been in large part realized, and the legal campaign had eclipsed the movement for antilynching legislation as a defining element in the NAACP’s program.”412

D. Fighting One Double Standard, Entrenching Another

Throughout the 1930s, the leaders of the NAACP frequently advocated for Black men accused of rape; they advocated for Black women who were the victims of rape far less often. The historian Robin D.G. Kelley has noted that as the Association and the Communists were battling in Alabama for control of the Scottsboro and Willie Peterson cases, a twelve-year-old Black girl in Birmingham, Murdis Dixon, was raped by a white man at knife-point.413 “The Dixon case is illuminating,” Kelley writes, “for the conspicuous silence it evoked from leading white Communists, black middle-class spokespersons, and white liberals.”414 Neither the NAACP nor the ILD investigated the case, and virtually no Black newspapers covered her assault.415 Kelley attributes this “indifference” at least partly “to the age-old double standard that cast white women as pure and virtuous and black women as naturally promiscuous.”416 Such a double-standard was alive and well, even after Scottsboro had begun to erode certain notions of white female purity. Yet it would be inaccurate to state that the NAACP never advocated for Black women; in fact, local branches routinely did. But even in their advocacy, they continued to demand that Black victims abide by bourgeois notions of respectability, battling defense attorneys who attempted to paint these women as dissolute or habitually dishonest. During these years, the most common way that the NAACP assisted Black women who had been raped by white men was by urging the authorities to prosecute their assailants. Local branches almost always took the lead, urging the police to investigate,417 pushing for a grand jury to indict,418 demanding that a prosecution commence,419 or simply “watching the case.”420 In 1936, the New Jersey Conference of NAACP Branches held a special session—at which representatives from all 23 branches, as well as Thurgood Marshall, were present—calling for the prosecution of the nephew of a white justice of the peace, who had kidnapped and raped a Black woman.421 Four years later, after a

411 WILLIAMS, supra note 15, at 104. 412 SULLIVAN, supra note 70, at 249. 413 KELLEY, supra note 207, at 84-85. 414 Id. at 85. 415 Id. 416 Id. 417 Memorandum from Frank D. Reeves (Dec. 12, 1940) (on file in Folder 6, Box II:B123, NAACP Records). 418 Cleveland WPA Boss Accused of 3 Attempted Rapes on Race Women; No Arrest, KANSAS CITY PLAINDEALER, Nov. 13, 1936, at 6. 419 Press Release, NAACP, White Man’s Attempted Assault on 16-Year-Old Girl Nets Sentence of Fifteen Years in N.C. (Mar. 22, 1940) (on file in Folder 6, Box II:B123, NAACP Records). 420 Watch Rape Case,THE CRISIS, Mar. 1937, at 88. 421 N.A.A.C.P. Will Fight Rape Case Against Judge’s Nephew,PITTSBURGH COURIER, Dec. 19, 1936, at 4. The nephew was eventually prosecuted and sentenced to ten-to-fifteen years. Freehold Man Goes to Prison,ASBURY PARK PRESS, Apr. 23, 1937, at 1. However, he would be released on parole just two years later. 2 Mon. Convicts Get Parole,KEYPORT ENTERPRISE,

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white man allegedly raped a fifteen-year-old Black girl in Texas, the local branch “assembled the ministers of Beaumont and organized a city wide committee to get money to defend the girl.”422 Sometimes, local NAACP branches even supplied their own attorney to aid the prosecutor (and to make sure he prosecuted the case with sufficient zeal).423 Staff from the national office rarely demanded prosecutions themselves—in notable contrast to cases where alleged Black rapists had been lynched; the national office consistently fought for the prosecution of the lynchers424—yet the national office often provided advice to local branches,425 as in 1940 when Marshall sent a local NAACP official in Fayetteville, North Carolina, “a mimeographed outline for branches to use in handling criminal cases,” which he hoped would be of help in securing a successful prosecution of a white man who had raped a sixteen-year-old Black girl.426 The national office also occasionally provided financial assistance to local branches advocating for Black women.427 Mirroring the NAACP’s own strategy on behalf of Black men, the attorneys of white defendants often struck back by impugning the Black women’s morality or implying that they were liars. For instance, in the widely reported case of Lester McGrady, the defense attorney devoted considerable time to cross-examining the young Black girl, asking her about “the number of times she screamed, whether she screamed once or twice after or before the defendant choked her, the various positions she was in while scuffling and fighting with the defendants, and others, similar.”428 In response, the prosecutor emphasized in his closing that the girl was a “decent, fine, truthful young girl” and added, “a girl being raped does not have a notebook to write down how and when certain things took place.”429 After McGrady was convicted, the Kansas City Plaindealer, a Black newspaper, emphasized her innocence and purity:

The girl was not in the court room when the verdict was read. She had been taken out for a rest as the trial, the crowds and strain were telling in her young face as she tried to have thoughts of going back to school. She will want to mingle with her

Dec. 1, 1939, at 5. 422 Letter from D.C. Bromon to Walter White, Executive Secretary, NAACP (Mar. 28, 1940) (on file in Folder 7, Box II:B123, NAACP Records). 423 See, e.g.,ANNUAL REPORT FOR 1941, supra note 377, at 21; Hold Man, 75, for Rape Attempt,AFRO-AMERICAN, July 27, 1935, at 10. 424 See, e.g.,SULLIVAN, supra note 70, at 18-19; MCNEIL, supra note 267, at 88-89. 425 See, e.g., Letter from Thurgood Marshall, Special Counsel, NAACP to E.L. Sullinger (Mar. 28, 1940) (on file in Folder 6, Box II:B123, NAACP Records). 426 Letter from Thurgood Marshall, Special Counsel, NAACP to Beatrice Evans (Mar. 1, 1940) (on file in Folder 6, Box II:B123, NAACP Records). The man was ultimately convicted and sentenced to fifteen years in prison, which Marshall considered “insufficient because we all know that if the facts were reversed and the defendant were a Negro and the prosecuting witness a white girl, the sentence would have been death in the lethal chamber.” Letter from Thurgood Marshall. Special Counsel, NAACP to Beatrice Evans (Mar. 20, 1940) (on file in Folder 6, Box II:B123, NAACP Records). 427 See, e.g., Fritz Cansler, Gets $354 for Girl’s Defense, AFRO-AMERICAN, Feb. 27, 1937, at 16. The money in this case was for the Dallas branch to aid in the defense of a Black woman charged with murdering a white man “whom she accused of attempted rape.” Id. 428 White Man Found Guilty of Attack on 16 Year Old High School Girl,KANSAS CITY PLAINDEALER, Feb. 23, 1940, at 1, 4. 429 Id.

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friends, her school mates, her family without being haunted with thoughts or pointed out as ‘the girl’—all because of an occurrence that might have happened to any woman in this land. She will want to hold up her head, looking the world in the face and asking no more than a young girl’s chance at life. For these reasons this paper has withheld her name.430

The local NAACP chapter praised the prosecutors, telling the press “that their names will go down in history as individuals who have convinced Negroes that there is justice on earth.”431 Much as the Black press did in the McGrady case, the NAACP often responded by emphasizing the rape survivors’ respectability. As one branch official in Brooklyn lamented to White:

I have learned from a very reliable source that an attempt will be made to whitewash this case for reports already are current that Mrs. McDonald is a woman of questionable character, etc. The simple fact is that she is a colored woman and Orlando is a white man. I personally know her to be of most exemplary character and can vouch for her having worked very satisfactorily for the past three years on our Housekeeping Aides Project.432

This tactic often dovetailed with emphasizing how abject were the women’s circumstances, which could inspire pity but also reinforced dominant narratives about rape robbing women of worth. For instance, after two white men raped a Black woman in Oklahoma, and she shot at them in self-defense, the woman herself was arrested; the local NAACP sent a lawyer to investigate and advocate for her, and a Black newspaper in Kansas ran an article recounting her “pitiable story” and lamenting that “a once prosperous black woman will be penniless.”433 In recounting the McGrady case, one Black journalist noted that the defendant “forced her to submit to his will, even tho [sic] she was undergoing periodical illness.”434 The local NAACP advocated fiercely for McGrady’s prosecution,435 and when Houston passed through town a few months later, he gave a speech “urg[ing] that the citizens give full cooperation with the organization and insist upon the prosecutor’s office that McGrady be given the fullest extent of punishment as prescribed by law.”436 Eventually, McGrady was prosecuted, and an NAACP attorney “aided” the prosecutor in “every possible way.”437 The trial became a spectacle, with hundreds of people crowding the courtroom each day, and McGrady was convicted.438 Observers often noted the double standard to which Black and white rapists were held.

430 Id. 431 U.G. Plummer Aids State in Rape Conviction,KANSAS CITY PLAINDEALER, Feb. 23, 1940, at 1. 432 Letter from Alexander F. Miller to Walter White, Executive Secretary, NAACP (Oct. 16, 1940) (on file in Folder 7, Box II:B125, NAACP Records). 433 Two White Youths Shot Following Rape of Negro Woman in Oklahoma,KANSAS CITY PLAINDEALER, Feb. 10, 1939, at 1. 434 White Man Charged with Rape Must Make Higher Bond,KANSAS CITY PLAINDEALER, Aug. 18, 1939, at 1, 8. 435 Id. 436 NAACP Counsel Tells Citizens to Get Busy and Keep Kansas Free,KANSAS CITY PLAINDEALER, Oct. 20, 1939, at 1. 437 U.G. Plummer Aids State in Rape Conviction, supra note 431, at 1. 438 White Man Found Guilty, supra note 428, at 1, 4.

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“Last week a middle-aged white man, accused and convicted of raping an eight-year-old Negro girl, was sentenced to twenty years in prison,” ran an editorial in the Louisiana Weekly in 1937.439 “[W]e know full well had the attacker been a Negro, and the attacked a white child, details of another lynching orgy would have been broadcast to a not-so-calloused world.”440 A few years later, a local activist wrote to Marshall about another case, “Even if he should be guilty he has not had fair trials, and too the penalty is far in excess of what is given to whites in similar cases: Several rape cases have occurred in this county since this case and nothing or little has been done simply because the parties were white.”441 It is certainly possible to imagine legal arguments that the NAACP could have raised on behalf of Black female survivors. In the McGrady case, for instance, Association lawyers could have responded to the aspersions cast on the Black female victim not by asserting her virtue and purity, but instead by challenging the defense’s ability to use evidence of promiscuity to impeach a victim’s veracity. Decades later, every state in the nation would pass a “rape shield law,” sharply curtailing the defense’s ability to do precisely this.442 These laws may have provided disproportionate benefits to women of color, who previously had to contend with especially vicious stereotypes about their sexual morality and trustworthiness.443 It is perhaps unreasonable to expect the Association’s attorneys to have raised such arguments fifty years before these laws passed, and that is not my intention here. Rather, I am pointing out only that had this legislative innovation been written into judge-made law earlier, it could have shielded countless sexual assault survivors—including many of the NAACP’s own clients— from humiliating and generally irrelevant forms of questioning.

III. THE WAR YEARS

As the NAACP grew rapidly during World War II, its legal staff was confronted with an immense challenge: how to defend the dozens of Black soldiers and sailors who were being accused of rape and swiftly sentenced to death? Facing a flood of correspondence from condemned Black servicemen, the Association directed one new lawyer to devote most of his time to these cases, and the legal staff began rapidly intervening in many of these cases, arguing in courts-martial and appealing to military officials. This Part shows that the immense pressure the war years placed on the NAACP further entrenched existing patterns with respect to rape cases. As in years past, the

439 From the Press of the Nation,THE CRISIS, June 1937, at 179 (reprinting the editorial). 440 Id. 441 Letter from H.A. Merchant to Thurgood Marshall, Special Counsel, NAACP (Apr. 11, 1940) (on file in Folder 2, Box II:B123, NAACP Records). 442 See generally, Michelle J. Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 GEO. WASH. L. REV. 51 (2002). But cf. Harriet R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 MINN. L. REV. 763 (1986) (arguing that, although almost all jurisdictions had adopted rape shield laws at the time of the article’s publication, the laws did not sufficiently protect women from the “chastity requirement” and the laws should be revised). 443 See Wriggins, supra note 54, at 120-21, 126-27 (discussing stereotypes that assumed black women were unchaste and therefore could not be victims of rape, unlike white women); Karin S. Portlock, Status on Trial: The Racial Ramifications of Admitting Prostitution Evidence Under State Rape Shield Legislation, 107 COLUM. L. REV. 1404, 1412-14 (2007) (discussing the history of racist stereotypes about black women’s chastity in the development of rape jurisprudence).

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Association depended on gendered rhetoric and exploited the sexist demands of rape laws; as in years past, the Association was far less responsive to calls from Black female service members about the sexual violence they faced in the military.

A. “Rape by Colored Men, in the American Military Mind, Is Different”

World War II marked a significant turning-point in the history of the NAACP. The Association’s membership numbers skyrocketed, and its leaders began demanding change more aggressively from a federal government that was eager to decry fascism abroad but reluctant to fight Nazism at home.444 With the military still segregated, with most of the training camps in the South, and with nearly a million Black men and women entering the armed forces, it was perhaps inevitable that the NAACP would be called on to halt instances of Jim Crow injustice faced by Black soldiers and sailors. Association investigators were soon probing instances of discrimination and even lynchings at and around training camps, and Association leaders were lobbying the Justice Department and the War Department for more equitable treatment.445 In response to the rampant injustices, Black people—in uniform and out—began protesting more and more, ultimately lending fuel to the fire that would become the modern Civil Rights Movement.446 Black soldiers and sailors were wildly overrepresented in military courts-martial, especially for rape.447 While Blacks represented just eight percent of American troops in , they constituted an astounding forty-two percent of those convicted of sexual misconduct.448 In Italy, eleven American soldiers were executed for rape and rape/murder; all eleven were Black.449 Rape by American GIs stationed abroad was rampant450—a fact many have tried to suppress, even decades later451—but this reality could be used by white soldiers or higher-ups to frame Black servicemen. “White soldiers could rape a French white woman with impunity if an African American was in the vicinity and could be plausibly blamed,” noted the historian Mary Louise Robert.452 “In several cases, black soldiers were picked up in the vicinity of the rape, and charged on those grounds alone, without

444 SULLIVAN, supra note 70, at 238-39, 267. 445 Id. at 268-70. 446 Id. at 271-72; see also KEVIN KRUSE & STEPHEN TUCK, EDS., FOG OF WAR: THE SECOND WORLD WAR AND THE CIVIL RIGHTS MOVEMENT (2012). 447 MARY LOUISE ROBERTS, WHAT SOLDIERS DO: SEX AND THE AMERICAN GI IN WORLD WAR II FRANCE 195-96 (2013). 448 Jennifer Dominique Jones, “To Stand Upon My Constitutional Rights”: The NAACP and World War II-Era Sexual Exclusion, 2 J. CIVIL & HUMAN RTS. 121, 127 (2016). Jones has also shown how the military used dishonorable discharges to punish Black soldiers who were “suspected of same-sex relationships.” Id. 449 Stephanie Lauren De Paola, Sexual Violence, Interracial Relations, and Racism During the Allied Occupation of Italy: History and the Politics of Memory 91 (May 2018) (Ph.D. dissertation, Fordham University) (on file with author). 450 See J. ROBERT LILLY, TAKEN BY FORCE: RAPE AND AMERICAN GIS IN EUROPE IN WORLD WAR II (2007) (estimating that American troops stationed in Europe committed 14,000 rapes, and that rape was an “inherent feature of military culture”). 451 See Richard Drayton, An Ethical Blank Cheque,GUARDIAN (May 9, 2005), https://www.theguardian.com/ politics/2005/may/10/foreignpolicy.usa [https://perma.cc/B3J8-E3H8] (describing how the publication of Lilly’s book was suppressed in English following September 11, 2001, and it first appeared in French translation). 452 ROBERTS, supra note 447, at 220.

