Strange Fruit

Last weekend I attended a showing of Strange Fruit at the Jewish Film Festival in Baton Rouge. I love jazz and Billie Holliday. Not surprisingly, after I read a synopsis of the film, particularly how it delved into the history of the song's lyrics and the civil rights movement, I was sold.

Strange Fruit's eerie and pointed lyrics unabashedly describe the racist practice of lynching in the South. The song was penned by Abel Meeropol, a Jewish school teacher. The story behind both the song and its author mimicked the lyrics in many ways; each turn revealed an unexpected twist that left me stunned.


The documentary was brillantly put together. The film maker, Joel Katz, was also on hand to answer questions after the viewing. My only issue, one I didn't have the nerve to articulate, was an inference that state sanctioned killings are a thing of the past. In reality, lynching is so closely tied to the death penalty that capital defense lawyers and scholars refer to the penalty as legal lynching. Stephen Bright, Director of the Southern Center for Human Rights in Atlanta, and one of our nation's leading capital defense attorneys recently responded to the following question:

You’ve written extensively about race, class, and the death penalty. What are the connections between them?

Bright: "The death penalty is a direct descendent of slavery, lynching, and racial oppression that has been going on in this country since it was founded.

When the South was getting bad press for lynching people in the 1920s, ’30s, and ’40s, the perfunctory death penalty trial became a way of accomplishing the same thing. There are many examples where the authorities told the mob, "Let the courts take care of it." The understood message was that the person would be given a quick trial, appointed some incompetent lawyer and, after a perfunctory trial, sentenced to death and then hung, shot or electrocuted.

Race continues to be a major factor in determining who is sentenced to death, in part because of this history and in part because the courts are the part of society least affected by the civil rights movement. People of color are largely excluded from participating in the system as judges, jurors, prosecutors, and lawyers.

The two most important decisions in every death penalty case are made by the prosecutor. First, the prosecutor decides whether to seek the death penalty. The prosecutor always has discretion to seek or not to seek the death penalty. She is never required to seek death. Second, the prosecutor has complete discretion in deciding whether to offer a sentence less than death in exchange for a defendant’s guilty plea. The overwhelming majority of all criminal cases, including capital cases, are resolved not by trials, but by plea bargains. In the 38 states that have the death penalty, 97.5 percent of chief prosecutors are white. In 18 of the states, all of the prosecutors are white.

The primary connection between class and the death penalty is that those who cannot afford lawyers are often assigned lawyers who lack the skills, resources and often even the inclination to defend a death case.

The courts have held that the lawyer assigned to defend a poor person, even in a capital case, need not be aware of the governing law, be sober or even be awake. In Houston, three people have been sentenced to death at trials in which the defense lawyer fell asleep from time to time. A woman was sentenced to death in Alabama at a trial where her lawyer was so drunk that the trial had to be suspended for a day so the lawyer could sober up.

Beyond that, the death penalty is imposed mostly on people who grew up in debilitating poverty--who survived the most horrendous physical, emotional and sexual abuse during nightmarish childhoods that most people cannot even imagine. The death penalty has become the ultimate weapon in class warfare that is being fought top down against the poorest and the most powerless people in our society."

Katz didn't deny the presence of racism and xenophobia in the United States. However, the harsh realities of lynching, along with its public nature, renders any attempted juxtaposition to today's penalty to appear misplaced. We are able to gawk, without appropriate guilt, at pictures of lynched human beings. In fact an exhibit, Without Sanctuary, recently allowed folks to do just that.

It's easy to believe our internal dialogue: "We wouldn't be so barbaric today." However, the only real change is that we've altered the means by which we mete out the punishment; we presently resort to ways which allow us, not the person we are killing, to be more comfortable. The electric chair made that which was once public, private; it hid from our collective conscience the penalty's grave injustices. Yet still over time, the smell of burnt flesh when bodies accidently caught on fire became unbearable to the individuals whom were forced, or chose, to witness. Enter lethal injection to save the day. It seems so, well, medical. The gurney and the doctor presiding over the affair make the "procedure" appear legit.

More than ever, it is easier to disengage and pretend like our silence isn't a form of acquiescence. This is precisely what I did after I was diagnosed with kidney disease. In spite of entering law school with the clear goal of practicing public interest law, I began to look into other areas - like estate planning or tax. Captial defense, I reasoned, was too stressful. I needed to take care of myself. What I really needed was a wake-up call. Thankfully, that came last Sunday.