Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth-Century America

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David Garland, “Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth-Century America,” Law & Society Review 39:4 (Dec 2005), pg. 793, 41 pgs

Public torture lynchings were a particular kind of ritual then, but rituals were what they were nevertheless. For, despite these qualifications, and despite their rough and ready character, these events were collective performances that involved a set of formal conventions and recognizable roles; a staging that was standardized, sequenced, and dramatic; and a recognized social meaning that set the event apart as important, out-of-the-ordinary, highly charged in symbolic significance. Lynchers sought to represent their violent acts as collective rituals rather than private actions-seeking the public authority that came with the crowd-and they used the ritual forms of criminal punishment to do so.

In embarking on the lynching of a criminal suspect, ringleaders were attempting to wield a form of power and to invoke a set of values that could be expected to produce community support and approval. Their adoption of the ritual forms of public executions was an implicit appeal for legitimacy that invited collective recognition. Their targeting of perpetrators of the "worst" crimes was a reliable way of invoking community norms and harnessing them to their cause. Their success in attracting a crowd, orchestrating its actions, and staging a public lynching was not, therefore, a routine expression of an underlying sentiment (as must have been apparent to would-be lynchers who failed to gain public support for their efforts-see Griffin et al. 1997). It was an activating, constitutive, defining exercise of power that produced the very values it claimed to celebrate and display. Some rituals may be, as Durkheim claimed, a celebration and reaffirmation of what everyone already believes. But these rituals were something else entirely-a shocking display of blood and suffering intended to transform the relations of blacks to whites and of whites to each other.

One might regard this situation as one of underenforcement, where an unambiguously criminal act goes unpunished because of the weakness of the state government and its criminal justice agencies. But this would mis-describe the normative status of lynching and miss the important dimension of legal pluralism that characterized these situations. These lynchings may have violated the letter of state law, but they were not violations that were ever liable to be sanctioned. This de facto suspension of state law occurred not because of a lack of enforcement capacity but because, in these situations, local norms of justice contradicted state law and interrupted its operation. The fact is that the lynchers' conduct was usually regarded with broad approval by large sections of the communities in which the lynchings occurred, and it was tolerated (and often applauded) by local politicians and law officers. In these locales, for these crimes, and for these suspected criminals, lynching was not deviance from group norms but instead the direct enforcement of group norms in a situation of conflicting powers and multiple authorities. Whatever state law said, and whatever the rest of the nation thought, in the counties and townships where they took place, public torture lynchings could claim to be socially approved civic undertakings, and not deviant acts.

 In the Deep South, at least until the 1930s, lynching was evidence of an intermittent and situational legal pluralism.24 Racially coded community norms and the rules of state law competed for jurisdiction, and whenever lynchings occurred, the behavior of local law officers, witnesses, and jurors ensured that the norms of local law generally prevailed. Constitutional provisions and state legal norms regarding the status and rights of African Americans were weakly enforced, highly contested, and often of marginal significance in the daily lives of these communities. By contrast, the norms of the Southern racial code were precise, exacting, and vigorously enforced. When public torture lynchings were carried out, it was the latter norms that governed conduct, not just of the lynchers but also of the local law officers and community leaders, who tolerated their conduct and granted it impunity.

Were public lynchings criminal punishments? That black men were the characteristic victims of mass mob lynchings, and that declarations of white supremacy were often part of the accompanying discourse, prompt us to understand these events as furious expressions of racial hatred, which is, in large part, what they were.25 Public torture lynchings were highly visible instruments of terror that functioned-along with race riots, debt peonage, disfranchisement, segregation laws, and violently enforced codes of racial etiquette-to ensure the subordination of Southern blacks in the period after 1890. But if public lynchings functioned, as all white-on-black lynchings did, as racialized social control, they were also, in a way that was quite definitive for those concerned, a form of criminal punishment. The most important evidence of this is that the news reports of the period-critical accounts as well as supportive ones-made it clear that public torture lynchings always occurred in response to an alleged crime of a very serious nature.26 Minor insults, personal feuds, economic competition, and "uppity" behavior might prompt a private lynching or a terrorist group attack, but mass mobs assembled to watch a black man being tortured and killed in public only when they held him responsible for a heinous crime.27