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any physical evidence or witness identification to prove their presence at the crime.”453 As many noted at the time, the same was broadly true in the American South. In late 1940, after a Black man in North Carolina was accused of raping a white woman, his lawyer wrote to a prominent white newspaper, lambasting it for what he called its biased coverage of the case:

The time is here when the South is going to be put to the acid test in the administration of its criminal laws. And it is going to require the very best effort of all citizens who believe in those vital and fundamental things which America represents to preserve for ourselves and our posterity the blessings of liberty. The tremendous expenditures for national defense are an evidence that the people of the United States intend to protect themselves from attacks upon their liberties by foreign agencies. Let us not forget that to take human life or human liberty because of prejudice against race, color or creed is even more despicable if it be done either through affirmative or negligent action by people of our own land.454

Such extreme inequity was hardly limited to the South. In December 1941, just days after the Japanese attacked Pearl Harbor, a lieutenant in eastern Pennsylvania announced that he would consider any “relations” between Black men and white women to be rape, and thus punishable with the death penalty.455 The NAACP immediately protested to the War Department, which hastily withdrew the order.456 Still, as the Association wrote in The Crisis, “This showed the trend of mind of the average white American army officer, and prophesied what Negro soldiers might expect in the way of justice in any event which might take place overseas.”457 In the face of these injustices, the NAACP was inundated with pleas from Black soldiers and sailors—from France to Guam to Australia—facing court-martial or punishment for allegedly raping white women. “[D]ear sur i am in trouble and i need your help i have ben sentious to deth,” wrote one soldier in Germany named Earnest Shakespeare.458 “We went overseas and played an important part in this war .. . and [are] willing to do it again and again [but] we begain [sic] to think ‘what were we fighting for[?]’ The Court took one Indian woman (prostitute) word before they would take seven (7) non-commissioned officers in the [sic] word,” wrote another, stationed in India.459 Family members also wrote, begging for help. “I am a war mother, and my son is in some kind of trouble, of what I do not know,” wrote the mother of a soldier who had been

453 Id. 454 Letter to the Editor, South Due for Test,NEWS & COURIER, Nov. 28, 1940 (on file in Folder 2, Box II:B124, NAACP Records). For more on this case, see ANNUAL REPORT FOR 1941, supra note 377, at 21. 455 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, ANNUAL REPORT FOR 1942, at 11-12 (1942) (on file in Box II:K1, NAACP Records); see also Army’s Death Penalty for Race Mixing Withdrawn,PITTSBURGH COURIER, Jan. 10, 1942, at 1. 456 Id. 457 Nat’l Ass’n for the Advancement of Colored People, Editorial (or NAACP, according to R6.1) Black and White Rape,CRISIS, July 1944, at 217. 458 Letter from Earnest Shakespeare to NAACP (Aug. 21, 1945) (on file in Folder 22, Box II:B167, NAACP Records). 459 Letter from Edward A. Lane to Thurgood Marshall, Exec. Dir. of the NAACP Legal Def. and Educ.Fund (Feb. 27, 1945) (on file in Folder 2, Box II:B164, NAACP Records).

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court-martialed for rape.460 “But he is writing me asking me to have the National Association for the Advancement of Colored People to please take up and look into his case, as he is not getting a fair trial.”461 In response to the increasing flood of appeals from condemned Black servicemen, the NAACP directed a new member of the national legal staff, Franklin H. Williams—a young lawyer and Army veteran—to triage the court-martial cases and decide which the Association should take on.462 He was often overwhelmed with correspondence, trying his best to respond within a week or two.463 The Association only intervened in cases where “the element of racial discrimination or denial of a fair trial because of race” was clear.464 Williams routinely wrote to Black men with apologies,465 often closing by “[w]ishing you the best of luck in your attempt to have the sentence of death remitted.”466 In another case, one of Williams’s colleagues declined to help because “[t]here seems to be no question of the soldier’s guilt.”467 Yet, as the legal scholar Mark Tushnet has observed, “the standards for intervening in criminal and similar cases gradually relaxed” as the war went on.468 Within a few years, Williams was writing that while “there are insufficient grounds to warrant our appearing personally before the Board of Review and presenting oral argument .. . we shall do all within our power short of actually appearing before the Board to prevent the death sentence levied against him from being executed.”469 In another letter, after declining to intervene, Williams offered to “do all within our power” to assist the soldier in obtaining clemency, suggesting that the soldier secure letters from people who could attest to his “reputation for honesty and sobriety in the community.”470 Even where the Association would not intervene directly, Marshall might send along legal research.471 This work consumed Williams’s waking hours, and he sometimes appeared before military

460 Letter from Rosie Murry to Walter White, Exec. Dir. of the NAACP (Aug. 13, 1945) (on file in Folder 10, Box II:B165, NAACP Records). 461 Id. 462 Letter from Marian Wynn Perry to Bernice Easley (Sept. 5, 1947) (on file in Folder 11, Box II:B157, NAACP Records); see also TUSHNET, supra note 325, at 29. 463 Letter from Franklin H. Williams. Staff Att’y, NAACP, to Edward Powell (Jan. 8, 1946) (on file in Folder 11, Box II:B166, NAACP Records). 464 Letter from Marian Wynn Perry to Bernice Easley, supra note 462. 465 See, e.g., Letter from Constance Baker Motley Assoc. Couns., NAACP Legal Def. and Educ. Fund, to Adella Lane Thompson (July 26, 1946) (on file in Folder 2, Box II:B164, NAACP Records); Memorandum from Franklin H. Williams to Files (June 18, 1946) (on file in Folder 10, Box II:B165, NAACP Records); Letter from Franklin H. Williams to Earnest Shakespeare (June 13, 1946) (on file in Folder 22, Box II:B167, NAACP Records). 466 Letter from Franklin H. Williams to Samuel E. Coleman (Jan. 15, 1946) (on file in Folder 11, Box II:B157, NAACP Records). 467 Letter from Edward R. Dudley, Assistant Special Couns. NAACP, to Sidney R. Redmon, Staff Att’y NAACP St. Louis (Sept. 28, 1944) (on file in Folder 13, Box II:B126, NAACP Records). 468 TUSHNET, supra note 325, at 29. 469 Letter from Franklin H. Williams to Virgil H. Lucas (Aug. 13, 1946) (on file in Folder 14, Box II:B165, NAACP Records). 470 Letter from Franklin H. Williams to A.J. Simmons (July 3, 1947) (on file in Folder 11, Box II:B157, NAACP Records). 471 Letter from Thurgood Marshall to A.P. Tureaud (Mar. 24, 1944) (on file in Folder 13, Box II:B129, NAACP Records).

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tribunals himself to argue on behalf of condemned Black soldiers.472 Occasionally, he became personally invested in a case. After receiving an inquiry on behalf of Samuel Hill—who was accused of raping a native woman in Hawaii and sentenced to life,473 even after two other soldiers were acquitted of the same crime474—Williams wrote to Hill’s brother: “After study of the record I am absolutely convinced that Samuel is not guilty of the crime charged, and we shall not rest until we have obtained a substantial reduction in sentence for him.”475 In another letter, he added that after further study, the case “strikes us as being one of the greatest miscarriage[s] of justice that has ever been our misfortune to come across.”476 A month later, after Walter White noticed that Williams was referring to Hill by his first name in legal documents, Williams responded, “I do not know Sergeant Samuel Hill personally. However, in drawing up a petition for clemency in his behalf, it was necessary for me to practically live with his record for about two weeks. In doing so I came to feel toward him as an old friend.”477 As a result of the NAACP’s efforts, Hill’s sentence was reduced to ten years.478 The NAACP was frequently successful in appealing for mercy or outright reversal. In cases that ranged geographically from Germany to Australia, the Association often triumphed in having sentences commuted or eliminated entirely.479 To do so, NAACP lawyers continued to build on the criminal procedure precedents established, in part, by past rape cases; the historian Stephanie Lauren De Paola has noted that the NAACP’s legal assistance “highlighted improper legal procedure and violations of due process,” which “could be successful in getting soldiers clemency.”480 Yet the Association also made frequent use of the gendered arguments it had relied on in years past, seizing on the narrative that crystallized after Scottsboro and deploying many stereotypes about women who lied and cried rape. In many cases, for instance, the Association’s strategy centered on impugning a woman’s believability by calling her a “prostitute.”481 The NAACP claimed in one brief that the exchange of sex for money was evidence of consent and, further, that the Association could find no case “in Anglo American jurisprudence in which a conviction of rape has been permitted when payment had been offered and accepted on the spot.”482 Others labeled such women

472 Clemencies and Discrimination,CRISIS, June 1946, at 183. 473 Letter from S. McMaster Kerr to Sen. Pat McCarran (Feb. 26, 1946) (on file in Folder 6, Box II:B162, NAACP Records). 474 NAACP, Press Release (Feb. 21, 1946) (on file in Folder 6, Box II:B162, NAACP Records). 475 Letter from Franklin H. Williams to Theodore R. Hill (Jan. 31, 1946) (on file in Folder 6, Box II:B162, NAACP Records). 476 Letter from Franklin H. Williams to Theodore R. Hill (Feb. 21, 1946) (on file in Folder 6, Box II:B162, NAACP Records). 477 Memorandum from Franklin H. Williams to Walter White (Mar. 27, 1946) (on file in Folder 6, Box II:B162, NAACP Records). 478 Letter from Franklin H. Williams to Samuel Hill (July 3, 1946) (on file in Folder 6, Box II:B162, NAACP Records). 479 NAACP Petitioned Sentence Reduced,ALA. TRIB., Aug. 8, 1947, at 5 (Germany); Memorandum from Robert L. Carter, Staff Att’y, NAACP, to Thurgood Marshall (Dec. 12, 1944) (on file in Folder 1, Box II:B156, NAACP Records) (Australia). 480 De Paola, supra note 449, at 109. 481 See, e.g., Soldier Found Guilty in R.I. Assault Case,AFRO-AMERICAN, Jan. 29, 1944, at 3; Black and White Rape, supra note 457, at 217. 482 Seek Immediate Release of Two Men in Army “Scottsboro” Affair, supra note 237, at 1.

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“hysterical.”483 In a memo, Constance Baker Motley wrote that this allegedly hysterical woman “was the unmarried mother of two children and four months pregnant with a third child. She testified that she made her living from washing and ironing, but from all indications her income was probably supplemented by her ‘night callers,’ to wit, American soldiers in the area.”484 In the “Comments” section of her memo, Motley added, “the character of the victim was so low that one can hardly conceive of her offering any resistance at all to sexual intercourse.”485 Association lawyers also psychologized such women, as when one colleague wrote to Marshall, “The record came in the other day, and on reading it, it is clear that the woman was drunk and amorous and encouraged the advances of the men. Subsequent thereto apparently a psychological reaction set in and she felt horrified at what had happened. As a result, the men were charged with rape.”486 Such psychologizing was even used to justify rape. Seeking clemency in one case, Williams wrote to the Secretary of War that the alleged victim was “a known prostitute” and added, “this is another of the all too frequent instances of American Negro soldiers being deprived of their freedom, liberty, and oft-times their lives, solely on the word of women of ill-fame of both the occupied countries and of our liberated allies.”487 He added:

Though it is true that our armed forces in the capacity of conquerors and liberators have the obligation of maintaining high standards of moral conduct between their personnel and the citizens of the country wherein they are located, the instant case can hardly be one for such stern and severe degree of disciplinary action. Herein an infamous prostitute was allowed to ply her trade within a few yards of the sleeping quarters of hundreds of normal healthy men, who had been separated from their homes and loved ones for months on end, and who were suffering from the boredom and abnormal life of the soldier on foreign shores. Certainly, then, responsibility for such an occurrence, even if true, should rest upon army authorities as well as on the men themselves.488

This soldier’s sentence was eventually reduced from life in prison to twelve years.489 The most infamous of the military cases—and one that exemplifies the regular narrative in rape cases—involved three Black soldiers who were charged with raping a white woman at Camp Claiborne in Louisiana.490 Initially, Marshall doubted their innocence, but he then came across the medical evidence from a doctor who examined the white woman.491 As Marshall recalled years later:

483 Memorandum from Constance Baker Motley to Robert Carter (Nov. 10, 1945), supra note 48. 484 Id. 485 Id. 486 Memorandum from Robert L. Carter to Thurgood Marshall (Dec. 12, 1944) (on file in Folder 1, Box II:B156, NAACP Records). 487 Letter from Franklin H. Williams to Henry Stimson, United States Sec’y of War (Jan. 14, 1946) (on file in Folder 11, Box II:B166, NAACP Records). 488 Id. 489 NAACP, Press Release (May 2, 1946) (on file in Folder 11, Box II:B166, NAACP Records). 490 See SULLIVAN, supra note 70, at 272 (calling this the “most noted case”). 491 See TUSHNET, supra note 325, at 64-65 (describing how Marshall had “some difficulty coming to a conclusion . .. about what happened” in the case).

