Although the U.S. criminal justice system has a long and well-documented history of racism, sexism, and discrimination against the poor and powerless, controversies still exist about whether, for example, institutionalized racial discrimination still exists or how a racist past has shaped the lives and mind set of modern African Americans. Black Americans, in particular, have felt the collective wrath and injustice of state coercion from colonial times through the 19th century and well into the 20th century. This entry focuses on the evolution of the intentional and systematic repression aimed at fitting African Americans into their so-called proper place in the economic, political, social, cultural, and legal order.
II. Key Events
III. Important Persons and Legal Decisions
Crime was not a serious concern during the colonial period. Early settlements in the New World were, as legal historian Lawrence M. Friedman aptly puts it, “tight little islands.” Villages were small and isolated. Their populations were religiously, ethnically, socially, and culturally homogeneous—and largely white. The early settlers knew their neighbors intimately and kept them under close surveillance. Colonial criminal justice systems were small, informal, and aimed at correcting the transgressions of misguided neighbors, friends, and relatives. Punishments were based upon the philosophy of reintegrative shaming: public humiliation followed by reintegration into the community. Put simply, the early colonists were their brothers’ keepers.
The arrival of the first captive Africans at Jamestown, Virginia, in 1619—possibly as indentured servants, not slaves—was a pivotal event in American history. Africans filled the labor void, providing profits and sparking economic expansion, but they were not willing workers. Resistance was a constant concern. Slaves disobeyed their masters, worked slowly, feigned sickness, destroyed and stole property, poisoned and harmed farm animals, attempted escape, and, in extreme cases, burned buildings, murdered their masters, and plotted revolts. The so-called children of Ham were, quite simply, deviant and dangerous: profitable social dynamite that needed close surveillance and a repressive system of social control.
Laws were the key to combating black resistance. Legislatures passed a variety of colony-specific laws aimed at controlling slave behavior and maximizing profits. South Carolina, a slave state, prohibited slaves from traveling without a pass, owning property, selling goods without a master’s written permission, carrying weapons, or meeting in groups. Masters were required to thoroughly inspect cabins every two weeks to look for weapons. White citizens were allowed to stop and question blacks, ask for passes, and even seize inappropriate clothing. Freed slaves were required to leave the state. Laws in Dutch New Netherlands were decidedly less strict. Slaves were allowed to marry, attend church, own property, trade goods, seek an education, join the militia, and even carry weapons. But when the British took over New Netherlands in 1664, the new rulers of New York instituted a much more restrictive set of laws. New York became like South Carolina.
Masters were the first line of defense in monitoring slave behavior, enforcing these laws, and maintaining social order. In most colonies, short of murder, masters generally had a free hand in administering justice without trial. Other colonial law enforcement officers—sheriff s, constables, and night watchmen—also kept slaves and free blacks under close surveillance. When serious crimes were committed (e.g., murder, rape, assault, arson, rebellion), slaves were formally charged in court; in many colonies, however, they were denied even minimal legal rights and faced the prospect of harsh punishment. Punishment and deterrence aimed at instilling terror—not benevolent reintegrative shaming—was the aim of slave discipline.
U.S. political, economic, social, and legal institutions were radically transformed during the first half of the 19th century. Emancipation from England and the ratification of the Constitution and Bill of Rights laid the foundation for the rise of democracy and new state-specific crime-control systems. The publication of The Wealth of Nations (1776)—Adam Smith’s classic work—and industrialization accompanied the early development and expansion of capitalism in the New World. Exploding immigration produced large cities, especially in the North, and a host of city-related problems, including crime and delinquency. Slavery remained essentially unchanged, however, especially in the South. Repressive laws and crass, unyielding social control were needed to maintain order and preserve profits.
The aims, structure, and character of early-19th-century criminal justice systems were, however, region-specific. Northern states developed formal criminal justice institutions largely aimed at the social control of immigrants, particularly the Irish, who were widely perceived as criminally inclined drunkards. Black criminals were a secondary concern. Southern states relied upon informal surveillance and social control. Slaves merited the closest scrutiny, but free blacks, Northern abolitionists, southern Negro sympathizers, and black and white criminals were all viewed as threats to the southern way of life. In short, the South was under siege.
