The enduring legacy of the Confederate flag and racism

By Alex Mikulich, Ph.D.

Despite both recent Supreme Court jurisprudence and the widely held American assumption that official racial discrimination ended with Civil Rights legislation of the 1960s and 1970s, the legacy of official racial discrimination is alive and well in the last capital of the Confederacy—Caddo Parish (Shreveport), Louisiana. 

The memory of slavery and the Confederacy endures in Caddo Parish in the administration of justice and the death penalty where the Confederate flag flies over the courthouse.  The fact that the Confederate flag still flies over the site where lynching occurred and the death penalty is applied along racial lines should not be underestimated or dismissed.

Is flying the Confederate flag harmless or does it violate basic rights and protections provided by the U.S. Constitution?  At the very least, given the historic association of the flag with white supremacy and oppression of African Americans, it is difficult to reconcile its continuing presence as an expression of the rights and protections extended to all citizens under the U.S. Constitution.

Since the Supreme Court nearly declared the death penalty unconstitutional in Furman v. Georgia (1972), juries in Caddo Parish have voted to impose the death penalty on sixteen men and one woman.  Thirteen of these cases involved black defendants, and research demonstrates that the combination of a black-defendant and a white-victim exponentially increases the likelihood of aggressive prosecution. 

As Cecelia Trenticosta (Capital Appeals Project) and William Claude Collins (Louisiana Capital Assistance Center) put it in their new study, “Death and Dixie: How the Courthouse Confederate Flag Influences Capital Cases in Louisiana,” flying the Confederate flag “plays a toxic role in the administration of the death penalty in Shreveport…Beyond the equal protection issues generated by the mere government display of the flag on state property, the flag’s presence at the courthouse implicates the accused’s right to due process, and both the defendant’s and the prospective jurors’ rights to all of the privileges or immunities attendant to being a citizen of a state in the Union.”

Shreveport was the last place where the Confederacy surrendered and the Caddo Courthouse was the site of the Confederate capital after General Robert E. Lee surrendered to General Grant at Appomattox on April 9, 1865.  Jefferson Davis attempted to flee from Virginia to Shreveport in hopes that the unconquered areas of northern Louisiana, Arkansas, and Texas would continue to fight against Union rule.  Shreveport did not lower the Confederate flag until two months after Lee’s surrender at Appomattox, and Union troops never entered the area. 

The end of the Civil War marked the beginning of mass white violence against African Americans in Caddo Parish.  As soon as the Freedman’s Bureau entered Caddo Parish to assist former slaves to secure fair-paying jobs, medical care, and education, armed bands of angry whites began kidnapping free blacks and forcing them to go back to work for former masters.  At least 154 African Americans were killed by all-white gangs in 1868 in Caddo Parish. 

Although 1,121 of 1,740 free blacks voted for ratification of a new state constitution, 1,025 of 1,050 whites voted against it.  Caddo and Bossier Parishes had the most lynchings in the entire South for many decades spanning the late nineteenth and early twentieth centuries.

The monument that currently stands at the Caddo Courthouse was erected in 1906.  The monument includes Clio, the muse of history, pointing to a large book with the inscription “Lest We Forget.”  The busts of Confederate leaders Stonewall Jackson, P.G.T. Beauregard, Henry Watkins Allen, and Robert E. Lee adorn the corners of the monument.  “To the Just Cause, 1861-1865” is on the rear of the monument.  See a photo of the monument.

No flag flew on the monument in 1906, as lynching enforced minority white rule.  The Caddo Parish government did not decide to fly the “blood-stained banner” of the Confederacy until October 17, 1951, after the Civil Rights movement gained strength. The “blood-stained banner” of the Confederacy includes a red stripe running down the edge, symbolizing Confederates’ willingness to die for their cause. 

In early 2010, Cecelia Trenticosta interviewed African Americans impacted by the Confederate flag at Caddo Courthouse, including Carl Staples. Staples, an African American who moved to Shreveport from Chicago in the 1970s, was summoned to jury duty on May 14, 2009 in the capital case of Felton Dejuan Dorsey, a poor African American accused of killing a white firefighter in the majority white area of Caddo Parish.

