CRIMINAL JUSTICE SYSTEM
The American criminal justice system has shaped racial inequalities and been shaped by them. From 1619 until Emancipation, the vast majority of African Americans were enslaved. At Emancipation, approximately four million people were enslaved in the United States. This 250-year period saw the development of a system of laws and practices that often protected white people from conviction for crimes against African Americans. This legal system also regulated marriage and mobility in a restrictive manner for African Americans.
In the South until slavery was abolished, policing was carried out by publicly or privately financed patrols. These patrols—called paterollers—policed the roads, woods, and public spaces in the plantation South. The earliest slave patrols were groups of owners in sixteenth-century Cuba, then a Spanish colony, who gathered to capture enslaved people who had fled their plantations. Over time, this amateur system was replaced by professionals—often themselves former bondsmen—who were paid a bounty for each fugitive they apprehended.
Whereas these early patrols focused their energies on enslaved people who had fled, the British colony of Barbados was the first to develop a system of laws to regulate the movement and behavior of all enslaved peoples. In reaction to an abortive rebellion in 1649, Barbados instituted a pass system. In addition to enforcing the pass system, which required enslaved people to carry passes explaining and authorizing their movement, Barbadian patrols also enforced laws that forbade enslaved people from carrying firearms and from moving around on Sundays. In 1661 Barbados created the first slave code in the British colonies in an "Act for the Better ordering and governing of Negroes." As Sally Hadden notes, this act was based on the assumption that enslaved people were "heathenish brutish" and a "'dangerous kinde of people' who had to be controlled" (2001, p. 11).
This code was soon adopted by other British colonies, first in Jamaica and Antigua and then in the North American colony of South Carolina, founded in part by former Barbadian slave owners in 1670. South Carolina created its "Act for the Better Ordering of Slaves" in 1690. Designed primarily to limit the movement of free and enslaved black people to specific days and the carrying out of specific tasks, it also regulated behavior. Whites who apprehended an enslaved person without a pass were mandated by law to administer a whipping under the 1696 revision of the South Carolina Act. After the Stono Rebellion in 1739, patrolling became the exclusive duty of the militia. These codes soon spread to other North American colonies, including Georgia, Virginia, Louisiana, Kentucky, and Alabama.
In still other ways, the emerging criminal justice system played a central role in establishing racial inequality. The lives of the approximately 500,000 free African Americans in 1860 were heavily regulated by the criminal justice system. Laws in the slave states barred black people from serving on juries or serving as witnesses against whites. Maryland and Louisiana maintained a large free black population throughout the period, particularly in Baltimore and New Orleans. But in most states in the early nineteenth century, if someone wanted to free an enslaved person he or she was required to pay the freedperson's transportation out of the state.
CRIMINAL JUSTICE IN THE JIM CROW ERA
Through legislation, the antebellum criminal justice system codified the meanings of racial difference. After the Civil War, when slavery no longer existed, the codified meanings of racial difference underwent transformations through subtle and pernicious changes in criminal law. Through the convict-lease system, the southern criminal justice system managed to maintain many of the worst elements of slavery. In the convict-lease system, African Americans—including juveniles—could be leased out to labor contractors to engage in backbreaking labor for no compensation. As W. E. B. Du Bois would later argue, the convict-lease system was a "spawn of slavery" that did nothing to lower crime rates. Like the paterollers, post-Civil War criminal justice was designed primarily to maintain white racial supremacy by restricting the movement and behavior of African American people. As social reformers and journalists investigated and revealed these practices, the convict-lease system gave way to state-runPage 554 | Top of Article prison farms. From Angola in Louisiana to Parchman Farm in Mississippi, former plantations turned prison farms became among the most profitable farms in the post-Reconstruction South. This segregated—or Jim Crow—system of punishment recreated the brutality and exploitation of slavery within the criminal justice system.
Extralegal practices of policing and punishment developed alongside this Jim Crow system of criminal justice. In the late nineteenth and early twentieth centuries, lynching was the most pernicious form of extralegal social control. Between 1877 and 1892, 728 documented lynchings took place. The charge of rape often accompanied lynching. Memphis journalist Ida B. Wells revealed that the premise that lynching was needed to curb an insatiable black male desire to have sex with white women obscured more credible underlying reasons. Perhaps her most important argument centered on the contention that "the whole matter is explained by the well-known opposition growing out of slavery to the progress of the race….The South resented giving the Afro-American his freedom, the ballot box, and the Civil Rights Law" (Wells, p. 30). She saw lynching as a political act intended to maintain white economic, political, and social supremacy. The strategy was "kill the leaders and it will cow the Negro" (Wells, p. 34). In the absence of police protection, she urged every African American to learn that "a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refused to give" (Wells, p. 37).