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[H]e testified .. . that he had examined thousands of women’s vaginas during his term as doctor and he had never seen one this badly infected in his whole life. He said the pus was just running out. He also testified that if anybody that had intercourse with her would have to get gonorrhea, there was no way to miss, and certainly with three it was impossible. Now how could they be guilty of rape when none of the three caught gonorrhea? So that’s why I was convinced they were innocent.492

Marshall’s graphic vocabulary was telling: a woman who’d had so much sex and who had such obvious sexually transmitted infections, he believed, could not be raped, at least not without infecting her assailants. Marshall took the soldiers’ case all the way to the Supreme Court—his first appearance before that body—and got their convictions thrown out on technical grounds.493 Marshall then represented them at their court-martial, where they were convicted and sentenced to death; yet, because of NAACP lobbying, President Roosevelt commuted their sentences to life a year later, and a year after that they were paroled.494 It is here that most historical accounts of the Camp Claiborne rape case usually stop,495 but in fact the NAACP’s involvement in combating biased rape prosecutions at Camp Claiborne continued for years. Around the same time Marshall first argued before the Supreme Court, a soldier from the Camp wrote to the NAACP: “It is a ridiculous thing the way a colored soldier is being taken advantage of here in Louisiana. Even if you have an army officer as your defense counsel, he will eventually give in to fraudulent evidence created by the Court.I really didn’t have a fair trial.”496 A year later, a Black private named Lee Davis was arrested for allegedly raping a white soldier’s wife, and the local NAACP wrote to the national office, asking for a “sweeping investigation.”497 White wrote to a reporter for the New York Post, asking if she had “any means of checking on .. . the accuracy and validity of the ‘confession’ of Private Lee R. Davis to rape and attempted rape? (This may be true, but I have long since learned to be highly suspicious of such confessions in the South).”498 The Post reporter agreed and sent back a report detailing a powder-keg of a situation: after hearing rumors of a Black soldier raping several white women, a posse of armed whites scoured the countryside looking for him; in response, several hundred Black soldiers began stockpiling guns and ammunition, planning “a rebellion.”499 A riot ensued, a Black corporal was shot,500 and a major called

492 Interview by Mark Tushnet with Thurgood Marshall, 1-2 (May 23, 1989) (on file in Columbia University Oral History Collection). 493 Adams v. United States, 319 U.S. 312 (1943) (reversing because the federal court lacked jurisdiction); SULLIVAN, supra note 70, at 273; see also TUSHNET, supra note 325, at 65; Soldiers Sentenced to Death Get New Trial,PITTSBURGH COURIER, July 31, 1943, at 16;NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, ANNUAL REPORT FOR 1943, at 10 (1943) (on file in Box II:K1, NAACP Records). 494 SULLIVAN, supra note 70, at 273; TUSHNET, supra note 325, at 65-66. 495 See, e.g.,SULLIVAN, supra note 70, at 273; TUSHNET, supra note 325, at 66; WILLIAMS, supra note 15, at 128. 496 Letter from Floyd C. Covington, Exec. Dir., Los Angeles Urban League, to Truman K. Gibson Jr., Chief Civilian Advisor to Sect’y of War Henry L. Stimson (Feb. 7, 1943) (on file in Folder 8, Box II:B157, NAACP Records). 497 Letter from Georgia M. Johnson to NAACP Nat’l Office (Aug. 22, 1944) (on file in Folder 14, Box II:B157, NAACP Records). 498 Letter from Walter White to Tabitha Petran (Oct. 4, 1944) (on file in Folder 14, Box II:B157, NAACP Records). 499 Memorandum from Tabitha Petran to Walter White (1944) (on file in Folder 14, Box II:B157, NAACP Records).

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a meeting of the “civilian white girls who hold various jobs in and around the camp . . . and told [them] not to be scared, the Negroes will never take over the South etc. .. . This apparently because the townspeople are talking civil war, demanding forcible handling of the ‘rebels.’”501 Several Black soldiers were arrested for mutiny,502 and Davis for rape, yet in spite of the Association’s efforts, Davis was executed in 1945.503 Mark Tushnet has argued that, over the course of the war, “Marshall and the staff came to understand that the impact of a successful appeal in a criminal case, where the defendant might have been guilty, was often more significant in changing ongoing practices than simply freeing the innocent would be.”504 This realization would have significant ramifications for the Association’s future legal work on behalf of Black men charged with rape—especially its eventual campaign against the death penalty.

B. Blaming “Immoral Little Girls”

In July 1944, The Crisis ran an editorial entitled “Black and White Rape,” in which the NAACP decried the fact “that the American army judges the crime of rape committed by white men in a different fashion from the same crime committed by black men.”505 After describing several well- publicized cases involving alleged Black rapists sentenced to death, the Association continued:

In contrast to all this, is the case of Captain Morrison L. Wilkinson, white, who on June 13 was sentenced by a military court in Santa Ana, Calif., to thirty years at hard labor after he had been convicted of four sex offenses, bigamy, and theft. One charge was statutory rape on a 17-year-old girl; another assault with intent to commit rape on a 16-year-old girl. Two charges of forced rape were dismissed. Wilkinson, 28, is a veteran of air combat in China. He was also convicted of marrying another woman before his divorce became final, and of stealing her wrist watch. Here is an air force officer, a member of one of the select branches of the service, found guilty of cheap and sordid crimes, yet being sentenced to only 30 years, with a white major defending him by blaming parents and “little immoral girls!”506

On the other hand, the editorial concluded, Black men “get the minimum defense required by law, and the maximum penalty, with no allowance for anything. Rape by colored men, in the American military mind, is different from rape by white men.”507

500 Id.; see also Letter from Truman K. Gibson Jr. to Walter White (Sept. 12, 1944) (on file in Folder 14 Box II:B157, NAACP Records). 501 Memorandum from Tabitha Petran to Walter White, supra note 499. 502 John E. Rousseau Jr., Report on Camp Claiborne (1944) (on file in Folder 14, Box II:B157, NAACP Records). 503 See Negro Soldier Convicted of Rape Is Executed,SHREVEPORT J., Aug. 14, 1945, at 2. 504 TUSHNET, supra note 325, at 29. 505 Black and White Rape, supra note 457, at 217. 506 Id. 507 Id.

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The point the NAACP was making in this editorial was correct, yet the way the authors did so is revealing. The Crisis editors were disquieted that Wilkinson had secured a shorter sentence by blaming “little immoral girls”—yet impeaching the morality of alleged victims was precisely the Association’s strategy in representing Black men accused of rape. More significantly, the Association framed the issue of Jim Crow justice in the adjudication of rape as problematic for how it affected “colored men”—not because of how it affected Black women. This framing reveals a significant blind spot in the NAACP’s ongoing rape jurisprudence and helps explain why the Association failed to challenge any rape laws for their discriminatory effects. Throughout World War II, the NAACP did receive a handful of complaints from Black women who had been sexually assaulted at military installations, or who were themselves members of the military. In 1944, for instance, a Black woman working at a New Orleans Army air base was almost raped by an Italian prisoner of war, who continued to harass her.508 On her behalf, the local NAACP branch wrote to the Army demanding “forceful action,” and copying Franklin Roosevelt and Thurgood Marshall. “We respectfully request an immediate investigation and sincerely hope that these things will not happen to women of color, and if adequate protection is not given, we will have to encourage our women to seek employment elsewhere.”509 A few months later, a private in the Women’s Army Corps wrote to the NAACP explaining that while traveling through the South on a train, she “was thoroly [sic] humiliated” when a man had forcefully pushed her out of the dining car because she was Black: “I was laboring under the illusion that Democracy was worth fighting for. I thot [sic] that as I wore the unifor[m] of the USA, I would be respected and recognized as a true American citizen; instead I am insulted, trampled-on and humiliated.”510 This assault—though not explicitly sexual—nonetheless highlighted the unique danger Black women faced in the military. It does not appear from surviving archival records that the NAACP intervened on this woman’s behalf. Some months later, two Black members of the Women’s Army Corps—Private Roberta McKenzie and Private First Class Gladys Blackman—were violently assaulted by several white police officers after they refused to vacate seats on an empty bus at the driver’s command; the police repeatedly struck them in the face and head, punched one in the breast, and “ma[de] dirty remarks at us,” McKenzie reported.511 When this came to the attention of the NAACP, Marshall forwarded their statements to William Hastie, then dean of Howard Law School, adding, “This looks like dynamite to me and I would like your suggestions as to how it can best be handled.”512 It is unclear how Hastie responded, but a month later the NAACP was urging the Secretary of War to end Jim Crow practices in interstate travel, citing the McKenzie/Blackman case as an example of injustice.513 It is unclear if the NAACP demanded prosecution in any of these cases, but it is highly unlikely that the Association challenged the discriminatory laws governing sexual assault—laws that would have made securing convictions fairly onerous. This is because the NAACP routinely took

508 Statement of Edna Dillon (1944) (on file in Folder 6, Box II:B123, NAACP Records). 509 Letter from Daniel E. Byrd to Richard E. Donovan (July 5, 1944) (on file in Folder 6, Box II:B123, NAACP Records). 510 Letter from Florence Culkin to NAACP (Dec. 18, 1944) (on file in Folder 3, Box II:B194, NAACP Records). 511 Statement of Pvt. Roberta McKenzie (Dec. 23, 1944) (on file in Folder 3, Box II:B194, NAACP Records). For more on this case, see MCGUIRE, supra note 65, at 42. 512 Letter from Thurgood Marshall to William H. Hastie (Jan. 13, 1945) (on file in Folder 3, Box II:B194, NAACP Records). 513 Ask War Dep’t Backing for Anti-Jim Crow Travel Bill,YORK GAZETTE & DAILY, Feb. 14, 1945, at 2.

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advantage of existing rape laws in its defense of Black male soldiers, with several Association officials apparently embracing the heavy demands of the resistance, consent, and force standards. Note, for instance, Motley writing of a white woman’s whose character was “so low that one can hardly conceive of her offering any resistance at all to sexual intercourse,”514 and Association lawyers arguing in a brief that evidence of prostitution was also evidence of consent.515 The former was predicated on the resistance standard, while the latter was predicated on the consent standard. In another case, an NAACP defense lawyer for a Black corporal embraced the force standard, stating at a court martial that “[t]his story by the woman is rather incredible. . . . The doctor’s testimony shows that no force was used by the man and the woman, according to her story, offered no resistance.”516 These cases carried a broader significance because the military imported these standards from civilian legal codes. At the time, the Manual for Courts Martial provided:

Force and want of consent are indispensable in rape; but the force involved in the act of penetration is alone sufficient where there is in fact no consent. Mere verbal protestations and a pretense of resistance are not sufficient to show want of consent, and where a woman fails to take such measures as to frustrate the execution of a man’s design as she is able to, and are called for by the circumstances, the inference may be drawn that she did in fact consent. It has been said of this defense that it is true that rape is a most detestable crime .. . but it must be remembered that it is an accusation easy to be made, but harder to be defended by the party accused, though innocent.517

As De Paola has pointed out, “[i]mplicit in this definition are hetero-normative assumptions about rape and the fact that consent could be assumed if the woman did not show resistance.”518 The NAACP never challenged the military’s definition of rape. It was not until a decade later, in a case involving a Black GI court-martialed for raping a white French woman in 1952, that the Court of Military Appeals519 abandoned the “old rule of ‘resistance to the uttermost’” and instead embraced “the view that a rape victim’s resistance need only be such as to make a want of consent and actual resistance reasonably manifest.”520 Military courts continued to chip away at this standard in the years to come,521 and today the resistance requirement is no longer part of the military definition of rape.522

514 Motley to Carr (Nov. 10, 1945), supra note 48. 515 Seek Immediate Release of Two Men in Army “Scottsboro” Affair, supra note 237, at 1. 516 Along the N.A.A.C.P. Battlefront: Ask Review of Soldier’s Death Sentence, THE CRISIS, July 1944, at 226-27. 517 Petition for Clemency for McKinley Moore 27 (July 19, 1946) (on file in Folder 19, Box II:B165, NAACP Records). 518 De Paola, supra note 449, at 103-04 n.30. 519 This is now called the Court of Appeals for the Armed Forces. 520 United States v. Henderson, 4 U.S.C.M.A. 268, 273 (1954). 521 See United States v. Copeland, 21 A.F.C.M.R. 838 (1956). 522 10 U.S.C. § 920 (2020); see MANUAL FOR COURTS-MARTIAL § 920, Art. 120 (2019), https://jsc.defense.gov/ Portals/99/Documents/2019%20MCM%20(Final)%20(20190108).pdf [https://perma.cc/X3FQ-RT6F].

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IV. THE ROAD TO BROWN, 1941-1954

In the years leading up to Brown v. Board of Education,523 the NAACP took on more interracial rape cases than ever before; these cases remained a significant part of the Association’s practice even as its primary focus turned toward ending segregation in educational institutions. During the 1940s and early 1950s, many of the Association’s rape cases resulted in significant court rulings that would eventually form the foundations for much of modern criminal procedure. These years also witnessed the start of a shift in interracial rape cases; as Black newspapers noted, some Black men started to be acquitted even when accused of raping white women, and some white men were prosecuted even when their rape victims were Black women. At least some of this startling shift can be attributed to the NAACP’s decades of advocacy, at the national and local level, in interracial rape cases. Yet, as before, the Association’s lawyers did not challenge the gendered impacts of contemporary rape laws.

A. Fighting in the Criminal Procedure Revolution

In the early days of the LDF, Marshall was the only legal staff member, but—with so much work to be done—the staff quickly expanded.524 First came part-time legal assistants and secretaries learning legal skills, but starting in the mid-1940s, attorneys including Edward Dudley, Robert Carter, Franklin Williams, Marian Wynn Perry, and finally Jack Greenberg joined the staff.525 Constance Baker Motley worked for several years as a “legal research assistant,” much to her displeasure, and Marshall eventually made her a full-fledged staff lawyer in 1949.526 Armed with this cadre of lawyers—many of whom would achieve fame in the years to come—Marshall and the LDF “handled, or in some manner aided,” hundreds of race discrimination cases each year.527 The other lawyers in the office would do research, respond to correspondence, and help prepare Marshall for arguments before the Supreme Court.528 The pleas for help continued to stream in, the letters only increasing in volume as LDF’s profile grew.529 “Im [sic] accused of attacked a white woman here in Mobile Ala. which Im not guilty of,” one Black man wrote in 1941.530 “So you can understand what I went up against accused of a crime like this one in the South.”531 Almost a decade later, a woman in Mississippi wrote, “i [sic] am asking you all for help i have a boy that charge with [attempt]ing to rape a white lady and his trial will

523 347 U.S. 483 (1954). 524 TUSHNET, supra note 325, at 28. 525 Id. at 28-29, 33-37. Others, including Prentice Thomas, joined briefly but could not handle the work and soon left. Id. at 33. 526 Id. at 36. 527 NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, THE FORTIETH YEAR: NAACP ANNUAL REPORT FOR 1948, at 26 (1948) (on file in Box II:K1, NAACP Records); see also NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, CIVIL RIGHTS AT MID-CENTURY: NAACP ANNUAL REPORT, FORTY-SECOND YEAR 22 (1950) (on file in Box II:K1, NAACP Records). 528 See TUSHNET, supra note 325, at 37-38. 529 See WILLIAMS, supra note 15, at 113. 530 Letter from Curtis Robinson to Walter White (Nov. 27, 1941) (on file in Folder 3, Box II:B127, NAACP Records). 531 Id. For more on this case, see Two Doomed to Die, Deny Attack Charge,CHICAGO DEFENDER, Dec. 27, 1941, at 5.