Northern states responded to their crisis in crime and social disorder by introducing formal police systems. During the 1840s and 1850s, a number of large cities— such as New York, Boston, and Philadelphia—disbanded their ineffective night watch, restricted sheriff s and constables to court duties, and turned policing over to newly created law enforcement agencies. Although these new police departments were largely ineffective—policemen were unqualified, untrained, and corrupt— arrests increased. Courts were expanded to handle the increased volume of cases. Prisons and reformatories were introduced to hold offenders. The demographic profile of prison populations varied by state, but they were usually lower-class, white, urban immigrants and their children—the northern criminal classes.
Southern criminal justice was informal, decentralized, and aimed, first and foremost, at one group: slaves. Southern states expanded the content and harshness of slave codes prior to the Civil War. Masters continued to serve as the first line of policing and social defense. Slave patrols were expanded and more slave catchers were hired. Sheriff s, constables, and newly created police forces, located in larger southern cities, were constantly on the alert for escaped slaves, black and white criminals, and other threatening groups (e.g., abolitionists encouraging escape or revolt). Militias remained on high alert to deal with slave revolts. The laws in many southern states continued to grant all white citizens the authority to stop, question, and arrest free blacks and slaves. For free blacks and slaves, the South was a repressive police state.
Early-19th-century southern courts and systems of punishment were also racially driven. In fact, there were at least four court systems and four sets of legal procedures— white male, white female, black male, and black female—which provided no meaningful rights for members of these groups. Free blacks were often afforded an intermediate status. Black slaves accused of insurrection faced special tribunals that handed out harsh and swift punishments—often death—to prevent future transgressions. A number of southern states opened prisons prior to the Civil War, but they were almost exclusively reserved for white offenders. In the minds of many southerners, even the lowest white criminal was to be spared the humiliation and moral contagion of incarceration with “darkies” and “niggers.”
The end of the Civil War and passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution filled freedmen with optimism and hope for equality and justice. Blacks did, indeed, make considerable progress during Reconstruction, but these gains were short-lived. The triumph of the so-called Redeemers—white conservative racists—summarily ended these political, economic, social, and legal gains. The Redeemers were determined to return free blacks to their slave status. Laws and the criminal justice system, coupled with informal means of terror (e.g., lynching), were keys to putting blacks in their proper place and reviving the Old South.
The Redeemers began their calculated assault on black progress and civil liberties by seizing control of the political system. Newly elected white supremacists passed repressive legislation, including vagrancy laws aimed at fostering the sharecropping system. Sheriff s, constables, and newly formed police departments replaced masters, slave patrols, and slave catchers in intimidating former slaves. Black arrest rates soared, courts were overwhelmed with “colored” defendants, and southern prisons took on a new function: race control. After 1865, southern prisons and chain gangs were nearly completely black.
African Americans continued to be regarded as second-class citizens, especially in the South, throughout the first half of the 20th century. “Separate but equal” laws—legitimized by the U.S. Supreme Court’s notorious Plessy v. Ferguson decision (1896)—kept blacks in a decidedly inferior status: schools and housing developments were rigidly segregated; blacks were excluded from government jobs and segregated in the military; they were isolated in whites-only businesses, including restaurants and movie theaters; and they were relegated to using colored-only water fountains and restroom facilities. Disenfranchisement was widespread; in some southern states, fewer than 5 percent of blacks were registered to vote in the 1950s.
Police forces in the South, and sometimes in the North, were exclusively white. Black faces were rarely seen in courts unless they were defendants. A variety of ruses were employed to exclude blacks from serving on juries. Blacks continued to be disproportionately incarcerated in southern and northern prisons. In many institutions, they were rigidly segregated. Black defendants were far more likely to receive the death penalty, especially for rape, and blacks who murdered whites were much more likely to receive the death penalty than whites who murdered blacks. Simply stated, black victims had less value than white victims in the U.S. criminal justice system.
Crass political, economic, and legal discrimination continued relatively unabated into the 1950s. The 1960s were, however, a pivotal period in U.S. racial and legal history. The rise of the black civil rights movement, women’s rights movement, protests against the Vietnam War, and dozens of race riots in cities across the United States raised serious doubts about the veracity and legitimacy of the U.S. government. The promise of freedom, equality, and justice was exposed as sheer hypocrisy, especially for African Americans.