. In short, the mob's version of "popular justice" was a grotesque caricature of due process and the rule of law. But lynchers generally convinced themselves that they had the right man by asking the victim to make a positive identification or forcing the suspect to make a public confession and thus confirm the rectitude of the proceedings.29 At a fundamental level, racial hatreds were what provided their special energy, and caste distinctions determined their peculiar choice of methods. But in more immediate terms-above all in the public forms and discourses though which they were represented (see pp.803-05 above)-these public lynchings were understood by participants as criminal punishments, not arbitrary and unprovoked acts of violence, and this characterization was crucial to their local meaning and legitimacy. Contemporary newspaper reports give the same impression, referring to the events as "executions" and always describing the crime of which the lynch victim was accused.30

. If public lynchings were like executions, they were most like the executions of a bygone age, above all the seventeenth-century punishment of burning alive reserved for the crime of petit treason-typically a wife who killed her husband or a slave who rose up against his master (Banner 2002:71) This choice of methods was no accident. When they seized their black suspect, lynch mobs reached for methods that would most forcefully convey the hatred and contempt they felt for the supposed perpetrator and his unspeakable crimes. It was thus unsurprising that the specific techniques they came up with-burning alive, hanging in chains, torturing and maiming the offender-were the same harsh forms of penal debasement that had historically been used in America and elsewhere, to set inferiors in their place and strip them of their humanity (Banner 2002:71; Merback 1998:141). Regular punishments were too good for these "offenders," regular justice too respectful and too dignified. Torture, burning, dismemberment, and display were all traditional, simple, and readily available modes of combining an excess of pain with the debasement of the person and the desecration of his body. By reviving these ancient penalties, the lynchers created an aggravated form of capital punishment, more terrible than official justice, and more nearly proportionate to the horror and rage provoked by the lynch victim's "crimes." The public torture lynching was invented to communicate impassioned sentiments that could no longer be expressed in the official idiom of the criminal law, and to inflict a level of suffering that had long since been officially disavowed.

Hence what appears, from the perspective of penal evolution, as the strikingly anachronistic character of these events. Southern crowds began to torture, mutilate, burn at the stake, and display corpses centuries after America's criminal justice authorities had abandoned these very same practices (Banner 2002; Masur 1989; Friedman 1993). They did so not because they were "primitive" or "pre-modern." They did so to invoke a set of meanings and distinctions that America's increasingly egalitarian legal system had sought to leave behind. The lynchers' use of "cruel and unusual" punishments was a deliberate32 flouting of the norms of modern law and civilized penology, a self-conscious choice, intended to degrade and defile black offenders and to refuse them the treatment afforded to convicted criminals by the criminal justice institutions of the time.33 The penal excess of these new lynchings was not an accidental effect of a crowd getting carried away-it was at the very core of the event's penal purpose and political meaning.

In the eyes of the mobs, the legal process was not just slow and uncertain; it was also too removed and too restrained. For these particular "criminals," and for these particular "crimes," Southern mobs wanted to wreak their own brand of vengeance without intermediaries. The mode they preferred was impassioned, personalized, and communal; the techniques they utilized were deliberately cruel and unusual. Why? Because the crimes in question were perceived as crimes of lese majesty-challenges to the social order and the racial code upon which that order depended. Homicidal assaults upon white employers or law officers or public officials were serious affronts to the caste hierarchy around which Southern race relations were organized. Sexual assaults on white women violated the most intense taboo of the Southern racial code. Crimes such as these carried a collective insult, a racial dishonor, and a background threat of insurrection that implicated the entire white community. The outrage they produced was more intense and more collective than that produced by ordinary crimes and ordinary criminals, and this collective aspect was never more apparent than when relations between racial groups seemed volatile and uncertain.

