Researching Race and Mercy in Capital Cases

Examining mercy in capital cases of men of color is a means to identify the role of “colonial common sense” in murder trials and how this underpinned the racial order. Ann Laura Stoler conceptualizes this as the “practising epistemology” of colonial agents that “made up the repertoires of common sense that guided their acts of governance.” This concept resembles Foucault's “regimes of truth,” but better captures indecision, contradiction, muddle, and improvisation. Racial thinking was a “foundational principle throughout the colonial world” and was based on categorization, but these categories were dynamic and unreliable.Footnote ²² Particularly important for understanding racialized mercy in twentieth-century England and Wales is Stoler's assertion that racial knowing “depended on a reading of sensibilities more than science, on a measure of affective states” and on judgments about the “intimacies of the everyday.”Footnote ²³ Attention to colonial common sense makes it possible to identify the work of racialized narratives in capital cases of men of color.

We researched cases of men who were racially “othered” by reference to the color of their skin. Although highly problematic, this was the primary corporeal site for conceptualizing racial difference by contemporary white authorities.Footnote ²⁴ Classifications in active use by Home Office decision makers sorted and listed discrete categories of “murder by foreigners,” “murder by colonial citizens” (both of which were mostly white), and “murder by coloured persons” as cases understood as belonging in the same category. There were also categories of “murder of …” particular identities such as “… police officers” and “… prostitutes” but no category existed of “murder of coloured persons” or “murder of foreigners.” These records were kept so that civil servants could consult them when making recommendations about mercy.Footnote ²⁵ This racialized categorization of murderers exhibited colonial common sense in grouping together those assigned as “other” than having a white British national identity.

“Coloured persons” was a diverse category without firm boundaries, particularly regarding men of mixed heritage. However, it demonstrates a practicing epistemology in relation to who was understood to be “white” and who was not. “Foreigners” largely included people from Europe (including Jewish migrants from Eastern Europe), and “colonial citizens” included white Canadians, Maltese, and Cypriots. The majority of capital cases listed as “murder by coloured persons” were also eligible for the categories of “foreigners” or “colonial citizens,” but the sole designation “coloured” reveals that this was understood to be their primary identity. The structure of the Home Office categories and practices associated with keeping the indexes reveal that skin color and notions of racial heritage were prioritized as a way of interpreting identity over place of birth, domicile, or national belonging.Footnote ²⁶

Analysis of categories of racial difference and their impact on the criminal justice system are important. As Laura Tabili argues, it is necessary to explore how racism operated in the past as a means of political, social, and cultural control. Discourses of race highlight how racial differences were imagined; this was far more complex than perceptions of skin color alone, extending to assumptions about behavior, disposition, appropriate emotional reactions, and relationships. Tabili identifies bestialization, feminization, and infantilization as recurrent racial myths applied to men of color.Footnote ²⁷ We highlight how such racist myths and tropes—refracted through paternalistic conceptualizations of racial inferiority—were deployed as attempts to save the lives of men of color who were sentenced to death. Defense counsel, judges, interested petitioners, and Home Office decision makers themselves might suggest that the racialized characteristics of a prisoner mitigated the crime of murder and made them a worthy recipient of mercy.

The bureaucratic post-sentencing decision-making process involved the compilation of selected police evidence, trial documents, judge's notes, and press clippings by senior civil servants. The Assistant Under-Secretary or Legal Secretary then wrote a report addressed to the Home Secretary summarizing the dossier, highlighting factors contributing to reprieve (including certain aspects of the condemned prisoner's identity, the victim's identity, circumstances of the crime, or a combination of such) and concluding with an opinion as to whether the prisoner should be reprieved or if there should be “no interference.” Home Secretaries almost invariably agreed with this conclusion; in all cases for which we have access to the report, the Home Secretary followed its recommendation, signing prepared letters either informing petitioners that he found “no reason for interference” or informing the prison governor that he had decided to reprieve. In the latter instance, the execution would be called off and a pardon decree would be prepared for the seal and signature of the monarch.