Critics also turned their ire on the U.S. criminal justice system. Television cameras provided graphic accounts of police beating black rioters in the North and civil rights marchers, including children, in the South. The rise of criminal justice and criminology as academic disciplines in the 1960s resulted in an explosion of research highlighting disparities between the promise and practice of the justice system: inadequacies in the public defender system, the discriminatory dimensions of bail, abuses in plea bargaining, discrimination in the hiring and training of minority police, the paucity of minority judges and probation and parole officers, inhumane conditions and racial discrimination in prisons, and racial and class discrimination in sentencing and the application of the death penalty.
The U.S. Supreme Court, particularly under Chief Justice Earl Warren (1953–1968), issued a series of landmark rulings that expanded the legal rights of black and white defendants. Attempts were made to rehabilitate offenders, shut down prisons, and move offenders back to the community. Money was appropriated to improve public defender systems, offer bail to more poor offenders, hire more minority police officers, and divert offenders from the criminal justice system to avoid harmful labels. During this period and into the early 1970s, individual states and the federal government did, indeed, make progress in combating racism, sexism, and discrimination in the United States.
These trends and transformations were, however, short lived. The election of Ronald Reagan as president in 1980 marked the birth of a conservative revolution along with the bankruptcy of rehabilitation. Advocates of the new conservative paradigm argued that criminals were free, rational, and hedonistic actors who needed and deserved punishment. Discussions about racism, sexism, and discrimination—as well as questions raised about the fairness of capitalism and democracy—were dismissed as softhearted and soft-minded liberal drawl. A return to the policies of the past—a get-tough approach on crime and criminals—was the new elixir for crime and deviance.
During the 1980s and 1990s, conservative politicians and crime-control experts—joined, on occasion, by politically astute get-tough liberals, like President Bill Clinton— transformed the criminal justice system: a return to fixed sentencing, “three strikes and you’re out” laws, preventive detention for suspected criminals, restrictions on the insanity defense, an end to minority hiring and promotion programs in policing, the increased use of transfers to adult courts for juveniles, boot camps for youthful offenders, electronic monitoring for offenders found guilty of less serious offenses, the opening of new prisons and reformatories, the introduction of “supermax” prisons, an expansion in the use of the death penalty, and a get-tough war on drugs.
Many of these policies have, however, had a decidedly detrimental effect on African Americans, and there is considerable evidence that remnants of racism are still pervasive in the U.S. justice system. Researchers have provided clear and convincing evidence that the death penalty continues to discriminate against the poor and powerless, particularly blacks. Public defender systems remain seriously underfunded, and prosecutors continue to use peremptory challenges to exclude blacks from juries. African Americans are still underrepresented on many police forces, especially in higher ranks. Egregious cases of police abuse—for example, Rodney King (1991), Abner Louima (1997), and Amadou Diallo (1999)—confirm the suspicion that some law enforcement officers are still racially biased. And the discovery of the “driving while black” (DWB) syndrome in the 1990s provided evidence supporting ongoing African American suspicions and complaints: police officers discriminate against black drivers.
Mandatory sentencing laws and the war on drugs have, however, had a particularly harmful—if not disastrous—effect on African Americans. Racially biased legislation aimed at crack cocaine has resulted in an explosion in black incarceration. Millions of young African American males are currently incarcerated in state and federal correctional institutions or under the control of probation and parole officers. Jerome Miller’s thought-provoking analysis of modern crime control reaches a sobering conclusion: the U.S. criminal justice system is engaged in a tragically misguided search-and-destroy mission aimed at young urban black males. Young black males—much like their slave ancestors— continue to comprise the class of dangerous criminals in the United States.
Many key events have reflected and shaped the course of African American crime, criminal justice, and social control. Two broad classes of events, however, have played a particularly important role in the treatment of African Americans: black revolts and lynchings.
Prior to the Civil War, many defenders of slavery, particularly in the South, argued that Africans needed the guidance of white masters and mistresses. The accursed children of Ham were biologically, psychologically, socially, culturally, and spiritually inferior. Indeed, it would be immoral to leave black Africans to their own vices on the “Dark Continent” (meaning Africa). White masters provided slaves with food, clothes, shelter, and Christian moral instruction. Quite simply, slaves were happy to live in captivity.
