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II. A Brief History of Race
III. Race and Modern Criminological Theory
IV. Race in American Legal History
A. Before the Civil War
B. Civil War Era
C. After the Civil War: Jim Crow Laws
D. The 1960s to the Present
The meaning of race has changed significantly over the course of human history. Early theories of race assigned numerous social, intellectual, moral, and physical values to the apparent differences between groups of people. From the 17th through early 20th centuries, the study of race was defined in terms of a hierarchy of putative biological differences. In this era, scholars working from various social and natural science perspectives developed “scientific” justifications that were subsequently used to rationalize the disparate treatment of ethnic, racial, and social groups. In the decades following World War II, the concept of race increasingly came to be understood more as a social and political construction and less as a matter of biology.A considerable body of modern theory regards race as a social mechanism used to preserve unbalanced relationships of power. In this research paper, readers will encounter a brief history of race as a subject for social thought, followed by a review of more recent developments in criminological theory. Last, a discussion of race as a component of social policy with specific regard to its place in American legal history is presented.
Before one can meaningfully discuss the instrumental properties of race in a social context, a definition of the concept itself must be developed. That said, the reduction of race to a single essentialist criterion is a difficult, if not impossible, endeavor. Although phenotype or skin color may strongly inform racial categorization, historically many other characteristics have been treated as equally determinative. National or ethnic origin, social class, religion, and language have all been used to identify racially “distinct” groups. Race is thus invested with a complex social context that depends in part on the prevailing “common understanding and meaning” of society (In re Ah Yup, 1878).
Lopez (1994) defined race as follows:
A vast group of people loosely bound together by historically contingent, socially significant elements of their morphology and/or ancestry . . . an ongoing, contradictory, self-reinforcing process subject to the macro forces of social and political struggle and the micro effects of daily decisions. (p. 3)
Although this is but one scholar’s attempt to capture the attributes of an admittedly difficult concept, this definition speaks to the malleability of the term and its predominantly social, rather than biological, construction.
It is difficult to pinpoint a time in history when theories of race were first used as a tool to categorize people. Some scholars argue that the process of racial categorization, as well as the assignment of relative social values to those categories, was prevalent by the end of the Middle Ages in Europe (Winant, 2000) and by the Renaissance in England (Bartel, 1997). Sweet (1997) made the following argument:
By the time of the Columbian encounter [with the peoples of the New World] . . . race, and especially skin color, defined the contours of power relationships. . . . Biological assumptions that were familiar to a nineteenth-century Cuban slave owner would have been recognizable to his fifteenth-century Spanish counterpart. (p. 166)
Winant (2000) added the following:
The Crusades and the Inquisition and the Mediterranean slave trade were important rehearsals for modern systems of racial differentiation . . . in terms of scale and inexorability, the race concept only began to attain its familiar meanings at the end of the middle ages. (p. 45)
Less than a century ago, Italian, Irish, and southern European immigrants and their descendants were considered by many other Americans as “non-white” (Ignatiev, 1996). Oxford professor Edward Freeman espoused a prevalent late 19th-century viewpoint with the statement, “The best remedy for whatever is amiss in America would be if every Irishman would kill a Negro and be hanged for it” (Tucker, 1996, p. 34). The social status of “whiteness” was eventually conveyed on many of these immigrant groups on the basis of changes in social agreement regarding their assimilatory potential combined with the establishment of a racial identity appropriately distanced from their “blackness.” Lopez (1996) documented more than four dozen American legal decisions from 1878 to 1952 in which individuals representing various nationalities and ethnic groups had their relative “whiteness” determined in court.
As social and legal conceptions of race have evolved, an important point has emerged: Race is a matter not just of discerning group characteristics but of understanding and demarcating social relationships. The history of scholarship regarding race speaks directly to this point.
II. A Brief History of Race
The first conflict between one human group against another is a matter lost to history. Equally distant is the first enslavement of a defeated people by their conquerors. Even so, our modern language is peppered with pejorative terms referencing ancient conflicts. For instance, we understand colloquially what it is to be a “barbarian”; however, most of what we know about the actual “barbarian races” that plagued Greek and Roman society comes from the written records of the Greeks and Romans themselves. The Greek historian Herodotus made the following observation:
Their lust for gold is immense, their love of drink boundless. Barbarians are without restraint . . . they are given to gross personal hygiene. . . . Their reproductive energy is inexhaustible . . . [if] driven back or destroyed, another already emerges. . . . Indeed, there are no new barbarian peoples . . . descendents of the same tribes keep appearing. (Wolfram, 1992, pp. 6–7)
As Winston Churchill once quipped, “History is written by the victors.” In this case, as with many others, the victory need only be cultural, not military.
Etymologically speaking, the Greek root of the term barbarian means “strange, foreign or ignorant.” Thus, one sees that human history has long been shaped both politically and linguistically by negative reference to a defeated or marginalized “alien.” This kind of semantic (or actual) distancing of one group by another has played an important part in social policy throughout human history.