The “royal prerogative of mercy” in England and Wales was so called because the monarch was sovereign; a crime against the state was a crime against sovereign power. The bureaucratization of the mercy decision-making process in the Victorian era, delegating mercy decisions to the Home Secretary and his staff, was intended to increase legitimacy and reduce arbitrariness. It was also the only way to recognize errors or shortcomings in murder trials prior to the system of criminal appeals being established in 1907, without undermining the system of capital punishment as a whole.Footnote ²⁸ As the definition of murder in England and Wales was “wide and deep,” hanging all convicted murderers would make capital punishment seem too cruel and therefore unsustainable.Footnote ²⁹ The disproportionately lower rate of reprieve for men of color until the 1940s indicates that their executions were more acceptable than those of white men. The bureaucratized process was supposedly informed by evidence and precedent, but “rules” were discretionary rather than fixed, and decisions remained arbitrary.Footnote ³⁰ Although previous authors have argued that the royal prerogative worked as a way to categorize non-capital cases as being those exhibiting lower levels of deliberation and planning, and in effect established a distinction between capital and non-capital murder, a close examination of capital case files makes it hard to determine such a practice.Footnote ³¹ Roger Chadwick's study of mercy in the Victorian era found that the most significant aspect of a case was its social and moral meanings—which made a murder either especially bad and undeserving of mercy, or one understood as having mitigating factors—rather than intent.Footnote ³² This is not to suggest that clear premeditation was irrelevant, but unplanned murders did not necessarily result in commutation of the death sentence. Mercy was a secretive bureaucratic system based on the interpretations and values of Home Office officials, which were shaped by the prevailing cultural background.

“In Hot Blood”: Racializing Mercy in the Early Twentieth Century

The figure of the “hot blooded” seaman or lascar encapsulates the most common narrative deployed in support of mercy applications for men of color sentenced to death in the first half of the twentieth century. Medical reports in Home Office and Prison Commission files differentiated prisoners of color sentenced to death or incarcerated for murder by differences in economic background, hazardous occupation, and educational opportunity. There is little explicit framing by prison doctors of men of color as biologically inferior, and no deployment of eugenics. By referring to the “hot blood” of non-European (non-white) races, the epistemic frames applied by actors in the judicial system differed from those applied by contemporary academics and social investigators. Their practicing epistemology of racial difference relied on judgments of affective states and emotional reactions, rather than the application of “scientific” theories of race, as reasons to reprieve men of color sentenced to death.Footnote ³³ Defense counsels, judges, and petitioners suggested that a man who was more “passionate”—meaning emotional rather than sexual—or less able to control his emotions, was less culpable for murder, particularly if his passions had been inflamed by his victim. They associated these men's purported lack of emotional control with gender and occupation. The narrative of a seaman or lascar of color deserving mercy because his crime was committed “in hot blood” was the most persistent way of racializing mercy in capital cases from at least the nineteenth century through the middle of the twentieth.

In the first half of the twentieth century in Britain, the cultural and emotional circumstances of “the seaman” were to an extent bound up with the imagining of all men of color. The prevalence of seafaring occupations is echoed among the “coloured persons” sentenced to death between 1900 and 1941. Of twenty-five men sentenced to death in those years, eighteen had seafaring pasts. Even if they were not employed at sea at the time of their crime, having been on land for some years, this background was highlighted in documents, particularly by those appealing for mercy.

Perceptions of the harsh and cruel conditions of the seafaring life, transient and temporary land-lives, gruelling physical labor, use of bodily punishments to maintain structures of power and obedience, and specific masculinities required to survive at sea influenced the ways that the judicial system perceived degrees of violence, provocation, retaliation, and culpability.Footnote ³⁴ “Coloured” ship's steward Charles Arthur, born in Barbados and raising a family in Liverpool, and Bhagwan Jassiwara, an “Asiatic” ship's cook, were each sentenced to death for the murders of their captains in 1888 and 1891, respectively, and both were reprieved. In these cases, witnesses confirmed the victims’ reputations for excessive violence, which was interpreted as provocation that contributed to their murders. The race of each defendant was also cited as making them less capable of handling their emotions after being mistreated; their racial inferiority was figured emotionally, and evoked paternalism. Because Jassiwara was “an uneducated native of the East, alone among foreigners” the jury added a recommendation for mercy to their guilty verdict. The Home Office agreed, and commuted his sentence to life imprisonment.Footnote ³⁵

Although historians have identified a decline in the acceptability of extreme violence “on the high seas” over the nineteenth century, identifying links between social expectations on land and changing definitions of masculinity, few have explicitly described the influence of perceptions of seafaring identities in court when trying cases of murder by seamen on land. Martin Wiener draws on the work of Carolyn Conley, who identified twenty-eight cases of Africans and Asians tried for homicide in England and Wales in the late-nineteenth century, of which only one man was executed.Footnote ³⁶ This suggests a long pedigree of racialized mercy, supported by Peter King and John Carter Wood's findings that the Old Bailey in the late-eighteenth and early-nineteenth century was more likely to treat men of color with sympathy, giving them more lenient punishments than their white contemporaries.Footnote ³⁷