Certainly, relations between racial groups were volatile and uncertain as a result of the New Deal and its important impact on African Americans’ access to economic and political rights at the federal level.

 Lynchers acted in ways that proclaimed the sovereign power of "the people" acting directly on their own behalf, avenging their victimized kin, upholding white honor, and demonstrating their collective strength. The heinous crime of the black man-and behind it the suggestion of an insubordinate black underclass-was a challenge to these values and demanded a vigorous rebuttal.

Connect idea of “the people” articulated here to Rogers Smith’s notion of compelling narratives of collective civic identity. Isn’t a lynching, as Garland describes it, an affectively dense narrative of collective, white identity in the South? How does the uptake in lynching in 1933, and the recalcitrance of Southern Democrats in Congress, reflect broader tensions about the relationship between federal power, with the possibilities it affords for more egalitarian economic and civic relations, and local power, with its commitment to ascriptivist norms? And how might we regard the New Deal administration’s tacit acceptance of the Southern caste system, reflected in its failure to promote anti-lynching legislation and its eagerness to cede administrative control to state and local relief officials, as a deliberate choice to align federal power with those same, inegalitarian, often violent, community norms? To what extent is the New Deal state complicit in Southern white terror? How do we assess Roosevelt’s refusal to support federal anti-lynching legislation? Was it really just an effort to fend off a broader mutiny of conservative Southern Democrats from the New Deal? After all, Roosevelt did challenge Cotton Ed Smith’s re-election in 1938. But at the same time, Roosevelt’s unwillingness to support federal anti-lynching legislation is consistent with the broader strategy of “cooperative federalism,” as described by William Ranulf Brock. And New Deal politicians’ reluctance to interfere with the compelling narrative of collective civic identity that was public torture lynching is also consistent with its broader efforts to align such residual, ascriptivist narratives with, rather than against, the emergent welfare state. Finally, when read against the actual administrative approach to racial inequality in the administration of federal unemployment relief, New Deal support for popular racism in the form of public torture lynching seems altogether consistent with the government’s tacit acceptance of other, less spectacular forms of racial terror.

All of this is not to say that New Deal administrators actively embraced the racially discriminatory administration of federal emergency relief at the state and local levels, much less did they actively applaud public torture lynchings. But their refusal to challenge either reflects the complex interplay of residual, ascriptivist practices and emergent, centralized authority that characterized New Deal hegemony.

The penal excess of the lynching spectacle said things that a modernized legal process could not. It cut vivid statements into the flesh of its victim and used broken bodies to establish indispensable truths. It demonstrated that unrestrained violence and unlimited power were hallmarks of communal justice and that moderation was out of place when race supremacy was at stake. At the same time, it re-established the correlative status of the troublesome black man, which was as nothing, with no rights, no protectors, no personal dignity, and no human worth. To allow a black rapist or murderer the due process of law would be to treat him as a citizen, a fellow American, a fellow human being. The public torture lynching worked to deny this fellowship and to insist on the utter worthlessness of any black man who offended against white people.

Relationship of public torture lynchings in the 1930s to the civic transformations wrought by the emergent welfare state. Just as African Americans saw federal emergency relief as an opportunity for civic and economic advancement and as an explicit federal challenge to Jim Crow, whites used public torture lynchings and other, less dramatic instances of racial terror to preserve the racial status quo. Federal administrators’ ineffectiveness in enforcing federal egalitarian principles is consistent with their eagerness to wed emergent forms of federal authority to residual ascriptivist norms. The public torture lynching was too potent an expression of local ascriptivist norms for New Deal politicians to contest; indeed, it was precisely the kind of affectively rich narrative that New Dealers often worked to harness to the New Deal state. While federal administrators stopped short of endorsing extreme brutality, we must closely scrutinize the extent to which other forms of racial terror did become embedded in New Deal relief and welfare policy…