Staples called the Clerk of Court to state his objection to serving as a juror under the Confederate flag.  The clerk told him that a warrant would be put out for his arrest if he did not show up for jury duty.  After Staples walked beneath the flag, and upon individual examination for jury duty, he stated:

The flag is a symbol of one of the most heinous crimes ever committed to another member of the human race, and I just don’t see how you could say that, I mean, you’re here for justice, and then again you overlook this great injustice by continuing to fly this flag which…puts salt in the wounds of people of color.  I don’t buy it. 

The prosecutor promptly moved the court to strike Staples, arguing that he could not be fair. The judge granted the motion.  The prosecutor proceeded to strike five out of the remaining seven qualified black prospective jurors.  The defense objected to the strikes as racially discriminatory and in violation of the Supreme Court’s Batson v. Kentucky decision.  The judge rejected the challenge and Felton Dejuan Dorsey was convicted and sentenced to death by a jury of eleven whites and one black. 

Social psychological studies find that the Confederate flag “primes” the expression of negative attitudes toward African Americans.  These studies also find that white people exposed to the Confederate flag are more prone to evaluate negatively a hypothetical African-American male. 

Racial priming operates by increasing cognitive and emotional accessibility of culturally associated biases in the subconscious mind.  Multiple studies have demonstrated how whites associate blackness with guilt, criminality, and dangerousness.  For a review of this literature, see Justin D. Levinson, “Race, Death, and the Complicitous Mind,” DePaul Law Review 599 (2008-2009): 599-644.

Once implicit bias is activated cognitively, it affects how people remember and process information.  Implicit racial bias necessarily inhibits the ability of whites to perceive a black defendant as an individual. 

As Trenticosta and Collins explain, by activating implicit bias, the Confederate flag “encourages the jury to see the defendant in group terms and to attribute to him characteristics associated with the group.  This cognitive process alone denies the defendant the opportunity for meaningful individual consideration to which he is entitled under the Eighth Amendment.”

Even more problematic is that these subconscious preconceptions about guilt and aggression of the accused cannot be consciously set aside.  The problem of racial bias is compounded by the fact that whites tend to claim that they are not biased and will even report that they hold values of equality and fairness. 

The physician Howard Cutler cites research indicating that people who consider themselves unbiased are often shocked to learn that they “still hold subtle biases when they undergo psychological testing.” ¹  The impact of the Confederate flag in Caddo Parish is a case-in-point of the fact that subconscious biases, however subtle, can erode fair judgment and behavior in very destructive ways.

The Confederate flag threatens the possibility of impartiality, the presumption of innocence, and reliable sentencing.  Trenticosta and Collins detail how the Confederate flag symbolizes values altogether in violation of the privileges and immunities protected for citizens of the United States of America. 

They conclude: “To try a black citizen of the United States under the Confederate flag is patently inconsistent with the Privileges and Immunities Clause [of the U.S. Constitution].”  Not only is it inconsistent with the U.S. Constitution, it is plainly oppressive, celebrating the memory of slavery, Jim Crow, and lynching to enforce oppression of African Americans. 

In the case of Felton Dorsey cited above, the jurors serving that trial passed the Confederate flag and monument at least twelve and possibly two or three dozen times. 

 The Confederate flag at Caddo Courthouse is not the only symbol of the Confederacy that still stands in Louisiana.  A portrait of Ernest Benjamin Kruttschnitt, who led the fight to maintain the “supremacy of the Anglo-Saxon race in Louisiana,” hangs at the entrance to the courtroom of the Louisiana Supreme Court.  The exclusion of blacks from jury service and the dilution of their votes as jurors is “fearsome legacy of E.B. Kruttschnitt,” writes Robert Smith, counsel for Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice. (See “Portrait of white supremacist welcomes visitors to Louisiana’s Supreme Court, where struggle for racial equality continues,” accessed on February 16, 2011). 

 As the Dalai Lama explains, the social conditioning that gives rise to racial bias can only be undone by "actively disputing the distorted ideas and false beliefs, [and] presenting a case for revising these beliefs, by pointing out where there are false premises upon which they base their beliefs, false projections, and so on.  It is a matter of discovering the reality.” ²

1. Howard Cutler, M.D., and Dalai Lama, The Art of Happiness in a Troubled World (Harmony Books, 2009), p. 68-69.

2. Ibid., p. 69.