Petitions for mercy, even those that were unsuccessful, reveal how paternalistic racist discourses informed such sympathies and were used to argue for the reprieve of prisoners of color. “Negro” seaman Thomas Allen and African-American “muleteer” Young Hill were sentenced to death for murder in 1889 and 1915, respectively, but unlike Arthur and Jassiwara, they were not reprieved. Allen claimed he had been tricked into entering the flat above a public house to meet a woman for sex and stabbed the publican while trying to escape, not, as the prosecution charged, while trying to steal the pub cash box. Neither judge nor jury recommended mercy for Allen, although a prison chaplain who knew him petitioned the Home Secretary stating: “the man is a foreigner, a member of a race who regard life being different from what Christians or Civilized persons do … the prevalent idea in the Savage's mind is self-preservation with no consideration for the life of his antagonist.”Footnote ³⁸ The chaplain emphasised that Allen's racial inferiority manifested in how he thought and felt, deploying paternalism to request what Loo describes as “savage mercy.”Footnote ³⁹

Similarly, Hill's race and occupation were offered by the judge who summed-up as possible mitigation for killing a fellow seaman: “It is the conduct of a man who had been wild and savage, who had been in a passion and had inflicted these injuries upon an opponent… The men are not English. Perhaps you may make a little difference in that respect in judging the facts.” The jury unanimously found Hill guilty of murder but added “a recommendation to mercy on account of his nationality”: he was from New Orleans.Footnote ⁴⁰ The Home Office report commented the recommendation “probably meant that the cause of the quarrel was a trivial one which among white men would not have led to murder. Judges have often dealt leniently with foreigners charged with using knives or revolvers on the ground that such offences are lightly regarded in their own countries. It is more important I think to impress upon foreigners that whatever they may do in their own countries they must respect the law here or abide the consequences.” The latter point echoed the petition from Hill's solicitors, who drew particularly on Hill's use of a knife in his crime, which they claimed was usual among Black men in the South.Footnote ⁴¹ These points raised (and dismissed) the cultural defense: that “foreigners” and men of color behaved differently from white British men and came from countries where that behavior was acceptable. This resonates with Conley's findings that English judges were more lenient in sentencing (for non-capital convictions) “defendants from ‘uncivilized’ countries.” However, in the twentieth century, paternalism refracted through the cultural defense hardly ever led to lenient treatment for condemned men of color.

The stark contrast between Conley's findings from the late-nineteenth century, when African and Asian men sentenced to death were routinely reprieved, and ours from 1900–41, when men of color were routinely executed, requires exploration.Footnote ⁴² In both periods, the emphasis and meaning of mercy narratives appeared similar. Cultural understandings of race, however, had changed. Nineteenth-century humanitarian ideas about protecting “native” people had given way to early twentieth-century regressive racism and support for colonial domination.Footnote ⁴³ After the First World War, when increased numbers of men of color were settling in Britain, white racism intensified, expressed as concerns over housing, employment, and inter-racial sex between white women and black men. These anxieties were explicitly articulated in Home Office reports in the 1920s as justification against reprieve.Footnote ⁴⁴

Notably, one of the two “coloured men” who did receive mercy between 1900 and 1941 because of mitigating circumstances was a seaman who killed another seaman of color. On April 16, 1920, the foreman of the vessel Devanha was stabbed during a dockside fight. On his deathbed, he later identified Ajun Sherif Khan of the SS Narcunda as his attacker. Khan, who hailed from Peshawar, claimed unsuccessfully that he had not left the Narcunda. He was found guilty and sentenced to death. In subsequent discussion of the case, the Home Office noted, “I think it is clearly a case for respite on the ground that the murder was committed in the course of a fight between two crews and that there is no reason to believe that prisoner had any personal malice towards the deceased. [Recommend] respite and commute.”Footnote ⁴⁵ The foreman's reputation as a “hot-tempered man” who used excessive force and badly injured one of Khan's shipmates was also cited as the reason for the brawl, and a mitigating factor. Comparing this case with that of Young Hill shows the arbitrariness at play in discretionary justice. Clemency was predictable—men of color were usually not reprieved—but it was not predetermined: between 1900 and 1941, two men did receive clemency.Footnote ⁴⁶

Not all men of color convicted of murder between 1940 and 1941—those defendants in cases classified by the Home Office as “murder by coloured persons”—were seafarers. Cultural differences not linked to seafaring could be advanced as reasons for mercy. A petition on behalf of See Lee, found guilty of killing a man for being too friendly with a woman while her husband was away at sea, highlighted “the Chinese custom of killing a man for immorality.”Footnote ⁴⁷ In 1923, Lee Doon murdered a man who had insulted him by alleging he had no ancestors—“a very great insult” to a “Chinaman,” which would have had a deep emotional effect.Footnote ⁴⁸ Both See Lee and Lee Doon were hanged. On the other hand, San Dwe, a Burmese Karen who was an elephant keeper at the London Zoo, received a reprieve after being convicted of murdering a fellow elephant keeper. According to his mercy appeal, Dwe's crime had not been committed in “hot blood” but in response to the colleague's abusive behavior.Footnote ⁴⁹

