Particularly in the United States, race has always played a central role in constructing presumptions of criminality. After the abolition of slavery, former slave states passed new legislation revising the Slave Codes in order to regulate the behavior of free blacks in ways similar to those that had existed during slavery. The new Black Codes proscribed a range of actions—such as vagrancy, absence from work, breach of job contracts, the possession of firearms, and insulting gestures or acts—that were criminalized only when the person charged was black. With the passage of the Thirteenth Amendment to the Constitution, slavery and involuntary servitude were putatively abolished. However, there was a significant exception. In the wording of the amendment, slavery and involuntary servitude were abolished “except as a punishment for crime, whereof the party shall have been duly convicted.” According to the Black Codes, there were crimes defined by state law for which only black people could be “duly convicted.” Thus, former slaves, who had recently been extricated from a condition of hard labor for life, could be legally sentenced to penal servitude.
In the immediate aftermath of slavery, the southern states hastened to develop a criminal justice system that could legally restrict the possibilities of freedom for newly released slaves. Black people became the prime targets of a developing convict lease system, referred to by many as a reincarnation of slavery. The Mississippi Black Codes, for example, declared vagrant “anyone/who was guilty of theft, had run away [from a job, apparently], was drunk, was wanton in conduct or speech, had neglected job or family, handled money carelessly, and . . . all other idle and disorderly persons.” Thus, vagrancy was coded as a black crime, one punishable by incarceration and forced labor, sometimes on the very plantations that previously had thrived on slave labor.
Mary Ellen Curtin’s study of Alabama prisoners during the decades following emancipation discloses that before the four hundred thousand black slaves in that state were set free, ninety-nine percent of prisoners in Alabama’s penitentiaries were white. As a consequence of the shifts provoked by the institution of the Black Codes, within a short period of time, the overwhelming majority of Alabama’s convicts were black. She further observes: Although the vast majority of Alabama’s antebellum prisoners were white, the popular perception was that the South’s true criminals were its black slaves. During the 1870s the growing number of black prisoners in the South further buttressed the belief that African Americans were inherently criminal and, in particular, prone to larceny.
In 1883, Frederick Douglass had already written about the South’s tendency to “impute crime to color.” When a particularly egregious crime was committed, he noted, not only was guilt frequently assigned to a black person regardless of the perpetrator’s race, but white men sometimes sought to escape punishment by disguising themselves as black. Douglass would later recount one such incident that took place in Granger County, Tennessee, in which a man who appeared to be black was shot while committing a robbery. The wounded man, however, was discovered to be a respectable white citizen who had colored his face black. The above example from Douglass demonstrates how whiteness, in the words of legal scholar Cheryl Harris, operates as property. According to Harris, the fact that white identity was possessed as property meant that rights, liberties, and self-identity were affirmed for white people, while being denied to black people. The latter’s only access to whiteness was through “passing.” Douglass’s comments indicate how this property interest in whiteness was easily reversed in schemes to deny black people their rights to due process. Interestingly, cases similar to the one Douglass discusses above emerged in the United States during the 1990s: in Boston, Charles Stuart murdered his pregnant wife and attempted to blame an anonymous black man, and in Union, South Carolina, Susan Smith killed her children and claimed they had been abducted by a black carjacker. The racialization of crime—the tendency to “impute crime to color,” to use Frederick Douglass’s words—did not wither away as the country became increasingly removed from slavery. Proof that crime continues to be imputed to color resides in the many evocations of “racial profiling” in our time. That it is possible to be targeted by the police for no other reason than the color of one’s skin is not mere speculation. Police departments in major urban areas have admitted the existence of formal procedures designed to maximize the numbers of African-Americans and Latinos arrested— even in the absence of probable cause. In the aftermath of the September 11 attacks, vast numbers of people of Middle Eastern and South Asian heritage were arrested and detained by the police agency known as Immigration and Naturalization Services (INS). The INS is the federal agency that claims the largest number of armed agents, even more than the FBI.
During the post-slavery era, as black people were integrated into southern penal systems—and as the penal system became a system of penal servitude—the punishments associated with slavery became further incorporated into the penal system. “Whipping,” as Matthew Mancini has observed, “was the preeminent form of punishment under
slavery; and the lash, along with the chain, became the very emblem of servitude for slaves and prisoners.” As indicated above, black people were imprisoned under the laws assembled in the various Black Codes of the southern states, which, because they were rearticulations of the Slave Codes, tended to racialize penality and link it closely with previous regimes of slavery. The expansion of the convict lease system and the county chain gang meant that the antebellum criminal justice system, which focused far more intensely on black people than on whites, defined southern criminal justice largely as a means of controlling black labor. According to Mancini:
Among the multifarious debilitating legacies of slavery was the conviction that blacks could only
labor in a certain way—the way experience had shown them to have labored in the past: in gangs,
subjected to constant supervision, and under the discipline of the lash. Since these were the requisites of slavery, and since slaves were blacks, Southern whites almost universally concluded that blacks could not work unless subjected to such intense surveillance and discipline.
Scholars who have studied the convict lease system point out that in many important respects, convict leasing was far worse than slavery, an insight that can be gleaned from titles such as One Dies, Get Another (by Mancini), Worse Than Slavery (David Oshinsky’s work on Parchman Prison), and Twice the Work of Free Labor (Alex Lichtenstein’s examination of the political economy of convict leasing). Slave owners may have been concerned for the survival of individual slaves, who, after all, represented significant investments. Convicts, on the other hand, were leased not as individuals, but as a group, and they could be worked literally to death without affecting the profitability of a convict crew.
Copyright © 2003 by Angela Y. Davis. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
