Slavery was rapidly becoming an entrenched institution in American society, but it took brutal force to imposed this sort of mass exploitation upon once-free people. As Equiano wrote, white and black lived together "in a state of war." The more harshly whites enforced racial enslavement, the more they came to fear black uprisings. As they became more fearful, they responded by further tightening the screws of oppression.
Carolina authorities developed laws to keep the African American population under control. Whipping, branding, dismembering, castrating, or killing a slave were legal under many circumstances. Freedom of movement, to assemble at a funeral, to earn money, even to learn to read and write, became outlawed.
To maintain control as the slave population increased, poor and working-class non-slaveowning whites were drafted and organized into local militias and “slave patrols,” which would “keep the peace.”
The slave patrols' function was to police slaves, especially runaways and defiant slaves. They also formed river patrols to prevent escape by boat. Slave patrols were first established in South Carolina in 1704, and the idea spread throughout the colonies.
The very concept of modern policing within the southern slave states was developed at least partially from this mindset, where the primary goal was keeping control of both the enslaved and free Africans who presented a constant danger to their white masters, whom they potentially resented because of their treatment.
Policing in Colonial America had been very informal, based on a for-profit, privately funded system that employed people part-time. Towns also commonly relied on a “night watch” in which volunteers signed up for a certain day and time, mostly to look out for fellow colonists engaging in prostitution or gambling. (Boston started one in 1636, New York followed in 1658 and Philadelphia created one in 1700.) But that system wasn’t very efficient because the watchmen often slept and drank while on duty, and there were people who were put on watch duty as a form of punishment.
In cities, increasing urbanization rendered the night-watch system completely useless as communities got too big. The first publicly funded, organized police force with officers on duty full-time was created in Boston in 1838. Boston was a large shipping commercial center, and businesses had been hiring people to protect their property and safeguard the transport of goods from the port of Boston to other places, says Potter. These merchants came up with a way to save money by transferring to the cost of maintaining a police force to citizens by arguing that it was for the “collective good.”
In the South, however, the economics that drove the creation of police forces were centered not on the protection of shipping interests but on the preservation of the slavery system. Some of the primary policing institutions there were the slave patrols tasked with chasing down runaways and preventing slave revolts, Potter says; the first formal slave patrol had been created in the Carolina colonies in 1704. During the Civil War, the military became the primary form of law enforcement in the South, but during Reconstruction, many local sheriffs functioned in a way analogous to the earlier slave patrols, enforcing segregation and the disenfranchisement of freed slaves.
During the Civil War, we are all aware that Union Gen. Sherman offered “40 Acres and a Mule” to all freed slaves, which in its own way was a re-introduction of the freedom dues from two centuries previously. However, that very first offer of “reparations” was soon rescinded and reversed.
Soon black farmers who had been freed found themselves working on the same land as sharecroppers rather than as slaves, trapped in a restrictive system of “black codes” that was nearly as unfair, brutal, and cruel as what it had replaced.
Sharecropping is a type of farming in which families rent small plots of land from a landowner in return for a portion of their crop, to be given to the landowner at the end of each year. Different types of sharecropping have been practiced worldwide for centuries, but in the rural South, it was typically practiced by former slaves. With the southern economy in disarray after the abolition of slavery and the devastation of the Civil War, conflict arose during the Reconstruction era between many white landowners attempting to reestablish a labor force and freed blacks seeking economic independence and autonomy.
[...]
In the early years of Reconstruction, most blacks in rural areas of the South were left without land and forced to work as laborers on large white-owned farms and plantations in order to earn a living. Many clashed with former slave masters bent on reestablishing a gang-labor system similar to the one that prevailed under slavery.
In an effort to regulate the labor force and reassert white supremacy in the postwar South, former Confederate state legislatures soon passed restrictive laws denying blacks legal equality or political rights, and created “black codes” that forced former slaves to sign yearly labor contracts or be arrested and jailed for vagrancy.
Just as the black codes continued a highly repressive labor system that protected the profits of white landowners, the passage of the 13th Amendment to “end” slavery offered a false promise of change, but ultimately shifted and linked the system of zero cost labor from being tied to race to being tied to “criminal status.”
Amendment XIII.
Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2.
Congress shall have power to enforce this article by appropriate legislation.
This “bait and switch" embedded within the amendment has been recently highlighted by director Ava Duvernay’s film 13th.
KEVIN GANNON: The 13th Amendment to the Constitution makes it unconstitutional for someone to be held as a slave. In other words, it grants freedom to all Americans. There are exceptions, including criminals.