One of the first instances when a systematic consideration of race was used to inform modern European public policy is found in the 17th-century writings of Gottfried Wilhelm Leibniz. In 1671, Leibniz proposed the Consilium Aegyptiacum, or “Egyptian Plan” to King Louis XIV of France. In this scheme, an army of “semi-beasts” composed of slaves taken from “Africa, Arabia, Canada, New Guinea . . . Ethiopians, Negroes, Canadians, and Hurons” would be collected and trained as an elite force to be used for world conquest (Fenves, 2006, p. 14). Interestingly, the racial classification system Liebniz used relied primarily on religious distinctions (Christian vs. non-Christian) instead of phenotype or skin color to justify the enslavement of non-Europeans.
Although Leibniz put forth a very rudimentary theory of race based on religious and geographical criteria, the first detailed racial taxonomy of humans was advanced by the Swedish biological taxonomist Carolus Linnaeus in his 1735 work Systema Naturae (Uppsala Universitet, n.d.). Linnaeus divided human beings into four distinct categories based on skin color and geographical origin: (1) Europeaus (white), (2) Africanus (black), (3) Americanus (red), and (4)Asiatic (yellow). Each of these categories was described in terms of personal, mental, and physical attributes said to typify members of the respective groupings.
In an effort to promulgate a uniform theory of race, the German medical doctor and physiologist Johann Friedrich Blumenbach in 1775 proposed a racial classification scheme that proved very influential even into the modern era (Zammito, 2006). Blumenbach was vehemently opposed to viewing groups of humans as “different species.” He asserted that differences in complexion and phenotype were caused by climate. Blumenbach also protested against theories of racial superiority. As he observed, “[While non-Europeans may be different in color,] as a whole they seem to agree in many things with ourselves” (Zammito, 2006, p. 47).
The racial theories of Blumenbach and other social philosophers gained particular significance during the Age of Enlightenment. Likewise, the Aristotelian conception of “natural order” regained intellectual currency; and as an extension of this ordering, the “inherent” inequalities therein implied were used to rationalize the subordination of groups deemed “inferior” (Tucker, 1996, p. 10). Enlightenment thought heralded a move away from an understanding of human identity couched in religion and preservation of the nobility through biological understandings of lineage, to an identity vested in the context of race (Goldberg, 1993).
Paradoxically, as Malik (1996) argued, Enlightenment ideals of reason, rationality, and the scientific method do not necessitate understanding human difference in terms of race; instead, he contended that Enlightenment faith in reason, empiricism, and human equality were applied to justify entrenched social inequalities in terms of racial difference. Even as members of the poorer classes called for recognition of universal rights, dominant social forces provided a strong response. Universal rights were seen as directly oppositional to bourgeoisie notions of capitalism and the emerging free markets that displaced the old feudal and monarchic order. The inherent inequality stemming from the private ownership of property led thinkers such as Adam Smith (1789/2003) to conclude a necessity for limits on and exceptions to “universal equality” as a means to protect the “natural” rights of propertied classes.
As the world moved through the age of revolution and into the 19th century, the defense of private property as a natural right of humankind necessarily required a more nuanced concept of social equality. More than at any point in human history, a fundamental paradigm shift was poised to take place. The divide between a person’s natural right to social equality and freedom versus the natural right to own private property came to foment over the issue of slavery. Slavery was regarded as a form of private property and took its primary justification not on grounds of racial inequality per se but as a matter of economic necessity. Slavery was regarded as a “necessary evil” to support general economic progress and provide opportunities for poorer whites (Malik, 1996, p. 67). As discussed in a following section, the American experience of reconciling these interests has been as troubled and protracted in the courts as it was bloody on the battlefields of the Civil War.
The preceding treatment of race as an evolving social construct demonstrates several fundamental relationships that social scientists in the 20th and 21st centuries have used to examine race, crime, and social policy. First, the distinctions of race have, from first delineation, been used to inform public policy. Second, science has repeatedly been called upon to justify, with reference to “natural order” or “necessity,” the social and economic hierarchies present in society. Last, numerous criteria, including skin color, phenotype, religion, language, social class, geographic origin, and so on, have been used to substantiate purported racial differences and the social inequities predicated thereon.
III. Race and Modern Criminological Theory
Although an arguable amount of progress has been made in the general academic treatment of race, the intersection of race and crime still proves to be a problematic topic for social science. As Sampson andWilson (1995) stated, “The discussion of race and crime is mired in an unproductive mix of controversy and silence . . . criminologists are loathe to speak . . . for fear of being misunderstood or labeled racist” (p. 37) Nonetheless, the disproportionate involvement of minorities with crime, both as victims and perpetrators, demands a systematic and balanced exploration. Many social scientists (Mann, 1993; Stark, 1990) complicate the matter with assertions that the perceived differential between groups with regard to crime is reducible to either systematized bias or unreliable/misapplied statistics. To counter, a number of scholars (Hawkins, 1986; Hindelang, 1978; Katz, 1988; Sampson & Wilson, 1995) have provided arguments that both acknowledge the differentials while furthering the etiological debate.