Finally, the case of Willoughby Banks merits discussion before we discuss the post-war era, and the narrative of “provocative prejudice.” Like others, Banks's seafaring identity was referenced in arguments for his reprieve. In January 1942, Banks, a West Indian seaman living in the center of the long-established seafaring black community in Liverpool, was found guilty of murder at Liverpool Assizes and sentenced to death. His victim was Molly Normah, daughter of a local black seaman, with whom he had been living until recently “as husband and wife.”Footnote ⁵⁰ The jury added a strong recommendation for mercy, and the judge commented that he was glad that they did so, “terrible as that case was.”Footnote ⁵¹ The index of capital cases made by the Home Office summarized thus: “W[est] Indian seaman. Stabbed his half caste mistress who had taunted him. He had had drink. Strong recomm[endation] to mercy. Reprieved.”Footnote ⁵² At trial the judge had cautioned the jury against racial prejudice: although Banks “is a coloured man, I think I know a Liverpool Jury well enough to know that that will not have the slightest effect upon you.” Banks, the judge continued, “came from a British possession and is as much a British subject as you or I. We give the same measure of justice to all in this country. Sometimes it is referred to by coloured people as “the white man's justice.” This is the justice this man knows.”Footnote ⁵³ For the judge, “white man's justice” stood for strict impartiality, a clearly paternalistic understanding of colonial rule consistent with wartime British discourses of Britain as a “democratic, benign and paternalistic imperial nation” that compared favorably with other, more oppressive empires.Footnote ⁵⁴ Although judges had previously warned juries against weighing the race of defendants in capital crimes of men of color, the direct reference to empire here illustrates the amplified symbolic meaning of “Britishness” in wartime.Footnote ⁵⁵ Banks served 5 years in prison and was “repatriated” to Jamaica in January 1947, demonstrating that his Britishness was in fact of a different order from the white judge and jury.Footnote ⁵⁶

The Banks case illustrates how provocation by words could be a significant mitigating factor in murder, despite not being written into statute at that time. It also shows how the figure of the seafarer was a particularly masculine racialized identity in mercy narratives, because Banks was understood to have been provoked by jibes from his former partner intended to make him feel inferior to a potential rival for her affections. The Banks case demonstrates an awareness in the judicial system that a defendant's color might be perceived to influence his access to justice. Perhaps most importantly, it illustrates how the periods we have identified overlapped, and that different ideas about race, defendant, and victim could operate to influence racialized people's experiences of and access to justice/mercy simultaneously.

“Provocative Prejudice”: Racializing Mercy since 1942

In the 1940s a new racialized mercy narrative emerged, which can be termed “provocative prejudice.” Although the Homicide Act of 1957 codified provocation by “words said” as well as “deeds done,” provocation in various forms had been recognized and named in murder cases going back to the seventeenth century.Footnote ⁵⁷ After 1942, a narrative emerged that emphasized that some provocative action by the victim related to the defendant's race could have an emotional impact, causing a loss of control and sudden act of violence (as opposed to premeditation) ending in death. Such arguments had utility as attempts to craft persuasive narratives that would secure mercy, beyond the trial itself. For the first time, subjection to racist comments was advanced as sufficiently provocative to cause lethal violence, whereas previously it had been expected that racial abuse would be ignored and/or tolerated.

The emergence of this mercy narrative coincided with shifting understandings of racial difference in Britain after the arrival of African-American and black West Indian soldiers during the Second World War. British authorities who witnessed the racial segregation of American troops were willing to acknowledge that segregation might have an emotional impact that could be a mitigating circumstance for murder. The Colonial Office also received complaints about white American soldiers’ abuse of black Britons.Footnote ⁵⁸ Racism could amount to provocation, and although such provocation might not be sufficient to meet the legal standard required to alter a charge or verdict of murder to the lesser non-capital offense of manslaughter, it might be enough to secure reprieve. This belief is apparent from petitions for reprieve for other men of color, and not limited to African-American soldiers. This phase also coincided with rising unease about the death penalty in Britain and concerns about arbitrariness in relation to capital punishment.Footnote ⁵⁹