UNIDENTIFIED MAN: There's a clause, a loophole.
GANNON: If you have that embedded in the structure in this Constitutional language, then it's there to be used as a tool for whichever purposes one wants to use it.
MARTIN: You know, your film makes an argument, which will be familiar to some people, but which will be quite provocative to others, that actually the way we use the criminal justice system in this country, particularly the way we use incarceration, is really an extension of slavery, that it's a form of racialized control. And you can see where a lot of people might think, you know, wait a minute, you know, what do you mean? You commit a crime, you go to prison, it doesn't matter what color you are.
DUVERNAY: Yeah, that's why I made this film to answer people who think that. I mean, it's such a complicated answer. The film really unravels the fact that that kind of thinking is too small. That kind of statement really means that you have no context for what you're thinking. And that's not to make anyone feel bad. It's to say we can do better. You can have a more deeply rooted and nuanced knowledge of the fact that, you know, every person who is in prison is not a criminal, that all crimes are not created equal, that all sentences are not equal. And the idea behind "13TH" is to give people that context so that we don't make uninformed statements, that we can all work from a place of knowledge to try to get to a place where we just do better as Americans.
Eventually, the black codes grew into the Jim Crow system of southern and sometimes northern segregation which was enforced by bigoted police and courts as well as the terrorist attacks and murders committed so-called Christian Knights of the Klu Klux Klan, which had originally been an organization formed by former Confederate Gen. Nathan Bedford Forrest.
The 14th Amendment was later implemented as a correction for the Dred Scott decision where Supreme Court Chief Justice Taney, a southern conservative and supporter of slavery, argued that African-born and descended people within America literally did not have rights as citizens, whether they were free or enslaved.
The Supreme Court decision Dred Scott v. Sandford was issued on March 6, 1857. Delivered by Chief Justice Roger Taney, this opinion declared that slaves were not citizens of the United States and could not sue in Federal courts. In addition, this decision declared that the Missouri Compromise was unconstitutional and that Congress did not have the authority to prohibit slavery in the territories. The Dred Scott decision was overturned by the 13th and 14th Amendments to the Constitution.
The 14th Amendment, ratified in 1789, states:
Amendment XIV.
Section 1.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2.
Congress shall have power to enforce this article by appropriate legislation.
The 15th Amendment granted African-American citizens the right to vote:
Amendment XV.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Despite the passage of the 13th Amendment, slavery continued to exist in America as inmates and convicts could be forced into hard labor through methods such as chain gangs used for union busting, and within for-profit prisons. The dropout-to-prison pipeline grew and racially-biased police and prosecution practices continued to send black suspects into prison at an alarming rate, far higher than their relative rate of crime.
Despite the 14th Amendment which was ratified in 1868 and supposedly granted equal protection of the law, the black codes continued to spread across the South and were eventually codified in the “separate but equal” doctrine as established by the 1896 Supreme Court decision Plessy v. Ferguson. Multiple attempts at civil rights legislation as enabled by Section 2 of the amendment were attempted during the 19th century, but failed due to the resistance of representatives of former slave-owning southern states. Legislation fully enabling this amendment wasn’t written and passed until the 1963 Civil Rights Act, a mere 95 years after the 14th was originally passed.
During that near century, efforts including the 1915 release of D.W. Griffith’s Birth of a Nation again revived the bigoted stereotypes of lazy, shiftless, ignorant Africans being granted power and rights via the post-Civil War reconstruction. They argued that this was undeserved by “savages” who could not properly handle the responsibility and painted the terrorist KKK as heroes of American values and honor, inspiring their ranks to grow to tens of thousands who eventually marched unmasked in the streets of Washington in 1913 and committed more than 4,000 lynching murders of Americans both black and white.
Despite the 15th Amendment which was ratified in 1870 to guarantee voting rights despite race or color, Jim Crow states established a system of poll taxes and literacy tests designed to place barriers before African Americans which blocked them from voting until Congress finally implemented protective legislation with the Voting Rights Act of 1968, 98 years later.
All of these amendments were promises to African-American people that things would change and get better, but in all three cases America failed its promise. Things changed post-slavery, but not exactly or completely for the better.
The first positive movement following Plessy, where it began to appear that things would improve, was Brown v. Board of Education which overturned “separate but equal.” However, it had consequences in that it began an age of “white flight” out of the cities and their public schools to the suburbs and private schools, which were intended to counter the efforts of desegregation.
