Become a Patreon!


Excerpted From: Thomas D. Holland and Michael R. Dolski, “A Solemn Promise Kept”: The 1919 Elaine Race Riot and The Broadening of Habeas Corpus 100 Years Later, 57 Tulsa Law Review 65 (Winter 2021) (379 Footnotes) (Full Document)

HollandAndDolskiIn the summer and continuing into the early autumn of 1919 racial tensions exploded like an uncontrolled brush fire across the United States in what soon would come to be known as the Red Summer. Starting in the Deep South of Georgia and South Carolina, the flames soon jumped the fire line to spread to northern cities, such as New London (Connecticut), Philadelphia, and New York City, as well as to the Midwest and West, to Omaha, Nebraska, and Bisbee, Arizona. The cities of Chicago and Washington, D.C., were particularly hard hit, but nowhere was the violence more brutal than the small cotton-farming community of Hoop Spur, Arkansas, where on the night of September 30, gunfire erupted outside a ramshackle church where Black sharecroppers were meeting in hopes of organizing a farmers' union.

Though traditionally referred to as a “Race Riot,” what followed in Phillips County was nothing short of a massacre, with deputized sheriff's posses and armed bands of roving white vigilantes, many having quickly assembled from neighboring Mississippi, hunting down largely defenseless sharecroppers in the canebrakes like so many winter rabbits. In Hoop Spur, as in the other hotspots that flared that summer, it would take U.S. troops, many still fresh from the violence of the battlefields of the Great War, to quell the unrest. When the echoes of the last gunshots finally faded on October 2, five white men and possibly several hundred Black sharecroppers and their family members were dead. Seventy-three Black people were indicted on murder charges, and twelve--soon to be known to the nation as the Elaine Twelve--quickly were convicted of first-degree murder and sentenced to death by electrocution. No white people were ever charged.

The violence that took place in Elaine, Arkansas in the late summer of 1919 easily could be a sad, and forgotten page in an otherwise sordid chapter of American history were it not for the legal maneuvering that ensued. Represented by an unlikely legal team composed of a prominent Black Arkansas lawyer from Little Rock and an aged former Arkansas Attorney General and erstwhile Confederate colonel, the Elaine Twelve began a series of appeals that was to culminate in the United States Supreme Court fundamentally re-interpreting the federal Writ of Habeas Corpus. Moreover, the efforts put forth by the National Association for the Advancement of Colored People (“NAACP”) on the case would begin to galvanize that nascent association into the “massive and successful litigation engine” that it would soon become.

The events that came to define the Red Summer helped to shape the contours of modern American race relations, but they also impacted the judicial system in a profound, albeit more nuanced, manner. Now, at the centennial of the Red Summer and its aftermath, and amid the loud calls for judicial reform, it is worth remembering how these events from over one-hundred years ago have impacted our modern view of the role of the federal courts in safeguarding civil rights. What follows is not intended as a substantive analysis of habeas corpus, but rather is a reminder of from whence we came--in the hope that it may somehow help inform where we go. The discussion frames the seminal case of Moore v. Dempsey in the historical context of the Post-Reconstruction South and the associated attempts by the recently re-admitted southern states to dilute the impact of the Slave Amendments. The focus then shifts to the constrained and deferential scope of the Habeas Corpus Act of 1867 that the Court had crafted prior to the Red Summer. Finally, the discussion will examine the appeals of the group of men who came to be known as the Elaine Twelve, and how the resulting Moore majority, its opinion authored by Justice Oliver Wendell Holmes, Jr., came to define the concept of federal oversight in terms that are more recognizable today.

[. . .]

Did Moore overturn Frank? Maybe. Maybe not. It is unclear, but sometimes appearance becomes reality, and the appearance is that it did. What is clear is that after 1923, access to federal courts through habeas corpus increasingly was seen as a viable redress of state court decisions, and the country “began to reclaim the promise” of the Fourteenth Amendment. The path taken by the Court in 1915, with its state-deferential holding in Frank, would not have led to the civil rights advances of the 1950s and 1960s. It took the machinery and instrumentalities of the federal courts to defeat Jim Crow, and one of the primary tools in that toolkit was a broader federal habeas corpus review. In this regard, the appearance, and therefore the reality, is that Moore v. Dempsey “was the progenitor of modern American criminal procedure.” Despite being largely forgotten today, it was “a milestone in the modern interpretation of the Due Process Clause of the Fourteenth Amendment in relation to the conduct of state criminal trials.” Ironically, the Leo Frank case garnered more attention at the time, and has continued to capture the public's imagination, spawning books, movies, and even, as unlikely as the topic may be, a Tony Award winning Broadway musical. By contrast, what took place at Elaine, Arkansas, one hundred years ago has been largely forgotten, and when it is remembered, it typically is viewed as simply as one of the bookends to the broader violence that was the Red Summer and not as a seminal judicial event in its own right. But without Moore as a foundation, as the toe in the door, there may have been no Powell v. Alabama; no Norris v. Alabama; no Brown v. Mississippi; no Brown v. Allen; no Fay v. Noia Certainly not at the time or form that they took.

Equally important is the role that Moore played in shaping the NAACP into the major force in the fight for civil rights that it is today. Founded in 1909, the association had struggled to find its identity during its first decade of existence, often factionalized by internal politics at the leadership level, but the events in Elaine and Phillips County helped to change that. For some in the organization, the ruling in Moore was “an achievement that is as important as any event since the signing of the Emancipation Proclamation.” Hyperbole aside, Moore was the “most complex and time-consuming litigation” that the NAACP had engaged in during its early years, involving an extensive nationwide fundraising effort, and the victory, especially in light of the impressive 6-2 majority Supreme Court decision, combined with the association's unsuccessful, but high-profile, campaign in favor of the Dyer anti-lynching bill “enhanced the NAACP's reputation as a national force in the fight for racial justice.” Going forward, the organization would have the voice it had been striving to find. Within a few years of Moore, the NAACP had come to view the courts as “the most promising avenue for advancing the association's goals” and it had attracted some of the country's top legal talent to its ranks. In fact, in no small way, a case can be made that without Scipio Jones there would have been no victory in Moore, and without Moore there would have been no platform for Thurgood Marshall to argue Brown v. Board of Education

What had begun in Moore v. Dempsey, as a discrete ruling that a conviction at a trial dominated by a mob was void under the Due Process Clause, had become by 1970 a requirement that most of the criminal procedure provisions of the Bill of Rights had to be observed by the states in their conduct of criminal trials.

Sadly, the Elaine Twelve have largely been forgotten. A little over ten years after their release, Scipio Jones wrote the NAACP that only nine of the twelve were alive. Two had moved to Chicago, one to Little Rock, one had relocated to Crittenden County outside Memphis, and the whereabouts of the others was unknown. They had never wanted notoriety. They had wanted a fair wage for the fruits of their labor.

They achieved much more.

Thomas Holland holds a Ph.D. in anthropology from the University of Missouri and a JD from the Richardson School of Law at the University of Hawai'i. He is a Research Professor and Director of the Forensic Institute for Research and Education at Middle Tennessee State University.

Michael Dolski holds a Ph.D. in military history from Temple University. He is the Chief Operations Officer for Partnerships at the Defense POW/MIA Accounting Command and the author of several books and book chapters on U.S. history.

Become a Patreon!