Abstract

Excerpted From: Geoff K. Ward, Crime Against Law: Legacies of Racial Violence for Crime and Punishment, 53 Crime and Justice 1 (2024) (References) (Full Document Requested).

In the fall of 1889, a Black teen named George Bush was being held in the county jail in Columbia, Missouri, on the complaint of having “mistreated” a White girl. Untroubled by law enforcement officers sworn to protect their inmate, a mob of around 25 armed White men took Bush from the jail, tied a noose around his neck, and carried him into the neighboring courthouse, where they hanged him from its second-story window. A note pinned to his chest warned people passing the court that anyone suspected of a similar breach would face the same fate. None of the perpetrators responsible for the abduction and murder, breaking and entering, and menacing criminal threats were punished (“The Lynching of George Bush” n.d.). Then as now, this crime scene of a young Black man hung from the window of the courthouse itself is a powerful and disturbing illustration of the logic of racialized violence literally spilling into and back out of legal institutions, corrupting the idea and practice of justice.

This is one of countless historical illustrations of racism degrading humanity, largely through its distortion of the moral universe and related normative and institutional structures and of dominant societal notions regarding to whom moral obligations are owed, and which obligations are enforced. This racialization of the de jure and de facto terms of social control corrupts the rule of law, not only in a particular moment of injustice, but in its long wake. Examples of racist encodings and mobilizations of law to sustain white supremacy and specific economic, political, and cultural agendas of dominance in the United States are well-established. They are plainly evident in the language of law itself, including the United States Constitution, whose concessions to slavery led abolitionist William Lloyd Garrison to characterize this founding document as “the source and parent of all the other atrocities: a covenant with death, an agreement with hell”.

Within the genealogy of the US Constitution are prior colonial and subsequent state Black Codes, along with various other legislative, policy, and normative devices facilitating White racial dominance across social and institutional contexts. These instruments typically bind the social construct of race to criminalization and policies and practices of criminal social control. For example, the Negro Law of South Carolina (1740) deputized “any white person” to violently enforce “negro law.” The colonial law stipulated that, “if any slave ... shall refuse to submit or undergo the examination of any white person, it shall be lawful for any such white person to pursue, apprehend, and moderately correct such slave, and if such slave shall assault and strike such white person, such slave may be lawfully killed.

Similar ordinances and norms of white supremacist policing stretched into the twentieth century, underwriting racialized violence, conflict, and inequality that persist today. Prior legacies research has emphasized the key role of ““racially weaponized law” in a recursive, multidimensional, and cascading procession of injurious legal action and inaction that accumulates and repeats over time . As Christina Sharpe writes, “Slave law transformed into lynch law into Jim and Jane Crow, and other administrative logics that remember the brutal conditions of enslavement after the event of slavery has supposedly come to an end.” A half century after abolition an Illinois national guardsmen sent to quell the East St. Louis, Illinois, racial massacre in 1917 encountered an AfricanAmerican rightfully defending his life and property and reportedly turned to the White mob and announced, “He's armed, boys. You can have him. A white man's life is worth the lives of a thousand Negroes”. Legal scholar Kitty Calavita argues that racialized US immigration laws conditioned generations of White Americans to understand themselves as “masters of national space,” an orientation still evident in the attitudes and behaviors of colloquial “Karens”, various militias, and other ties binding white supremacy, criminalization, and punishment. Numerous studies of the racialization of crime (e.g. what is criminal and what is not, and what is the meaning of “serious crime”) and criminal social control address this vast nexus of racism, crime, and justice, demonstrating the close coupling of racial and legal socialization and its myriad implications.

While racism is itself a problem of interconnected cultural, structural, and direct violence, I do not survey the broad array of social-historical research on racism, crime, and justice. The focus here is on research linking area histories of racialized violence, especially enslavement and lynching, to subsequent patterns of crime and punishment in these very places. Despite appearances that these legacies have received research attention only in recent decades, the role of racialized violence in degrading fundamental democratic values and institutions has been widely recognized for at least two centuries. This long-standing concern is especially evident in the work of generations of African-American scholars and public intellectuals whom segregation relegated to the margins of academic and policy debate. Contemporary research empirically confirms and theoretically elaborates the relationship between historical racial violence and degradation of the rule of law and suggests potential strategies for reparative intervention. After more than a century of failed legislative effort, the US government in 2008 committed to investigating and prosecuting historic lynchings and only recently, in 2022, recognized lynching as a federal crime. While these efforts may help, federal, state, and local governments should draw upon legacies research to advance other approaches to redress, including preservation and development of community protections in places that remain especially vulnerable to legacies of slavery and lynching, and restorative-justice initiatives.

This essay proceeds in three parts. Section I documents the historically long-standing concern that racial violence constitutes “crime against law,” a deep vein of work on the corruption of the rule of law that is largely unacknowledged yet theoretically and empirically elaborated in late twentieth-century research. Section II considers the mid- to late twentieth-century shift from predominantly historical research documenting slavery, lynching, and other racial violence to social science research theoretically and empirically addressing enduring cultural and institutional impacts. Section III closes with a discussion of research and policy implications with emphasis on evidence of the potential to mitigate legacies of racist violence.

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Finally, as municipal governments and local publics across the US explore reparations for slavery and its wake, and federal legislators debate related and long-stalled legislation, they should consider how reparative justice measures can counter legacies of racial violence in crime and punishment, including corruption of the rule of law and concentrations of race-based advantage and disadvantage. Although reparations debates and frameworks are inconsistent in their engagement with the principle and dimensions of transitional justice, it is clear from nearly two centuries of research and advocacy that fully addressing the history of slavery requires a transformative transitional-justice response to its legacies. From a transitional justice perspective, this evidence relates most directly to the promise of nonrepetition. Works discussed here provide insights into specific areas (e.g. violence, hate crime, incarceration, and the death penalty) and potential means of countering repetition. Broad support for reparations policies and practices would itself represent meaningful resistance to the behavioral and institutional path dependence associated with legacy effects. These interventions should aim to bolster “structural safeguards” shown to limit exposure to harms of historical racial violence, such as shared political power, while also building stronger relationships of political interdependence, resting on shared truth, to pave and sustain new paths of transformative justice.

Geoff K. Ward is a professor of African and African-American studies at Washington University in St. Louis.