Private schools may have a long, honorable tradition in America that goes back to colonial times, but that tradition ended—at least in the American South—in the last half of the 20th century when they were used as safe havens for Southern whites to escape the effects of the impending and ongoing desegregation mandates. This exodus from public schools began in the 1940s, when private school enrollment in the 15 states of the South[1] rose by more than 125,000 students—roughly 43 percent—in response to US Supreme Court decisions outlawing segregation in graduate and professional schools in the South.[2] While the decisions only concerned institutions of higher education, it signaled to watchful Southern leaders that desegregation might soon spread to their public elementary and secondary schools, compelling them to react in ways to defend their way of life.
Over the decades since the Brown decision, school district lines have been drawn to follow segregated demographic lines which. This created a deficit of $23 billion per year funding between predominantly white and minority schools.
In 2018, on the 64th anniversary of that ruling, a lawsuit filed in New Jersey claimed that state's schools are some of the most segregated in the nation. That's because, the lawsuit alleged, New Jersey school district borders are drawn along municipality lines that reflect years of residential segregation.
The idea that school district borders carry years of history is the premise of a new report from the nonprofit EdBuild, which studies the ways schools are funded in the U.S.
The report starts with a number: $23 billion. According to EdBuild, that's how much more funding predominantly white school districts receive compared with districts that serve mostly students of color.
"For every student enrolled, the average nonwhite school district receives $2,226 less than a white school district," the report says.
This is a situation where the wealth gap between white and minority students is directly reflected in the funding of their local school districts, as local taxes and resources are typically used to fund schools.
Today our schools are actually more segregated than they were in 1989.
Is school segregation not actually getting worse? It depends on how you measure it.
The core disagreement comes down to federal government data that was highlighted by the UCLA Civil Rights Project on the 60th anniversary of Brown v. Board of Education, the Supreme Court case that ruled segregated schools were unconstitutional.
The data shows that black students in the South are less likely to attend a school that is majority white than about 50 years ago:
In his essay on reparations published in The Atlantic, Ta-Nehisi Coates didn't just focus on these subjects which were largely prevalent in the South. He instead focused on the impact of wage theft, land theft, and racial red-lining in housing in the North and the West for African-Americans who had migrated out of the South, which for some years was government-implemented and used to create minority-filled ghettos devoid of public resources and support, devoid of jobs, devoid of functioning schools, and ultimately devoid of hope.
Ross was shipped off to Guam. He fought in World War II to save the world from tyranny. But when he returned to Clarksdale, he found that tyranny had followed him home. This was 1947, eight years before Mississippi lynched Emmett Till and tossed his broken body into the Tallahatchie River. The Great Migration, a mass exodus of 6 million African Americans that spanned most of the 20th century, was now in its second wave. The black pilgrims did not journey north simply seeking better wages and work, or bright lights and big adventures. They were fleeing the acquisitive warlords of the South. They were seeking the protection of the law.
Clyde Ross was among them. He came to Chicago in 1947 and took a job as a taster at Campbell’s Soup. He made a stable wage. He married. He had children. His paycheck was his own. No Klansmen stripped him of the vote. When he walked down the street, he did not have to move because a white man was walking past. He did not have to take off his hat or avert his gaze. His journey from peonage to full citizenship seemed near-complete. Only one item was missing—a home, that final badge of entry into the sacred order of the American middle class of the Eisenhower years.
[...]
Three months after Clyde Ross moved into his house, the boiler blew out. This would normally be a homeowner’s responsibility, but in fact, Ross was not really a homeowner. His payments were made to the seller, not the bank. And Ross had not signed a normal mortgage. He’d bought “on contract”: a predatory agreement that combined all the responsibilities of homeownership with all the disadvantages of renting—while offering the benefits of neither. Ross had bought his house for $27,500. The seller, not the previous homeowner but a new kind of middleman, had bought it for only $12,000 six months before selling it to Ross. In a contract sale, the seller kept the deed until the contract was paid in full—and, unlike with a normal mortgage, Ross would acquire no equity in the meantime. If he missed a single payment, he would immediately forfeit his $1,000 down payment, all his monthly payments, and the property itself.
The racial red-lining that impacted Clyde Ross was a matter of government policy during the ‘60s and ‘70s. Similar racial schemes were implemented with lending for farms through the Department of Agriculture during the ‘80s through ‘90s, when African-American farms were wrongfully denied loans in the Pigford I and II lawsuits in 2014.
In 1997, Timothy Pigford – a soybean and corn producer from North Carolina – sued the United States Department of Agriculture.
Pigford’s lawsuit cited years of racial discrimination as the main reason as to why he and many other black producers were denied loans, and it eventually resulted in the largest civil rights settlement in the history of the United States.