Black revolts provide clear and convincing evidence that slaves were not, in fact, content to live in bondage. Herbert Apthecker’s classic study of slave revolts—American Negro Slave Revolts—documents 250 cases of rebellion in the United States. (Apthecker’s [1993, 162] definition includes a number of elements to be counted as rebellion: the act must have included at least 10 slaves; freedom was the primary aim; and contemporary accounts labeled it as an insurrection, revolt, or rebellion. A modified version—including acts containing five rebels—would result in many more revolts.) In fact, many slave masters lived in a state of abject terror. Laws and criminal justice systems in colonial and 19th-century slave societies were, in large part, structured to detect and deal with black rebels, and the penalties were swift and severe.
The 1741 “great negro plot” in New York City, as one example, resulted in a bloody state response: 170 people were put on trial—a performance that was largely devoid of accepted colonial legal procedures. A total of 70 blacks and 7 whites were banished from British North America, 16 blacks and 4 whites were hanged, and 13 blacks were burned at the stake. Revolts led by Gabriel Prosser in Virginia in 1800, Denmark Vesey in South Carolina in 1822, and Nat Turner in Virginia in 1831 were all thwarted, largely owing to black spies. Prosser, Vesey, Turner, and dozens of their black coconspirators were put to death. As in New York City, no efforts were spared in crushing black rebels.
Revolts did not, however, affect only white masters and slave rebels. Whites who did not own slaves also lived in fear, knowing that black revolutionaries would not restrict killing to their masters. Moreover, slave revolts—rumored or real—always had harsh consequences for free blacks and slaves. Masters, slave patrols, sheriff s, and militias invariably launched so-called rebel sweeps to uncover weapons and black revolutionaries. Black revolts also provided abolitionists with a valuable propaganda tool: if slaves were happy living in captivity, why were they revolting?
The liberation of millions of slaves following the Civil War created a panic in the South. Conservative white southerners could not rely upon northern carpetbagger governments to prevent crime and maintain order. A new type of informal social control was employed: lynching.
The historical record is far from complete, but more than 5,000 cases of lynching have been documented, with most occurring in the South between 1880 and 1920. Black men, women, and children were hung, shot, stabbed, burned, dismembered, and put on display—sometimes in public places, like courthouses—in an effort to instill terror and remind blacks of their so-called proper place in the U.S. economic, political, social, cultural, and legal order. The rape or alleged rape of a white woman was one of the primary rationales for lynching, but thousands of blacks were lynched for other so-called offenses, such as stealing a chicken, uttering an insulting remark, making a sarcastic grin, calling to a white girl, talking big, failing to yield the sidewalk, failing to remove a hat, and refusing to remove a military uniform.
“Nigger hunts” and “coon barbecues” were, by design, savage affairs, often witnessed by thousands of spectators. In 1918, Mary Turner, who was eight months pregnant, was hung for threatening to press charges against mob members who lynched her husband. Before she died, her baby was cut from her stomach and stomped to death. A Texas jury convicted Jesse Washington of raping a white woman after four minutes of deliberation. The mob did not wait for sentencing. Washington was dragged from the courtroom, kicked, stabbed, and pummeled with rocks and shovels. At the execution site, he was suspended from a tree limb and doused with oil. His fingers, toes, ears, and penis were cut off. Then he was burned alive. His body was dragged through town by a man on horseback. The lynching of Will Porter in Livermore, Tennessee, in 1911 for shooting a white man was particularly bizarre. The mob took him to a theater, tied him to a chair on the stage, and sold tickets. Those who purchased orchestra tickets got six shots at Porter, balcony seats only one.
Blacks knew that they could not count on government officials to protect them from lynch mobs. Some law enforcement officers showed extraordinary courage in defending their charges. Several were killed or severely injured in the course of doing their job. The historical record indicates, however, that other law enforcement officers willingly handed alleged black criminals over to mobs and, in some cases, coordinated extralegal executions. Lynch-mob members did not wear masks, and photographs were often taken of the lynched as a trophy for the perpetrator. However, police investigations invariably reported that victims were killed by persons unknown or, in extreme cases, that they had committed suicide. A number of southern governors, senators, and congressmen openly advocated lynching, particularly for the crime of violating a white woman, and bragged about their participation in lynching mobs.