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soon be held and i am a poor widow woman and i don’t have nothing please get me a law[y]er here in Jackson.”532 Sisters wrote on behalf of brothers,533 fathers on behalf of sons,534 churches on behalf of congregants.535 The letters emphasized the accused men’s character, military service, church attendance, lack of previous arrests, or poverty and desperation.536 The NAACP’s interest in rape cases was by now a matter of common knowledge. “Knowing your interest in cases of this kind I suggest you investigate,” wrote one man in 1946, attaching a clipping.537 “If the man is actually guilty of rape,” he added, “why you can drop it like a hot potato on a piece of dry ice. I don’t know the fellow [but to] me this case looks fishy.”538 Upon receiving this flood of letters, the LDF lawyers continued using the script that had been written during the early days of Marshall’s tenure. Sometimes they would write back asking for more information,539 and sometimes they would write to clarify that the NAACP could only take a case “where there is the possibility of establishing a precedent which will benefit Negroes generally.”540 (In this vein, the Association routinely refused to take the cases of Black men accused of raping Black women,541 although they did sometimes send along legal research to assist the men’s lawyers.542) But in most cases, the lawyers at the national office would forward the pleas to local branch offices for investigation and, if necessary, representation.543 Indeed, much of the labor of

532 Letter from Maggie Alexander to NAACP (Sept. 29, 1949) (on file in Folder 6, Box II:B122, NAACP Records). 533 Letter from Marie Swisher to “Dear Friends” (Oct. 18, 1941) (on file in Folder 2, Box II:B127, NAACP Records). 534 Letter from John Williams to Walter White (1941) (on file in Folder 12, Box II:B129, NAACP Records). 535 Letter from Bethel A.M.E. Church of Reidsville, NC, to Walter White (Oct. 27, 1942) (on file in Folder 8, Box II:B123, NAACP Records). 536 See, e.g., Letter from C.J. Gates to Constance Baker Motley (Aug. 6, 1948) (on file in Folder 11, Box II:B123, NAACP Records); Letter from Maurice M. Weaver to P.A. Stephens (May 6, 1947) (on file in Folder 5, Box II:B123, NAACP Records); Letter from Moses A. Riddick, et al., to NAACP (Mar. 15, 1945) (on file in Folder 8, Box II:B123, NAACP Records); Letter from P.W. Gildewell Sr. to Men’s Progressive Club (Jan. 13, 1943) (on file in Folder 8, Box II:B123, NAACP Records). 537 Letter from Victor Vollman to NAACP (July 24, 1946) (on file in Folder 2, Box II:B125, NAACP Records). 538 Id. 539 Letter from Prentice Thomas to Thomas Diggs (July 17, 1942) (on file in Folder 12, Box II:B123, NAACP Records). 540 Letter from Marian Wynn Perry to Otis Banks (Sept. 27, 1946) (on file in Folder 1, Box II:B123, NAACP Records); see also Letter from Thurgood Marshall to Rafe Hargrove (June 23, 1945) (on file in Folder 5, Box II:B124, NAACP Records); Letter from Prentice Thomas to Thomas Diggs (July 28, 1942) (on file in Folder 12, Box II:B123, NAACP Records). NAACP regulations also made clear that “there must be a reasonable doubt of the guilt of the accused.” Letter from Prentice Thomas to P.W. Glidewell (Feb. 17, 1943) (on file in Folder 8, Box II:B123, NAACP Records). 541 See, e.g., Letter from Marian Wynn Perry to Harry J. Cocrel (Sept. 8, 1947) (on file in Folder 3, Box II:B126, NAACP Records); Letter from Thurgood Marshall to Thomas A. Jacobs (Apr. 20, 1943) (on file in Folder 7, Box II:B122, NAACP Records). 542 See, e.g., Letter from Milton R. Konvitz to Arnold Jacobs (June 30, 1943) (on file in Folder 7, Box II:B122, NAACP Records). 543 See, e.g., Letter from Jack Greenberg to S.T. Cooper (June 25, 1954) (on file in Folder 12, Box 65, NAACP LDF Records); Letter from Jack Greenberg to Utillus Phillips (Apr. 14, 1954) (on file in Folder 12, Box 65, NAACP LDF Records); Letter from Robert L. Carter to F.L. Roberson (Apr. 1, 1946) (on file in Folder 6, Box II:B122, NAACP Records); Letter from Thurgood Marshall to J.M. Hinton (Oct. 28, 1942) (on file in Folder 8, Box II:B123, NAACP Records); Letter from Frank D. Reeves to J.M. Jackson (Dec. 9, 1941) (on file in Folder 3, Box II:B127, NAACP Records); Letter from Frank D. Reeves to T.T. Allen (Aug. 25, 1941) (on file in Folder 10, Box II:B123, NAACP Records).

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advocating and representing these men was undertaken by local branches, which were often starved for funds and thus compelled to fundraise, or else beg the national office for support.544 “So many things to do, am worked to the breaking point,” wrote one local chairman in a letter describing the hundreds of dollars the branch was spending on behalf of an alleged rapist.545 Yet Marshall himself was stretched to the breaking point as well. After a lawyer in Chattanooga wrote to him repeatedly in 1947, describing “a virulent outbreak of arrests of Negro citizens charged with assault and their prosecution upon the most doubtful evidence touching their identity,”546 Marshall’s secretary was forced to explain her boss’s delayed response: he was absolutely swamped—”between the University of Texas case and the South Carolina University and Primary cases”—and so was “unable to get to many of the matters on his desk.”547 Marshall himself added, ten days later, “You cannot imagine how bad we feel about being unable to answer your letter sooner .. . but I have been running between South Carolina, Mississippi, and Texas on cases and your letters have been chasing me around from place to place.”548 As Marshall’s biographer, Juan Williams , has described:

Working by himself and with a limited budget, there was no way Marshall could agree to represent suspects in every case. Sometimes he would call the local branch’s attorney and discuss the case, offering ideas for building a defense. Just as often he would have to find an attorney in the area who was willing to get involved for a minimal fee from the NAACP.549

But, Williams added, “in some cases Marshall would feel compelled, by an insistent branch leader or by the horror of a case, to get on a train and handle the matter himself.”550 Particularly compelling facts sometimes convinced Marshall to join a case. For instance, after a white woman in Florida told the police that several Black men had attacked and raped her, the police (and a mob posse) arrested four young Black men, three of whom they viciously beat, while the

544 See, e.g., Letter from P.A. Stephens to Walter White (Nov. 16, 1945) (on file in Folder 8, Box II:B123, NAACP Records); see also THE FORTIETH YEAR, supra note 527, at 26 (describing “the hundreds of cases handled entirely by the local branches”). Perhaps because of the extreme workload of local branches, defendants in these cases sometimes appealed elsewhere for assistance. In one case involving a defendant renowned for gospel singing, his brother asked for help from the National Baptist Convention. See Letter from D.V. Jemison to Robert Cherry (Mar. 21, 1942) (on file in Folder 10, Box II:B123, NAACP Records). In another case, an ally of the defendant appealed to Eleanor Roosevelt. See Letter from Roosevelt Amison to Eleanor Roosevelt (Apr. 4, 1947) (on file in Folder 12, Box II:B125, NAACP Records). 545 Letter from J.L. LeFlore to Thurgood Marshall (Jan. 10, 1942) (on file in Folder 3, Box II:B127, NAACP Records). 546 Letter from Maurice M. Weaver to Thurgood Marshall (May 13, 1947) (on file in Folder 5, Box II:B123, NAACP Records). 547 Letter from Gloria Samuels to Maurice M. Weaver (June 3, 1947) (on file in Folder 5, Box II:B123, NAACP Records). 548 Letter from Thurgood Marshall to Maurice M. Weaver (June 13, 1947) (on file in Folder 5, Box II:B123, NAACP Records). 549 WILLIAMS, supra note 15, at 113. 550 Id.

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fourth, a teenager, they killed as he fled.551 These horrifying facts convinced Marshall that the NAACP’s fullest “resources” must be “thrown behind the defense of these boys.”552 Eventually, Marshall and his LDF colleagues took the appeal of the three surviving men—known as the “Groveland Boys”—to the Supreme Court, and Marshall personally represented one of them at his Florida retrial.553 Around the same time, in the case of Samuel Taylor, a Black teenager from Alabama who was savagely beaten into confessing that he had raped a fourteen-year-old white girl, Marshall and his staff wrote the briefs, and Marshall ultimately argued the case in the Supreme Court, along with Taylor’s local attorney (with whom he worked closely, bonding over steamed clams).554 The NAACP argued that Taylor’s confession was obtained through “force, violence and fear, in violation of the Fourteenth Amendment.”555 The Court, however, was not convinced, and affirmed Taylor’s conviction in a 4-4 per curiam decision.556 This was, Williams noted, Marshall’s second defeat before the Supreme Court,; the first had also involved a coerced confession.557 A few months later, Marshall returned to the Supreme Court to argue a different appeal for Taylor; to Marshall’s genuine astonishment, an evenly split Court again affirmed the conviction.558 Ultimately, the governor of Alabama commuted Taylor’s sentence to life imprisonment.559 To be sure, Marshall often declined to take potentially promising cases—in an abundance of caution, and aware of his limited time. When the Dallas NAACP branch wrote to him, asking for assistance in the case of Henry Allen Hill—a man indicted for rape by a grand jury with no Black members, and then convicted—Marshall refused to get involved or to contribute financial

551 KING, supra note 15, at 58-68, 84-94, 113-19, 124-31; WILLIAMS, supra note 15, at 152-53; GREENBERG, supra note 15, at 93-94. For more on racial violence (and NAACP resistance) in Florida, see Caroline S. Emmons, Flame of Resistance: The NAACP in Florida, 1910-1960 (1998) (unpublished Ph.D. dissertation, Florida State University) (on file with author). 552 KING, supra note 15, at 134; WILLIAMS, supra note 15, at 153. 553 KING, supra note 15, at 216-18, 222, 267-69, 286-95, 306-07; WILLIAMS, supra note 15, at 153–57. The Groveland Boys were finally posthumously pardoned in 2019, although advocates on their behalf had pushed for exoneration, and the purported victim—still alive at 86—continued to insist she’d told the truth. Katie Mettler, “Miscarriage of Justice”: Florida Finally Four Black Men Accused of Rape in 1949,WASH. POST (Jan. 11, 2019, 5:48 PM), https://www.washingtonpost.com/ history/2019/01/11/years-after-miscarriage-justice-florida-pardons-four-black-men-accused-rape-by-white-woman/ [https://perma.cc/4GF3-EUQX]. 554 Letter from Nesbitt Elmore to Thurgood Marshall (Oct. 7, 1948) (on file in Folder 6, Box II:B128, NAACP Records). Initially, feeling “there are no federal issues raised in this case since the exclusion of jury was not raised,” Marian Wynn Perry recommended the NAACP not get involved. Memorandum from Marian Wynn Perry to Files (May 13, 1947) (on file in Folder 6, Box II:B128, NAACP Records). But when the local branch president raised it again, see Telegram from J.L. LeFlore to Thurgood Marshall (Jan. 6, 1948) (on file in Folder 6, Box II:B128, NAACP Records), the national branch acceded, see Letter from Franklin H. Williams to Nesbitt Elmore (Jan. 31, 1948) (on file in Folder 6, Box II:B128, NAACP Records). 555 Press Release, Seek New Trial for Rape Charge Victim (Mar. 5, 1948) (on file in Folder 6, Box II:B128, NAACP Records). For the full briefs from Taylor, see Folder 7, Box II:B128, NAAC Records. Just before Taylor was to be executed, Justice Wiley Rutledge issued a last-second stay. Alabama Youth Gets Reprieve,ARK. STATE PRESS, July 16, 1948, at 1. Interestingly, future Justice John Paul Stevens was clerking for Rutledge at the time. 556 Taylor v. Alabama, 335 U.S. 252 (1948). 557 WILLIAMS, supra note 15, at 147 (citing Lyons v. Oklahoma, 322 U.S. 596 (1944)). 558 Taylor v. Dennis, 336 U.S. 907 (1949); Letter from Thurgood Marshall to J.L. LeFlore (Mar. 16, 1949) (on file in Folder 6, Box II:B128, NAACP Records); Letter from Thurgood Marshall to Charles Elmore Cropley (Jan. 25, 1949) (on file in Folder 6, Box II:B128, NAACP Records). 559 Folsom Commutes Taylor Sentence,WICHITA NEGRO STAR, June 10, 1949, at 1.

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assistance.560 He did not think the Dallas lawyers had much of a chance of success in their appeal, and, furthermore, he believed Hill was guilty.561 Ultimately, the Supreme Court reversed Hill’s conviction, much to Marshall’s embarrassment.562 According to LDF attorney Jack Greenberg, Marshall’s reaction was typical: “Thurgood did not want to see this one kind of case”—interracial rape cases—”controversial in its own special way, crowd out other important work.”563 Nonetheless, ever more absurd and appalling fact patterns continued to be presented to LDF, compelling Marshall to take still another rape case. In 1951, a Black sharecropper named Mack Ingram was charged with assault with intent to rape for looking at a 17-year-old white girl in a “leering” manner—from seventy feet away.564 As Marshall wrote to an editor at Ebony, “We are convinced that this is one of the most important cases in the criminal field. It demonstrates what can be done in a community of the south where Negroes are so often denied an opportunity for a fair and decent trial.”565 A year later, a Black man named Ozzie Jones was charged with raping a white woman, which LDF attorneys believed was physically impossible, since he’d recently been circumcised and his penis was “stitched and swollen” at the time.566 And while the NAACP saved Ingram,567 Jones was executed despite Greenberg’s and Marshall’s interventions.568 To Marshall, compelling fact patterns had to be accompanied with a legal claim that could make good law for the broader Black population. One area where he believed the NAACP could make good law was a set of facts that included police brutality and a coerced confession; Marshall took on many such rape cases.569 “[T]here seems to be no doubt in my mind that it is the type of case for the NAACP,” he wrote to one regional Association official in 1947.570 “We have handled several of these confession cases in the past and good law has been built up on them.”571 Often, these coerced confession cases also featured a mob atmosphere, which Marshall could argue violated a

560 See Letter from Doss Hardin to Thurgood Marshall (July 9, 1941) (on file in Folder 7, Box II:B124, NAACP Records); Letter from G.F. Perter to Thurgood Marshall (Jan. 20, 1941) (on file in Folder 7, Box II:B124, NAACP Records). 561 Letter from Thurgood Marshall to G.F. Porter (Nov. 3, 1941) (on file in Folder 7, Box II:B124, NAACP Records). 562 316 U.S. 400 (1942); see TUSHNET, supra note 325, at 60 (explaining that Marshall was mistaken in his analysis of the likelihood of conviction). 563 GREENBERG, supra note 15, at 102. 564 Id. at 101; see also clippings in Folder 2, Box 66, NAACP LDF Records. 565 Letter from Thurgood Marshall to Herb Nipson (Sept. 13, 1951) (on file in Folder 2, Box 66, NAACP LDF Records). 566 GREENBERG, supra note 15, at 256-57. 567 Press Release, North Carolina Supreme Court “Frees” Mack Ingram (Feb. 27, 1953) (on file in Folder 4, Box 66, NAACP LDF Records). 568 GREENBERG, supra note 15, at 257; Supreme Court Denies Review of Rape Case,CHICAGO DEFENDER, May 8, 1954, at 12. 569 See, e.g., Trenton 6 Called “Frame-Up,” ARK. STATE PRESS, May 27, 1949, at 1; NAACP Fights for 3 Mississippi Boys, ARK. STATE PRESS, Sept. 12, 1947, at 1. Local branches too took on these cases. NAACP Appoints Counsel for Bush,ARK. STATE PRESS, June 6, 1947, at 1. 570 Letter from Thurgood Marshall to N.W. Griffin (June 14, 1947) (on file in Folder 1, Box II:B123, NAACP Records). 571 Id.