Like paterollers, the convict-lease system, and prison farms, lynching served to maintain white supremacy through terror and violence. In couching the atrocity of lynching as a response to a rape or attempted rape, "Judge Lynch," as the practice was sometimes called, placed the extralegal practice within the language of law and order. As Ida B. Wells argued, however, lynching maintained racial oppression while claiming to protect citizens from organized violence. This ongoing link between policing and racial oppression resulted in a criminal justice system that could not be seen merely as a means of protecting lawabiding citizens from criminals. Rather, the criminal justice system was supportive of lawlessness in the case of lynching and, as the twentieth century opened, overzealous in its prosecution of African Americans, whom whites increasingly believed were associated with the problem of urban crime.
THE GREAT MIGRATION
Partly in response to continued discrimination, one million African Americans moved from the South to the North between 1915 and 1925. This became known as the
Great Migration. African-American neighborhoods in cities like New York and Chicago often had high crime rates, in part because they housed vice districts that served a broad, multiracial, illicit market for drugs, prostitution, and gambling. During the 1920s, sociologists offered two competing explanations for the involvement of some African Americans in urban vice and crime. The first posited that overcrowding, poverty, and uprooting helped to produce an increase in criminality. The second, more popular explanation sought racialized explanations for what was called "Negro crime." In short, explanations alternated between blaming the ghetto environment and blaming the "innate criminality" of black people. Although the explanations differed, most whites agreed that the newly urban African-American population needed intensive policing. Almost immediately following the Great Migration, state and local police resources targeted African-AmericanPage 555 | Top of Article communities. A third explanation soon emerged, blaming saturation policing of black communities, discrimination throughout the criminal justice system, and racist stereo-types for the overrepresentation of black people in crime data and the prison system.
Despite changes in location and justification, the criminal justice system maintained white racial domination in a historically consistent manner. In 1931 national attention focused on nine young African-American men ranging in age from thirteen to twenty-one who became known as the Scottsboro Boys after they faced trial in Alabama on rape charges. When the "boys" were convicted and sentenced to death, many observers used the case as evidence that the old system of racially inspired justice remained firmly in place. The Supreme Court reversed their convictions in Powell v. Alabama (1932), but subsequent trials resulted in prison sentences of up to nineteen years for five of the defendants. Outrage at this treatment, however, inspired the formation of the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund (LDF). Under Charles Hamilton Houston, vice dean of the Howard University Law School, the LDF joined the efforts of the civil rights movement to transform the criminal justice system during the post–World War II period.
THE CIVIL RIGHTS MOVEMENT AND THE CRIMINAL JUSTICE SYSTEM
In 1963, while incarcerated in a Birmingham, Alabama, jail, Martin Luther King Jr. wrote a justification of civil disobedience. His willingness to violate the laws that legitimized segregation stemmed from his belief that "all segregation statutes are unjust because segregation distort[s] the soul and damages the personality….Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong" (King, p. 38). In both his practice and advocacy, King urged people to break unjust laws even as the movement worked to reshape the legal system in ways that advanced the cause of racial justice, as had, for example, the Brown v. Board of Education (1954) decision, which outlawed school segregation.
The LDF emerged as the most powerful proponent of changing the criminal justice system during the 1960s and 1970s. While the LDF became well known for its work on school desegregation, it worked equally hard on revising laws and practices that unfairly targeted African Americans. In the years following the assassinations of Martin Luther King Jr. and Robert F. Kennedy, the LDF joined Amnesty International and the American Civil Liberties Union in condemning the death penalty. These organizations insisted that the application of the death sentence—particularly in cases involving the rape of a white woman—constituted an arbitrary and racist double standard. Between 1930, the first year such statistics were collected, and 1969, state governments executed 445 men for rape. Of these, 40 were white, the rest African American (Bernstein, p. 16). The LDF succeeded in overturning the death sentences of over 600 death row inmates in a series of cases between 1967 and 1972.
During the late 1960s and 1970s, the argument that the criminal justice system played a crucial role in maintaining racial inequality intensified. Most notably, prisoners and former convicts voiced their concerns that racism had fundamentally influenced their incarceration. Malcolm X was joined by Huey P. Newton, George Jackson, Ericka Huggins, and Angela Davis in articulating the link between racial inequality and the policing of African-American communities. In 1967, according to Useem and Kimball (1989), 80 percent of the almost 300,000 prison inmates in the United States were people of color. These masses of incarcerated people raised more than their voices: On the East Coast, the Attica prison riots became the best known of the approximately 300 such disturbances in the United States between the late 1960s and early 1980s. Forty-eight of these were concentrated between 1968 and 1971.
The liberation of all black prisoners became a central demand of the struggle for social justice in the aftermath of the civil rights movement. As Huey P. Newton—the founder of the Black Panther Party, whose release from prison became a focus of Panther efforts—said at the eulogy for Jonathan Jackson and William Christmas, "There are no laws that the oppressor makes that the oppressed are bound to respect" (Newton, p. 322). Jonathan Jackson's older brother George soon became known for his book of prison letters, Soledad Brother, in which he observed that "there are still some blacks here who consider themselves criminals, but not many"(Jackson, p. 36).
