Alex Brandon/AP Photo
The Emmett Till Anti-Lynching Act, H.R. 55, before being signed by House Speaker Nancy Pelosi at the U.S. Capitol, March 16, 2022
Museum employees insist on decorum in the National Museum of African American History and Culture room that holds Emmett Till’s casket. In selfie-obsessed America, it is one place where photography is prohibited. Besides, all the photos any visitor needs to see are the graphic ones nearby. Emmett Till’s mother allowed Jet magazine photographer David Jackson to take pictures of the young teenager’s body, mangled almost beyond recognition and bloated by days in the Tallahatchie River. After a white woman accused him of sexual harassment in a store in the small Mississippi town where he’d gone to spend the summer with relatives, two white men later kidnapped him and drove him to a barn. After hours of torture, the men took Emmett Till to the waterway alive, shot him in the head, wrapped barbed wire and a cotton gin fan around his neck, and threw his body into the river.
On March 7, Congress passed the Emmett Till Anti-Lynching Act after 200 attempts—67 years after the teenager’s 1955 murder horrified the world, and 122 years after a Republican, the Rev. George Henry White, an African American representative from North Carolina, proposed the country’s first anti-lynching measure. Rep. Bobby Rush (D-IL) took up the mantle and persevered in passing the bill after several attempts.
Many Americans, members of the news media, racial justice advocates, protesters, and artists use the term “lynching” colloquially to draw attention to extreme police violence and other heinous instances of white-on-Black violence. Under the Emmett Till Anti-Lynching Act, not every race-involved crime can be defined as a lynching.
In short, a lynching has three elements: a conspiracy, a hate crime, and grave injury or death.
The legislation outlines several factors that must be met for a crime to be considered a lynching: The offense must involve a conspiracy to commit a hate crime, one based on race, color, religion, national origin, gender, sexual orientation, gender identity, or disability, that causes death or serious injury. A person convinced of lynching would be subject to fines and up to 30 years in prison.
Under federal law, a conspiracy is an agreement between two or more people to commit a crime: A lynching conspiracy would involve an agreement to commit a hate crime that results in death or serious injury to the victim. (It follows that a bystander who does not participate in such a crime would likely not be charged with lynching, though they could be charged with other crimes.) In short, a lynching has three elements: a conspiracy, a hate crime, and grave injury or death.
For centuries, lynchings were a key feature of the physical, economic, and social control that whites had over African Americans, particularly in the South. While groups of white men, some of them well-known community figures, banded together to indiscriminately murder Black people, Native Americans, Latinos, and Asians, as well as Jews and members of other religious and ethnic groups also faced violence and death. Taken to its most perverse extremes, lynchings were entertainment spectacles where white residents reveled in scenes of torture, mutilation, and death. White families often picnicked with young children while a Black man was hanged, torn limb from limb, or burned alive. Sometimes they collected body parts afterward as grisly souvenirs.
The organizers of these extrajudicial executions typically faced no open opposition; in the cases where perpetrators were arrested and tried in the courts, as the white men who killed Emmett Till were, all-white juries refused to convict them.
The three Georgia men who murdered Ahmaud Arbery likely could have been charged with lynching if the anti-lynching bill had been in effect at the time of the killing. They were charged with hate crimes based on the data found in their cellphones and social media posts. They worked together to coordinate their actions, chase Arbery, and kill him, decisions all based on his race. Similarly, the 1998 murders of Matthew Shepard and James Byrd, a gay Wyoming man and an African American Texan, respectively, as well as the 1982 killing of Vincent Chin, an Asian American Michigander, would likely qualify today as lynchings.
In other cases involving police officers with no-knock warrants, for instance, prosecutors would have to prove that they conspired to burst into a home intent on committing a deadly hate crime. This week, the mother of Breonna Taylor walked into the Department of Justice with a petition signed by 18,000 people demanding that the federal government charge three Louisville Metro Police officers with federal hate crimes in her death after they forced their way into her home during a drug investigation and killed her. The only officer charged in the case was found not guilty. The 2020 decision came 65 years to the day after a Mississippi jury of 12 white men found Emmitt Till’s killers not guilty.
In the case of Minneapolis police officer Derek Chauvin, convicted of the murder of George Floyd, Minnesota Attorney General Keith Ellison has said that the state did not have evidence of racial bias and, consequently, did not charge Chauvin with a hate crime. If the anti-lynching measure had been in effect on May 25, 2020, it would have been necessary to prove that Chauvin and at least one of the other officers conspired against Floyd because he was African American.
One person who commits a hate crime, but has no co-conspirators, would also likely not be charged with lynching. Dylann Roof, convicted of the murder of nine members of the Mother Emanuel Church in Charleston, acted alone, as did Robert Aaron Long, who killed eight people—six of them Asian women—in the Atlanta area.
Rush’s anti-lynching bill passed both houses of Congress with unusual speed that recalled the events surrounding the passage of the Juneteenth holiday marking the end of slavery, which became a de facto national holiday in 2020, shortly after the murder of George Floyd. President Biden signed the official proclamation making Juneteenth a federal holiday one year later.
One factor that eased passage of the final version of the anti-lynching bill is that it did not create a new class of federal crimes—instead, it nested lynching into existing federal hate crime statutes. Moreover, Sen. Rand Paul (R-KY), who had prevented an earlier version of the bill from passing the Senate after George Floyd’s death, earning the wrath of Sens. Cory Booker (D-NJ) and Kamala Harris (D-CA), successfully argued that an earlier version of the bill was too broad, potentially encompassing nonviolent crimes against property such as offensive graffiti. The ensuing compromise produced legislation narrowly tailored to crimes involving serious injury and death. In an eyebrow-raising turn of events, Paul then joined Booker, Tim Scott (R-SC), and Rev. Raphael Warnock (D-GA) as co-sponsors, a signal to other Republicans that they could vote for the bill.
Now deceased, Emmett Till’s murderers confessed to the crime in a 1956 Look magazine article. The woman at the center of the case, Carolyn Bryant Donham, the ex-wife of one of the killers, is now in her eighties. In 2017, she recanted her allegations about Till and later retracted that recantation. Last week, Emmett Till’s family announced that they want to see Donham face charges and have asked state and federal officials to revisit the case. The Justice Department, which closed its investigation into the murder at the end of 2021, has noted that federal prosecution would be impossible since the statute of limitations on the civil rights laws in force at the time of the murder has run out. Mississippi officials have said that the federal government is better equipped to conduct any investigation.
President Biden is likely to sign the Emmett Till Anti-Lynching Act into law by the end of March.