As the preceding discussion implies, there are many divergent perspectives on the matter of race and crime. Accordingly, there is little broad agreement on many of the fundamental aspects of the issue. This said, it is instructive to consider some general theoretical categories of scholarship and how each has addressed the problem.
Among the oldest body of work that considers the matter of race and crime may be those which are described as sociobiological theories. These theories generally posit that criminality (or the proclivity thereto) is a matter of hereditary, genetic, or physiological flaw. Perhaps the most well-known of these is the work of Cesare Lombroso. Lombroso (1912/2006) proposed that criminals were a kind of evolutionary throwback to a more primitive condition: “The criminal is an atavistic being, a relic of a vanished race . . . a return to characteristics peculiar to primitive savages” (p. 21). Lombroso’s work spawned an examination of theorized physiological and psychological differences between criminals and “normal” people. Lombroso famously observed that “many criminals have outstanding ears, abundant hair, a sparse beard, enormous frontal sinuses and jaws, a square and projecting chin, broad cheekbones, frequent gestures, in fact a type resembling the Mongolian and sometimes the Negro” (p. 29)
In more recent years, Jeffery (1979, 1990) and Fishbein (1990) have proposed a revised version of sociobiological criminological theory. Jeffery’s (1990) work in particular concerns the interaction of genetics with environmental forces: “Genes influence behavior through pathway mechanisms such as the brain, brain chemistry and hormonal systems, all in interaction with one another and with the environment” (p. 184). Balkan, Berger and Schmidt (1980) were highly critical of this approach, calling it “a continuation of the tradition of looking for individual biological basis of criminal behavior” (pp. 18–19). Although Jeffery never expressly addressed race, adherents to the perspective nonetheless have cautioned against “the premature application of biological findings” (Fishbein, 1990, p. 55).
An individual-level theory that does expressly consider race is found in the work of Poussaint (1972). Poussaint’s theories consider the impact of rage and low self-esteem as conditioned by the African American experience: “Many of the problems in the Black community are related to institutional racism, which fosters a chronic lack of Black self-respect, predisposing many poor Blacks to behave self-destructively and with uncontrollable rage” (p. 163). The “incessant . . . [irritation] of the black man’s psyche” (Guterman, 1972, p. 231) and “estrangement, cynicism and expectations of doubledealing” (Heilbrun & Heilbrun, 1977, p. 370) add support to frustration–aggression theory. Likewise, Bernard (1990, p. 74) refined the perspective by suggesting that social factors such as urban environment, low social position, and discrimination exacerbate the conditions noted in previous studies. As Bernard’s work suggests, understanding the interplay between the individual and his or her environment is important in assessing the relationship between crime and race.
Moving beyond individual-level theories, a number of perspectives have considered the impact of culture and the broader social environment in their explanations of crime and race. Hereto, there exists considerable debate. As Sampson andWilson (1995) stated, “[Criminologists] have reduced the race-crime debate to simplistic arguments about culture versus social structure” (p. 38). As Sampson and Wilson correctly identified, the discourse is fundamentally one couched in either a “relative deprivation” structuralist hypothesis as typified by Blau and Blau (1982) or an equally unsatisfying cultural focus on “an indigenous culture” of ghetto violence offered by Wolfgang and Ferracuti (1967).
Of the two, the subculture-of-violence perspective is arguably the more widely discussed. In their elaboration of the theory, Wolfgang and Ferracuti (1967) sought to explain minority violence in terms of dominant subcultural values, which include “a potent theme of violence” that is transmitted through “lifestyle, the socialization process, [and] the interpersonal relationships of individuals living in similar conditions” (p. 140). A more recent explication of the subculture-of-violence perspective came from Luckenbill and Doyle (1989), who put forth the hypothesis that “young adults, males, blacks, lower income persons, and urban and southern residents are more likely than their respective counterparts to name a negative outcome, to claim reparation and to persevere and use force in resolving a dispute” (p. 425).
The subculture-of-violence perspective has garnered a substantial amount of criticism. Mann and Selva (1979) criticized the perspective for its over-focus on “the street lifestyle.” Haft-Picker (1980) summarized a number of concerns with her statement that “criminologists no longer agree on what the subculture of violence actually is or whether it exists at all” (p. 181).
