Crime and Punishment in American History - Lawrence M. Friedman [234]
The Oakland Tribune applauded this law, because it allowed a “summary policy ... toward dynamiters, Bolshevists, I.W.W. and the whole brood of anarchists. It should be enough to know of their general tendency and sentiments without having to fasten specific crimes upon them.” So much for due process. In fact, the statute did not sit rusting on the shelf. During its years of vigor, 531 men and women were charged with violating this law, and 264 were actually tried. Of these, 164 defendants were convicted and 31 acquitted; sixty-nine trials resulted in a hung jury. No less than 52 of the convictions, however, were reversed by the Court of Appeal, and 2 by the California Supreme Court.43
The most notorious case, and the only one to reach the U.S. Supreme Court, was Whitney v. California.44 This was an appeal brought by Charlotte Anita Whitney, a strong, outspoken woman active in “progressive” political circles in California. Ms. Whitney had been at a convention in Oakland, which aimed to organize a California branch of the Communist Labor Party. The convention adopted a rather militant platform; ironically, Ms. Whitney was opposed to this platform. But she stuck with the party nonetheless. She was arrested—and convicted—for violating the syndicalism act. She appealed all the way to the Supreme Court; but lost again. A state, said the Supreme Court, had the power to punish those who “abused” the rights of free speech, assembly, and association “by joining and furthering an organization” that menaced the “peace and welfare of the State.”
The state of Georgia, for its part, dusted off an old statute (dating from the late 1860s), which made it a crime punishable by death (!) to incite “insurrection” against Georgia. “Circulating insurrectionary literature” was also a serious crime under this law and carried a long prison term. The assistant solicitor general of the state, John H. Hudson, a rabid red-baiter, unearthed this draconian gem, and from 1930 on used it to arrest and try members of the Communist Party and other such menaces to Georgia. In 1932, Angelo Herndon, a nineteen-year-old black man, who was indeed a member of the party, was arrested and tried. Hudson, with tears in his eyes, demanded the death penalty. He begged the jury to “send this damnable anarchistic Bolsheviki to his death by electrocution.”45 Herndon was convicted, and thrown into prison. Only after a long and tortuous legal struggle did the U.S. Supreme Court strike down the Georgia statute, in a five-to-four decision. cz
The Herndon case had a double aspect. Yes, Herndon was a “red”; but in some ways the more important color was black. The white South was particularly fierce and unyielding toward those who dissented from the code of white supremacy. Herndon called on the black masses to rise up against white domination—with the help of the Communists, of course. This call to blacks was his real sin, or, at any rate, his worst sin; and it was this that got him to prison.
Political Justice and “Ordinary” Crime
So far we have discussed mostly cases in which political action was itself the offense. Yet perhaps the most famous “political” trial of the twentieth century, the Sacco-Vanzetti case, was of a somewhat different nature. On April 15, 1920, a holdup took place in Braintree, Massachusetts. A paymaster and his guard were robbed and shot to death. The brutal killers made their getaway by car. According to witnesses, there were two gunmen, and five men all told in the car. All but one were dark and looked Italian.47
Nicola Sacco, and Bartolomeo Vanzetti, Italian anarchists—a shoe-maker and a fish peddler by trade—were arrested and charged with the crime. The sensational trial ended in conviction and a sentence of death for both men. Felix Frankfurter (then a professor at Harvard