More than 15 years after the case was filed, many farmers are finally receiving their portion of the settlement.
Producers who joined the Pigford lawsuit had two options when filing for a portion of the more than $2 billion settlement. One option, the most common claim, was to receive a one-time $50,000 payment.
Checks for those payments were mailed just months ago.
We’ve continued to see biased and predatory lending and elaborate mortgage schemes like Pigford and that which affected Clyde Ross, which specifically targeted African-Americans and massively undermined their accumulation of family wealth as recently as the 2008 financial meltdown.
Pricing discrimination — illegally charging minority customers more for loans and other services than similarly qualified whites are charged — is a longstanding problem. It grew to outrageous proportions during the bubble years. Studies by consumer advocates found that large numbers of minority borrowers who were eligible for affordable, traditional loans were routinely steered toward ruinously priced subprime loans that they would never be able to repay.
We’ve seen financial discrimination cases of this type as recently as 2016.
(Reuters) — BancorpSouth Inc. has agreed to pay $10.6 million to settle civil charges that it discriminated against African-American prospective home buyers in the Memphis area as well as in parts of neighboring Mississippi and Arkansas, the U.S. government said on Wednesday.
The U.S. Justice Department and Consumer Financial Protection Bureau said in a court filing that the Mississippi-based bank turned down black home buyers applying for mortgages more often than similar white applicants, or charged them higher rates to borrow under a policy the government described as “explicitly discriminatory.”
The bank also allegedly engaged in redlining in Memphis, a practice to deny service because of an area’s racial demographics, by placing its branches outside of minority neighborhoods, the agencies said.
We’ve also seen voter ID schemes which were quite literally designed and targeted to block the black vote by closing voting precincts and DMV offices in minority neighborhoods, restricting early voting hours.
A federal appeals court panel struck down North Carolina’s voter ID law on Friday, overturning what’s considered the broadest piece of restrictive voting legislation passed in recent years.
This is the second voter ID law to be overturned in as many weeks, while another was weakened. A separate federal appeals court struck down Texas’ last Wednesday, ruling that it discriminated against black and Latino voters by presenting an undue burden to accessing the ballot. A day earlier, a federal judge curbed Wisconsin’s voter ID law, allowing voters who don’t have identification to cast a ballot if they swear to their identity.
North Carolina’s bill extended beyond requiring a state-issued photo ID at the polls. The law cut early voting days and banned same-day voter registration, eliminated straight-ticket voting, which allows voters to choose all candidates from a single party by checking one box; and introduced more restrictions on casting provisional ballots. It prohibited pre-registration for 16- and 17-year-olds, who previously were allowed to indicate their intent to vote when applying for a driver’s license. The law also allowed for more poll watchers and made it easier to challenge voters or their ballots.
In addition to all this we still have police departments that essentially function identically to the slave patrols. Case in point: the Chicago Police Department, which was shown by the Department of Justice to have the following pattern of troubling practices.
- Shooting at fleeing suspects who presented no immediate threat;
- Shooting at vehicles without justification;
- Using less-lethal force, including tasers, against people who pose no threat;
- Using force to retaliate against and punish individuals;
- Using excessive force against juveniles;
- Failing to effectively de-escalate situations or to use crisis intervention techniques to reduce the need for force
- Employing tactics that unnecessarily endanger officers and result in avoidable shootings and other uses of force;
- [That] The city fails to investigate the majority of cases it is required to investigate by law.
- When it does investigate, the questioning of officers is aimed at eliciting information favorable to the officer, and investigators do not confront officers with inconsistent physical evidence.
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The city does not take sufficient steps to secure accurate and complete witness statements, including by preventing officers from concealing misconduct.
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Discipline is haphazard, unpredictable and does not deter misconduct.
Despite the efforts of former Attorney General Jefferson Beauregard Sessions III, Chicago police have reached out to the community, which continues to generally reduce crime and murders. But that effort has still struggled with difficulties and budget cuts, considering the long history of mistrust.
"Chicago is where the whole idea of community policing began," Mayor Rahm Emanuel said in a speech on police accountability on December 9, 2015, just two weeks after the release of the Laquan McDonald video rocked the city and sparked a crisis in police-community relations. "It remains the best and most comprehensive approach we have in changing the everyday conditions that breed crime and violence and then breed mistrust."
But nine months after that speech, an analysis by City Bureau and the Reader finds CAPS in crisis. Chicago's once-trailblazing community policing program has been hollowed out by years of budget cuts and restructuring. Stretched thin, the police department no longer has the money necessary to reach out to the community and quickly follow up on citizen complaints such as the ones made about the house on Chicago Avenue. Neighborhoods like those on the city's west side struggle with far fewer resources and institutional knowledge than in previous years. CAPS today is an uneven patchwork of programs around the city. The result has been the destruction of the trust and goodwill the police department had built in the early years of CAPS.