In many regards, ecological theories of crime overcome the problems inherent to individual-level and subcultural explanations. As a general construct, ecological theories seek to identify and understand those features of communities, in particular urban communities that produce differential rates of crime (Bursik, 1988; Byrne & Sampson, 1986; Sampson &Wilson, 1995; Short, 1985). In particular, the community-level approach first elucidated by Shaw and McKay (1942/1969) identifies three structural factors that contribute most strongly to juvenile delinquency: (1) low economic status, (2) ethnic heterogeneity, and (3) residential mobility. Perhaps their most prescient finding was their demonstration that high rates of delinquency persisted in certain areas irrespective of population turnover. This finding led Shaw and McKay to reject individualistic theories of delinquent behavior in favor of studying the process of intergenerational transmission of delinquency (and crime generally) in more socially disorganized areas (p. 320). Shaw and McKay directly refuted contemporary theorists (i.e., Jonassen, 1949) who argued that ethnicity had a direct effect on observed rates of delinquent behavior.
As pertains specifically to considerations of race, the social disorganization perspective founded largely in the work of Shaw and McKay (1942/1969) continues to be among the most fecund in the study of crime. Of particular note is the work of Messner and Sampson (1991), Sampson (1987), Sullivan (1989), and Meares (1998) on the influence of family structure and disruption in minority communities.
Perhaps the most damaging criticism of the social disorganization perspective, namely, that it is founded in circular reasoning, was summarized by Bohm (1997): “That is, social disorganization is the cause of delinquency, and delinquency is an indicator of social disorganization” (p. 78). Bohm also noted that the social disorganization perspective fails to account for high crime rates in stable working-class communities.
The work of Blau and Blau (1982), mentioned earlier, has inspired explanations of crime through the lens of economic and racial inequality. The influence of extralegal factors (e.g., economic inequality) on the social control of crime is the focus of considerable scholarly debate. The mass of the discourse is built around issues of race and social class examined from a conflict perspective (Eitle, D’Alessio, & Stolzenberg, 2002, p. 557). Liska (1987) asserted that “law making is assumed to reflect the interests of the powerful; those activities are criminalized that threaten their interests” (p. 77) Racial threat theory expands on the conflict perspective to suggest that law violations by racial minorities can be perceived as particularly threatening to those in power and will therefore be met with greater force (Liska, 1987, p. 77).
Blalock (1967) is generally viewed as the primary exponent of racial threat theory. Blalock argued that one may use the relative minority population size to predict the ways in which a majority population will exercise social control. According to his perspective, as the percentage of non-whites increases, they are perceived to constitute a political and economic threat to the white majority. The growing minority in essence “forces” members of the white majority to compete for jobs and other economic resources. As the minority population grows, it competes with whites for social resources, such as political power. Racial discrimination is, according to this perspective, an attempt by whites to subvert racial minority efforts to exercise power. As an extension of this perspective, those things that become criminalized, and the ways in which the criminal justice system is structured to respond, reflects the interests of the majority population and its attempts to preserve social power.
Numerous studies support the conclusion that the size of the minority population influences social control (Bobo, 1983; Chamlin, 1989; Fossett & Kiecolt, 1989; Giles & Evans, 1986; Giles & Hertz, 1994; Glaser, 1994; Matthews & Prothro, 1966; Taylor, 1998; Wright, 1977). Despite this consensus, critics have identified a number of problems that undercut the racial threat perspective.
Liska (1987, p. 78) provided one of the more damaging critiques. Citing problems of “epistemic and theoretical linkage,” he contended that theorists have generally failed to properly operationalize and connect concepts such as “ruling class interests” and “threat.” Moreover, he held that the problems extend throughout the literature, for the following reasons:
Because the critical causal variables are not well defined, theoretically and operationally, and are not clearly linked to each other in the form of propositions or a causal model, the relevant research literature is also not well defined and integrated. (p. 78)
As readers can see, there are numerous theoretical perspectives through which one might approach the topic of race and crime. Each contributes to the broader understanding of the matter while presenting methodological or structural issues that remain to be reconciled. In this, one may view the body of criminological theory as a continually evolving construct. As readers will see in the following section, this metaphor of evolution also fits the history of American legal process with regard to race.
IV. Race in American Legal History
One of the most difficult areas of American legal and political history has been the conjunction of race and crime. Matters of race have tainted legal proceedings and enforcement of the criminal law since before the founding of the United States of America. An examination of constitutional, judicial, and legislative history provides an understanding of how a person’s race has determined the extent of justice individuals were or were not allowed.
A. Before the Civil War
The U.S. Constitution, as originally enacted, recognized that those persons who were not free (i.e., slaves) were not endowed with the full rights of citizenship. For example, in determinations of congressional representation, slaves counted as only three fifths of a free person (U.S. Const., Art. I, Sec. 2, Cl. 3). Furthermore, when a slave escaped the captivity of a state permitting slavery, the law mandated the slave’s return to the slave state (U.S. Const., Art. IV, Sec. 2, Cl. 3).