Public attention was focused on the existence of racial discrimination in Britain when Trinidadian cricketer Learie Constantine filed suit against the Imperial Hotel, London. Constantine, who was also a local welfare officer in Liverpool for West Indians serving in the Royal Air Force (RAF), was refused a room. He successfully sued the hotel for refusing accommodation for unjust cause in 1944. Parliament, and the press who widely reported the case, were supportive of Constantine, echoing negative feeling toward “colour-bars” in British restaurants and dance halls, which segregated black and white American GIs. Constantine's lawyer's closing speech quoted the manageress's words: “We won't have n---s staying in this hotel,” stressing the insult of refused accommodation to someone of Constantine's prominence and respectability and the personal hurt of the racially abusive epithet.Footnote ⁶⁰

The court's concern with racial discrimination in Learie Constantine's case corresponded with paternalistic views of racial difference and colonial common sense in the early- to mid-1940s. The government was mindful of maintaining positive relationships between Britain and the colonies, especially as the Indian independence movement was growing stronger. It was important to project an image of Britain as welcoming and tolerant in contrast with Nazi Germany, its enemy, and the United States, its rival. This was the institutional context in which the increasing recognition of the emotional impact of racially abusive terms, particularly the “N-word,” needs to be understood. Contemporaneously, The League of Coloured People highlighted and criticized racial discrimination in Britain in different fields of employment and in popular culture such as Gone with the Wind and use of the N-word on BBC radio.Footnote ⁶¹

The abovementioned instances provide context for cases of “provocative prejudice” in mercy narratives in which the victim's use of the n-word explained the defendant's use of lethal violence against that person. Consider for example the case of Gerald Roe, who killed his wife Elsie in 1943. Newspapers described him variously as a “coloured man” or “Anglo-Indian engineer.” His middle-class status was highlighted through reference to his highly skilled government job and suburban home.Footnote ⁶² Roe was born in India to a Parsi father and white British mother. He chose to use his mother's surname rather than Minvalla, that of his father. Witnesses interviewed by police and questioned in court referred to Roe's color as a means of describing his appearance, rather than designating him part of a specific racial group; for example, stating: “I saw a dark-skinned man at the window with a woman in blue pyjamas.”Footnote ⁶³ Attempts to racialize him or the murder of his wife played no part in the prosecution or defense cases until after he had been sentenced to death and his last chance to appeal had been exhausted. Roe's brother Pheroze Minvalla petitioned the Home Office for mercy, offering a narrative of Elsie's death as triggered by provocative prejudice. “According to this petition,” the Home Office report summarized, “the quarrel and attack was due to the fact that on the morning of the crime the prisoner's wife refused to pour out some tea for him [because] …she was not there to wait on a “damned n[-word]”… This remark caused the prisoner (who according to petition was very sensitive about his mixed blood) to have a temporary blackout [during which he killed her].”Footnote ⁶⁴ Minvalla's petition highlighted Roe's sensitivity to comments about his background and to Elsie's putative use of the n-word, stating he had “endeavoured to become far more English than any Englishman, and it is in fact a complete mania with him.”Footnote ⁶⁵ “According to this story,” the report commented, “the prisoner is a man of excessive chivalry who has made it the principle of his life not to derive any benefit for himself at the expense of disparaging a lady and it was as a consequence of this principle that the prisoner remained silent at his trial as to the circumstances in which he attacked his wife.”Footnote ⁶⁶ Minvalla's petition on behalf of his brother is an example of a mercy narrative addressed in the Home Office report that did not originate with the legal arguments of the defense.

The report conceded that Roe's was a tragic case; it was possible that he had temporarily lost control but the “story” alleging provocation did not “afford sufficient ground for recommending [mercy]” and he was hanged.Footnote ⁶⁷ Roe and his supporters hoped the “provocative prejudice” mercy narrative based on the victim's use of the n-word could save his life, demonstrating that they thought it had at least some cultural purchase. Coupled with Roe's discomfort about his mixed parentage and desire to be “English”—in other words, white—it mobilized an argument that incorporated his professional middle-class status. The implicit argument, which the Home Office seemed to accept, was that Roe should not have to suffer the indignity of being racialized. Like Learie Constantine, his respectability made the experience of racial prejudice more intolerable. Roe is not included in the Home Office's list of “murder by coloured persons.” This could simply be administrative oversight, but could also be because his professional middle-class identity and Anglo-Indian father were incompatible with the contemporary Home Office's practicing epistemology of what it meant to be a “coloured person.” The interweaving of class and race as categories make this a strong possibility.

