History of Racism in America’s Courts

The American court system was not designed to benefit any class or race of persons other than wealthy white citizens.  In fact, the courts were used for centuries as a tool to oppress black persons in this country, and it is only in the last half-century that minorities have begun to be viewed as equals in the justice system.  Under the law as pronounced by the courts if not by all people working in the justice system, anyway.  Today, despite the gains that have been made, there is still systemic racism in our court system.  If we are going to continue to move forward it is critically important that we know where we came from, what progress we have made, and where we are today.

Historical Discrimination in the Criminal Justice System

A good case can be made that “[t]he criminal justice system was created in such a way to disadvantage, subdue, and control certain minority groups, namely African Americans.”  Some examples:

  • The United States Constitution once considered African Americans to be 3/5 of a person – this was the result of a compromise between Northern and Southern states determining how slaves would be counted for purposes of representation and taxes.
  • Slave codes were enacted in the colonies and early states that applied only to African American slaves and were enforced by the courts.  South Carolina, for example, adopted its slave code in 1712 and based it on the British slave code used in Barbados.  Georgia and Florida also later adopted South Carolina’s model.   Among the many prohibitions and penalties was the death penalty for any slave who attempted to escape.
  • When laws were later enacted prohibiting the slave trade and providing for the death penalty for slave traders, very few white slave traders were prosecuted and convicted, much less sentenced to death.  This is an early example of how legislation can be passed but it is entirely ineffective unless enforced by the courts and, more importantly, the people.
  • Following the Emancipation Proclamation, Black Codes were enacted to replace the Slave Codes.  These laws targeted only black persons and included preventing them from voting, serving as jurors, and testifying in court against a white person.  Black persons were arrested, prosecuted, and then convicted by all white juries.
  • Historically and to a much lesser extent still today, blacks who committed alleged crimes against whites were tried by all white juries and received harsh punishments, while whites who committed alleged crimes against blacks were not arrested and prosecuted, or when they were they were often acquitted by all white juries – including innumerable cases of rape and murder/lynching.
  • Under Jim Crow laws, enacted by the states and enforced by the courts, African Americans were prosecuted and punished, often severely, for violating segregation laws that forbid black persons from entering theaters, schools, restaurants, buses, or other areas that were reserved for white persons only.
  • A quick google search will reveal that, even today, white police officers who straight up murder unarmed black suspects often are not prosecuted and, when they are, they often acquitted by all or mostly white juries.

Historical Discrimination Sanctioned by the United States Supreme Court

Until recent decades, the U.S. Supreme Court upheld many of the worst racist policies across the country, approving the worst kinds of discrimination including slavery and segregation.  Some examples:

  • Scott v. Sanford – held that the plaintiff was the property of his white owner, had no standing to sue, and that the Bill of Rights does not apply to African Americans.  Otherwise, the Court reasoned, black people would have “the full liberty of speech in public and in private,” “to hold public meetings upon political affairs,” and “to keep and carry arms wherever they went.”
  • Pace v. Alabama – upheld the prohibition on inter-racial marriage which carried a minimum of 2 years up to 7 years in prison as a potential penalty.  The Court held that the statute was race neutral, because it was equally a prohibition on whites and blacks.
  • The Civil Rights Cases – that time the U.S. Supreme Court struck down the Civil Rights Act of 1875 and re-approved the system of segregation.
  • Plessy v. Ferguson – the U.S. Supreme Court again re-approves segregation.  Separate but equal is ok.
  • Cumming v. Richmond – the U.S. Supreme Court holds that if there is no separate school available for black students, they must do without an education.  The Court reached the same result in 1927 in Lum v. Rice for an Asian student.
  • Ozawa and Thind – a Japanese immigrant and then an Indian immigrant who also was a U.S. Army veteran tried to establish that Japanese persons (Ozawa), or Indian persons (Thind), are in fact white and should therefore be granted citizenship.  The Court disagreed.
  • Hirabayashi and Korematsu – Japanese Americans challenged the imposition of a curfew on Japanese Americans and then the U.S. government’s forced relocation of Japanese Americans to internment camps – accomplished by an executive order signed by the President – and the Court held that the forced confinement of 110,000 people was acceptable during wartime.

I believe that the U.S. and all states are slowly but steadily evolving away from our country’s court system’s racist past, 3 steps forward and 2 steps back.  Those who do not learn history are doomed to repeat it.  In this case, I fear that those who do not learn history are doomed to take more painful steps backward than would otherwise be necessary.

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