Not until after the Civil War was the institution of slavery effectively abolished in the United States. The Thirteenth Amendment, which prohibits slavery, was enacted in 1865. This was followed shortly by enactment of the Fourteenth Amendment in 1868. The Fourteenth Amendment was extremely important in that it guaranteed “equal protection of the law to all persons; and that no person shall be deprived of life, liberty, or property without due process of law.” It further mandated that these principles were applicable to the states and not just to the federal government. Combined with the Thirteenth and Fifteenth Amendments, the Fourteenth Amendment was a statement of principle that race should not be a factor in denying any person justice. Moreover, the Thirteenth and Fourteenth Amendments, taken together, obviated the unequal three-fifths rule for determining the number of congressional representatives. The Fourteenth Amendment, did, however, stipulate that the required population count “[exclude] Indians not taxed.” With the adoption of the Fifteenth Amendment in 1870, the right to vote was guaranteed to all men over 21 years of age, regardless of race.
Such constitutional statements of principle were admirable improvements, but meaningful execution of policy was entirely another matter. In the decade following the Civil War, Congress took a number of steps to put policy into action. Congress passed the Civil Rights Act of 1866 (14 Stat. 27), which mandated equal property rights for all persons regardless of race. The Civil Rights Act of 1870 (42 U.S.C. § 1981) granted the right to contract to all persons regardless of race. It also provided criminal penalties for certain civil rights violations. The Civil Rights Act of 1871, also known as the Ku Klux Klan Act, provided for a civil action: to enforce violations of civil rights by the government (42 U.S.C. § 1983), to obtain damages for conspiracies to violate civil rights (42 U.S.C. § 1985), and to obtain damages for negligence in preventing civil rights violations (42 U.S.C. § 1986). Furthermore, the Congress enacted the Civil Rights Act of 1875, which prohibited racial discrimination in inns, public conveyances, and places of public amusement, for which criminal penalties were applied for violations.
Even before the enactment of the U.S. Constitution and the Bill of Rights, race was linked to many injustices in criminal law enforcement in America. One of the more well-known early criminal cases involving slaves was the “Great Negro Plot” of 1741 (DiCanio, 1994). A number of African Americans were convicted of theft and conspiring to commit arson and murder. On the basis of what would now be regarded as inadmissible and hearsay evidence, 70 African Americans were banished from the American colonies to Africa, 16 were hanged, and 13 were burned at the stake. A small number of whites were also punished. This was not the last time that such evidence would be used to convict racial minorities.
Despite the enactment of the Bill of Rights, racial minorities were continuously denied the same rights accorded to whites. For example, slaves were frequently denied the right to testify in court. The tension between the North and South concerning slavery continued to fester and was only temporarily mollified by the Missouri Compromise of 1820, an act intended to regulate the spread of slavery in the western territories.
Perhaps paradoxically, American history contains several instances in which justice was done, albeit for unusual reasons. One such example involved the schooner Amistad. A slave, Joseph Cinque, and 49 others, were purchased in Havana, Cuba, and placed on the Amistad for delivery to a Cuban plantation. Cinque and other slaves revolted, killing the captain and members of the crew. They eventually arrived in New York City, where they were charged with murder and piracy in 1839. Although eventually acquitted, the acquittal was granted under property law instead of criminal law. The decision was based on the grounds that Cinque and his codefendants were not legally “property” and had been illegally enslaved inAfrica. Thus, Cinque and the other slaves had both a valid defense to the criminal charges as well as the right to free themselves (Christianson, 1994a; U.S. v. The Schooner Amistad, 1841).
Despite rare decisions like that of the case of Joseph Cinque, the concept of racial inferiority remained pervasive. In the infamous Dred Scott decision of 1856, the U.S. Supreme Court reaffirmed the idea that African Americans were inferior as a race (Scott v. Sanford, 1857). Scott, an African American slave, had been taken by his owner from a slave state to a free state and brought suit in Missouri to gain his freedom. Although Scott won at trial, the Missouri Supreme Court and the U.S. Supreme Court both held that Scott was property and thus was still a slave (Christianson, 1994b; Hall, 2005). This decision reinforced the position in the United States that actions taken against slaves, which would otherwise be criminal if committed against whites, were not criminal acts.
No discussion of the issue of race and crime would be complete without mentioning John Brown. In 1859, Brown, an ardent abolitionist, attempted to arm and start a revolt among southern slaves. He and his followers seized the federal arsenal at Harpers Ferry, Virginia. After a brief siege, Brown and his followers were captured. Brown was tried inVirginia for charges of insurrection and murder. He was found guilty and hanged (Christianson, 1994c). This case illustrates how, throughout American history, race permeates not just the criminal trials of racial minorities but the trials of whites trying to defend racial minorities.
B. Civil War Era
Within a few years of the John Brown revolt, the Civil War started. After the defeat of the Confederacy, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution were enacted. Reconstruction began in the South, ostensibly as a means to protect the former slaves. Many gains were made for the former slaves. However, Reconstruction, which was essentially administered by the military during the early years after the Civil War, caused a great deal of resentment among southern whites. As a result, lynching and other racially motivated crimes were commonplace (Foner, 1988).