Lynching was enormously successful. Well into the 20th century, African Americans lived in fear, knowing that they could be murdered for any reason at any time. Walter White and Thurgood Marshall were both, on several occasions, nearly lynched. If the head of the National Association for the Advancement of Colored People (NAACP) and the nation’s first African American Supreme Court justice came close to being murdered, who could be safe from the fury of the white mob?
Important Persons and Legal Decisions
Frederick Douglass (1817–1895), an escaped slave from Maryland, was the foremost intellectual leader and spokesman for African Americans during the 19th century. Douglass was a powerful lecturer for the abolitionist movement and achieved national and international fame with the publication of his autobiography, Narrative of the Life of Frederick Douglass: An American Slave (1845). This book—along with two other extended autobiographies and his work as editor of black newspapers (North Star and Frederick Douglass’ Paper)—provided him with a forum to attack slavery and call for basic civil liberties for African Americans.
Douglass’s pre–Civil War speeches and writings examined a variety of topics: for example, the kidnapping of blacks from Africa, the horrors of the African passage, the hypocrisy of Christian slave masters, the immorality of breaking up black families, and the failures of the U.S. Constitution and Bill of Rights. Douglass served as an advisor to President Abraham Lincoln and played an instrumental role in the formation of black military units during the Civil War. After the Civil War, Douglass worked for broader political, economic, and legal rights, including the enforcement of voting rights laws and an end to Jim Crow laws and lynching. Douglass’s work as an abolitionist, orator, writer, newspaper editor, political activist, and statesman provided 19th-century African Americans with an articulate voice: the herald for freedom and justice.
Sojourner Truth (1797–1883), an escaped slave from New York, and Harriet Tubman (1820–1913), an escaped slave from Maryland, also made important contributions to the battle for justice. Truth, who was illiterate, made her impact as a charismatic speaker. She moved audiences with calls for an end to slavery and, in particular, distinguished herself from Douglass by calling for women’s political and legal rights. Tubman, however, was the most courageous black civil rights leader. After escaping in 1849, she made numerous trips back into the South (between 17 and 20, depending upon the source)—knowing that she risked summary execution—and led several hundred slaves to freedom. Harriet Tubman, the legendary symbol of black resistance, was hailed as the Black Moses.
The late-19th- and early-20th-century black civil rights movement was dominated by two leaders who were, in fact, mortal enemies: Booker T. Washington (1856–1915) and W.E.B. Du Bois (1868–1963). Washington was, without question, the most powerful, controversial, complex, and divisive black leader. He was an educator who achieved national fame—especially among whites—by calling on blacks to accept gradual progress toward civil rights and focus on agricultural endeavors and vocational occupations. Du Bois, a brilliant scholar who was Harvard University’s first black graduate, ridiculed Washington, called for immediate rights, and urged blacks to seek higher education. Washington used millions of dollars in contributions from white benefactors to build his followers into what northerners called the “Tuskegee Machine.” Washington’s machine smeared, blacklisted, and spied on Du Bois and other black leaders who opposed his philosophy. While Washington was destroying his opposition, however, he was secretly financing many of their causes, including legal challenges against Jim Crow. Ultimately, Du Bois prevailed. But after a lifetime of extraordinary achievement, including playing an instrumental role in the founding of the NAACP, he became thoroughly disenchanted, renounced his U.S. citizenship, and moved to Ghana, where he died in 1963.
Thurgood Marshall (1908–1993) was the most important champion for black legal justice. He became intimately familiar with racial repression and Jim Crow laws while growing up in Baltimore, Maryland. After graduating from Howard Law School, he became chief legal counsel to the NAACP. Marshall coordinated the NAACP’s legal assault on Plessy v. Ferguson and Jim Crow laws and actually presented oral arguments in the landmark Brown v. Board of Education (1954) case before the U.S. Supreme Court. Marshall went on to become the nation’s first African American solicitor general, attorney general, and U.S. Supreme Court justice. He continued to serve as the voice of the poor and powerless, denouncing institutional racism from his seat on the Supreme Court, until declining health forced him to resign in 1991.
