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“Black lives matter” has always been a questionable proposition in the United States. In the Jim Crow days, African American men accused of committing crimes, petty or serious, were confronted by police officers or those deputized with police powers and wound up dead. In these fatal encounters, due process for the accused black person died with them—in the street, on a bus or streetcar. Often police faced no judgment. If cases were brought before a coroner or grand jury, they tended to end in “no bill,” with the jury’s finding of “justifiable homicide.”
This view of white police impunity captures an undeniable truth about Southern justice, and it resonates deeply with present discussion. Observers focus on the apparent unwillingness of prosecutors to try the police. We reason that because prosecutors work so closely with and depend on the police, they resist taking consequential actions against them, even when such actions are clearly warranted. This assumption makes sense and likely goes a long way in explaining why indictments and convictions of police officers are rare. But it does not fully cover the comparisons between historical Southern justice and American justice today.
Equal justice under the law is the civil rights issue of our time.
In the South, alleged infractions of either Jim Crow law or custom, which had the force of law, provided a legal basis for police interactions with black people. As Gunnar Myrdal observed in his 1944 classic An American Dilemma: The Negro Problem and Modern Democracy, “It is demanded that even minor transgressions of caste etiquette should be punished, and the policeman is delegated to carry out this function.” In this sentence, Myrdal does not specify who is doing the demanding or delegating, but we know he is referring to white Southern society, law enforcement’s silent partner and employer. Today’s crimes are not transgressions of racial caste etiquette, at least as such etiquette was understood in the mid-twentieth century. Instead they are “quality of life” infractions, which the broken windows and war on drugs policing policies include under their purview. Myrdal’s observation that society identifies its priorities and assigns police the task of carrying them out is still true. Evidently society’s priority today is “crime reduction,” no matter how corrosive to community and police relations, to the social fabric of communities, to family relations, to an individual’s sense of autonomy and dignity, or to effective policing practices.
We invoke history when describing the deaths of Michael Brown, Eric Garner, and many other black men and women. Yet even with numerous historical examples, we do not know just how many African Americans have died in encounters with law enforcement or civilians authorized with police powers. Included in this latter category are streetcar conductors and motormen who, in major Southern cities such as Atlanta, used to be armed thanks to the police powers accorded them by state law. Legal scholar Margaret Burnham and I are currently compiling a database of racial murders in the Jim Crow South for the period 1930–1954. Most of these murders are not included in history books or any kind of official or scholarly ledger.
Glenn Loury worries that black American struggles for equal standing will be represented by cases such as Michael Brown’s. I do not share that worry. Many black men, today as in the past, interact with police for reasons and in ways similar to Brown and Eric Garner. The results are of those interactions are rarely so horrific, thankfully, but their frequency is such that representative cases aren’t needed. Black people know these experiences for themselves.
Equal justice under the law, especially as it pertains to criminal justice, is the civil rights issue of our time. For too long, black civil rights advocacy has avoided taking up issues of criminal justice for fear that doing so would diminish the political and moral force of demands for full inclusion. Today’s declaration that black lives matter is a long overdue rebuke of black respectability politics. Black lives matter, whether they’ve committed a crime or not. And the establishment of innocence or guilt must be determined through fair policing and due process.
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