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defendant’s right to due process or equal protection.572 Another fruitful area involved inadequate assistance of counsel—as in the case of James Arrington, whose court-appointed white attorney told him, “Oh yes you are guilty” and said to the jury, “This defendant thinks I’m going to do something for him, but I ain’t.”573 But practical considerations also had to be balanced against legal arguments. As one lawyer, dispatched by the national office to investigate a rape conviction, wrote in 1944, the Association could likely win a new trial on appeal, but then “the hazards of a fatal termination” were “grave.”574 “While it is depressing to know that this man is in prison when it is believed that he is innocent of the charge against him,” he continued, “at the same time it must be realized cautiously that an unwise effort to extricate him may place him in infinitely worse situation.”575 In this case, White agreed: “further appeal might result in death sentence,” he scrawled in a note to Marshall.576 In another case, Marshall declined to have the Association assist, in part because the defendant “is an ex-convict and that makes it doubly hard to get any sympathetic hearing.”577 The carefully selected rape cases the NAACP brought to the Supreme Court in the 1940s and 1950s broadened and deepened the criminal procedure precedents set by rape cases in the 1930s. In Lee v. Mississippi, for instance, the Supreme Court held that inconsistent testimony about a confession could not preclude a petitioner from arguing that the confession was elicited in a way that denied him due process, such as through coercion.578 The case involved a Black man convicted of raping a white woman, and Marshall worked very closely on the case with Lee’s attorney—in spite of local branch concerns that the attorney was a white supremacist.579 In White v. Texas, the Supreme Court reversed the conviction of a Black man, accused of rape and represented by the NAACP, which had argued that the absence of Black people on the grand jury violated his constitutional rights.580 Six months later, citing Norris and almost certainly recalling White, the justices ruled in Smith v. Texas that jury commissioners relying on personal acquaintances to compile lists for the grand jury

572 See, e.g., Lifer May Get Chance to Prove Innocence,PITTSBURGH COURIER, May 8, 1954, at 5; Guam Trial of GIs Unfair Says NAACP,WICHITA NEGRO STAR, Mar. 21, 1952, at 1. The NAACP was unsuccessful in the latter case. See Burns v. Wilson, 346 U.S. 138 (1953). 573 Memorandum from Franklin H. Williams to Public Relations Dep’t (Mar. 21, 1950) (on file in Folder 8, Box II:B122, NAACP Records). 574 Letter from Carl Marshall to Edward Dudley (July 11, 1944) (on file in Folder 1, Box II:B127, NAACP Records); see also Telegram from Edgard Dudley to Saidee Newcombe Ross (June 30, 1944) (on file in Folder 1, Box II:B127, NAACP Records) (dispatching him to investigate). 575 Marshall to Dudley (July 11, 1944), supra note 574. 576 Note from Walter White to Thurgood Marshall (July 20, 1944) (on file in Folder 1, Box II:B127, NAACP Records). 577 Letter from Thurgood Marshall to Forrest B. Jackson (Sept. 25, 1944) (on file in Folder 2, Box II:B130, NAACP Records); Letter from Forrest B. Jackson to Thurgood Marshall (Sept. 19 1944) (on file in Folder 2, Box II:B130, NAACP Records). 578 332 U.S. 742, 745 (1948). 579 Letter from Thurgood Marshall to W.A. Bender (Nov. 10, 1947) (on file in Folder 13, Box II:B38, NAACP Records). 580 309 U.S. 631 (1940). For the facts of the case, see White v. State, 128 S.W.2d 51, 57 (Tex. Crim. App. 1939). For the NAACP’s involvement, see Texas Rape Trial Unfair, Says NAACP, supra note 389, at 15; TUSHNET, supra note 325, at 51.

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was unconstitutional discrimination.581 This case also involved a Black man convicted of raping a white woman, and although Marshall offered advice on filing in the Supreme Court, he wrote that the Association could not officially join in Smith’s defense until reviewing the file; before that could happen, Smith won in the Court.582 (The local branch, meanwhile, provided “moral support” for Smith’s court-appointed lawyer.583) Nonetheless, Smith built on years of NAACP precedent and laid the groundwork for another NAACP suit that subsequently strengthened the jury discrimination doctrine.584 Eventually, all of these precedents provided the foundation for the Court’s landmark opinion in Miranda v. Arizona.585 Local NAACP branches likewise achieved significant criminal procedure victories before the Court. In Hill v. Texas, its ruling in the case of Henry Allen Hill, the Court held that the mere fact that Blacks had consistently been excluded from grand juries, and that jury commissioners had made no efforts to identify Black potential jurors, was enough to merit a reversal; Hill did not have to show how many qualified Blacks there were in the region.586 Notably, at least one justice was reluctant to rule in Hill’s favor because of the facts of the crime and his belief (with which Marshall had concurred) that Hill’s guilt was clear; Justice Jackson prepared (but ultimately did not release) a dissent concluding that he could think of nothing “more discreditable to the negro race, or more harmful to it in its struggle for its rights, than that negroes .. . would have given this person immunity from indictment.”587 The local lawyer working with the NAACP branch on the case believed he had evidence that gestured to Hill’s innocence,588 but his brief instead focused on the jury discrimination issue, comparing it to Nazism.589 A decade after White, Smith, and Hill, in Shepherd v. Florida—the Groveland Boys case, another NAACP rape case590—the Court reaffirmed its jury discrimination precedents.591 In a

581 311 U.S. 128, 130, 132 (1940). 582 Letter from Thurgood Marshall to Harry W. Freeman (Mar. 11, 1940) (on file in Folder 9, Box II:B127, NAACP Records); Letter from Thurgood Marshall to Harry W. Freeman (Feb. 6, 1940) (on file in Folder 9, Box II:B127, NAACP Records). 583 Letter from A.A. Lucas to Thurgood Marshall (Feb. 15, 1940) (on file in Folder 9, Box II:B127, NAACP Records). 584 See Patton v. Mississippi, 332 U.S. 463, 469 (1947). On the NAACP’s involvement, see correspondence in Folders 1-5, Box II:B46, NAACP Records. The Court then cited Patton to reach its landmark decisions in Reece v. Georgia, 350 U.S. 85, 88 (1955) and Batson v. Kentucky, 476 U.S. 79, 84 (1986). 585 384 U.S. 436, 446 (1966) (citing, e.g., White v. Texas). Miranda also cites several NAACP murder cases. E.g., id. at 446, 507 (citing Lyons v. Oklahoma, 322 U.S. 596 (1944)); id. at 446, 448, 460, 479 (citing Ward v. Texas, 316 U.S. 547 (1942)); id. at 446, 448, 460, 479 (citing Chambers v. Florida, 209 U.S. 227 (1940)). In addition, it cites several cases that refer to NAACP rape cases. E.g., id. at 448, 464, 481 (citing Blackburn v. Alabama, 361 U.S. 199 (1960)); id. at 452, 465, 507 (citing Spano v. New York, 360 U.S. 315 (1959)). 586 Hill v. Texas, 316 U.S. 400 (1942);TUSHNET, supra note 325, at 59-60. 587 TUSHNET, supra note 325, at 60. 588 See Letter from G.F. Perter to Thurgood Marshall (Feb. 7, 1941) (on file in Folder 7, Box II:B124, NAACP Records). 589 See Appellant’s Motion for a Rehearing and Argument in Support Thereof, Hill v. Texas (No. 21,689) (on file in Folder 8, Box II:B124, NAACP Records). 590 For the thought process of the LDF attorney who drafted the petition in the Groveland case, see GREENBERG, supra note 15, at 98.

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powerful concurrence, Justice Jackson went even further: considering the mob violence present in and around the courtroom—which he felt was equivalent to that described in the NAACP’s first criminal procedure case, Moore v. Dempsey:592

[F]or the Court to reverse these convictions upon the sole ground that the method of jury selection discriminated against the Negro race, is to stress the trivial and ignore the important. While this record discloses discrimination which under normal circumstances might be prejudicial, this trial took place under conditions and was accompanied by events which would deny defendants a fair trial before any kind of jury. .. . It is on that ground that I would reverse.”593

A decade later still, the Court built on this precedent, relying on Moore and Jackson’s concurrence in Shepherd to hold, in Irvin v. Dowd,594 that a community’s prejudice could be so great that the Constitution demanded a change of venue.595 Yet in fighting for this criminal procedure revolution, NAACP attorneys—from LDF down to the local branches—continued to rely on highly gendered language, which informed their case selection and even their legal argumentation. In one case from Missouri, a lawyer for two Black men accused of rape wrote to Marshall that he’d investigated the alleged victim “and I find that she is undoubtedly a girl of very bad reputation.”596 He asked for money so he could obtain affidavits attesting to “this girl’s reputation,” believing that his clients’ “main chance in winning this case lies in the succeeding of our efforts to expose the true and rotten character of the complaining witness to the jury.”597 Marshall sent him $150,598 and the men were ultimately acquitted.599 In another case, the NAACP was able to secure parole for a man by capitalizing on the discovery of the fact that the alleged victim had previously accused two other Black men of raping her years earlier.600 Still other cases involved painting the alleged victim as “an unmitigated liar”601 or speculating that “this girl was a neurotic,” noting that she had once “had a rather extreme nervous breakdown.”602

591 Shepherd v. Florida, 341 U.S. 50, 50 (1951). 592 261 U.S. 86, 88-89 (1923). 593 Shepherd, 341 U.S. at 54-55 (Jackson, J., concurring). 594 366 U.S. 717, 728 (1961). 595 Id. at 727-28. 596 Letter from Sam Freidman to Thurgood Marshall (Apr. 13, 1950) (on file in Folder 4, Box II:B125, NAACP Records). 597 Id. 598 Memorandum from Thurgood Marshall to Finance Dep’t (Apr. 28, 1950) (on file in Folder 4, Box II:B125, NAACP Records). 599 Letter from Thurgood Marshall to Charles W. Toney Sr. (May 31, 1950) (on file in Folder 4, Box II:B125, NAACP Records). 600 Letter from David Sinclair to Charlie Phew (June 10, 1942) (on file in Folder 7, Box II:B126, NAACP Records). 601 Letter from Maurice M. Weaver to Thurgood Marshall (Oct. 1, 1947) (on file in Folder 5, Box II:B127, NAACP Records). 602 Letter from P.W. Glidwell to Men’s Progressive Club (Jan. 13, 1943) (on file in Folder 8, Box II:B123, NAACP Records).

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“I was beginning to wonder about the level of intelligence in the south,” an observer of yet another rape trial wrote to the NAACP. “Surely the girl could have made a more plausible story.”603 By 1949, suggested that “the grand old Southern custom of white women crying ‘rape’ at Negroes in order to divert the finger of guilt from themselves or others have at last begun to come to light. . . .”604 Such arguments could be highly persuasive to courts. In one case in Virginia, the court announced that because the alleged victim “made no alarm, and showed such slight resistance .. . the court could not accept the view that [the Black defendant] committed rape.”605 It is perhaps more than incidental that some of the NAACP’s most prominent male lawyers were often deeply distrustful of female attorneys. As far back as Charles Hamilton Houston’s first case for the NAACP, he ignored calls for a female attorney to assist in the case.606 In the case of James Arrington, the defendant’s appeal was championed by a “young Negro woman attorney,”607 but she and the men of the LDF quickly clashed. Marshall considered her work to be “inadequate,”608 and she expressed displeasure at having her work “redone” by the national office attorneys.609 The LDF attorneys continued asking the male branch president to check in on her work, while advising the president to bear “in mind the sensitivity Miss Dickerson feels concerning matters of this type.”610

B. Resisting a “Long-Standing Dixie Tradition”

As in decades past, the bulk of the advocacy on behalf of Black women who had been raped by white men was undertaken by local branches, rather than the national office. In dozens of cases in the 1940s and early 1950s, local branches hired lawyers to push for indictments611 and even assist in prosecutions.612 Many of the local NAACP activists pushing most strongly for the prosecution of

603 Saidee Newcombe Ross, Trial for Rape in Mississippi (1944) (on file in Folder 1, Box II:B127, NAACP Records). This observer found the prosecution’s case against the Black man particularly unbelievable because of the claim that the rapist had used a condom: “Whoever heard of rape with rubbers?” Id. 604 Dee Frederick, Old Familiar Cry, ‘He Raped Me’ Begins to Flop as Trial Nears,CHICAGO DEFENDER, Apr. 23, 1949, at 1. 605 Doomed Va. Man Freed; Says He Will Never Return Home,AFRO-AMERICAN, July 3, 1943, at 20. 606 Clark-Wiltz, supra note 285, at 166. 607 Memorandum from Franklin Williams to Public Relations Dep’t (Mar. 9, 1950) (on file in Folder 8, Box iI:B122, NAACP Records). 608 Memorandum from Thurgood Marshall to Franklin Williams (May 4, 1950) (on file in Folder 8, Box iI:B122, NAACP Records). 609 Letter from M. Ashley Dickerson to James T. Wright (May 4, 1950) (on file in Folder 8, Box iI:B122, NAACP Records). 610 Letter from Franklin Williams to Robert L. Matthews (June 2, 1950) (on file in Folder 8, Box iI:B122, NAACP Records). 611 See, e.g., Committee on Prosecutions of Criminals Meets with Plummer,KANSAS CITY PLAINDEALER, Nov. 29, 1946, at 2; Letter from St. John Parish NAACP Branch to Eugene Stanley (May 1, 1944) (on file in Folder 6, Box II:B125, NAACP Records); Untitled press release (Jan. 1, 1943) (on file in Folder 6, Box II:B123, NAACP Records) (describing Little Rock NAACP branch pushing for the prosecution of two white police officers); May Take Case of White Cop to Grand Jury,AFRO- AMERICAN, Apr. 19, 1941, at 10. 612 See, e.g., White Attacker of Negro Girl Must Pay,ARK. STATE PRESS, Oct. 23, 1953, at 1; Attack on Girl Brings Sentence, ARK. STATE PRESS, Apr. 3, 1953, at 1; Three White Paratroopers Indicted for Raping Mother of Three in Dixie,KANSAS CITY PLAINDEALER, Feb. 1, 1952, at 1; White Youth Freed in Rape of Negro Girl,WICHITA NEGRO STAR, Jan. 11, 1952, at 1; Man Held

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white male rapists were themselves women.613 Perhaps most famously, Rosa Parks—then the branch secretary of the Montgomery NAACP—investigated the rape of a young Black woman named in 1944, helping to turn her case into a national sensation.614 Black female activists within and without NAACP branches demanded that white rapists be prosecuted; in 1951, for instance, a group of Black women in Jackson, Mississippi, organized the Negro Womanhood Defense Committee to demand the prosecution of a white man who had raped a Black fourteen-year-old.615 The Black press also routinely raised awareness about these cases. One article in the Los Angeles Sentinel in 1947 began, “Nothing happens to the white man who rapes a Negro child here.”616 In the Recy Taylor case, much of the national outcry stemmed from an article in the Pittsburgh Courier entitled, “Alabama Whites Attack Woman; Not Punished.”617 The involvement of the national office of the NAACP was far less consistent. Sometimes, LDF staff would alert local branches to instances of white men raping Black women, while often taking care to emphasize that they could not provide much help.618 Marshall wrote to one branch president in 1946 that a case “most certainly deserves the attention of the N.A.A.C.P.,” but added, “you need legal advice on the spot” and since it would “be impossible for me to personally handle the matter,” the branch should get in touch with a local lawyer.619 Motley forwarded another such case to a Virginia branch, writing:

It may be that the claim that a white man attempted the rape of a Negro girl has no merit whatsoever but we feel that it is our duty to refer all of these cases to the branches in order that an investigation might be made and referred to the proper prosecuting authority if the facts are found to be true. Will you kindly keep this office informed of any action taken in this matter?620

Occasionally, members of the national office lent their imprimatur to branch demands,

for Rape Attempt,ARK. STATE PRESS, Aug. 31, 1951, at 1; Committee on Prosecutions of Criminals Meets with Plummer, supra note 611, at 2; ANNUAL REPORT FOR 1941, supra note 377, at 21; Press Release, NAACP Branch Helps Convict White Man Who Attacked Colored Girl (Sept. 19, 1941) (on file in Folder 6, Box II:B123, NAACP Records). 613 See, e.g., Letter from Edward Dudley to Leanora Reid (June 16, 1944) (on file in Folder 7, Box II:B123, NAACP Records); Letter from Leona Glasby to NAACP (Apr. 3, 1944) (on file in Folder 7, Box II:B123, NAACP Records); Press Release, White Man Admits Guilt in Attack Case Involving 12-Year-Old Child (Feb. 14, 1941) (on file in Folder 6, Box II:B123, NAACP Records). 614 MCGUIRE, supra note 65, at xvii, 15-17. 615 Napson-Williams, supra note 167, at 92-97. 616 Rape of Girl 11, Charged; No Action, L.A. SENTINEL, July 31, 1947. (on file in Folder 6, Box II:B123, NAACP Records). 617 Alabama Whites Attack Woman; Not Punished,PITTSBURGH COURIER, Oct. 28, 1944, at 18; see also MCGUIRE, supra note 65, at 16. 618 Letter from Edward Dudley to Charles Williamson (Apr. 14, 1945) (on file in Folder 7, Box II:B123, NAACP Records). 619 Letter from Thurgood Marshall to Nathaniel K. Brown (Feb. 13, 1946) (on file in Folder 6, Box II:B123, NAACP Records). 620 Letter from Constance Baker Motley to J.M. Tinsley (July 19, 1948) (on file in Folder 7, Box II:B123, NAACP Records).

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sending a letter on their behalf to imbue local campaigns with some added gravitas.621 And sometimes, when national staff were certain there was “nothing that this office can do legally” but “the facts of the case” still merited broader distribution, the lawyers would forward a case to the publicity department.622 The national office could then issue a press release or alert the Black press.623 When local branch officials wrote to the national office asking for help with cases of Black women who had been raped, LDF staff usually politely declined. When, for instance, a branch official asked Marshall to call on the Justice Department to investigate the rape and murder of Black girl in South Carolina, Marshall replied that this would not do any good “because of legal technicalities.”624 Eventually, the national office developed a fairly standard reply to inquiries from local officials: “There are two things that might be done with respect to this case,” the LDF lawyer would write.625 First, the local branch could help initiate a civil suit against the alleged rapist on the victim’s behalf; second, the local branch could gather its own evidence and try to use this to persuade the prosecutor to bring charges. Allying with local churches, civic groups, or a “friendly lawyer” could be helpful in this regard.626 In spite of this dearth of national assistance, local activists were often quite successful in campaigning for the prosecutions of white male rapists, and even turning these campaigns into organizing coups. “In order to reclaim their bodies and their humanity, African American women called on a tradition of testimony and truth-telling that stretched back to slavery,” wrote the historian Danielle McGuire in At the Dark End of the Street, her account of how combating sexual violence against Black women spurred the modern Civil Rights Movement.627 “Failure in the courts did not stop black women from speaking out, decades before the women’s movement. These testimonies helped bring attention to the issue of sexual violence and often ignited local campaigns for equal justice and civil rights.”628 Rosa Parks helped turn the rape of Recy Taylor into a “national example of Southern injustice,” leading one Black communist writer to note, “The whole country must be aroused to action .. . against this and other similar outrages against Negro womanhood.”629 In the years to come, Parks “labored tirelessly on similar cases.”630 By the late 1940s, the Black press began noting a sea change occurring in interracial rape

621 See, e.g., Letter from Edward Dudley to E.E. Williams (Feb. 26, 1944) (on file in Folder 6, Box II:B123, NAACP Records); Letter from Roy Wilkins to Charles P. Sullivan (Nov. 12, 1941) (on file in Folder 6, Box II:B123, NAACP Records). 622 Memorandum from Franklin Williams to Henry Lee Moon (June 29, 1949) (on file in Folder 6, Box II:B123, NAACP Records). 623 See, e.g., Letter from Oliver W. Harrington to Robert Ratcliffe (Aug. 21, 1947) (on file in Folder 6, Box II:B123, NAACP Records). 624 Letter from Thurgood Marshall to James M. Hinton (Dec. 28, 1945) (on file in Folder 6, Box II:B123, NAACP Records). 625 Letter from Edward Dudley to E.O. Sweet (Apr. 12, 1944) (on file in Folder 6, Box II:B123, NAACP Records). 626 See, e.g., Letter from Constance Baker Motley to J.C. Forrester (Jan. 16, 1950) (on file in Folder 6, Box II:B123, NAACP Records); Letter from Dudley to Reid (June 16, 1944), supra note 613; Letter from Edward Dudley to Leona Glasby (Apr. 18, 1944) (on file in Folder 7, Box II:B123, NAACP Records); Letter from Dudley to Sweet (Apr. 12, 1944), supra note 625. 627 MCGUIRE, supra note 65, at 35. 628 Id. 629 Id. at 20-21. 630 Id. at 62. See also JEANNE THEOHARIS, THE REBELLIOUS LIFE OF MRS. ROSA PARKS chs. 2-3 (2013).

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prosecutions. “A long-standing Dixie tradition of flagrant unpunished rape of Negro women by white men seems to be on the way out in certain localities,” noted the Pittsburgh Courier, describing a prosecution in Alabama.631 In 1947, at the instigation of the local branch of the NAACP, a Baltimore jury found a white man guilty for raping a pregnant Black mother of five.632 A local NAACP official told the Chicago Defender that “this is the first time that an all-white jury has found a white man guilty of rape on a colored woman.”633 Six months later, an all-white jury in Florida found two white men guilty of raping two Black high school students; a white attorney hired by the local NAACP branch aided in their prosecution.634 Another Black newspaper called this “a precedent breaking ,” and noted that, while the men’s sentences were fairly short—just five and seven years—this was still an encouraging move “because of the fact that white men charged with raping Negro women are customarily freed.”635 In the years to come, local branch activists continued pushing for the prosecution of white rapists. In late 1950, for instance, a Black girl was raped by a white policeman in Florida; the man was quickly tried on a lesser charge and acquitted.636 “A crowd of Negroes, angered at the verdict, demonstrated in front of the county jail,” recorded one newspaper.637 The president of the local branch wrote to the national office:

[W]e want you to put all of your authority behind this act and have the man who did crime who is allowed to go free under bond, placed back in jail and held until trial and be tried and punished to the full extent of the law. We want our people protected against all brutal criminals and criminal actions like this. .. . Inasmuch as the law gives the right for a man who does this to be electrocuted and my race for this crime has paid for it with their lives. Please do not allow a miscarriage of justice and let no less than this be done in this case to the man who has committed this crime.638

Franklin Williams responded noncommittally, asking to be kept updated, “so that if it should result in the police officer’s being acquitted, we can take some appropriate action.”639 The local branch eventually managed to secure a new indictment, for rape, although the white officer was again acquitted.640 Four years later, in 1954, after another white police officer raped a Black woman in Florida, the NAACP branch organized and investigated, which led to an arrest.641 The national office

631 Accused Alabaman Given 20-Year Term,PITTSBURGH COURIER, Dec. 25, 1948, at 14. See also Miscellaneous,THE CRISIS, Apr. 1952, at 246 (describing another successful interracial rape prosecution in Alabama, pushed by NAACP). 632 White Man Found Guilty of Raping Young Mother,CHICAGO DEFENDER, Mar. 22, 1947, at 2. 633 Id. 634 Two Indicted for Rape of High School Girls,KANSAS CITY PLAINDEALER, Jan. 2, 1948, at 1. 635 Id. 636 Dudley Acquitted of Girl’s Charge (n.d.) (on file in Folder 6, Box II:B123, NAACP Records). 637 Id. 638 Letter from T.J. Jones to Walter White (Apr. 18, 1950) (on file in Folder 6, Box II:B123, NAACP Records). 639 Letter from Franklin H. Williams to T.J. Jones (Apr. 21, 1950) (on file in Folder 6, Box II:B123, NAACP Records). 640 See Panama City Officer Freed in Negro Rape,TAMPA TRIB., Oct. 11, 1950, at 23. 641 Press Release, NAACP Investigate Leads to Arrest of Police Officer in Rape Case (1954) (on file in Folder 7, Box

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issued a press release stating that this was the second investigation by this branch that had led to an arrest in the previous two weeks.642 Yet, as successful as this activism was in bringing about the prosecutions of individual white men—and in sparking a national civil rights movement—it did not succeed in altering the law of sexual assault. NAACP lawyers still did not challenge the resistance requirement, the consent requirement, the corroboration requirement, or the use of promiscuity to impeach a woman’s credibility. Even as Association attorneys sought to remake so much of the law of employment, education, voting, and access, they did not trouble this gendered aspect of rape laws. NAACP officials almost certainly were less likely to raise such arguments on behalf of Black women, in large part because their advocacy continued to itself be structured by the politics of respectability. Local branch officials and allies often emphasized that a particular rape survivor was “a woman of intelligence”643 or a “very good student.”644 Conversely, the discovery that a woman had failed to live up to bourgeois sexual norms might strengthen the case of her attacker. In 1944, after two white Memphis police officers raped two Black women, Gladys Carr and Addie Mae Atkins, Roy Wilkins initially wrote to the branch president:

Personally I feel that despite the ‘terror’ in Memphis our association should do everything possible to see that these men are brought up on charges and convicted if possible. I do not believe that we ought to sit quietly by just because we know the tactics of the Memphis police department and the dominant attitude of Memphis on a matter of this kind. We should make an effort to get justice.645

The following week, however, an investigator hired by the local branch wrote that he had uncovered considerable evidence that the two women were not of “good moral character”—one had borne a child out of wedlock at sixteen, and the other had long had syphilis.646 The police officers’ attorney discovered this same information and raised it at trial; ultimately, the two white men were acquitted.647 This did not merely reflect the bigotry of the jury; it also reflected the sexist demands of the rape laws of this era. As the investigator in the Carr/Atkins case noted, “In all rape cases the chastity of the Prosecutrix is a vital issue and often is the deciding point where the act is admitted by defendants but defense made of Prosecutrix’s consent or willingness to intercourse with defendants.”648 Indeed, NAACP lawyers arrived at a similar conclusion in their defense of Black men accused of rape by white women. In one case, a local lawyer wrote to Marshall: “The woman that was raped apparently was raped very easily, but there was sufficient evidence for the jury to consider

II:B123, NAACP Records). 642 Id. 643 Letter from E.O. Sweet to Milton R. Konvitz (1944) (on file in Folder 6, Box II:B123, NAACP Records). 644 Letter from B.W. Williams to NAACP (June 24, 1949) (on file in Rape General Folder, II:B48, NAACP Records). 645 Letter from Roy Wilkins to Utillus Phillips (Aug. 18, 1945) (on file in Folder 2, Box II:B124, NAACP Records). 646 Letter from Drury B. Crawley to Utillis Phillips (Aug. 24, 1945) (on file in Folder 2, Box II:B124, NAACP Records). 647 Napson-Williams, supra note 167, at 89-90. 648 Letter from Crawley to Phillips (Aug. 24, 1945), supra note 646.

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whether it was forcible rape or not, and under the defendant’s own testimony there was a case of forcible rape.”649 Yet not once did the NAACP bring a broader challenge to rape laws.

V. FIGHT TO THE DEATH, 1955-1977

The following Sections follow the NAACP’s rape docket in the years after Brown, starting with the lynching of and ending with the Association’s remarkable campaign against capital punishment for rapists. During the 1960s and 1970s, the NAACP’s lawyers transitioned away from direct representation of individual Black men and instead toward a dedicated battle against the death penalty in cases of rape. Marshaling years of statistics about the highly racialized impact of capital punishment in cases of rape, the NAACP challenged the broader use of capital punishment, succeeding in briefly halting its use nationwide and permanently halting its use in cases of rape. At the same time that the Association was achieving such startling successes on behalf of Black men facing the electric chair, however, feminist writers were beginning to explicitly challenge the strategies deployed in the NAACP’s rape cases for the first time. These writers, and many other feminists who responded to their critiques, would ultimately succeed in reforming the rape laws that for so many years no mainstream civil rights organization would challenge.

A. The NAACP’s Rape Docket in the Post-War Years

Just months after the decision came down in Brown, a white mob in Mississippi tortured and lynched a fourteen-year-old Black boy named Emmett Till, who had allegedly whistled at or flirted with a white woman.650 According to the woman, Carolyn Bryant, Till grabbed her and implied that he’d had sex with white women before; her words led one Mississippi newspaper to assert that the case had been improperly labeled the “wolf whistle case”—instead, it should have been called “an ‘attempted rape’ case.”651 After Till’s emotional open-casket funeral, and after an all-white jury acquitted Bryant’s husband and another white man accused of murdering Till, millions of Black Americans began rising up—marching, giving speeches, planning action, exorcising years of pent-up anger.652 “Your great grandfathers should have told you that you came from the jails of England and , as criminals and murderers,” one Black woman wrote to the governor of Mississippi.653 She added:

Our background can be traced all the way back to King Solomon, King Tutt, and King Nebuchadnezzar. How could you class yourselves as a superior Race than the Black Race? .. . We are tired of your ignorance. Suppose we get as ignorant as you are and start lynching white men of the South as you are doing my people in the

649 Letter from Jackson to Marshall (Sept. 19, 1944), supra note 577. 650 More than sixty years after the lynching of Emmett Till, his alleged victim admitted that she had lied, that Till had never grabbed her or uttered obscenities.TIMOTHY B. TYSON, THE BLOOD OF EMMETT TILL 6 (2017). 651 TYSON, supra note 650, at 4-5. 652 See generally TYSON, supra note 650; ELLIOT J. GORN, LET THE PEOPLE SEE: THE STORY OF EMMETT TILL (2018). 653 Letter from Elizabeth Hines to Hugh White (Sept. 20, 1955) (on file in Folder 7, Box II:A424, NAACP Records).

