Most penal experts contended that a gassing was not as bad as a lynching, a hanging, or even an electrocution, calling the gas chamber the “most humane” form of capital punishment. They also said it compared favorably to how the death penalty was meted out in other countries. After all, it could be argued, everyone asphyxiated by lethal gas had been tried in a court of law, convicted of a capital crime, legally sentenced to death, allowed to appeal, and put to death in front of witnesses that included members of the press. There were no secret executions, no mass executions. Nearly every one of those condemned to die had been sentenced for murder (except that North Carolina’s capital offenses included rape, or burglary with attempted rape). And although eugenicists in several states had tried to introduce euthanasia laws, as late as the early 1940s there still were no such statutes on the books in the United States, and hence there were no executions drawn from mental hospitals or institutions for the retarded. The only “unfit” persons gassed to death in the United States were dangerous criminals, went the argument.
In 1940 twenty-two men in eight American states were gassed to death by hydrogen cyanide, and in 1941 six states registered twenty-four such capital punishments—not much of an upsurge. These were not huge numbers, and, at the time, so far as most Americans knew, they were the only lethal gas executions carried out in the world. But that was about to change.
The American criminal justice system in 1940 remained riddled with defects and deficiencies. A decade earlier, the blue-ribbon Wickersham Commission had documented the scandalous way that justice was being administered throughout the United States. Its report had devoted an entire volume to “Lawlessness in Law Enforcement,” detailing such abuses as police corruption and the “third degree” (torture), which it defined as “the inflicting of pain, physical or mental, to extract confessions or statements.” The panel characterized police brutality as “extensively practiced” throughout the United States and described suspects whom the police subjected to beatings or sexual indignities in order to get what they wanted. When Buffalo’s police chief was brought to testify, he openly expressed his contempt for the guarantees of individual rights in the U.S. Constitution.5 The commission’s voluminous findings shook up the legal system, but they did not bring an end to all of the abuses and shortcomings highlighted in its reports.
By current standards, the courts of the period granted fewer rights to criminal defendants than they do today: police routinely used beatings and torture to extract their confessions; poor defendants weren’t constitutionally entitled to a lawyer; police could question a suspect without an attorney present; forensic techniques were shockingly primitive; illegally obtained evidence could later be used to send someone to the gas chamber; and so on. Mental patients, hospital patients, and other wards of the state also enjoyed fewer protections than they would later obtain.
Blacks during the Depression suffered disproportionately from poverty, discrimination, and harsh criminal penalties. In one of the era’s most infamous cases, nine young black men in Scottsboro, Alabama, had been arrested for allegedly raping two white women on a freight train. The “Scottsboro Boys” were later convicted in a kangaroo court and sentenced to death, but the Communist Party seized on the case and fought their cause all the way to the Supreme Court, which sent the case back to state court in 1932. But the case dragged on for more than a decade, and by the time the defendants went free, they had served in the aggregate more than one hundred years for a crime they had not committed.6 Nevertheless, the conditions that produced the injustice still existed in 1940, just as they had in 1900.
Also during the Depression, the U.S. Supreme Court took on a case in which white deputy sheriffs in Mississippi used leather straps to repeatedly beat black defendants suspected of murder until they confessed. Asked how much he had whipped one defendant, a deputy replied, “Not too much for a Negro.”7 In that instance the court reversed the convictions, but the ruling didn’t end such brutal practices in the South or elsewhere.
Racial problems weren’t confined to Alabama or Mississippi; they existed in one form or another in every region of the country. Throughout the United States race often helped determine who was labeled a dangerous criminal and how severely they were punished. National studies found that racial minorities—namely, blacks, Native Americans, and Asians—were several times more likely than whites to be arrested, convicted, and imprisoned or executed.8 A report of the era from North Carolina noted that although blacks comprised only 27.5 percent of the state’s population, they accounted for more than 56 percent of the state prisoners. The most common offense was burglary, but blacks were also convicted of homicide at a rate more than three times that of whites.9 Although some whites cited such statistics to bolster their argument that the “black race was more criminal than the white race,” the fact was that blacks in North Carolina (and in other parts of the nation, especially the South) were subjected to Jim Crow discrimination, excluded from juries, denied the right to vote, and sharply restricted in their educational and economic opportunities, so it was by no means clear that blacks were inherently any more criminal than whites would have been if subjected to the same treatment. This, however, didn’t stop whites from labeling them as such. By the 1940s scholars were increasingly producing studies suggesting that blacks were more likely to be condemned to death, wrongfully and otherwise, than whites, due to the power of racial discrimination.10 Yet the problem of the color line remained one of America’s most deep-seated and vexing problems.
William Wellman’s ordeal was illustrative of what was going on in North Carolina at the time. In 1941 Wellman, a black ex-convict, was accused of raping an elderly white woman in Statesville, North Carolina. Police showed Wellman’s mug shot to the victim and a witness and officers put the suspect in a police lineup, but the pair failed to identify him. When the police made him stand in a second lineup, the victim declared, “He looks like the man, but if he is the man, he has changed somewhat from the time I saw him.” Although Wellman claimed to have been at his job in Virginia on the day in question, and there was no other evidence against him, he was charged with capital rape, and his alibi was ignored.
Even at that late date, someone in Wellman’s situation might have been lynched in some parts of the South. In North Carolina, however, authorities had been discouraging that kind of action for more than a generation. In 1906, after a mob in the backcountry strung up and mutilated five African-Americans, the governor had called out the National Guard, and the ringleader was prosecuted and sent to state prison. There was also a state antilynching law in effect. So, although Wellman was accused of raping a white woman, he wasn’t lynched. An all-white jury quickly convicted him soon enough, however, based on very little evidence.
The day after the verdict, the local newspaper reported on its front page that Nazi forces had invaded Russia and an African-American in town had been sentenced to die in the gas chamber. After Wellman’s court appeal was quickly denied, his appellate lawyer enlisted several prominent scholars (including Guy B. Johnson, the sociologist, and Paul Green, a Chapel Hill playwright and activist) to help him seek clemency. They finally succeeded in finding a dated pay receipt and other documentary evidence proving that Wellman was telling the truth. Although the North Carolina prosecutor, E. M. Land, continued to press for his execution, on April 15, 1943, Governor J. Melville Boughton ultimately issued a full and unconditional pardon. What made Wellman’s case so unusual was simply that he was one of the lucky few blacks to cheat his executioner after proving his innocence.11