The United States has the highest rate of incarceration of any nation on Earth: We represent 4 percent of the planet’s population but 22 percent of its imprisoned. In the early 1970s, our prisons held fewer than 300,000 people; since then, that number has grown to more than 2.2 million, with 4.5 million more on probation or parole. Because of mandatory sentencing and “three strikes” laws, I’ve found myself representing clients sentenced to life without parole for stealing a bicycle or for simple possession of marijuana. And central to understanding this practice of mass incarceration and excessive punishment is the legacy of slavery.
It took only a few decades after the arrival of enslaved Africans in Virginia before white settlers demanded a new world defined by racial caste. The 1664 General Assembly of Maryland decreed that all Negroes within the province “shall serve durante vita,” hard labor for life. This enslavement would be sustained by the threat of brutal punishment. By 1729, Maryland law authorized punishments of enslaved people including “to have the right hand cut off ... the head severed from the body, the body divided into four quarters, and head and quarters set up in the most public places of the county.”
Soon American slavery matured into a perverse regime that denied the humanity of black people while still criminalizing their actions. As the Supreme Court of Alabama explained in 1861, enslaved black people were “capable of committing crimes,” and in that capacity were “regarded as persons” — but in most every other sense they were “incapable of performing civil acts” and considered “things, not persons.”
The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes. After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.” The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.” Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control.
These strategies intensified whenever black people asserted their independence or achieved any measure of success. During Reconstruction, the emergence of black elected officials and entrepreneurs was countered by convict leasing, a scheme in which white policymakers invented offenses used to target black people: vagrancy, loitering, being a group of black people out after dark, seeking employment without a note from a former enslaver. The imprisoned were then “leased” to businesses and farms, where they labored under brutal conditions. An 1887 report in Mississippi found that six months after 204 prisoners were leased to a white man named McDonald, dozens were dead or dying, the prison hospital filled with men whose bodies bore “marks of the most inhuman and brutal treatment ... so poor and emaciated that their bones almost come through the skin.”
Anything that challenged the racial hierarchy could be seen as a crime, punished either by the law or by the lynchings that stretched from Mississippi to Minnesota. In 1916, Anthony Crawford was lynched in South Carolina for being successful enough to refuse a low price for his cotton. In 1933, Elizabeth Lawrence was lynched near Birmingham for daring to chastise white children who were throwing rocks at her.
It’s not just that this history fostered a view of black people as presumptively criminal. It also cultivated a tolerance for employing any level of brutality in response. In 1904, in Mississippi, a black man was accused of shooting a white landowner who had attacked him. A white mob captured him and the woman with him, cut off their ears and fingers, drilled corkscrews into their flesh and then burned them alive — while hundreds of white spectators enjoyed deviled eggs and lemonade. The landowner’s brother, Woods Eastland, presided over the violence; he was later elected district attorney of Scott County, Miss., a position that allowed his son James Eastland, an avowed white supremacist, to serve six terms as a United States senator, becoming president pro tempore from 1972 to 1978.
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