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South.654

Letters streamed into the NAACP’s national office demanding action. “It is time we changed our tactics in the struggle against the current wave of anti-Negro terrorism in the South,” wrote one man from Detroit, calling for a march on Washington, a federal anti-lynching law, federal supervision of southern polls, and much else.655 Many wrote with thoughts about what this meant for Jim Crow rape law. A prominent leftist named Muriel Symington forwarded the NAACP a letter she had written for a New York newspaper:

[A]bove all, every WOMAN should be aroused to the indignity visited on her sex by the circumstances of young Till’s death. These Stone Age brutes have dared to use women as stalking horses to mak[e] their evil purpose! The specious concern of southern ‘gallantry’ for the ‘purity of white womanhood’ is an insult. We women demand that there be a concern for every woman, be she white or Negro, and equally so when an unhappy situation involves any man whether he be white or colored. We women demand not the application of lynch law, but redress by due process of law, administered without fear or favor.656

But not all writers were so enlightened. “The woman should have been put under strong cross examination,” wrote one man.657 “I have a feeling that she made up the whole episode, whistling and everything. I have a feeling she had a psychological desire to impress her husband that she is still whistle bait at least in her own mind.”658 Wilkins replied by calling such suggestions “excellent.”659 Yet many writers were angered by the NAACP’s perceived inaction in the aftermath of the Till murder, a suggestion at which Association leaders like Wilkins and Marshall chafed.660 Some asked why the NAACP could not bring the acquitted killers “to retrial,” wrote Wilkins wrote in a letter, but this would violate double jeopardy (and, besides, the NAACP couldn’t bring prosecutions itself); some asked why the NAACP had not entered the original trial, he continued, but Mississippi would not allow it; some said the NAACP was only interested in using the case to raise money, but the Association simply had done no such thing.661 “The real fight must be waged against the Mississippi system of disfranchisement, terrorizing and murder of its Negro citizens,” declared Wilkins in another letter.662 “This is a long struggle and may not appeal to those who are angry over

654 Id. 655 Letter from Edgar B. Keemer to NAACP (Sept. 30, 1955) (on file in Folder 8, Box II:A424, NAACP Records). 656 Letter from Muriel I. Symington to New York Post (Sept. 15, 1955) (on file in Folder 8, Box II:A424, NAACP Records). 657 Letter from Jan Vana to NAACP (Sept. 28, 1955) (on file in Folder 8, Box II:A424, NAACP Records). 658 Id. 659 Letter from Roy Wilkins to Jan Vana (Oct. 17, 1955) (on file in Folder 8, Box II:A424, NAACP Records). 660 See, e.g., Letter from Roy Wilkins to Julius R. Primus (Sept. 21, 1955) (on file in Folder 8, Box II:A424, NAACP Records). 661 Letter from Roy Wilkins to Dr. Henderson (Oct. 26, 1955) (on file in Folder 7, Box II:A424, NAACP Records). 662 Telegram from Roy Wilkins to J.C. Austin (Sept. 24, 1955) (on file in Folder 7, Box II:A424, NAACP Records).

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Till’s murder, but it is the only one that will pay off in the long run.”663 In a controversial speech in New York, Marshall went even further; according to a journalist’s summary, he told a crowd of five hundred to “forget about the dead Emmett Till and sit down calmly and study the situation in order to determine what can be done for those who are still living, such as his mother and people still in Mississippi.”664 The proper response to the Till murder, Marshall continued, was not a march or violence, but for Black people to insist that their rights be respected and their votes counted.665 In the years that followed, the NAACP followed Marshall’s advice, turning its attention and energy toward enforcing the anti-segregationist mandate contained in Brown, and turning away from much else. As LDF attorney Jack Greenberg later wrote, “The Association .. . edged towards a decision to file only cases that asked for an end to segregation.”666 In the realm of education, for instance, the NAACP’s leaders “made a conscious choice to abandon cases that demanded that states equalize the facilities, staff, and budgets of separate white and black schools to focus the Court’s attention on segregation itself.”667 In concert with this shift, LDF attorneys became consumed with the massive resistance to Brown all across the South, spending most of their time attempting to force an end to segregation in community after community, while also battling the literally violent backlash to Brown and a new spate of state laws designed to impinge the Association’s ability to operate in southern states.668 The NAACP abandoned its fight for an anti-lynching bill.669 According to the legal scholar Derrick Bell, white elites were willing to tolerate greater equality for the Black population during this period because the interests of Black people in ending formal inequality momentarily converged with the interests of white elites in legitimizing the country’s claim to the moral high-ground during the Cold War.670 Because of this “interest convergence,” even the NAACP’s foes began acceding to the Association’s and the Court’s demands, allowing for some bare minimum of justice in the South. Indeed, after three white men raped a Black girl in Magnolia, Mississippi, in 1956, even the local white citizens’ council supported bringing charges against them.671 At the same time, the —while deeply inadequate—nonetheless provided for some federal supervision of daily life in the Jim Crow South.672 More Americans than ever were paying attention to Jim Crow violence and inequity, and circumstances seemed to be improving. As Klarman noted, “by the late 1940s, lynchings were almost entirely obsolete, and legal lynchings ...

663 Id. 664 James L. Hicks, “Forget Emmett Till,” Marshall Tells 500; Bares Plan for Action,AFRO-AMERICAN, Oct. 8, 1955, at 15. 665 Id. 666 GREENBERG, supra note 15, at 85. 667 Lani Guinier, From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma, 91 J. AM. HIST. 92, 95 (2004); see also TUSHNET, supra note 325, at 107-110. 668 SULLIVAN, supra note 70, at 420-26; KLARMAN, supra note 24, at 424-42; see also Timothy J. Minchin, Making the Best Use of the New Laws: The NAACP and the Fight for Civil Rights in the South, 1965-1975, 74 J. SOUTHERN HIST. 669 (2008). 669 August Meier & John H. Bracey, The NAACP as a Reform Movement, 1909-1965: “To Reach the Conscience of America,” 59 J. SOUTHERN HIST. 3, 24 (1993). 670 Derrick A. Bell Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 523 (1980); see also Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61, 76 (1988). 671 Councils Promise Justice in Pike Rape Case,JACKSON STATE TIMES, May 15, 1956 (on file in Folder 7, Box 26, Roger Wilkins Papers, Library of Congress). 672 See 71 Stat. 634 (1957) (making it illegal to threaten, intimidate, or coerce anyone for the purpose of interfering with the right of such other person to vote).

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had been both tempered and confined to narrower portions of the Deep South.”673 Yet the historian Estelle Freedman has pointed out that in the aftermath of Brown and other civil rights victories, “the specter of the black rapist recurred.”674 One white citizens’ council speaker in New Orleans, railing against school integration, warned the crowd, “Don’t let your daughter be raped by those Congolese.”675 In spite of the civil rights victories, and in light of the continued salience of the “black rapist” imagery, the national office of the NAACP did, to some extent, continue taking on the cases of Black men accused of raping white women. In 1956, for example, LDF attorneys appealed the case of William Fikes—a Black man convicted of attempting to rape the daughter of the mayor of Selma, Alabama—to the Supreme Court.676 In yet another landmark ruling, the Court held that mental and emotional coercion were enough to render Fikes’s confession inadmissible as a violation of due process; physical coercion need not have been present.677 As with prior NAACP rape precedents, the Court quickly built on this case to further strengthen criminal procedure protections.678 Around the same time, LDF attorney Jack Greenberg represented a Black man in Connecticut accused of raping a white woman, taking his case to the state supreme court and “establishing the important precedent that a defendant’s lawyer has the right to question potential jurors about racial bias.”679 Much of the representation of individual Black men, however, was undertaken by local branches. In 1958, for instance, two Black boys in North Carolina—seven- and nine-years-old—were arrested at gun-point, beaten, and charged with rape for having apparently kissed, or been kissed by, several white girls.680 After the national and state offices of the NAACP declined calls to get involved, the militant chapter in Monroe, North Carolina led the charge for the two boys, securing their release several months later.681 In 1965, after a Black man in New York was convicted of the rape and murder of several white women by a jury whose members were revealed to have made racist remarks, the Brooklyn NAACP branch came to his aid—”continu[ing] a practice and policy of the Association as old as the organization itself,” wrote the Crisis.682 It took a year, but the NAACP attorneys eventually won the man his freedom, getting his confession thrown out and persuasively arguing for

673 Michael J. Klarman, Is the Supreme Court Sometimes Irrelevant? Race and the Southern Criminal Justice System in the 1940s, 89 J. AM. HIST. 119, 137 (2002). 674 FREEDMAN, supra note 93, at 264-65. 675 Quoted in id. at 264-65. 676 U.S. Court to Hear Ala. Death Penalty Case,KANSAS CITY PLAINDEALER, Apr. 6, 1956, at 4. For more on Fikes’s arrest and defense, see Set “Defense Fund” for Doomed Fikes,PITTSBURGH COURIER, Jan. 2, 1954, at 29; Claims He Didn’t Rape Alabama Girl,THE CHICAGO DEFENDER, Oct. 10, 1953, at 5. 677 Fikes v. Alabama, 352 U.S. 191, 197-98 (1957). 678 See, e.g., Sims. v. Georgia, 389 U.S. 404 (1967) (ruling on another NAACP rape case); Clewis v. Texas, 386 U.S. 707 (1967); Haynes v. Washington, 373 U.S. 503 (1963); Blackburn v. Alabama, 361 U.S. 199 (1960); Spano v. New York, 360 U.S. 315 (1959); Payne v. Arkansas, 356 U.S. 560 (1958); Thomas v. Arizona, 356 U.S. 390 (1958). Fikes came on the heels of another rape case in which LDF attorneys convinced the Supreme Court to throw out a confession as coercive, although the Court did so without elaboration. See Reeves v. Alabama, 348 U.S. 891 (1954);GREENBERG, supra note 15, at 207. 679 State v. Higgs, 120 A.2d 152, 155 (Conn. 1956);GREENBERG, supra note 15, at 154-55. 680 TIMOTHY B. TYSON, RADIO FREE DIXIE: ROBERT F. WILLIAMS AND THE ROOTS OF BLACK POWER 92-93, 95- 96, 100-01 (new ed. 2001). 681 Id. at 109-36. 682 George Whitmore, Jr.’s “Confession,” THE CRISIS, Mar. 1965, at 168.

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innocence.683 On the whole, in the years following Brown, the national NAACP office’s advocacy on behalf of Black men accused of rape shifted—they came to focus almost exclusively on a single goal: ending the death penalty for rapists. By the early 1960s, recalled Jack Greenberg, the Association launched “a full-scale attack on capital punishment, as arbitrary, cruel and unusual, and racist. We launched the effort because almost 90 percent of the 455 defendants executed for rape since 1930 were blacks convicted of raping white women.”684 Yet such a “full-scale effort” did not emerge out of nowhere in the 1960s; as Greenberg noted, “Memories of Scottsboro, Groveland, and Ozzie Jones demanded that we do something to end this most discriminatory of punishments.”685 Indeed, the NAACP had been fighting—implicitly and explicitly—against the death penalty for Black men convicted of rape for decades.686 As in years past, LDF attorneys compiled statistics on capital punishment for rape, seeking to demonstrate the gross racial disparities,687 and they began bringing test case after test case.688 By the early 1970s, LDF represented more than half of the roughly 640 defendants on death row nationwide.689 In 1972, the Supreme Court (including Justice Thurgood Marshall) decided Furman v. Georgia,690 which consolidated LDF’s death penalty cases, declaring that capital punishment was unconstitutional as applied nationwide.691 Although Furman did not much discuss the earlier topics with which most of the NAACP’s rape cases were concerned—right to counsel, jury composition, coerced confession—Justice Douglas nonetheless cited one NAACP rape case in his concurrence to support the proposition that discretionary capital punishment statutes are unconstitutional.692

683 See Peter Preston, A Called Whitmore,, Dec. 5, 1969, at 10; “Confessions” Proved False in N.Y. Rape Case, L.A. SENTINEL, July 21, 1966, at A2; Whitmore Out in 5G Bail, N.Y. AMSTERDAM NEWS, July 16, 1966, at 25. 684 GREENBERG, supra note 15, at 440. 685 Id. See also id. at 93 (explaining that Groveland was the primary impetus for Greenberg to start the LDF capital punishment program); MICHAEL MELTSNER, THE MAKING OF A CIVIL RIGHTS LAWYER 198-99 (2006). 686 Several historians have traced the origins of the NAACP’s fight against the death penalty for rape to the Association’s fight for the Martinsville Seven, which was the first case in which they martialed statistical evidence of racial disparities. See, e.g.,FREEDMAN, supra note 93, at 258;RISE, supra note 243, at ch. 4; see also Eric W. Rise, Race, Rape, and Radicalism: The Case of the Martinsville Seven, 1949-1951, 58 J. S. HIST. 461 (1992). Yet the NAACP had been challenging the death penalty as applied in a variety of circumstances for years before the case of the Martinsville Seven, albeit without statistical evidence. See, e.g., Letter from Franklin H. Williams to Virgil H. Lucas (Aug. 13, 1946) (on file in Folder 14, Box II:B165, NAACP Records); Letter from Edward R. Dudley to Sidney R. Redmond (Sept. 28, 1944), supra note 467; NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, ANNUAL REPORT FOR 1940, supra note 315, at 24-25; NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, 29TH ANNUAL REPORT, supra note 316, at 18; Hoey Saves Marion Negro Youth From Chair,CHARLOTTE OBSERVER, May 27, 1938, at 11. 687 GREENBERG, supra note 15, at 441-43; BARRETT J. FOERSTER, RACE, RAPE, AND INJUSTICE: DOCUMENTING AND CHALLENGING DEATH PENALTY CASES IN THE CIVIL RIGHTS ERA 9-10 (2012). 688 Hamilton v. Alabama, 368 U.S. 52 (1961); Maxwell v. Bishop, 398 F.2d 138, 147 (8th Cir. 1968); Adderly v. Wainwright, 272 F. Supp. 530 (M.D. Fla. 1967); EVAN J. MANDERY, A WILD JUSTICE: THE DEATH AND RESURRECTION OF CAPITAL PUNISHMENT IN AMERICA 38-46 (2013);GREENBERG, supra note 15, at 446-49. 689 GREENBERG, supra note 15, at 449. 690 408 U.S. 238 (1972). 691 For more on the backstory behind Furman, see generally DAVID M. OSHINSKY, CAPITAL PUNISHMENT ON TRIAL: FURMANV. GEORGIA AND THE DEATH PENALTY IN MODERN AMERICA (2010). 692 Furman, 408 U.S. at 256 n.21 (Douglas, J., concurring) (quoting E. BARRETT PRETTYMAN JR., DEATH AND THE

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In the years after Furman, public opinion swung sharply in favor of the death penalty; dozens of states began looking for ways to create capital punishment schemes in line with the Court’s decision;693 and, in 1976, the Supreme Court revived the death penalty—so long as its application was guided by standards—by another five-to-four vote in Gregg v. Georgia.694 But between Furman and Gregg, as states were altering their death penalty statutes, “[a]lmost all rejected the death penalty for rape.”695 Thus, when several NAACP attorneys returned to the Court the next year with the case of a man convicted of rape and sentenced to death, the Court ruled in Coker v. Georgia that the death penalty was unconstitutional.696 Justice White, joined by six of his colleagues, concluded that “a sentence of death is grossly disproportionate and excessive punishment for the crime of rape,”697 guided largely by the fact that so many states had eliminated the death penalty for rape,698 and also because, in terms of “moral depravity,” rape “does not compare with murder.”699 The NAACP had been so determined to achieve this outcome that it had taken the case of Coker, a white man, to do it.700 As Greenberg later wrote, “The win was like a touchdown following a ninety-yard march.”701 This march, he continued, began “a decade earlier with the rape survey” of the South,702 but, in truth, it started many years before that, with the NAACP’s considerable rape docket.

