These incidents, which come amid escalating violence, uncertainty, and challenges to democracy around the globe, are cause for grave concern because we know where they can lead when leaders in our justice system don’t engage and fail to push back. See Freedom House, Freedom in the World 2023 (Mar. 2023); see also Steven Levitsky & Daniel Ziblatt, Tyranny of the Minority (2023).
Legal systems around the world have been complicit in some of the worst atrocities in human history, from slavery and Jim Crow in the United States to the mass genocide of the Holocaust in Europe. As a current elected prosecutor and a former federal prosecutor—one of us whose father survived the Holocaust—we know firsthand how critical it is for every elected official to publicly recognize and address past injustices, while also combating new attempts to foster hate.
Take the case of John Henry James, who was arrested in Virginia in 1898 on unfounded accusations of raping a white woman—a charge that led to a mob of 150 white men abducting and brutally lynching him while he was being transported to court. After learning of his killing while their deliberations were underway, the grand jury issued a posthumous indictment against Mr. James, giving legal credence to the notion that the racist attack had been justified. See July 12, 2023, Order by Hon. Cheryl V. Higgins, Judge, Albemarle Cnty., Va.
Despite evidence that members of the mob (some of whom were reportedly law enforcement officers) made no attempt to obscure their identities, not a single person was ever held accountable for Mr. James’ death, underscoring the complicity of the legal system in legitimizing a violent culture of white supremacy in America.
America’s racist violence and Jim Crow laws inspired another supremacist movement across the Atlantic: the Nazi Party in Germany. See Robin Lindley, How the US Influenced the Creation of Nazi Race Laws Under Hitler, Am. Bar Ass’n J. (Feb. 7, 2023). Upon attaining power in 1933, the Nazis used the government and legal system to escalate attacks on Jews through a meticulously constructed set of laws rooted in antisemitism.
That legal system—one made possible through the individual actions of government leaders, law enforcement officials, lawyers, and judges throughout the country—sanctioned the persecution, and eventual genocide, of six million Jewish people (and millions of others) throughout Europe.
A common thread connecting the systematic discrimination of and violence against Black individuals in America and the targeting of Jews and other minorities during the Holocaust is the active participation of law enforcement and legal system leaders in validating and enabling heinous acts of hatred, underscoring the need for public safety officials across the country to learn from history and proactively prevent future tragedies.
Micajah Woods, the prosecutor in the James case, for example, was one of Virginia’s top legal system leaders, serving a term as the president of the Virginia Bar Association. Notwithstanding his complicity in seeking the posthumous indictment of James and in failing to hold those who brutally lynched James to account, the organized bar actually looked to Woods to raise professional standards and improve the law.
With this history in mind, we cannot ignore the central role the legal system and its actors have played in perpetuating injustices over many years and across the globe. That is why we joined reform-minded prosecutors from across the country in visits last year to the U.S. Holocaust Memorial Museum in Washington, D.C., and to Montgomery and Selma, Alabama. See Fair and Just Prosecution (@fjp_org), X (Sept. 21, 2023, 11:11AM); see also Email from Fair & Just Prosecution to subscribers (2023).
In Alabama, we explored the insidious history that links the enslavement of Black people to mass incarceration and the overwhelming racial injustices perpetrated by the U.S. criminal legal system. We crossed the Edmund Pettus Bridge in Selma, walking in the footsteps of civil rights activists who were brutally beaten by law enforcement in 1965 simply for advocating for the voting rights of Black Americans. We visited the Equal Justice Initiative’s memorial to the victims of lynchings, including John Henry James.
At the Holocaust Memorial Museum, we discussed how antisemitic and xenophobic ideas (concepts we are sadly seeing with increasing frequency in our own country today) gradually infiltrated and corrupted the German legal framework, ultimately empowering leaders to authorize state-sponsored murder. See U.S. Holocaust Mem’l Museum, Law and Justice in the Third Reich (last visited Jan. 22, 2024). We saw how banning and burning books can be an early step towards widespread censorship, systematic discrimination, and unprecedented government oppression. See U.S. Holocaust Mem’l Museum, Book Burning (last visited Jan. 22, 2024). And we observed ominous parallels in recent legislation that demonizes the LGBTQ community and chills critical discussion of past racial discrimination. See, e.g., Trans Legis., 2024 Anti-trans Bills Tracker (last visited Jan. 23, 2024).
These trips allowed us to reckon with the ways people in power have abused legal systems to sow division, promote hatred, oppress the vulnerable, and sanction the killing of innocent people. In the face of today’s growing threats to the foundations of our democracy and rising incidents of hate crimes, elected prosecutors must exercise courageous leadership in standing up for everyone in their community, regardless of their race, religion, or creed.
In some cases, this may mean doing what we can to rectify at least one part of a past injustice. One of us, inspired by our visit to the lynching memorial in Montgomery, filed a motion to dismiss the indictment of John Henry James 125 years after the grand jury shamefully issued their indictment. See Erin O’Hare, Lynching Victim John Henry James Receives “One Little Drop of Justice” 125 Years After His Death, Charlottesville Tomorrow (July 14, 2023). In July, the Albemarle County Circuit Court granted that relief, noting that the indictment was “not an instrument of justice: it was used as a sanction … [for] the lynching of a man simply because he was Black, and it was a mockery of the judicial system.” See Spectrum Integrators, John Henry James Community Remembrance, YouTube (July 12, 2023).
But we must also be proactive and unwavering in our commitment to protecting the most vulnerable among us by decrying the “othering” of members of our community, ending the criminalization of poverty, promoting prevention and rehabilitation instead of punishment, and ensuring hate crimes are swiftly investigated and prosecuted. We must stand in solidarity as some lawmakers attempt to criminalize gender-affirming care, reproductive freedom, and the right to vote itself. And we must unequivocally reject any authoritarian attempts to remove duly-elected officials. See, e.g., Press Release, Fair & Just Prosecution, FJP Statement on Today’s Appellate Court Ruling That Gov. Ron DeSantis’ Suspension of State Attorney Andrew Warren Violated First Amendment (Jan. 10, 2024).
The late civil rights activist and mother of Emmett Till (who was brutally lynched in 1955) Mamie Till-Mobley wrote, “We are only given a certain amount of time to do what we were sent here to do. … You just have to use your time wisely, efficiently. There is no time to waste.”
As ministers of justice with limited time in office, elected prosecutors have no time to waste in the fight for a fairer and more just future for all.