That this ritual was banned by criminal law, was characteristic of the South and of nowhere else in the United States, and was guaranteed to scandalize the rest of the nation, also gave it a definitional power that official executions could never match. Mass lynchings were crowd events through which lynching activists and their supporters proclaimed a distinctive communal identity. They defined themselves as sovereign in opposition to state (and later, federal) authorities for whom their actions were not law but lawlessness. They defined themselves as superior against the fact of black emancipation and the aspirations of African Americans for social status and legal protection. They defined themselves as Southern by invoking old codes of Southern honor (Brown 1975; Wyatt-Brown 1982) that demanded self-help and direct action whenever personal interests were threatened. And they defined themselves as immoderate in defense of these values, in a way that expressed disdain for race "conciliators" and voices of moderation in the white community, as well as for the reformed criminal justice system and its humane concern for black offenders.

New Deal recovery measures renewed African American aspirations for social and legal protection. We might regard the uptake in public torture lynchings in the 1930s as an effort to quell such aspirations and to reassert local power relations as against the threat of federally imposed civic equality. And certainly, anti-New Deal Southern politicians effectively mobilized popular hostility toward the New Deal by characterizing it as the return of Reconstruction, which symbolized the subversion of white power and the imposition of outside federal authority on the white South. Always sensitive to complaints of federal abuse of power, New Deal politicians actively courted Southern white Democrats with the assurance that support for the New Deal would not compromise traditional social hierarchies in the South.

If public torture lynchings were political theater, what dramas were performed there? What meanings did they convey and to whom did they convey them? What languages and symbols did they employ and how were their gestures interpreted? Existing historical monographs give us a rich source of empirical material with which to interpret the political and cultural meanings of these lynchings, as well as some persuasive accounts of what specific events meant in the particular context in which they occurred. The analyses that follow describe the social functions served by public torture lynchings and the various meanings they had for the people involved. No single lynching communicated all of the meanings or served all of the functions described below; each event occurred and signified in a specific time and place. But these descriptions provide some sense of the institution's social uses and the social meanings that its rituals conveyed, which in turn helps explain how such an institution could find so much support. Besides an excess of punishment, these lynchings conveyed a surplus of meaning, articulating the destruction of a dangerous black offender onto the different dimensions of local culture and social structure.

Dishonoring and Degradation

The penal excess of the event-its torments and emasculations-together with the event's public character, were designed to degrade the offender, to strip him of human dignity, and to restore him to his place as an inferior (Scarry 1985; Whitman 2003). The ritual humiliation of the lynch victim responded to the status affront, the lese majesty, involved in his alleged crime. The traditional symbols of infamous, low-status, punishment were employed to this end, as were the taunts and humiliations spontaneously inflicted by the crowd.

Expressive Justice

The lynching's proximity to the alleged crime permitted the cathartic release of powerful emotions.40 The public ritual provided an occasion for acting out communal outrage and an opportunity for injured victims to express their (socially sanctioned) fury. Contemporary newspaper reports emphasized that the people were "aroused," "incensed," "impassioned," "furious," "bent on vengeance."

Cultural Instruction

The lynching served a didactic purpose, for both insiders and outsiders. For victims and kin who hesitated to do what is required of them, lynchers provided instruction and the crowd provided encouragement and pressure. For others in the crowd, it was a blooding of sorts-an experience that organized subjectivity, teaching white Southerners what it meant and how it felt to be a white Southerner. To blacks in the vicinity, it was a brutal reminder of their place in Southern society. For the rest of the nation, it was a demonstration of "how we feel down here" (Litwack 2000:27).


In what Cash (1941) calls "the mind of the South," African Americans were regarded as unclean as well as inferior, and intimate contact between black and white-sharing a toilet, drinking from a public fountain, trying on hats and coats in a store -was viewed as a source of contamination (Harris 1995; Litwack 1998). The pollution of the white woman's purity by the black man's sexual assault was the ultimate contamination-an abomination that polluted the community as well as the woman,41 violating the prohibition on miscegenation, threatening to "mongrelize" the races and bring down the whole system of racial division and hierarchy (Cox 1945; Frederickson 2002). Burning the black man's body was an act of purification, reducing the taint of the violated taboo and reinforcing the strength of its prohibitions (Paterson 1998:218).