Only a year later, in 1944, the n-word received far greater recognition in a capital case as a potentially provocative word. Horace Gordon was a Jamaican man who had worked in England before the war and served in the Canadian Army, stationed in rural Surrey. Gordon, known as “Happy,” was sentenced to death for the murder of Dorothy Hillman, a heavily pregnant young married woman. She had left the farm where she lived to buy cigarettes for her parents-in-law. Gordon said he had stopped to talk to her and was going to ask her for help untangling the straps of his backpack, but she misunderstood his intentions and slapped him. There was a scuffle, and she received injuries from which she later died. He said she told him “Go away you dirty black n[-word]” that he saw red and could not remember what had happened after that. Hillman gave a dying deposition claiming Gordon “wanted to interfere with me,” and attacked her with his knife when she refused. There was an extensive discussion of his race and the imputed use of the n-word by Hillman in Home Office documents and newspaper reporting.Footnote ⁶⁸

Unlike Roe's case, the potential provocation of the n-word was raised by Gordon himself in his statement to the police and incorporated as part of his defense. The barrister representing him asked what effect being called a “dirty black n-word” had on him and he replied “I resented the fact of being called a n[-word] because in my country I am called a coloured man” and explained he had not been accustomed to hearing such language in Britain. Under cross-examination, Gordon stated he did not go to the police as he was afraid of them “because I am a coloured man and if a mob came down I would not have any chance.”Footnote ⁶⁹ His account contested the wartime narrative of Britain as racially tolerant and welcoming, as it highlighted both the racially abusive attitudes of British people (notwithstanding his assertion that he did not usually experience them) and the vulnerability of men of color in the criminal justice system. The judge's summing up was dismissive of this defense, and instead shored up the paternalistic narrative of British tolerance. In relation to Dorothy Hillman using the n-word, he stated “excuses could be properly made if she had lost her temper,” therefore rejecting that it would have been provocative. He took exception to “the suggestion that this prosecution against this man is due to racial prejudice” and claimed “the one thing we will not have in this country is racial prejudice.”Footnote ⁷⁰

Witness statements reveal much about attitudes to race when the presence of black United States, Canadian, and Caribbean members of the forces stationed in Britain meant that many white British people who lived outside of cities probably encountered men of color for the first time. They show the intense visibility of men of color and the casual use of racially abusive language. When the victim said that she had been attacked by a “Canadian soldier,” a local woman told police “I would say this soldier was a n[-word]…” and two further witnesses, a schoolboy and white Canadian soldier, also casually used the n-word to describe Gordon.Footnote ⁷¹ At least three Black soldiers in the area were taken in for questioning and required to provide (white) witnesses to account for their whereabouts on the night of the crime.Footnote ⁷² This demonstrates how, although there may have been positive popular feeling about servicemen of color and objections to the color bar, use of racist language was prevalent and men of color could be regarded with suspicion. Recognition of the n-word as offensive and emotionally damaging was emerging in the 1940s, but in a context in which use of such language by white people was routine and normalized. In his summing up, Justice Humphreys suggested that the jury could find Gordon guilty of manslaughter rather than murder if they thought that “the insult to a coloured man by being called “a dirty n[-word]” is such provocation that a reasonable man might lose his temper and his control of himself to the extent of pulling out a knife and stabbing a woman eleven times …”Footnote ⁷³ The jury found Horace Gordon guilty of murder, an appeal was unsuccessful, and he was hanged.

Despite numerous examples of cases in which it was deployed, only one appears to have successfully used the provocative prejudice mercy narrative to secure reprieve: that of Philip Berry. The Home Office indexes summarize Berry's case thus “Berry, Phillip (1945) West African. Shot a man who was attacking and abusing a coloured US soldier. Suffered from effects of wartime torpedoing. Respited.”Footnote ⁷⁴ Near midnight on January 14, 1945, during the wartime “gray-out,” Private Herman Robinson, an African-American United States soldier, “was having refreshment at a coffee stall in Euston Road [London]” with Alice Shepherd, a white woman. Also present at the coffee stall were two Dutch seamen, and another black United States soldier. In the words of the police report “Pureveen [one of the Dutchmen], drunk and quarrelsome, attempted to provoke Robinson by making audible reference to his colour and legitimacy.”Footnote ⁷⁵ In the proprietor's words he said “you black bastard, you wouldn't be with a white girl in the States. I have been over there and know what they would do with you, you Mexican bastard.”Footnote ⁷⁶ Pureveen threw further epithets, including the n-word, and challenged Robinson to a fight. Pureveen commenced a violent and unprovoked attack on Robinson, pushing him into the road and beating him with his fists but Robinson deflected his blows, got up, and walked away with Shepherd. A “short coloured man” then approached, took a firearm out of his pocket, and shot Pureveen several times. He died on the spot. The short man ran off in the direction that Robinson and Shepherd had gone. Shepherd thought she recognized him as a man she knew as “Jesus.”Footnote ⁷⁷