In 1873, in Louisiana, a number of African Americans were lynched concerning voting in a state election. The State of Louisiana, for unknown reasons, failed to prosecute the murder suspects. The U.S. Attorney, seeking to enforce the Civil Rights Act of 1870, indicted more than 100 people for various crimes, including conspiracy. Eight of the suspects went to trial, three of whom were found guilty. They appealed to the U.S. Supreme Court, which reversed the convictions, finding that the indictments were technically insufficient, although some authorities are of the opinion that the reversal was based more on the posture that the criminal charges were more properly brought in state court (United States v. Cruikshank, 1875; Hall, 2005).
This setback notwithstanding, a number of criminal cases were brought against private individuals for discrimination. Several of these cases came to the U.S. Supreme Court in 1882. In a combined decision, known as the “Civil Rights Cases,” the Supreme Court struck down part of the Civil Rights Act of 1875, finding that Congress did not have the authority to enact such criminal laws (The Civil Rights Cases, 1883; Hall, 2005). These decisions, United States v. Cruikshank (1875) and the Civil Rights Cases (1883), effectively squelched the hope for equal rights for racial minorities, in both civil and criminal actions, in America for almost a century.
C. After the Civil War: Jim Crow Laws
In the wake of the Cruikshank and the Civil Rights Cases, a long interregnum in the South began. So-called Jim Crow laws were enacted all across the South and in the North (Klarman, 2004). Jim Crow laws were statutes enacted to enforce segregation between the white and minority populations. These laws covered almost every aspect of life, including public facilities, restaurants, public transportation, health care, education, employment, and social relationships. Violation of Jim Crow laws frequently resulted in criminal prosecution.
Enforcement of Jim Crow laws came to a head in 1896 with the one of the most infamous Supreme Court decisions: Plessy v. Ferguson (1896). Plessy, an African American, had purchased a ticket on a train within the State of Louisiana. He entered a car reserved for whites. Plessy was arrested, taken to jail, prosecuted, and found guilty. Plessy appealed to the U.S. Supreme Court, which, in essence, placed its seal of approval on de facto racial discrimination, by approving the doctrine of “separate but equal” and affirming Plessy’s conviction. The Supreme Court ignored the fact that accommodations for African Americans were almost never equal and that it was impossible for African Americans to enforce any equality of treatment. Justice John Marshall Harlan, quite presciently, dissenting in the Plessy decision, noted that Plessy would be become as pernicious as the Dred Scott decision (Hall, 2005).
Through the early 1900s, racial minorities rarely received due process in criminal trials. Despite the problems, Congress made attempts to enforce civil rights through legislation. For example, it was a crime for government officials to engage in a conspiracy to violate civil rights or to deprive a person of his or her civil rights under the color of law (18 U.S.C. §§ 241, 242, 35 Stat. 1092, 1909).Well intended as they may have been, these statutes were rarely enforced. This situation was aggravated by the rapid postwar increase in membership and influence of the virulently racist Ku Klux Klan (McLean, 1995). Despite these problems, there was still the occasional victory, but usually at great cost.
A noted example occurred during 1919 as a result of race riots in Elaine, Arkansas. A number of sharecropping African Americans held meetings in at the Hoop Spur Church to organize protection from extortive practices of white landowners. In response, the white landowners attacked the sharecroppers. During the clashes, between 100 and 200AfricanAmericans and 5 whites died.A number of African American men were arrested and charged with murder. A “Committee of Seven” whites was appointed to investigate the matter.A lynch mob marched on the jail. The National Guard was summoned in to protect the African Americans. Although the defendants were shielded from the anger of the lynch mob, the subsequent trial was hardly fairer. Witnesses were tortured to compel testimony against the accused. An attorney was appointed for them, but he did not meet with the men before trial. He did not challenge any juror, nor did he ask for separate trials. Moreover, he called no witnesses for the defense, even though they were available. In a 45-minute trial, with the jury deliberating less than 5 minutes, 6AfricanAmericans were found guilty and sentenced to death. Appeals through the Arkansas courts were unsuccessful. Suit for a writ of habeas corpus brought in the federal district court in Arkansas was likewise unsuccessful. Not until the U.S. Supreme Court decided the matter in 1923 was a writ of habeas corpus granted for the wrongful conviction (Moore v. Dempsey, 1923; Hall, 2005; Ryan, 1994a). The Moore v. Dempsey decision foreshadowed changes to come concerning race and the criminal justice system. It was not enough, however, to prevent one of the gravest racially tainted miscarriages of American justice: the Scottsboro Boys cases.