Terror and Racial Control

Spectacle lynchings functioned as the extreme point on a continuum of violently enforced racial controls (Tolnay & Beck 1995:57). The ferocity of these events worked to charge the rest of the control network-private lynchings, lesser assaults, the everyday threat of violence that backed up racial etiquette and the demand for deference-with a surge of surplus power. Extraordinary violence-penal excess-served to increase the day-to-day effectiveness of more routine racial controls.42 The sadistic cruelty of the lynching may have been expressive, but it was at the same time fully strategic, the one aspect reinforcing the other.

This is important to my point about how, insofar as lynching was on a continuum with “the everyday threat of violence” and “more routine racial controls,” New Deal acceptance of the latter in ceding administrative power to local white authorities was of a piece with the New Deal state’s noninterference with the spectacle of public torture lynching.

Sovereignty and Private Police Power

Staging a public lynching in open defiance of state law was a political statement, validated and made more emphatic by crowd support. By "taking the law into their own hands," Southern lynch mobs transformed felt weakness into a show of strength, claiming the sovereign power to manage their own affairs, defeat their own enemies, and assure their own security. Lynchings asserted the continuing autonomy of local communities and marked out the practical limits of state and federal power.43 In the South, this direct power to punish had a special significance as a legacy of the personal right of white men to control slaves and to exercise police power over them. That this sovereignty should be expressed in savage form is not surprising. We know from Foucault (1977) and Merback (1998) that cruelty in punishment is the mark of sovereign power in absolutist regimes, and from Evans (1996) that horror in punishing is the resort of absolutist powers that are under threat.

Control of Meaning

Absolutism in punishment is also marked by the absence of doubt. In contrast to the legal process, lynching allowed a single narrative, a single truth, to be publicly proclaimed. Where courts-even Southern courts dealing with black defendants-threatened to introduce evidence that could disrupt stereotypes, dispute facts, and humanize defendants, public lynchings allowed the untrammeled projection of pure racial stereotypes and stark moral contrasts. The mass mob attested to a single structure of meaning, unopposed and unquestioned. In that sense, crowds were a device for the avoidance of doubt (including self-doubt) and the suppression of dissent. In marked contrast to the official hanging day crowds described by Gatrell (1994)which loudly expressed dissent and criticized the executioners, reports of lynch crowd conduct record few contrary opinions.


The violence of lynchings was fueled by hatreds and tensions between blacks and whites, but it also expressed other anxieties and drew energy from other social divisions. Economic divisions between planters and sharecroppers, status divisions between "crackers" and the "best citizens," political divisions between conservative and radical, gender division between men and women-such conflicts lay in the background of lynchings and sometimes found expression in the actions and discourses surrounding the events (Tolnay & Beck 1995:19; Williamson 1984). The outrage provoked by the alleged crime made it possible to stage a collective action that surmounted these conflicts and channeled the hostilities that they produced.

Relation to Irvine and the affective dimensions of scapegoating.


The lynchings themselves, together with the subsequent circulation of images, tales, and mementos, functioned to produce solidarity of a kind. Participation-even vicarious participation, after the event-had a binding effect, establishing complicity and implying group membership. Lynching postcards were sent to friends so that they too would be included in the collective transgression and the community it implied. They drew the recipients into an awareness of acts that were illegal but locally approved. They communicated a knowing involvement and a tacit approval. That the law prohibited lynching, that lynching violated the norms of conduct prevailing elsewhere in the United States, that lynching was savage, bloody, and brutal-all of this added to the force of the event as a binding mechanism in an embattled, defiant community.