B. The Feminist Challenges to Rape Laws and “Rape Lies”

In the immediate aftermath of the Supreme Court’s decision in Coker to end the death penalty for rape, numerous “women’s groups” praised the ruling.703 “We never advocated more severe penalties,” read a statement released by Women Against Rape.704 Rather, W.A.R. and other women’s groups hoped to see a greater number of rapists prosecuted, something they thought might be more likely if a penalty deemed “too severe” were off the table.705 And, as one attorney with the ACLU’s Women’s Rights Project told the press, the “whole idea of the death penalty for rape has been an outgrowth of Southern concern about rape by black men of white women. It has been completely wrong.”706 Another ACLU attorney, Ruth Bader Ginsburg, wrote an amicus brief in Coker,707 “join[ing] the critique of rape’s gendered origins with a critique of the racialized operation of

SUPREME COURT (1961)). 693 See MANDERY, supra note 688, at 247-371;GREENBERG, supra note 15, at 453-54. 694 428 U.S. 153 (1976). 695 GREENBERG, supra note 15, at 454. 696 433 U.S. 584 (1977). 697 Id. at 592. 698 Id. at 593-96. 699 Id. at 598. 700 Death Penalty May Be Erased Except for Murder,ALA. J., June 30, 1977, at 8. 701 GREENBERG, supra note 15, at 454. 702 Id. 703 Female Groups Laud Rape Ruling,ALA. J., June 30, 1977, at 8. 704 Id. 705 Id. 706 Id. 707 Brief Amici Curiae for the ACLU et al., Coker v. Georgia, 433 U.S. 584 (1977) (No. 75-5444), 1976 WL 181482.

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rape laws and the racialized imposition of the death penalty.”708 Yet, during the 1970s—during the same years as LDF’s campaign against the death penalty—there was also a burgeoning feminist critique of rape laws that ignited a movement to radically rewrite those laws. Many of the scholars and activists who helped to spark this movement also pushed back against the post-Scottsboro narrative (entrenched by the NAACP) in a way that ended up reinforcing racist myths about Black men as rapists. At the same time, other scholars and activists pushed back against this pushback, noting the importance of cases on behalf of Black men (such as the NAACP’s) and the unique, intersectional harm of the rape of Black women by white men. Ultimately, out of this fraught debate emerged a radical reimagining of rape laws that finally eliminated many of the most sexist (and racist) provisions of these statutes, which, for so long, civil rights lawyers had not challenged. In 1975, Susan Brownmiller published Against Our Will: Men, Women and Rape, a book that exploded into the popular consciousness, deeming rape a vital tool of the patriarchy and indicting a status quo under which rape survivors were routinely disbelieved, ridiculed, or ignored.709 By paying especial attention to spousal rape and date rape, Against Our Will also sparked a (successful) national movement to reform rape laws.710 The popularity of Against Our Will coincided with the publication of several other books challenging rape culture and rape laws,711 as well as the emergence of a powerful women’s liberation movement that saw feminist activists storm government offices, demonstrate in the streets, organize conferences, create crisis centers and hotlines, and teach self- defense.712 When it came to the law, these writers and activists demanded (1) a change in the definition of rape, with the replacement of a single definition to one with a series of offenses decreasing by seriousness, as well as a move toward gender-neutrality; (2) the elimination of the resistance requirement; (3) the elimination of the requirement in many jurisdictions that a victim’s testimony must be corroborated; and (4) the passage of rape shield laws, to restrict the defense’s ability to introduce evidence of promiscuity or other sexual contact meant to impeach the victim’s credibility.713 In Against Our Will, Brownmiller devoted a full chapter to the “question of race”—which meant, necessarily, contending with the legacy of the NAACP’s rape docket.714 Brownmiller began by admitting that she could not approach the subject of interracial rape without emotion; her “first stirrings of social conscience” came when she read of the Scottsboro Boys, Emmett Till, and other

708 Melissa Murray, Inequality’s Frontiers, 122 YALE L.J. ONLINE 235, 237 (2013). At least one feminist lawyer made such an intersectional argument decades earlier. See Leandra Zarnow, Braving Jim Crow to Save Willie McGee: Bella Abzug, the Legal Left, and Civil Rights Innovation, 1948-1951, 33 LAW & SOC. INQUIRY 1003 (2008). 709 BROWNMILLER, supra note 55. 710 Sascha Cohen, How a Book Changed the Way We Talk About Rape,TIME (Oct. 7, 2015), https://time.com/ 4062637/against-our-will-40/ [https://perma.cc/TX7Z-P4B3]. 711 See, e.g.,NANCY GAGER & CATHLEEN SCHURR, SEXUAL ASSAULT: CONFRONTING RAPE IN AMERICA (1976); JEAN MACKELLAR, RAPE: THE BAIT AND THE TRAP: A BALANCED, HUMANE, UP-TO-DATE ANALYSIS OF ITS CAUSES AND CONTROL (1975); DIANA E.H. RUSSELL, THE POLITICS OF RAPE: THE VICTIM’S PERSPECTIVE (1975). 712 CATHERINE O. JACQUET, THE INJUSTICES OF RAPE: HOW ACTIVISTS RESPONDED TO SEXUAL VIOLENCE, 1950- 1980, 3, chs. 3, 5 (2019). 713 Julie Horney & Cassia Spohn, Rape Law Reform and Instrumental Change in Six Urban Jurisdictions, 25 LAW & SOC’Y REV. 117, 118-19 (1991). 714 BROWNMILLER, supra note 55, at ch. 7.

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black boys and men “put to death for coming too close to white women.”715 She recalled reporting on a case in the 1960s involving three Black youths sentenced to death for raping a white girl: “At the time it was enough for me to know that the defendants were poor and black, that the girl’s ‘reputation for chastity’ was not good.”716 But, over time, she came to see the narrative (which the NAACP had entrenched)—that Black men were routinely falsely accused by white women—as deeply harmful. Brownmiller claimed that many white women were now reluctant to report rapes, whether or not their rapists were Black, because they did not want to “lead to the further oppression of all people, and Third World people in particular.”717 She blamed the left for propagating this “rape lie,”718 locating its origin in the Scottsboro case: more than any other, this case “convinced the American public—and international opinion—that lying, scheming white women who cried rape were directly responsible for the terrible penalties inflicted on black men.”719 Brownmiller concluded that the case of Emmett Till helped not just to entrench the rape lie, but also to convince a generation of liberal white women “to bear the white man’s burden of making amends for Southern racism.”720 In her retelling, Till was nearly as culpable as his murderers; he “was going to show his black buddies that he, and by inference they, could get a white woman”; Till’s alleged whistle “was a deliberate insult just short of physical assault,” an embodiment of rape culture.721 While acknowledging the value of Brownmiller’s broader work, several scholars pushed back sharply against this chapter, and especially its depiction of Till. argued that Brownmiller revived “the timeworn myth of the black rapist.”722 Davis also took to task the authors of several other significant books about rape from this era who went much further than Brownmiller and asserted that the “typical rapist” was a poor, Black man.723 The civil rights veteran Anne Braden, meanwhile, critiqued Brownmiller for disregarding the “realities of racism.”724 Racism, Braden argued, “is not some abstract concept invented by the Left for its own gain. It does exist. The ‘rape cases’ inspired action and became famous .. . because they exemplified the terrorism which upheld the political and economic power relationships in the South.”725 Although the term did not yet exist, Davis, Braden, and others were critiquing Brownmiller (and her fellow white feminist writers) for failing to use an “intersectional” lens.726 Davis, for instance, lamented Brownmiller’s “failure to alert white women about the urgency of combining a

715 Id. at 210. 716 Id. at 212. 717 Id. at 253-54. 718 Id. at 227-28. 719 Id. at 230. 720 Id. at 248. 721 Id. at 247. 722 Angela Davis, Rape, Racism and the Capitalist Setting, 9 BLACK SCHOLAR 24, 27 (1978). 723 See ANGELA DAVIS, WOMEN, RACE & CLASS 179-80 (1983). 724 Quoted in JACQUET, supra note 712, at 143. 725 Id. For another powerful critique of Against Our Will, see ALISON EDWARDS, RAPE, RACISM, AND THE WHITE WOMEN’S MOVEMENT ( Org., 1975). 726 The term was coined in Kimberlé W. Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. CHI. LEGAL F. 139 (1989).

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fierce challenge to racism with the necessary battle against sexism.”727 And, at roughly the time that Against Our Will came out, a group of Black feminist lesbians formed the Combahee River Collective, which would do more than any other group to lay the intellectual groundwork for the concept of intersectionality, including in its analysis of rape. In its famous 1977 Statement, the Collective argued that it was

difficult to separate race from class from sex oppression because in our lives they are most often experienced simultaneously. We know that there is such a thing as racial-sexual oppression which is neither solely racial nor solely sexual, e.g., the history of rape of black women by white men as a weapon of political repression.728

This uniquely intersectional danger, insufficiently appreciated by many white feminist writers at the time, was nonetheless articulated by many Black feminists at the time, which contributed to the radical reimagining of rape law.729 To her credit, Brownmiller did call attention to the oft-ignored rape of Black women, implicitly critiquing organizations like the NAACP for failing to be adequately intersectional in their approaches to rape. She recounted a visit to the Schomburg Center for Research in Black Culture, asking the librarian for “historical stuff on the rape of black women.”730 Looking uncomfortable, the librarian told her that she must have meant to ask about the lynching of Black men: “If you’re serious about your subject you need to start with the historic injustice to black men. That must be your approach.”731 When she persisted, the man said, his voice rising, “To black people, rape has meant the lynching of the black man.”732 Eventually, the librarian brought her some records, including “NAACP anti-lynch pamphlets,” but Brownmiller found to her dismay that “all the material focused on the black man as victim.”733 Later, as she was writing her book, Brownmiller argued that leftists and liberals never stood up for Black women to anywhere near the extent they did for Black men: “Just once, as far as I have been able to determine, did the left go all out to publicize a rape case from the victim’s perspective.”734 This was the Recy Taylor case,735 in which Rosa Parks, an official in the local NAACP branch, had turned her advocacy for a Black female rape victim into a national movement.736 Though Brownmiller overstated her case—the NAACP and other organizations had advocated for many Black rape survivors—this critique was salient and remained more or less true in

727 DAVIS, supra note 723, at 199. 728 Reprinted in HOW WE GET FREE: AND THE COMBAHEE RIVER COLLECTIVE (Keeanga- Yamahtta Taylor ed., 2017). 729 See JACQUET, supra note 712, at 188. 730 BROWNMILLER, supra note 55, at 212. 731 Id. 732 Id. 733 Id. at 213. 734 Id. at 236. 735 Id. 736 MCGUIRE, supra note 614.

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the years after Brown and the lynching of Emmett Till. Around this time, “major efforts became focused largely on black men,” the historian Catherine Jacquet has argued:737

Although racial justice activists by no means completely abandoned black women rape victims, local campaigns on their behalf began to wane in the mid-1960s. While national movement leaders did at times speak out about white male violence against black women and NAACP lawyers defended black women who took their cases to court, the NAACP did not pursue a legal strategy for supporting black rape victims writ large.738

Jacquet has pointed to the LDF campaign against the death penalty (initially for rapists, and later more broadly) as “put[ting] the needs of black men at the center of the antiracist legal discourse.”739

CONCLUSION

Throughout the twentieth century, the NAACP altered the American legal landscape in ways that so momentously shaped society that they have come to feel inevitable. They were not. At its core, this Article is about the contingent nature of historical progress. It was not foreordained that criminal procedure would develop the way that it has, nor was it inevitable that one particular vision of civil rights would triumph over the others that were advocated throughout the century. This Article has sought to interweave three disparate strands of historiography: the development of the NAACP as an organization (and, by extension, the development of civil rights lawyering); the development of constitutional criminal procedure protections; and the development of rape litigation. These strands, this Article argues, were inextricable. And only because of their inextricability did history proceed in the precise ways that it did. Race, gender, sex, capital, and power cannot be analyzed in isolation, nor should they be analyzed as if they ever operated in direct opposition. Only a truly intersectional approach to history can reveal the past, in all of its richness, and the present, with all of its contradictions. Ultimately, the feminist movement against rape culture and rape laws—spurred in part by feminist writers harshly critiquing organizations like the NAACP while resuscitating older rape myths, and in part by feminist writers critiquing these critiques—succeeded in drastically altering the legal landscape. By the mid-1980s, almost every state had eliminated the resistance and corroboration requirements, replaced its unitary, gendered definition of rape with a series of offenses framed in gender-neutral language, and passed early versions of rape shield laws.740 By the mid-1990s, every state in the nation had criminalized spousal rape.741 Yet while studies suggest that these reforms did increase the number of survivors who reported their assaults—at least those that authorities deemed

737 JACQUET, supra note 712, at 41. 738 Id. 739 Id. 740 Horney & Spohn, supra note 713, at 117-19. 741 See Raquel Kennedy Bergen, Marital Rape: New Research and Directions 1, 2 NAT’L ONLINE RES. CTR. ON VIOLENCE AGAINST WOMEN (Feb. 2006), http://www.ilcdvp.org/Documents/Marital%20Rape%20Revised.pdf [https://perma.cc/ 8XZY-RPNF].

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well-founded742—today that number remains painfully low, with only one in five or six rape survivors reporting their assault.743 Even when assaults are reported to the authorities, only eight percent actual make it to trial.744 Women of color are disproportionately likely to be sexually assaulted,745 but they are also disproportionately likely not to be believed.746 If the NAACP—or any civil rights advocates—had pushed as hard to change criminal procedure as it affected rape survivors as they did to change criminal procedure as it affected alleged rapists, such an extraordinary statutory push may well have been unnecessary. This is not to say that it would have been reasonable to expect the Association’s lawyers to do so in the 1910s, or 1930s, or 1950s; the point of this counterfactual—and, indeed, of this Article—is not to cast blame. Instead, it is to consider what was lost even as we better understand all that the NAACP’s rape docket achieved.

742 Stacy Futter Jr. & Walter R. Mebane, The Effects of Rape Law Reform on Rape Case Processing, 16 BERKELEY J. GENDER, L. & JUST. 72, 73-74 (2001). 743 Kathleen Daly & Brigitte Bouhours, Rape and Attrition in the Legal Process: A Comparative Analysis of Five Countries, 39 CRIME & JUST. 565, 572 (2010). 744 Id. at 583. 745 National Intimate Partner and Sexual Violence Survey: 2010 Summary Report,CTRS. FOR DISEASE CONTROL & PREVENTION 40, https://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf [https://perma.cc/RYB5-SQWZ]. 746 See Roxanne A. Donovan, To Blame or Not to Blame: Influences of Target Race and Observer Sex on Rape Blame Attribution, 22 J. INTERPERSONAL VIOLENCE 722 (2007).

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