I'm still processing much of what was talked about here during our reading of The New Jim Crow. In continuing my studies this week, I picked up Randall Kennedy's book Race, Crime, and the Law. As I've said before, one insight that's stuck from Alexander's work is the need for skepticism when we discuss "law" and its cousin "order." Laws are not synonyms for justice. Indeed, Alexander is arguing not that the criminal-justice system is flawed but that it is fundamentally unjust and has always been so.
That latter point deserves some emphasis. If there's one thing I am drawing from the historical portion of Kennedy's work, it's that America has always viewed its black population as a kind of sleeper cell—either criminals in fact, or criminals in waiting. All of our racist political rhetoric, from birtherism to "welfare queens" to "state's rights" to Willie Horton to Sister Souljah, reflects this. Black people represent an element in this country that tends to either break the law or exploit its loopholes at the expense of good, hard-working white people.
And this view is old. For most, if not all, of their existence, black people have been America's premier outlaw class. From Kennedy:
Prior to the Civil War, many jurisdictions made slaves into “criminals” by prohibiting them from pursuing a wide range of activities that whites were typically free to pursue. Authorities enacted criminal statutes barring slaves from learning to read, leaving their masters’ property without a proper pass, engaging in “unbecoming” conduct in the presence of a white female, assembling to worship outside the supervisory presence of a white person, neglecting to step out of the way when a white person approached on a walkway, smoking in public, walking with a cane, making loud noises, or defending themselves from assaults. Governed by a separate law of crimes, slaves were also subjected to a separate brand of punishment. Slaves, for example, were subjected to capital punishment for a wider range of crimes than any other sector of the population. Virginia, for instance, defined seventy-three capital crimes applicable to slaves but only one—first degree murder—applicable to whites.
To criminalize black people for reading, walking, worshipping—things whites do all the time—is to essentially criminalize black humanity. And this not just a matter of enslaved black people. States like Illinois and Oregon passed laws barring all black people from entering their borders. Among those criminalized by these laws was a black man who brought his fiancée to Illinois in hopes of marrying her. He was prosecuted and convicted, and in upholding his conviction the Illinois Supreme Court declared its intent "to exclude any further ingress of negroes, and to remove those already among us as speedily as possible."
The Fugitive Slave Act took this criminalization further, essentially allowing white "man-catchers" to declare black people escaped slaves—again criminals—and remand them to custody. And there was great incentive to do so, as the individual enforcers of the act were given $5 if it were determined "that a slavemaster was not entitled to an alleged fugitive slave" but $10 if it were determined the slavemaster did have a right to his "property." A U.S. marshal refusing to participate could himself be criminalized and fined $1,000. A marshal who allowed an enslaved person to escape "would be liable to an owner for the full value."
One reason why I was hoping for a tighter history from The New Jim Crow is that I could intuitively feel the connections between the new system and the old. I thought that those links deserved more attention, more clarity, and would have strengthened the case. I suspect Kennedy would be skeptical of a "new" Jim Crow. Nevertheless, his history makes clear how much the old system of justice and the new have in common—criminalizing the behavior of black humans, punishing black humans under harsher terms, incentivizing the seizing of black bodies. I suspect there's even more.
The consequences of rendering black people criminals for being human have been profound and extend beyond the argument over whether we really are facing a "new" Jim Crow. The fact is that for most of our history, every black person who's ever actively resisted was effectively committing a criminal act. Harriet Tubman might grace postage stamps today, but in her time she was a criminal who likely would have been executed or sold South had she been caught.
Frederick Douglass was a flagrant criminal. And he knew it:
I appear before you this evening as a thief and a robber. I stole this head, these limbs, this body from my master and ran off with them.
The black men who served in the Union Army were regarded by the Confederate opposition not as soldiers but as outlaws:
We cannot treat negroes ... as prisoners of war without a destruction of the social system for which we contend .... We must claim the full control of all negroes who may fall into our hands, to punish with death, or any other penalty.
And it wasn't just the Confederates—80 percent of all Union soldiers executed for mutiny were black. Martin Luther King was a criminal. Rosa Parks was a criminal. Malcolm X was not just a criminal in his youth but regarded and treated as such by the FBI until the end of his life. Indeed, J. Edgar Hoover criminalized much of black leadership from Marcus Garvey to King to Malcolm to the Black Panthers for his entire career.
And Hoover did much more. When Viola Liuzzo was brutally murdered by white supremacists, Hoover's FBI spread rumors that she was heroin addict who liked to sleep with black men (a crime in several states.) The rumors had the intended effect:
... the July 1965 issue of The Ladies' Home Journal published a poll that asked if readers thought Liuzzo was a good mother. Fifty-five percent didn't. ("I feel sorry for what happened," said one woman in a focus group convened to talk about the Liuzzo story, "but I feel she should have stayed home and minded her own business.")
Why was Hoover so dead-set on criminalizing Liuzzo? Because Hoover himself was a criminal who'd placed an informant in the car with her murderers. The informant had cut his teeth beating the daylights out of Freedom Riders. Hoover did nothing to restrain him. Liuzzo's husband tried to defend her name. He later turned to drinking and died. Liuzzo's family sued the FBI and lost. Today the name of J. Edgar Hoover—an inveterate racist and scourge of black people—decorates the headquarters of the incorruptible FBI.
Even being technically within the law has not insured protection for black people. The Freedom Riders were not seeking new laws; they were trying to get the federal government to enforce a Supreme Court ruling already on the books. The response from law enforcement was to treat them like outlaws. The attorney general's office was essentially created to enforce civil rights for black people, but when called to actually enforce the law, Robert Kennedy denounced not the Southern police but the Freedom Riders, for producing "good propaganda for America's enemies." Meanwhile informants, ostensibly in his employ, were helping white supremacists wreak havoc.
All of this must be remembered the next time the police invoke "Stop Snitchin'"—the same police who've long maintained a blue wall of silence. The uncomfortable fact is that "The Law" in America has been—at best—a halting friend of black people, and more often a direct enemy.
I keep going back to the first conversation I ever had with Mr. Clyde Ross. I keep thinking about him telling me that he'd fled Mississippi seeking "the protection of the law." And now I am thinking about William Goodell (quoted by Kennedy) speaking of black people:
[The enslaved] is nevertheless accounted criminal for acts which are deemed innocent in others, and punished with a severity from which all others are exempted. He is under the control of law, though unprotected by law, and can know law only as an enemy, and not as a friend.
So little has changed.