In the decade following the end of the Civil War, paramilitary groups and mobs in Caddo County, La., murdered approximately 10 per cent of the county’s African American male population between the ages of 18 and 45.
Most of these murders were never investigated, though the perpetrators often made little effort to hide their identities. They “were, for all intents and purposes, simply Confederate fighting units reconstituted, 50 to two hundred men riding together,” according to Philip Dray, a historian.
This quote appears in a friend-of-the-court brief filed by the American Civil Liberties Union and others on behalf of Felton D. Dorsey, an African American man who was sentenced to death in the Caddo Parish Courthouse in downtown Shreveport. Throughout the 10 days of his trial in 2009, a Confederate flag flew in front of the courthouse.
Dorsey is appealing his conviction and sentence, in part on the grounds that the presence of the flag outside the courthouse may have prevented him from receiving a fair trial. The Louisiana Supreme Court heard his appeal on May 9.
The flag outside the courthouse is the third official Flag of the Confederacy, not the more common battle flag. It was mounted in 1951 atop a memorial that was erected in 1903 to honour of Caddo’s position as one of the last strongholds of the Confederacy. “It’s the first thing you encounter when you approach the courthouse,” Sam Roberson, a Shreveport minister who attended the appeals hearing, told The Times-Picayune newspaper of New Orleans.
Those who seek to justify flying the Confederate flag say it can mean different things to different people. For some, it is a sign of remembrance for those who died in the war. For others it is a symbol of regional heritage and pride.
People are free to ascribe any significance they want to any symbol they choose, but the benign meanings that apologists for the Confederate emblem (in any of its forms) assign to it are divorced from the message it actually sends.
The Confederate flag stands today for intolerance, bigotry and hatred. That meaning was given to it, not by outsiders, but by those who adopted it as their own. Caddo Parish authorised its installation just days after a federal judge ordered the integration of the Louisiana State University nursing school. Shreveport historian Eric Brock wrote, in a passage quoted by the ACLU brief, “There appears to be no reason to have placed the flagpole and Confederate flag on this monument and, hence, on the Courthouse Square at this time except as part of Shreveport’s own role in resistance to the above-mentioned social changes then sweeping the region. This is quite consistent with the city’s and parish’s position, both officially and unofficially, at the time.”
Caddo Parish was far from unique. Similar displays throughout the South cemented the meaning of the Confederate flag for our lifetimes and beyond.
The swastika existed for millennia before the Nazis adopted it, and once had many meanings. Those meanings are irrelevant today. Just as the Nazi use of the swastika made it impossible to view that symbol innocuously, a century of use by advocates of racial oppression has left the Confederate flag with only the meaning they gave it.
If you were not yet born in the era when that flag was placed outside the Louisiana courthouse, or if you have forgotten what it stood for, watch the excellent PBS documentary on the 1961 Freedom Riders campaign to desegregate bus service in the South. It aired earlier this month, but you can still see it here. As you view the documentary’s abundance of film clips and photos, take careful note of the people who carried the Confederate banner as they sought to drown the freedom riders’ message of hope in a pool of blood and hate. This is their flag. Today, nobody who cares about the sensitivities of his fellow citizens will want to claim it.
Dorsey and the ACLU argue that the presence of this symbol of hatred may have distorted the outcome of Dorsey’s trial in two specific ways.
First, the flag may have deterred African Americans from participating as jurors. The court record itself recounts that the prosecution removed one potential juror in the case, Carl Staples, after he challenged the flag’s presence at the courthouse.
The flag “is a symbol of one of the most…heinous crimes ever committed,” Staples said during the juror screening. “You’re here for justice and then again you overlook this great injustice by continuing to fly this flag.” Staples joined the ACLU brief and has since been an outspoken advocate of removing the flag. Others, though less vocal, may also have been reluctant to serve as jurors for the same reason. The final jury had only one African American member, making it racially unrepresentative of the parish, which is nearly 50 per cent black.
In addition to influencing the makeup of the jury, the flag may have affected the decision-making of those who did participate in the trial, the ACLU brief asserts. A study found that black defendants charged with killing white victims receive a disproportionate number of the death sentences issued in Caddo Parish.
It is entirely possible that the presence of the flag had nothing to do with the outcome of Dorsey’s trial. However, as the ACLU argues, “The flag, as a public symbol of racial bias, poses an intolerable risk that capital punishment cannot be fairly administered within the courthouse walls.”
I personally believe that the death penalty is unconstitutional in all cases, but, if it is administered, it cannot be done in a way that heightens a defendant’s risk solely because of his race.
Should Dorsey’s sentence, or his conviction, be overturned? I think the answer depends on who was actually flying the flag and what, if anything, the judicial authorities in Caddo Parish could have done about it.
The Shreveport chapter of United Daughters of the Confederacy claims that, in 1903, when the memorial was constructed, the county donated the land it sits upon to their organisation. “It’s on the private property of a nonprofit organisation,” the chapter’s president, Lynda Gramling, told the Shreveport Times.
However, the group has been unable to provide any documentation to prove this claim, and records searches have failed to find any evidence that the ownership of the land was ever transferred. The ACLU brief claims the flag is on public land and “involves a display by the State of Louisiana outside a courthouse dedicated to the impartial administration of justice where a death penalty trial took place.”
If the flag is on private property, it is free speech. It is still thoughtless, hateful, and possibly detrimental to the administration of justice in the nearby courthouse, but it must be protected. If the United Daughters of the Confederacy can demonstrate that they own the land, the court will need to find a way to balance the administration of justice with the obligation to respect private speech. The court might, for example, erect a sign explaining to those who enter the courthouse that the flag is not on public land and is not maintained by the county or the state. It might also hold racially sensitive trials in an alternate location.
Though these steps are worth considering, they would not change the outcome of the Dorsey case. I think Dorsey’s conviction and sentence should stand in these circumstances, unless his lawyers can show that the flag had an actual impact on his trial or provide some other grounds for a reversal.
If, however, the flag is on public land, there is no reason why it should not be immediately removed – and no reason why Dorsey should lose his life after a trial in which the state itself made him an object of hatred. Neither a prospective juror nor a criminal defendant should have to seek justice inside a courthouse that honours a symbol of injustice. Those who, like Dorsey, have already had their fates determined in such an environment are entitled to have their cases reconsidered.
The Confederate flag has flown too many times over miscarriages of justice in which African Americans died and whites were permitted to go free. The era when lives could be taken in the official shadow of that flag is long past. The era when a government building in the United States, especially a courthouse, can fly that flag must end as well.