In Scottsboro,Alabama, in 1931, nineAfricanAmerican youth were accused of rape by two white women. The mood of the local community was ugly, and the National Guard had to be called to prevent the defendants from being lynched. At trial, the judge, after stating that he would appoint any attorney in the country to represent the defendants, appointed an attorney who was a renowned alcoholic. Despite the lack of inculpatory medical evidence, the Scottsboro Boys were all convicted and sentenced to death save for one, who was granted a new trial. The Alabama courts denied the appeals. The U.S. Supreme Court reversed the convictions for a violation of due process concerning the appointment of the defense attorney (Hall, 2005; Ryan, 1994b).
A second trial in the Alabama courts was scheduled. One of the Scottsboro Boys was again convicted. He was convicted in spite of the following facts: One of the alleged victims recanted, the other victim had been found to have been convicted several times of adultery and fornication, two of the boys had physical limitations preventing them from raping the alleged victims, and the medical evidence again showed that the alleged victims had not been raped. The trial judge set aside the jury’s judgment and recused himself under pressure from the attorney general and the chief justice (Hall, 2005; Ryan, 1994b).
A third trial for the Scottsboro Boys in the Alabama courts was held in 1936. Convictions were again obtained. An appeal to the U.S. Supreme Court resulted in a reversal because African Americans had been excluded from jury duty (Hall, 2005; Ryan, 1994b). Even so, a fourth trial was held in Alabama in 1937. Four of the Scottsboro Boys were found guilty of rape. One was found guilty of stabbing a deputy during a jail transfer, and the charges against the remaining four were dropped when a new prosecutor was placed in office. The Alabama governor, cognizant of public opinion, refused to grant a clemency petition after he agreed that “all were guilty or all should be freed” (Hall, 2005; Ryan, 1994b). The Scottsboro Boys case has been considered to be perhaps the ultimate example of racial discrimination and the denial of due process in the American criminal justice system.
During World War II, race became an issue in what is probably one of the most shameful events in American history. More than 100,000 Japanese Americans on the West Coast were rounded up and herded into theAmerican version of concentration camps based solely on their race, on the assumption that they might possibly be spies. Even though American officials admitted that there had not been a single case of espionage involving Japanese Americans, the internments continued. Indeed, Japanese Americans volunteered for combat duty in Europe against the Nazis and, in the 442nd Nisei Regiment, amassed numerous battle honors, but still innocent Japanese Americans were criminally prosecuted for failing to report for internment (Irons, 1983; Korematsu v. United States, 1944). Indeed, in the Korematsu decision, a dissenting justice, Frank Murphy, accused the nation of falling into the ugly abyss of racism and compared the United States to Nazi Germany. Only later in the century, when Fred Korematsu brought a civil suit, were the Japanese Americans finally vindicated (Korematsu v. United States, 1984).
Although not a criminal case, Brown v. Board of Education (1954) highlights the status of racial minorities in America up to the 1950s. Linda Brown, a young African American girl, was denied enrollment in a white school in Topeka, Kansas, and was required to travel a long distance to attend a black school. Brown brought suit. The lower courts, relying on the decision in Plessy v. Ferguson (1896), denied the suit. Brown appealed to the U.S. Supreme Court. In 1954, the Supreme Court overruled Plessy and rejected the doctrine of separate but equal, deciding that segregation was inherently unequal (Brown v. Board of Education, 1954; Hall, 2005).
D. The 1960s to the Present
The 1960s were a significant period of upheaval and change in society and for minorities in theAmerican justice system.With broad changes such as the Civil Rights Act of 1964 (Pub. Law 88–352, 78 Stat. 241) and the National Voting Rights Act of 1965 (42 U.S.C. § 1973–1973aa-6), the legal landscape slowly adapted to the realities of past injustices. A number of criminal cases decided by the U.S. Supreme Court under Chief Justice Earl Warren added to this change (Schwartz, 1996). During 1961, the Supreme Court decided the case of Mapp v. Ohio (1961). By its decision in Mapp, the U.S. Supreme Court overruled Wolf v. Colorado and held that the exclusionary rule—that evidence seized in violation of the Fourth Amendment was held inadmissible in both state and federal criminal proceedings—was directly applicable to the states. However, the Mapp decision is also important in regard to the issue of race and the criminal justice system. The defendant, Dollree Mapp, was an African American woman whose house was illegally searched without a warrant. The Mapp decision was the first landmark decision concerning the universal application of a constitutional rule of criminal procedure involving a racial minority (Long, 2006).
The 1960s also saw the decision of the U.S. Supreme Court in Miranda v. Arizona (1966). Ernesto Miranda was a Hispanic man arrested for rape and kidnapping. He was not well educated. Despite maintaining his innocence, after police interrogation Miranda signed a confession that led to his conviction. Miranda subsequently appealed, and the U.S. Supreme Court ruled that police had to advise suspects of their rights, to include access to counsel, before interrogation. The Miranda decision reinforced the principle that even the lowliest person was entitled to the rights of criminal procedure guaranteed by the Constitution and the Bill of Rights and that minorities should be given equal protection of the law (Hall, 2005).