Even when you have wrongful police shooting cases such as Laquan McDonald, or the even more recent case of Stephon Clark in Sacramento, justice is hard achieve, particularly when there are some states that still don’t meet the federal standard on police use of force, which was established by the Supreme Court more than 30 years ago.
The caselaw Sinyangwe is talking about is Tennesee v. Garner, where the Supreme Court found:
A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. 1983 for asserted violations of his son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of Appeals reversed.
Held:
The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22. [471 U.S. 1, 2]
All of this is part of an argument about modern policing that I’ve made before.
As Sam Sinyangwe points out above, at least 13 U.S. states like Missouri have not updated their laws to reflect this decision, which is 33 years old. It seems reasonable that that should be corrected with a federal law that says police who injure or harm a suspect must have “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Police should be held accountable consistently, they should liable to suffer civil and criminal penalties for assault, or if the subject dies, murder.
The states aren't going to make this modification, Congress has to do it.
So in summary, we’ve had 250 years of chattel racial slavery, followed by 100 years of racial terrorism and lynchings, sharecropping, black codes, Jim Crow, segregation, poll taxes, literacy tests, and the denial of voting rights. This was followed by another 50 years of a racially biased police and criminal justice system; red-lining; housing, lending, and job discrimination; voter suppression; white-flight; re-segregation; and a rapidly increasing wage and wealth gap.
And frankly, as bad as this is, the injustice and crimes that America rendered upon our Native American population is actually far, far worse than any of this and certainly should be addressed as well.
Reparations aren’t just about slavery itself (which again, didn’t technically end in 1868). It’s about all of this, all of these various issues of continued racial injustice and violence which have spanned more than 400 years.
How exactly do you get your head around all of this? How do you quantify what this type of generational trauma has done to black people, and for that matter how this trauma has impacted white people —placing them in a constant state of fear from violent, righteously indignant black retribution—as well? How do we fully implement the dream of the Rev. Dr. Martin Luther King Jr. with all this baggage on our backs?
Perhaps the reason we haven’t implemented any sort of reparations is that the depth of the damage and the wound is too deep and too vast to fully address and comprehend. A simple cash injection is not enough, and frankly America doesn’t have enough money to make all of this right. Repairing all this will take a concerted, dedicated effort to stop continuing and repeating the mistakes of the past as well as committing ourselves to finally make it better by literally repairing what is broken here.
And not just better for black people—better for everyone.
Just as the Pigford suit has attempted to address the bias and discrimination in lending that affected African-American farmers for more than decades, we need to recommit ourselves to acknowledging and addressing each of these issues one by one, and piece by piece.
We may not be legally able to directly address the financial impact and benefit that was granted to slave owners and their families for being allowed to buy and sell people and profit off their labor for generations, simply because it’s not possible to fully quantify the value of the stolen wages from 227 years of racial slavery that began in Massachusetts in 1641 and continued openly until the 13th Amendment was ratified in 1868. It’s also a problem that under the state laws and Constitution of the time, this was all perfectly legal and ex post facto laws and suits to recover these lost wages, even in the currency of the time, are not valid under the Constitution.
Ex post facto is most typically used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the United States Constitution prohibit ex post facto laws:
- Art 1, § 9
- This prohibits Congress from passing any laws which apply ex post facto.
- Art. 1 § 10.
- This prohibits the states from passing any laws which apply ex post facto.
It’s also doubtful that families of prisoners who were also used for labor and not compensated after the passage of the 13th Amendment more than 151 years ago will ever see compensation because of the same ex post facto limitations.
But many of these other issues can be addressed.
Anything that was illegal at the time, from continued discrimination after the Civil Rights, Voting Rights, and Public Accommodations Act to red-lining and biased lending and job discrimination, can continue to be pursued in court in cases like the Pigford suit. Police departments and states that have failed incorporate Tennesee v. Garner can be addressed with the setting of federal standards for valid police use of force. Federal efforts implementing the 21 Century Police Project pioneered by President Barack Obama, including funding for community policing as has been highlighted by the Black Lives Matter project Campaign Zero, can be pushed forward. Federal support for Obama’s My Brother’s Keeper project to reach out to at-risk youth in our cities and nation can be expanded, as well as continued efforts to address, repair, and correct biased redistricting, which is Obama and former Attorney General Eric Holder’s current project.
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