Jesus, whose real name was Philip Berry, was a seaman born in West Africa. In 1945, he was working as a stoker at the War Office and sleeping there at night. When he was arrested and driven to the police station, Berry reportedly spontaneously offered the following: “No men are born n[-word]s, they are born coloured. I'm a man not a child.” More likely he was responding to questions or comments by the officers in the car.Footnote ⁷⁸ Although he initially denied having shot Pureveen and claimed to have been somewhere else at the time, Berry's defense at trial was the racially provocative nature of Pureveen's language and violence. The judge's summing up stated that provocation was caused by actions rather than words, and “in this case I can see no evidence that the Prisoner was provoked, except, of course, that he may well have heard the Dutch sailor using offensive words about n[-word]s…”, advising that one man abusing another did not count as provocation for a third party.Footnote ⁷⁹ Berry's appeal, on the basis that these comments and similar ones made by the judge constituted misdirection of the jury, was dismissed, but, although the narrative of provocative prejudice was not legally successful, Berry was reprieved. This was almost certainly because racial prejudice was understood to have had a specific emotional impact that provoked him to respond with lethal violence.Footnote ⁸⁰

Home Office records refer to “effects of wartime torpedoing,” but among hundreds of pages of reports, testimony, interviews, and antecedents, the potential impact of Berry having been on a submarine sunk in the war is mentioned only once: at the trial, his defense counsel asked a witness if the frostbite he had suffered from being in the cold water had left a physical mark on his hands which could be used to identify him.Footnote ⁸¹ No mention was made of any potential impact on his mental health, even in reports that offered medical experts the opportunity to assess past trauma or shell shock. The reason given in the Home Office list of “murders by coloured persons” can be interpreted as an attempt to contrive a justification for Berry's reprieve that fitted with precedent, despite not fitting the contemporary legal standard of provocation. From this point onwards, it seems that the Home Office was more likely to consider racist or prejudiced comments by victims as having an emotional impact and a part to play in provocation, as entries in the index of capital cases begin to mention individuals whose crimes were influenced by mistreatment that they received “apparently because of his colour.”Footnote ⁸² Our examples demonstrate the increased attention to race relations, social interactions between white people and people of color, and racial abuse that predates the dominant “Windrush narrative” of increased Commonwealth migration.Footnote ⁸³

The small numbers of men of color sentenced to death demands exercising caution when examining apparent shifts in their rate of reprieve. “Murders are heterogenous,” the Home Office reported, and therefore, comparing statistics across periods does not necessarily reflect changing practices, particularly when periods of blanket reprieve policy are included.Footnote ⁸⁴ However it is worth noting the narrowing of the gap in the chances of reprieve between men of color and white men from 1942 to 1955, compared with the period from 1900 to 1941.Footnote ⁸⁵

Racialized Mercy and “Stranger” Politics: 1956 to Abolition

The third phase of racialized mercy began in the mid-1950s and lasted until abolition of the death penalty in England and Wales in 1965. When abolitionist legislation was under consideration in Parliament in 1955–56, when the Homicide Act was under debate in 1957, and in the months prior to the passing of the Murder (Abolition of the Death Penalty) Act in 1965, all prisoners with death sentences received blanket reprieves. This meant that the racial identity of condemned prisoners was not relevant to mercy decisions during these periods. However, mercy narratives still appeared in cases and showed continuities with long-standing paternalistic racialized narratives identified in the first section of this article, and with more recent ones based on racial prejudice as provocation, explored in the previous section. After 1957, the total number of death sentences and executions plummeted, because the death penalty only applied to certain types of murder. In cases in which acquittal was not an option, lawyers for the convicted used mercy narratives to argue for the alternative sentence of manslaughter and for a verdict of ordinary, rather than capital, murder. One such narrative evoked the “dark stranger,” an imagined figure of unspecified racial or national identity who was dark skinned. Although attention to the “stranger” had a long history in sociology, the explicitly racialized figure of the “dark stranger” as a man of color from the Commonwealth who did not understand norms and culture in Britain was an invention of mid-twentieth century race relations popularized by contemporary media and deployed for political aims.Footnote ⁸⁶ In trials of men of color, defense arguments increasingly highlighted the effects of being an immigrant potentially adrift in a strange land whose culture, customs, and laws the defendant did not understand.