Martin Luther King Jr. (1927–1968) has generally been recognized as the father of the modern civil rights movement. King played an instrumental role in the founding of a number of leading civil rights organizations in the 1950s and 1960s. Adopting a Christian–Gandhian model, he coordinated marches and protests and urged his followers to use passive resistance—not violence and riots—to rally world opinion and force an end to racial discrimination. Television coverage of the civil rights movement’s most prominent leader and his followers being arrested and handcuffed by police on numerous occasions attracted attention to his cause and shamed the nation. King’s brilliant “I Have a Dream” speech, delivered at the March on Washington rally in 1963, has been widely hailed as one of the most important moments in the history of the civil rights movement. King’s assassination in Memphis, Tennessee, in 1968 shook the nation, delivering a clear message: Modern white supremacists, much like lynchers of the past, were willing to kill to keep African Americans in their so-called proper place.
Landmark legal decisions also provide important insights into African Americans’ ongoing battle for political, economic, social, and legal justice. Key 19th-century decisions leave little doubt that U.S. Supreme Court justices, much like the rest of the country, were torn over the issue of racial equality; however, they opted for repression. In the 1856 Dred Scott decision, the Court ruled that slaves who traveled to free states could not sue for freedom because they were chattel and had no legal standing. Chief Justice Roger Taney explained that slaves were “a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” In United States v. Cruikshank (1875), the Court issued a ruling that had the effect of limiting the federal government’s power to intervene in cases of black voter disenfranchisement and lynching. In Plessy v. Ferguson (1896), the Court legalized the “separate but equal” doctrine, making blacks inferior citizens well into the 1960s.
Since the late 1960s, the U.S. Supreme Court has, without question, played an instrumental role in dismantling overt legal repression. The Court has, however, demonstrated ambivalence on a number of important issues, including the death penalty. In the 1972 Furman v. Georgia decision, the Court ruled that the death penalty was being applied in an arbitrary, capricious, and racist manner and was, as a result, cruel and unusual punishment. In the 1976 Gregg v. Georgia decision, the Court reinstated the death penalty, permitting two-stage death penalty proceedings. McCleskey v. Kemp (1987), however, reflected the Court’s legal and moral ambivalence. The Court conceded, after examining empirical evidence, that Georgia’s court system was indeed racist. Nevertheless, they ruled against Warren McCleskey, who was subsequently executed, on the grounds that the statistical evidence did not prove discrimination in this specific case. In future cases, the Court shifted the burden of proof in death penalty cases back to the defendant: each black defendant would have to prove discrimination in his or her particular case, thus posing what was, to be sure, a costly, difficult, and unlikely challenge.
The history of African American crime, criminal justice, and social control is indeed troubling. From colonial times into the 1950s, blacks were subjected to overt and crass political, economic, social, cultural, and legal oppression. The U.S. Constitution and Bill of Rights—along with noble claims of freedom, equality, and justice—clearly did not apply to black Americans.
Much progress has been made. The separate but equal doctrine has been dismantled. Blacks are no longer riding in the backs of trains and buses, attending legally segregated schools, or drinking out of “colored only” water fountains. African Americans are not excluded from law enforcement positions or other government jobs, nor are they denied admission into colleges and universities. They have been afforded, at least on paper, all of the legal rights accorded whites. A trip to almost any court reveals black judges, defense attorneys, prosecutors, and probation officers. African Americans are in charge of police departments in many of the largest U.S. cities, and black wardens can be found at the heads of local, state, and federal correctional institutions across the country.
For conservatives, this progress provides clear and convincing evidence that the American dream has finally been fulfilled. Blacks have overcome the discrimination of the past and are now fully accepted citizens, enjoying the full protection of the state. But liberals remain unconvinced. African Americans, who have experienced generations of systematic repression, are particularly skeptical. The remnants of racism—particularly the explosion in black incarceration and continued disproportionate execution of poor black offenders—raise serious questions about the hidden dimension of race control, resurrecting the specter of the past. History matters. The color of justice in the United States remains, then, a matter of personal perception—a battleground for future generations.
Alexander W. Pisciotta
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