The Racial Origin of the Allen Charge Used in the Michael Slager Trial

Today, in the trial of Michael Slager for killing Walter Scott, the jury was apparently deadlocked, leading  to the judge giving an Allen charge. So, what is the history of an Allen charge?

To get the history of the Allen charge, we need to start with the Supreme Court’s 1895 opinion in Allen v. United States, 157 U.S. 675 (1895). The case took place in Western Arkansas, in the Cherokee Nation of the Indian Territory. According to the evidence at trial,

Philip Henson, a white boy, about 17 years old, was shot and killed by the defendant, a colored boy, about 15 years old, on May 15, 1892. It appears that two or three days before these boys, with several companions, had met and had a difficulty. James Marks testified that, on that occasion, Henson and his party followed them, and threw sticks at them, and said ‘We will be over Saturday to settle with you.’ Allen, testifying in his own behalf, said that the first time he ever saw deceased, Philip Henson, was two days before the killing; that James Marks (on whose farm defendant was working) and defendant were out hunting horses, when he saw Henson and other boys; that he made inquiry of them about the horses; and that he and Jim Marks started to go across a creek, and Henson and his companions followed them, and threw sticks at them, and said they would kill ‘that n@#$!%’ the first chance they got, and said they would settle it on Saturday. 

The scene of the shooting was at or near a hog pen on Marks’ farm. There was a wire fence separating the Marks place from an adjacent field. The testimony is contradictory as to whether Henson and his companions crossed the fence into the Marks farm. The Henson party had freshly-cut sticks in their hands. An altercation took place. Young Marks testified that Henson said, when the defendant asked them what they came after, they came to kill a n@#$!%.

Willie Erne, a 13 year-old who was one of the Henson party, testified that the defendant, Alexander Allen, went through the wire fence and fatally attacked Henson. According to Allen,

the Erne boy and Philip Henson crossed over the fence into the Marks yard, and made the first assault, and that defendant did not draw his pistol or shoot until he had been knocked down, and when three of the assailants were on him. 

The judge only instructed the jury on murder and manslaughter and refused to instruct the jury on self-defense. After he was convicted of murder, Allen successfully appealed to the Supreme Court. It was actually the second time he’d had his conviction thrown out due to faulty jury instructions.

At a third trial, the judge did instruct the jury on self-defense and also gave the following instruction:

[T]here is no race prejudice in this court; the white man and the black man and the red man all share the same fate; they all stand upon the same plane.

After deliberating for a while, the jury was deadlocked. After this deadlock, the judge gave further instructions.

These instructions were quite lengthy, and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, unon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.* 

The jury eventually convicted Allen of murder and sentenced him to die. In finding no error in the judge’s instruction, the Supreme Court concluded that

While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror shoud not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself. There was no error in these instructions.

Based on this conclusion, many states, including South Carolina, now allow for the giving of such an Allen charge, which is often derisively called a dynamite charge, a nitroglycerine charge, or a shotgun charge because it seeks to blow up jury deadlock through what some would claim to be coercion.

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*The Solicitor General described the instruction more artfully in his brief:

The two remaining assignments are to the admonition given by the court to the jury as to the manner in which their duty shall be performed, to the general effect that the conclusions reached by eleven men are to be relied on rather than the conclusions of the twelfth man, whose means and opportunities for reaching a right judgment are the same as those of his fellows; that each member of a jury should always convince himself that twelve wiser, more intelligent, and impartial men than he and his fellows can not be found in the country; that any conclusion reached by them is very apt to be a right conclusion; and that, therefore, they should be very careful to agree, if possible, in the conclusion reached, and that one juror should not consider that the eleven associated with him are pig-headed, obstinate, and impracticable because they are not of his opinion.

-CM