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excerpted from: Paul Finkelman, The Crime of Color, 67 Tulane Law Review 2063 (June, 1993)(251 Footnotes) (Full Article unavailable)


Paul FinkelmanAmericans often associate crime with African Americans and other minorities. The image of Willie Horton was effective in the 1988 presidential campaign because it reflected a pervasive belief in America that blacks are a dangerous class. Bolstering these images are crime statistics that reveal a disproportionate number of nonwhites in prisons and jails.

This Tulane Law Review Symposium will doubtless consider some of the reasons for these statistics. My goal is to explore the earliest origins of this belief, which demonstrates that since colonial times the legal system has seen color itself as a sign of criminality. To understand the modern relationship between race and criminal law one must study the historic connection between defining crime, criminal law, and race. The idea that color itself can create or denote criminal behavior is deeply rooted in our history. In addition, we have not fully escaped our colonial and early national past. Well into the twentieth century American law recognized and accepted the notion that race could either enhance the penalties for a crime or create a crime out of a normally noncriminal activity. As late as 1964 and 1967, the United States Supreme Court overturned criminal convictions that were based solely on the race of the alleged lawbreakers.

While criminal law has adversely affected all minorities in America, this Article focuses on people of African ancestry and the way in which their presence in America has led to definitions of illegal behavior based on race. I focus on blacks because they are the largest nonwhite minority in America and because more law has been created around them than all other minorities combined. In terms of law, African Americans have been treated differently than other groups: no other group was almost universally enslaved, denied an education, and systematically persecuted by statutes and other formal law over such an extended period of time. I do this while fully recognizing that other groups such as Asians, Pacific Islanders, Hispanics, and Native Americans have also been treated, at various times, as being inherently criminal merely because of their race.

The treatment of Native Americans provides a useful contrast that sets up an understanding of the special status of Africans in America. From the colonial period to the end of the Civil War Native Americans had the dubious distinction of being treated worse than blacks, because, at the time blacks were encouraged to survive and reproduce as economically valuable slaves, while government policies encouraged the systematic destruction of Indian peoples. Yet, in terms of the legal system's use of race, this led to some strange results. When not killing them or herding them into isolation on reservations, white America sometimes allowed and even encouraged at least some Indians to acculturate, and in effect, become whites. In the seventeenth century southerners usually saw the Indian as “a savage beast,” but a century later the Indian became a “noble savage” who might be integrated into American society.

Thus by the mid-eighteenth century southerners who believed in the natural inferiority of blacks invariably considered Indians far closer to whites in their inherent abilities and qualities. Leaders of colonial Virginia, like William Byrd and Robert Beverley, advocated that whites and Indians intermarry. Their descriptions of Indians reveal admiration for their culture and their physical characteristics. Yet both Byrd and Beverley were slaveholders who had little desire to undermine race relations between blacks and whites or encourage marriage between those two groups.

Similarly, Thomas Jefferson saw Indians as noble savages, while revealing disdain and hatred for blacks. Jefferson wrote blacks were “in reason much inferior” to whites, “and that in imagination they are dull, tasteless, and anomalous.” In contrast he noted that Indians

will often carve figures on their pipes not destitute of design and merit. They will crayon out an animal, a plant, or a country, so as to prove the existence of a germ in their minds which only wants [lacks] cultivation. They astonish you with strokes of the most sublime oratory; such as prove their reason and sentiment strong, their imagination glowing and elevated. But never yet could I find that a black had uttered a thought above the level of plain narration; never see even an elementary trait of painting or sculpture [in blacks] .... Misery is often the parent of the most affecting touches in poetry-Among the blacks is misery enough, God knows, but no poetry.

One surprising example of the inconsistency between the mistreatment and the acceptance of Indians can be found in a twentieth century Virginia statute. In 1924 Virginia defined a white person as having “no trace whatsoever of any blood other than Caucasian.” Nevertheless, this statute allowed someone to be “white” if the person had up to one-sixteenth Indian ancestry. Despite centuries of savage attacks on the very existence of native peoples, Virginians, at the height of the Jim Crow era, were willing to allow people with some Indian ancestry to be classified as white. At no time did white southerners accept the notion that people of African ancestery should be or could be considered “white” under any law that defines people by race. With this understanding, I now turn to the way in which American law has defined color-especially color connected with African ancestry-as part of the criminal law of the nation.

Like the relationship between early colonists and Native Americans, the relationship between race and crime is nearly as old as the settlement of America itself. The first Africans to come to the mainland British colonies arrived in Virginia in 1619. By the end of the seventeenth century most of the American colonies had taken steps to make race itself a sign of criminal behavior. The final criminalization of race did not end in the colonial period. As late as 1967, at least some otherwise legal activities were illegal merely because of the race of the participants.

Early in American history, legislatures and courts created categories of proscribed behavior that were based on race or influenced by race. In some situations merely being of a certain race affected one's status, in essence making one a criminal. More commonly, behavior that was legal for whites became criminal if conducted by blacks. In other instances, race affected punishment, almost always to the detriment of blacks.

Initially blackness did not lead to a presumption of any particular status. Early in the colonial period this changed, however. Throughout the South color led to the development of a presumption that all blacks had a certain status at law. This was the equivalent, in criminal law terms, to what might be called a presumption of guilt based on race. Well before the American Revolution courts and legislatures concluded that blackness presumptively meant someone was a slave. This meant that if a black was found away from the control of a white, the black was presumed to be guilty of something: travelling without a pass, running away, or being in rebellion. For example, slave patrols might whip or arrest any black walking around at night without a pass, because the very act of being away from a master's premises without permission was criminal.

The presumption of guilt flowed to free blacks as well. In antebellum Virginia every free black had to register with county officials and carry a copy of his or her free papers at all times. Free blacks without their papers would be “committed to jail by a justice, until such copy [of his papers] be produced, or till the court be satisfied that it has been casually lost or destroyed.” The black would then be released from jail, “on paying jail fees.” Free blacks unable to pay the fees could be hired out as indentured servants. Free blacks twice arrested for being without papers would be whipped.

In addition to the crime of blackness, early America developed separate criminal procedures, protections, and punishments for blacks, whether slave or free. Race became the key to a fair trial and an impartial administration of the law. The most important legal rule was the right to testify against whites. Initially blacks seem to have had this right in Virginia, but it disappeared in the eighteenth century.

This Article primarily explores race and crime from the time when slavery was evolving to after it had become rooted in American life. Many of the statutes and cases I examine deal with slaves. Obviously slavery was not merely a system of race relations and prejudice; it was also an institution devoted to social control, class stratification, and economic exploitation. The desire of colonial landowners to exploit the labor of indentured servants for their own profit and the obvious differences between whites and blacks combined to create slavery. Cultural and racial difference allowed white planters to turn their African servants into African slaves. Economics provided the incentive for this development and, thus, many regulations of slaves make sense on purely economic grounds. Others are prudential and common to all slave cultures. Slavery everywhere required force to make some people work for others. Nevertheless, slavery in America was racially based and the regulation of slaves was, in the end, the regulation of race. Moreover, it is clear that, at least in the context of the eighteenth and nineteenth century Anglo-American world, some punishments were meted out to slaves at least in part because they were black. Thus, in examining the history of how “color” became associated with crime, it is important to recognize that the court decisions and laws of early America were a convergence of two complementary themes: economics and race.