Policies of blanket reprieve operated either because capital punishment was suspended or because, even when it was not, the Home Office advised mercy in every case that came before it. Home Office indexes of capital cases identify those reprieved for these political reasons, noting with a hint of regret particularly heinous murders that would otherwise have been punished with death.Footnote ⁸⁷ This quite clearly demonstrates the use of reprieve for political imperatives distinct from the circumstances of the cases themselves. However, paternalistic discourses of racial difference remained significant in capital trials of men of color, although as the 1950s progressed, these became increasingly likely to be articulated in relation to penal-welfarist concerns about the significance of defendants’ alleged low intelligence to their reduced culpability.Footnote ⁸⁸

As migration to Britain from the Caribbean and South Asia had increased significantly by the mid-1950s, narratives of racial difference continued to feature in capital trials and showed strong continuity with existing narratives, even if the reasons for clemency deviated from these narratives. In January 1956, William Estridge, a Jamaican man living in Birmingham, was reprieved for murdering his partner Kalsada Johnson. The defense counsel's closing speech to the jury employed paternalistic discourses to make the cultural defense, emphasizing they were “judging upon the evidence and the mentality and reaction of coloured people” whose ways of life “may be rather different from our own.” Estridge was described as “a coloured man in a strange land” who possessed a “childlike” mentality.Footnote ⁸⁹ Increasingly in the 1950s, men of color were designated as strangers, positioning Englishness as synonymous with whiteness.Footnote ⁹⁰

In 1956, Gurdial Singh robbed and strangled the proprietor of a second-hand shop in Southampton. In his closing argument, the defense barrister, Mr Back, addressed the issue that Singh had given conflicting statements about what happened by stating, “I want you to consider first of all this. He is an Indian.” He emphasised how “frightened” and “lonely” Singh must have felt under police questioning and asked “what does a police station mean in the mind of a not very intelligent Indian?” Back explicitly drew a link with colonialism as paternalistic responsibility, reminding the jury “you are the country which used to rule his country, the country which gave his country its laws and its system of justice” and imploring that they should “exemplify all that is best in this country that was his country.”Footnote ⁹¹

In this third phase of racialized mercy, narratives urged juries, judges, and decision makers to be sympathetic to the everyday experiences of men of color accused of murder who were assumed to be suffering the emotional effects of alienation and estrangement from white society. In 1956, for example, a jury convicted James Jordan, an African-American airman stationed in Lincolnshire, of murdering a white man during a fight in a café in Hull. He was subsequently acquitted on appeal. Jordan testified that some pubs refused to serve him, his friends had been attacked in the street, and the proprietor of the café (also a man of color) regularly had trouble from white men who resented white girls associating with Black men there.Footnote ⁹² Jordan's attorney advised the jury that they “will not decide [this case] on sympathy” but implicitly called on them to be sympathetic when he asked the jury “do you not think it is right, using your commonsense and what you know of these matters and what you read in the papers, when he [Jordan] says that there are places in Hull when he has been asked to leave? …it makes him, does it not, a bit more of a stranger in a strange country than he would otherwise be?” He asked how white men might react in similar circumstances if they were in a minority and strangers abroad, stating “One possible cross test you might use when you are considering what is reasonable for people to do is to say to yourselves: what would be the position if four of those white witnesses… had gone into a cafe in, shall we say, Mombasa somewhere and were surrounded entirely by coloured men?”Footnote ⁹³ The judge's summing up highlighted the same considerations, warning the jury against being sympathetic to the defendant, but reminding them that Jordan was “a coloured man and he is far from his own country…”Footnote ⁹⁴ Experiencing racial prejudice was not offered as sudden provocation, although racial slurs were thrown in the café fight, but as the relentless everyday alienation of a stranger.

As a successful appeal case, Jordan's is not included in Home Office counts of cases considered for reprieve. Only two men of color in our final phase of racialized mercy narratives—which was book-ended by two periods (1956–57 and 1965) in which all death sentences were reprieved automatically—were considered for reprieve on the circumstances of their case rather than for political reasons. Neither was awarded mercy. In 1962, 20-year-old Oswald Grey shot a newsagent in Edgbaston, Birmingham. Using a gun made the killing capital murder, and the motive appeared to be robbery, another qualification for the sentence of death. Reflecting a recent increase in the role and significance of expert medical opinion in criminal trials, a psychiatrist stated that Grey had a “mental age” of 11.Footnote ⁹⁵ Greater attention given to assessments of intellectual capacity also meant greater likelihood that racialized psychological understandings of intelligence could play a role in court. Although psychiatric explanations were not universally agreed upon or applied, low intelligence could be woven into a penal-welfarist argument about growing up in a negative environment.Footnote ⁹⁶ The prison medical officer indicated that Grey was mentally fit to plead, and the Home Office report concluded that his low intelligence was not such to provide grounds for reprieve.Footnote ⁹⁷ The trial judge was of the view there was no “scintilla of doubt” as to his guilt, and Oswald Grey became the last man of color to be executed in England and Wales.Footnote ⁹⁸