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The U.S. Constitution, as originally enacted, recognized that those persons who were not free (i.e., slaves) were not endowed with the full rights of citizenship.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.