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Tuesday, May 4, 2021

ANALYSIS/OPINION:

Guilty verdicts against former Minneapolis police officer Derek Chauvin dominated headlines on April 20, but the day was significant for a second reason. It was the 150th anniversary of the signing of the historic Ku Klux Klan Act.

Holding a government agent accountable for murder and manslaughter is always appropriate, but the jury’s actions were especially fitting on the anniversary of this important piece of legislation. The KKK Act, signed into law by President Ulysses S. Grant on April 20, 1871, was intended to address the campaign of terror after the Civil War that was waged against the recently freed people, and the fact that the perpetrators of that violence consistently escaped punishment for their crimes.


Even after the Civil War and the formal end of slavery, the White establishment fought hard to keep its power, especially as the newly freed people constituted an outright majority in much of the South.

One of the ways to do that was through the newly formed Ku Klux Klan and other White supremacy groups, which committed thousands of atrocities that left Black people without property, without jobs, with severe injuries, and sometimes dead. What is worse is that state governments and courts refused to prosecute these individuals and frequently refused to even acknowledge the widespread existence of these crimes.

One month before the passage of the KKK Act, a group of African Americans from Frankfort, Kentucky, penned a letter to Congress begging for federal intervention and protection. Attached to this plea was a list of 116 acts of violence committed against members of the community, which they included because the U.S. senator from Kentucky denied that the Klan even operated in the state.

State courts also had long proved at best ineffective and at worst unwilling to ensure the perpetrators of crimes against Black people faced justice. For instance, of the 500 Whites charged with murdering Black people in Texas from 1865 to 1866, not one was convicted.

In Louisiana, from 1865 to 1875, of over 2,000 Black people murdered by Whites, not one perpetrator was punished. And in North Carolina when a judge tried to bring the Klan to justice in state court, he was murdered by the Klan in the court and left hanging in the grand jury room.

The KKK Act addressed some of these deficiencies by allowing punishment for the crimes to be sought in federal court. This would allow justice to be done even when state courts and state governments shirked their responsibilities.

Much of this act is no longer in effect. Some provisions have been repealed, some have expired, and others the Supreme Court has struck down. The most widely known provision still remaining is now known as Section 1983. It allows individuals to sue state and local officials in federal court when those officials violate constitutional rights.

Crucially, this is a very broad provision and covers not only racially motivated acts of violence, but all constitutional violations across the board. Section 1983 is in the news a lot lately because judicially created doctrines like qualified immunity often undermine its effectiveness.

The purpose of the KKK Act was to ensure that Black people had some avenues to achieve justice for the crimes committed against them by individual persons and state officers. Congress and President Grant intended the law to be a sword that complemented the newly minted 13th, 14th and 15th Amendments. They wanted to ensure that even when state courts were closed, the federal court would remain open and hold perpetrators accountable for their crimes.

While the KKK Act had no direct bearing on what happened in the Minneapolis courthouse on Tuesday, what happened was a fulfillment of the purpose of the act: the jury convicted a police officer of killing a Black man. This end result is exactly what Congress intended the act to facilitate, even if it occurred in state court rather than federal court.

Chauvin’s conviction in the murder of George Floyd during a violent arrest suggests progress. But the infrequency of such results is also a stark reminder of all the work that remains in reforming the justice system.

• Adam Shelton is the Center for Judicial Engagement Fellow at the Institute for Justice. The Center produces “Bound By Oath”: a documentary-style podcast about constitutional rights and remedies, as well as doctrines like qualified immunity.


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