Lynching as Power Play

Lynchings were events that allowed the most virulently reactionary elements of a community to take charge, to display their power and mark out their distance from more moderate or conciliatory elements. In attracting a large crowd and effectively carrying out a public lynching, these individuals advanced a claim for themselves as local leaders who could command popular support. Wherever this ruthlessness appeared to succeed, local elites were inclined to go along with it, defending the lynchers' actions rather than challenging their credentials and commitments (McGovern 1982). Public lynchings brought about various political adjustments, shifting the balance of power in relations between blacks and whites and moving white local sentiment in a more populist, racist direction (Cox 1945:581). One can see the negotiation of new status hierarchies and the working out of new political settlements in the editorials, debates, and declarations that poured forth in the aftermath of one of these lynchings in the community concerned (SoRelle 1983).

Gender and Racial Hierarchies

Also at stake in these rituals were the complex social and sexual relations between Southern men and women. As J. Hall puts it, "[t]he racism that caused white men to lynch cannot be understood apart from the sexism that informed their policing of white women and their exploitation of black women" (1993:xx). Most explicitly and most explosively, lynchings spoke to the taboo relation between black male assailants and white female victims. But, more obliquely, they also spoke of the relationship between the white male lynchers and the white women in whose name and for whose protection lynchings were carried out. The standard rationale for public lynchings-the protection of white women from sexual attack by predatory black males-carried obvious consequences for white women, confirming their dependent status, reinforcing the expectation that they would be sexually "pure," and making it clear that sexual relations across the color line would bring dire consequences.

The figure of the pure white woman occupied a strategic position in the Southern racial structure, which helps explain the tenacity of the "rape complex" (an emotional mind-set focused on the threat of black man/white woman assault) and the ferocity of the punishment that it brought forth (Cash 1941; Cox 1945). In the lynching drama, the themes of sex-race-violence-power were setting as well as action, background as well as foreground.

Sexual Violence

The frequent use of lynchings as a punishment for rape, the embroidering of murder allegations with fabricated rumors of sexual assault, the frequency with which lynch victims were castrated, the hanging display of their nude bodies, and the exuberant sadism of much crowd behavior all suggest that sexual impulses formed part of the psychological dynamic that animated these events (J. Hall 1993:xx). Myths about the sexual potency of black men, Southern ideals of white female purity, and the anxious discontent of white males whose unrealistic views of female sexuality were recipes for frustration and infidelity, produced an explosive mix of sexualized emotions. Public torture lynchings offered a socially sanctioned occasion for the projection of these fantasies and an outlet for the cathartic release of these frustrations (Williamson 1984; Frederickson 1971).

Lynching as Carnival

Lynch leaders would typically impose a degree of order on the crowd, if only to observe the proprieties of giving the victim's relative the first blow at the black man's body, or to ensure that shots meant for that body did not hit crowd members instead. But beyond this minimum of discipline, mass lynchings were often riotous, carnivalesque affairs-recall Henry Smith "placed upon a carnival float, in mockery of a king upon his throne" (The New York Times, 2 Feb. 1893, p. 1). People went to see popular justice done, but they also went to enjoy themselves. "Lynching bees," "Negro barbecues," "lynch carnivals"-these were Southerners' familiar names for these events. Watching a black man put to death was an entertainment and-as contemporary news reports45 and photographs make clear-Southern crowds found excitement and pleasure in it. H. L. Mencken was only half in jest when he identified the cause of lynching as the absence of concert halls.

As I stressed above, these actors were engaged in a struggle over power and meaning in a setting that was highly contested and deeply conflictual. The outcomes of their actions were always contingent and never certain. Lynchers' actions were viewed by multiple audiences, local and national, black and white, male and female, supportive and critical. The symbols they invoked were capable of contrary readings and interpretive reversals. The values they aimed to uphold could sometimes be undermined by the very methods they used to affirm them.

The "black beast" who was supposed to be degraded by his treatment could end up being elevated by it. Being the focal point of so much passion and such an elaborate ritual, the man being lynched was easily transformed into a Christ-like martyr, as is suggested by much of the critical art that has grown up around lynching (Langa 1999). The Southern white women whose honor and security lynchers claimed to protect could come to feel oppressed and ashamed by these atrocities and to revolt against the "chivalry" they entailed (Ames 1937; J. Hall 1993). Photographs that celebrated and commemorated the lynchings also helped build a national campaign against them

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