These writers also articulated the view that police officers were a colonizing presence in black communities; that as agents of oppression, police officers were agents of the perpetuation of segregation and exploitation. As these arguments achieved widespread influence in the wake of urban uprisings in Los Angeles, Detroit, and northern New Jersey, police departments began actively recruiting African-American officers. There had long been some few African-American police officers, but they largely served in segregated "Negro divisions" or as one of several token figures in otherwise white departments. In an explicit effort to improve relations between black communities andPage 556 | Top of Article police departments, African Americans were hired in large numbers in Chicago, Newark, Detroit, and Houston during the 1960s and 1970s. In other cities, African Americans were promoted to leadership positions. In some cases, they spoke out against racism in their ranks in order to expedite changes in the culture of police departments. In addition, some cities joined New York City in establishing civilian review boards to investigate citizen complaints against police departments. However, white-dominated police unions took legal action against both affirmative action policies and civilian review boards. Even where they existed, the presence of African-American officers and civilian review boards did little to change discriminatory practices at every level of the criminal justice system.
The appointment of African-American judges and prosecutors proceeded even more slowly than the racial integration of police departments. In 1977, 22 of 500 federal judges were African American (4.4%). In the area of jury service, the rate of inclusion for African Americans was also low. Although the exclusion of African Americans from juries was outlawed in 1875, African Americans continued to be excluded from juries through the use of peremptory challenges—a practice that allows prosecutors to eliminate individuals from the jury pool without needing to explain their reasons. This resulted in the underrepresentation of African Americans on juries in federal and state trials.
CRIMINAL JUSTICE SINCE THE 1970S
Since the 1970s, two factors have dominated explanations for the continued overrepresentation of African Americans in the criminal justice system. First, the war on drugs has disproportionately affected African Americans and other peoples of color. Although drug use occurs across racial lines and some studies suggest that drug use among whites is higher than among African Americans, African Americans are prosecuted, convicted, and incarcerated for drug and drug-related crimes at far higher rates than people from all other backgrounds. Second, while scholarly studies disagree on whether people from economically disadvantaged backgrounds are more likely to break laws, they agree that they are much more likely to enter into the criminal justice system when they do so. According to U.S. census data cited by Marvin Free (1996), between 1970 and 1990 the percentage of black families with incomes below the poverty line increased from 20.9 percent to 25.6 percent. During this same period, African-American over-representation in correctional facilities increased. These trends have led some criminologists to suggest that an improvement in African-American socioeconomic conditions must join fundamental changes in the criminal justice system—including the decriminalization of violations that unfairly target African Americans—in order to begin disentangling the legacies of racial inequality and criminal justice.
Bernstein, Lee. "'…Give Me Death': Capital Punishment And The Limits Of American Citizenship." In States Of Confinement: Policing, Detention, And Prisons, edited by Joy James. New York: Palgrave, 2002.
Christianson, Scott. With Liberty for Some: 500 Years of Imprisonment in America. Boston: Northeastern University Press, 1998.
Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press, 1999.
DuBois, W. E. B. "The Spawn of Slavery: The Convict-Lease System in the South." The Missionary Review of the World 14 (1901): 737–745. Reprinted in African American Classics in Criminology and Criminal Justice, edited by Shaun L. Gabbidon, Helen Taylor Greene, and Vernetta D. Young. Thousand Oaks, Calif.: Sage, 2002.
Dulaney, W. Marvin. Black Police in America. Bloomington: Indiana University Press, 1996.
Free, Marvin D., Jr. African Americans and the Criminal Justice System. New York: Garland, 1996.
Hadden, Sally E. Slave Patrols: Law and Violence in Virginia and the Carolinas. Cambridge, Mass.: Harvard University Press, 2001.
Jackson, George. Soledad Brother: The Prison Letters of George Jackson. New York: Bantam, 1970.
King, Martin Luther, Jr. "Letter from a Birmingham Jail." The Christian Century 80, no. 24 (June 12, 1963): 767–773. Reprinted in Imprisoned Intellectuals: America's Political Prisoners Write on Life, Liberation, and Rebellion, edited by Joy James. Lanham, Md.: Rowman and Littlefield, 2003.
Newton, Huey P. "Eulogy for Jonathan Jackson and William Christmas." Delivered at Saint Augustine's Church, Oakland, Calif., August 15, 1970. Reprinted in Off the Pigs! The History and Literature of the Black Panther Party, edited by G. Louis Heath. Metuchen, N.J.: Scarecrow, 1976.
Oshinsky, David. "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice. New York: Simon and Schuster, 1997.
Useem, Bert, and Peter Kimball, States of Siege: U.S. Prison Riots, 1971–1986. New York: Oxford University Press, 1989.
Wells, Ida B. "Southern Horrors: Lynch Law in All Its Phases," 1892. Reprinted in African American Classics in Criminology and Criminal Justice, edited by Shaun L. Gabbidon, Helen Taylor Greene, and Vernetta D. Young. Thousand Oaks, Calif.: Sage, 2002.
LEE BERNSTEIN (2005)
Gale Document Number: GALE|CX3444700333