Capitalizing on these principles, under Chief Justice Warren, the U.S. Supreme Court expressly overruled a number of the Jim Crow laws enacted in the late 19th and early 20th centuries. In McLaughlin v. Florida (1964) and Loving v. Virginia (1967), the Warren Court struck down laws that criminalized interracial marriage.
Although not directly concerning criminal prosecution, a decision of the Warren Court in 1961 allowed those persons who suffered violations of their civil rights in the context of criminal investigations and prosecutions to seek civil relief under the Civil RightsAct of 1871 and 42 U.S.C. 1983. In Monroe v. Pape (1961), the U.S. Supreme Court allowed civil rights suits against government officials to be brought for damages. This was an extraordinary decision that breathed life into the Civil Rights Act of 1871 and 42 U.S.C. § 1983, which had been rarely used since its enactment almost a century before. Since that decision, suits brought under these laws have limited the powers of the government to enforce criminal law and required the more just and equitable application of the criminal law for minorities under the equal protection and due process clauses of the Fourteenth Amendment.
Many more civil rights laws were passed in the 1960s. Relative to criminal law, one of the most important was probably 18 U.S.C. § 245, which criminalized both private and public discrimination (Pub. Law 90–284, 82 Stat. 73, 1968). This statute was, in essence, another attempt to make such discrimination criminally illegal, as was done with the Civil Rights Acts of 1870 and 1871, which had been undermined by previous Supreme Court decisions.
Despite the myriad legislation and judicial decisions recognizing the inappropriateness of race as a factor for limiting a person’s rights, law enforcement agencies continued to use race as a factor. Among the most notorious examples of this is a Federal Bureau of Investigation program known as COINTELPRO. This program, along with others, resulted in the illegal surveillance and harassment of Martin Luther King and the Black Panther Party (Burnham, 1996).
Any review of race and crime in the United States must include a discussion of the death penalty. It is undisputed that in the American criminal justice system, African Americans are executed at a rate much greater than whites. Illustrative of the problem is the case of Furman v. Georgia (1972). Mark Furman, a young African American man, was charged with murder subsequent to burglarizing a home and killing the homeowner who had interrupted the burglary.
Furman, both indigent and with psychological problems, received a court-appointed lawyer, who was paid $150. Upon his conviction, Furman appealed. The U.S. Supreme Court found that the death penalty was disproportionately applied to racial minorities and overturned the conviction. Although the Furman decision did not invalidate the death penalty, it restricted its application.Within a few years, the Supreme Court, in its decision in Gregg v. Georgia (1976), added additional restrictions on the death penalty and its application to minority groups (Gregg v. Georgia, 1976; Hall, 2005).
Obviously, all the problems concerning race and the criminal justice system were not resolved in the 1960s and 1970s. The Supreme Court has repeatedly heard cases alleging racial discrimination. In the 1980s, the U.S. Supreme Court addressed the issue of exclusion of jurors on the basis of race. Even though each party (i.e., prosecutor and defendant) has the right to exercise a certain number of peremptory challenges to a juror for which a reason does not have to be given, the court ruled that it was unconstitutional to use such challenges against jurors on the basis of race (Batson v. Kentucky, 1986).
Race continued to be a troublesome issue for law enforcement in the 1990s. The Rodney King case provides a well-known example. King was arrested in 1991 and during the arrest was beaten by a number of California police officers. The officers were acquitted in state court of criminal charges. However, they were subsequently indicted in federal court for criminal civil rights violations under 18 U.S.C. § 242. Two of the officers were found guilty and sentenced to prison (Koon v. United States, 1996). The King incident highlighted what many minorities assert is the continuing unequal treatment afforded to racial minorities in the enforcement of the criminal law.
Furthermore, in the 1990s, criminal law enforcement was taken to task for the unequal enforcement in what is commonly known as the “driving while black” lawsuit (Maryland State Conference of the NAACP v. Maryland State Police, 1998). A number of law enforcement agencies engaged in the practice of racial profiling, whereby a person is be suspected of committing a crime simply on the basis of—or in part because of—his or her race. Lawsuits such as this, combined with public and political pressure, have reduced the incidence of such law enforcement practices, but they still exist.
Even today, during the early part of the 21st century, matters of race continue to plague the criminal justice system. For example, for decades the rate and extent of incarceration of racial minorities in prison have far exceeded the imprisonment rate and extent of whites.
History indisputably shows that race has been and still is a significant factor in the enforcement of the criminal law in the United States. With the Warren Court in the 1960s, significant improvements to the criminal justice system concerning its intersection with race have been made. There has been moderate, if only minimal improvement since that time, with the changing of the political environment and the U.S. Supreme Court to a more conservative perspective. As a matter of law and policy, the issue of race in the criminal justice system has witnessed positive changes, but there remains much to be done to ensure racial equality in the American criminal justice system.
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