‘It’s not random’: How the government built a justice system that criminalizes Black Americans

America is having a long overdue conversation about policing and justice.

Most of us know that the American justice system looks different for Black and Brown Americans. And many of us probably have a sense of why the system has always worked against them. But this week we’re examining just how expansive and damaging that system has been.

Dr. John Giggie, an historian at the University of Alabama and director of the Summersell Center for the Study of the South, outlines how the roots of today’s problem of mass incarceration can be found in slave patrols, mass lynchings, and convict leasing. And Beth Shelburne, a journalist who has dedicated her career to covering the ins and outs of the prison industrial complex, walks us through the unique issues plaguing Alabama’s prisons — one of the most dangerous prison systems in the country — as well as problems similar to all prisons across the South.

Here are a few excerpts from our conversation with Dr. John Giggie. Check back tomorrow for our discussion with Beth Shelburne, but you can listen to the whole episode here.

And go ahead and subscribe on Apple Podcasts, Spotify, Acast or wherever else you get your podcasts to stay informed about the South this election season.  

Dr. John Giggie on how slave patrols evolved into today’s system of mass incarceration.

One of the stunning things about current mass incarceration rates, but just mass incarceration culture in general, is how much it looks like it always has. A consistent policing of or imprisoning of bodies of color is not something new, but is something tragic that dates back, not just generations, but hundreds of years.

If you start back even during slavery times you saw the formation of slave patrols, which were often state funded or local funded efforts to manage Black men and women who were in bondage, Black Americans who were forced to labor their entire lives with really no hope of freedom. Slave patrols came into being in large part to prevent slave insurrections. They were a public funded effort to limit, to minimize, to completely deny Black efforts to achieve what today we would call basic human rights.

Now that link between public funding and the government on the one side and the imprisoning of Black bodies on the other certainly began before the Civil War. But it continued in various phases throughout the Civil War moving forward to the present moment.

The Civil War, of course, broke slavery forever, but it bequeathed a population of nearly 4 million Black Americans who were at once free, but never quite equal to white Americans. We have brief moments of genuine equality in which the federal government, often at the point of a bayonet, prompted and prodded Southern society to recognize that skin color really had no bearing on the acquisition of basic human rights, basic citizenship.

That idea, though, of Black Americans as fully enfranchised Americans was immediately contested in the Deep South. And it was never quite accepted by anyone, for the most part, who was a former Confederate supporter. What you see immediately are efforts, first at the local, then regional, and then eventually federal levels, not so much to reinstate slavery, but to try to limit Black rights so that white control of Black bodies was never to be contested again.

You see, in one example, the implementation of Black Codes in various forms across the Deep South. Those were overt attempts by post-Civil War governments run by former Confederates and their white Democratic supporters to literally attempt to make Black men and women, once again, serve at the bequest of a white employer. Whereas slavery was gone, the ability of white people to own and control land and demand and often receive Black people working for minimal wages under terrible conditions persisted.

This is not to say that Black Americans accepted such a lowly status, the history of America could well be written by looking at persistent and steady efforts of Black resistance to win their rights to recover liberties that supposedly were one during the Civil War. But part of that story is deeply tragic, because even as African Americans fought for their rights, they were often defeated in very profound, tragic and often very violent ways.

Reconstruction, in the end, became the deferral of a dream. The dream birthed by the Civil War was the promise of full freedom run across America, regardless of skin color. Reconstruction signaled the end of that dream or deferred it for over a generation to the modern Civil Rights Era. In its place became decades of assault on Black citizenship. Often those assaults were deeply violent.

Recently, the work of the Equal Justice Initiative based in Montgomery, uncovered a series of mass lynchings between 1865 and the end of Reconstruction. In Alabama, it looks like at least 130 black people were killed after the Civil War in a mass lynching. What’s significant here is lynching was not unusual. It became a tragic fact of Southern society that persisted for generations. It became the most visible elements of a government, both local and regional, and federal, that was arraigned violently and bloodily against the ability of Black citizens to achieve their rights.

Part of lynching, of course, represents the extra-legal effort to control Black people. At the same time, you see the building of legal efforts not simply through laws, but through the building of a modern prison system. You begin to see aspects of what today we would call the convict-lease system, in which young Black men, typically, could be sent to jail and prison for minor offenses. Often perhaps they were caught loitering. They could be sent to prison for this. And there, they could expect to have a sentence that was enormously incommensurate with their supposed crime.

What you see is the growth of an early version of a modern criminal justice system that would imprison and then employ Black bodies for years. And these Black individuals were often called upon by the state to build roads to take care of large agricultural former plantations. But often these Black individuals were rented out sometimes by local prisons to local landowners, for pennies on the dollar, to be employed in a way that could provide these landowners, who were white, with very inexpensive, arguably pliable, Black labor.

Dr. John Giggie on the role of the Lost Cause in our justice system

The creation of a criminal justice system that is disproportionately African American, it’s not random. It’s not haphazard, it involves intentional steps taken by public officials at every level of government, of society. You would have governors all the way down to mayors basically acting in lockstep on the need to have a very controlled Black labor force that could fund these larger efforts to reinvent Southern cities in the decades after the Civil War.

That would be the public wing of the ways in which you could try to use criminal justice to harness and control Black labor. The other part would be the cultural wing, the ways in which for example, you have the growth of the Lost Cause, which is a very successful effort in the Deep South to reinvent the meaning of the Civil War—that it wasn’t a war that was about slavery, it was a war fought for honorable ambitions to prevent Yankee invasion, to preserve state sovereignty. The issue of bonded labor was completely removed from that. What you have instead is the creation of an honorific society in which Civil War veterans become seen as heroes, Jefferson Davis becomes a very common statue in many Southern cities.

Part of this as well is to look at how Blacks fit into this world of the Lost Cause. And they fit into it very badly. the Lost Cause was not only about valorizing Confederates but demonizing African Americans. A key part of the Lost Cause, of course, was the construction of a white purity narrative. That is that white women, in part, were why the South fought so hard, to preserve their honor to preserve their dignity. But to preserve it from what? Part it [in this narrative] was to preserve it from a presumed black criminality, the need to protect white women from ‘frenzied African American men who are criminals of the worst sort, often looking to commit crimes of a sexual nature.’ So this fueled an interest in creating laws that could, again, subjugate Black men, limit their mobility.

It was also part of the underpinning of lynching culture that develops. And we now know that so many of the alleged crimes that Black men were accused of were of a sexual nature, [for example] a Black man supposedly assaulted a white woman. And this, of course, directly violates the Lost Cause tenets of white purity, particularly white female purity.

And it fueled these extra-legal efforts to use public lynchings as a way to demonstrate white mastery to demonstrate white control of society but also to reinforce to African American communities, that they’re powerless. That they have to obey the most cruel rules and norms and regulations if they’re simply going to survive.

To hear about how the criminal justice system evolved after the civil rights movement, listen to the full episode here.

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