He was born while the Civil War was being waged. He grew up to become a cobbler, learning the trade from his stepfather and plying it at Patricio Brito’s shoe-making business at the edge of the French Quarter on Dumaine Street in New Orleans.
On June 7, 1892, he was arrested for violating a Louisiana law. His case fell before a judge named John Howard Ferguson, who rejected his counsel’s argument that the statute under which he was charged violated the Constitution.
After the state supreme court denied him relief, he obtained review in the United States Supreme Court, which, on May 18, 1896, upheld the constitutionality of the law.
Back before Ferguson in 1897, he pled guilty and was fined $25. The conviction was still on his record when he died. It remained there until January of this year when Louisiana Gov. John Bel Edwards pardoned him.
Why did the governor feel that a case involving a relatively minor fine warranted his attention all these years later? Well, the man who received the pardon was Homer Plessy.
That’s right, the Plessy of Plessy v. Ferguson. The case that embedded the separate but equal doctrine into our jurisprudence, where it remained until the Court receded from it in its 1954 landmark decision, Brown v. Board of Education. The case that embedded that pernicious doctrine into the fabric of our society, where it (or at least the “separate” part of it) continued to exist long after 1954, as America responded to Brown with “all deliberate speed,” the pace the Court authorized, rather than with immediacy.
If you ask lawyers to name the worst decisions the Supreme Court ever rendered, you will get some strong differences of opinion. What one deems bad, another deems good. But it is safe to say that Plessy v. Ferguson would be on everyone’s list.
You probably remember the basic facts. Plessy was arrested for refusing an order to vacate a railroad car reserved for whites, thereby violating an 1890 legislative enactment that required that the races ride in separate cars. What you may not know is that his arrest was a part of a carefully planned litigation strategy.
The idea to challenge the law arose with the Comité des Citoyens (Committee of Citizens), an organization of prominent New Orleans businessmen of color. They contacted New York attorney and civil rights advocate Albion W. Tourgée, who agreed to bring a test case.
The committee chose Daniel Desjunes, the son of one of its members, to be the party to the case. On February 24, 1892, Desjunes bought a ticket to ride from New Orleans to Mobile, Alabama, and was arrested when he refused to leave a whites-only car. The charges were dismissed a few months later, however, after the state supreme court ruled that the law did not apply to interstate travel.
Enter Plessy, the committee’s second designee, who went to New Orleans’ Press Street railroad station where he purchased a ticket on the East Louisiana Railroad for a two-hour, 39-mile, intrastate trip to Covington.
The events of the day were prearranged. The railroad wanted the statute invalidated because it did not want to continue to incur the expense of maintaining separate cars on its trains. Thus, when Plessy refused to move, the conductor, J. J. Dowling, called upon the services of a waiting private detective, Chris C. Cain, hired by the committee to make sure that Plessy would not be charged with a lesser offense such as disturbing the peace.
After his case reached its resolution, Plessy saw his chosen career go into steep decline due to the advent of mass production of shoes in factories. He found work as a laborer, warehouseman, clerk, and insurance premium collector for People’s Life Insurance Co. When he died on March 1, 1925, he was buried in New Orleans’ Saint Louis Cemetery No. 1.
Fast forward to 2022. The pardon was the culmination of a joint effort by descendants of both Plessy and Ferguson. Kudos to them and to the governor, but the news of the pardon brings to mind two questions.
First, why in the world did it take 125 years after the conviction for the pardon to occur? No, wait. That question is not really fair. After all, Plessy v. Ferguson was the law of the land for the first 57 of those years. Thus, Louisiana actually waited only 68 years since the law first cried out for a pardon. So, a fairer question would be why in the world did it take 68 years for the pardon to occur?
More importantly, what about everyone else who was convicted under not only the statute in Plessy’s case but also the other Jim Crow laws that were so widespread? While Plessy’s pardon is certainly one that has an important and powerful symbolic impact, the injustice others suffered was just as great. And the practical impact on many of them was probably greater that it was on Plessy, as the committee coordinated an effort that resulted in the payment of Plessy’s fine, while others took the financial, or penal, hit personally.
Each state that had these shameful laws on its books should use this pardon as a catalyst to search its records, identify cases in which similar relief (or, preferably, orders vacating convictions) is appropriate, and grant it. If some mechanism beyond the usual processes is needed to accomplish this goal, it should be adopted, as it was in Louisiana.
Homer Plessy boarded two trains in 1892. One on a steel track bound for Covington. The other on a moral track bound for justice. He never reached either destination.
The others on the steel track got to Covington that day. The train on the moral track took a lot longer. We held 16 Presidential elections and fought four wars before its many, many riders could disembark. They should not be forgotten.
A pardon is a poor excuse for what should have been, but we can’t turn what should have been into what was. We can, however, achieve the small measure of decency, solace, and atonement a pardon provides. Every passenger who rode with Homer Plessy on the moral track deserves at least that much.
This article previously appeared in the February 2022 issue of the ABA publication Voice of Experience.
ABOUT THE AUTHOR
Anthony C. “Tony” Musto practices in Hallandale Beach and teaches at St. Thomas University School of Law. He is board certified in appellate practice and juvenile law. He has long been active in The Florida Bar, chairing four sections, the Council of Sections, and two rules committees. Presently, he serves as a co-executive director of the ABA Criminal Justice Section Specialized Practice Division, a co-chair of the ABA GPSolo Division Ethics and Professional Responsibility Committee, and a member of the ABA Senior Lawyers Division Council.