Abstract
Amid growing research on the history and legacies of racist violence in the United States, there has been limited development of theory and measurement pertaining to racist violence as a sociological process. Social science research has centered on lynching and, to a lesser extent, slavery and broader Jim Crow laws and customs, and rarely have these and other forms been engaged together and in relation to contemporary outcomes. We focus on racialized “legal violence”—uses of law in ways that are harmful to populations defined by race—and use the case of South Carolina “slave courts” to explore modes of racialized violence that are expansive and intertwined. Contrary to a more sequential and linear reading of successive and discreet modes of repression (e.g., “slavery ended. . .”), our analysis shows recursive, multidimensional, and cascading aspects of injurious legal action and inaction that accumulate and repeat over time. Continuities of racialized legal violence, which are contested and thus dynamic, modify and maintain age-old structural constraints. Rather than unfolding in sequence—from settler colonialism to enslavement, Jim Crow, and mass incarceration—“peculiar institutions” are more fluid, sharing repertoires and networks of racialized legal violence that recombine over time.
“[Slave Court] decisions are rarely in conformity with justice or humanity.”
“Slavery didn’t end in 1865,” attorney and Equal Justice Initiative founder Bryan Stevenson has emphasized, “it just evolved” (Seslowsky 2018). This logic underscores the centrality of racial violence as a mechanism of control and offers an important lens through which to understand continuities in racialized control systems across distinct eras. Yet the nature of these transitions has been undertheorized, and treatments of histories of racial violence in the United States often characterize these forms and their metamorphoses as a sequential, linear process. This treatment unfolds in sequence from one “era” to the next: beginning with empire and enslavement; into Jim Crow; and on to contemporary mass incarceration, surveillance, deportation, brutality, and the rest. Often viewed as a kind of progression, contested systems become unsustainable and are replaced with a functional equivalent that maintains racial control through new means (Alexander 2010; Wacquant 2002).
This sort of presentation, however, obscures the blurred, broken, and crossed lines that compose the intergenerational web of the nation’s history of racial violence. Such complexities underscore that continuities highlighted in linear evolutionary sequences are in fact enabled and shaped by simultaneous (dis)continuities within networks that define systems of control and violence across historical eras. This nonlinear view of racialized social control suggests an expansive conception of racial violence and its maintenance across time and place. Recognizing the range of processes through which institutional discontinuity enables continuities of control may inform better measurement of histories of racial enforcement that manifest in present-day policies, practices, and everyday interactions, as well as inform strategies of redress.
Our discussion focuses on these processes as they bear upon the broad problem of racialized “legal violence” (Menjívar and Abrego 2012), which is to say various uses of law in ways that are differentially harmful to populations defined by race and ethnicity. We emphasize the recursive, multidimensional, and cascading aspects of injurious legal action and inaction that accumulate and repeat over time. Centering the history and legacy of “slave courts,” we argue that these continuities of racialized legal violence, which are contested and thus dynamic, modify and maintain age-old structural constraints. Importantly, legal violence does not specifically require formal legal authority. As numerous historical and contemporary examples have shown, the public can too easily activate legal violence by leveraging legal discourse (e.g., by labelling targets as criminal) and manipulating legal actors (e.g., by advancing false complaints), and assume the role of violent legal vigilantes themselves. While legal violence implicates both state and nonstate actors, its injury is typically exacerbated by state inaction through a withholding of legal protection.
The resulting repertoire of extra/legal forms of control serves as a toolkit of sorts for enabling historically continuous racial violence. Many of the specific forms and actors that compose the repertoire of control are, correspondingly, continuously available (e.g., legislators, teachers, police, and mayors), yet their usage varies across place and time. Consider, for instance, the various (dis)similarities between Carolyn Bryant’s fallacious accusation against 14-year-old Emmett Till in mid-1950s Mississippi and Amy Cooper’s duplicitous assault allegation against birdwatcher Christian Cooper in New York’s Central Park in 2020. Using their privileged voicings of distress as alarms, both Bryant and Cooper engaged in “racial profiling by proxy” (Thurau and Stewart 2015). Their racially charged and thereby weaponized appeals for protection activated widely understood biases meant to cause external parties to further enact “justifiable” legal violence.
Crucially, however, Bryant’s appeal to kin—that is, her husband and his cousin—versus Cooper’s use of 911 to activate police demonstrate not only that different parties can mete out de facto legal violence, but also that the role and legitimization of these agents reflect specificities associated with the historical context of racialized interactions. While vigilantism was widely recognized as a tacitly legal means of enforcing breaches of Jim Crow in the Mississippi Delta, in the sense that whites could engage in civil violence against African Americans with near-total legal impunity, police are understood as front-line state actors who—when provided a racially encoded, legally actionable complaint—might aid in maintaining white dominance in contemporary American cities.
These distinctions between legal agents and eras, and continuities in underlying racial logics and control functions, are evident to the involved parties as well as a broader web of audiences and authorities drawn into the locus of conflict. The fact that a posse of Amy Cooper’s friends attacking Christian Cooper would appear a very different use of extra/legal violence should not obscure the fact that a threatened Amy Cooper believed she could access a legitimate agent of violence to address her racialized concerns. 1 In this case, fortunately, the Black bird watcher effectively diffused the threat and exposed its mechanics. The episode became available to analysis on Black Twitter and elsewhere as a continuity of “the violent history of white womanhood,” including its repertoire of weaponizing law (Lang 2020). Yet we have seen in so many other cases the harms resulting from civilians and police enacting racialized legal violence and that white actors distinctly orient to “9-1-1” and its historic corollaries as their racial distress signals. These resources for legal action have remained remarkably stable across eras. Such resources are implicit, meaning that they remain a source of power whether realized or not, and reflect persistent desires and needs to perceive and perform white power, somewhat irrespective of outcomes.
Christina Sharpe (2016) writes in In the Wake that “in the United States, slavery is imagined as a singular event even as it changed over time and even as its duration expands into supposed emancipation and beyond.” She argues that slavery was not a single event but rather “a singularity,” a distortion of space and time where racism became atmospheric and “antiblackness [as] pervasive as climate” (2016, 106). This intervention allows us to extend Bittner’s (1967) classic formulation of police monopolizing claims on legitimate force, to recognize the constant threat and perception of legitimate subordination as central to the violent atmospherics of white supremacy, including its recurrent uses or leveraging of law. “Slave law transformed into lynch law,” Sharpe (2016, 106) continues, “into Jim and Jane Crow, and other administrative logics that remember the brutal conditions of enslavement after the event of slavery has supposedly come to an end.” Extending this analysis, we turn now to a brief survey of racially weaponized law to highlight interrelated uses in economic extraction, political disenfranchisement, and social dominance. Rather than discrete modes of racialized power and inequality developing iteratively over time to maintain white racial dominance, the case highlights the recombination of actors and forms drawn from a repertoire of legal violence developed over time.
Weaponizing the Law
The historical encoding of American law to sustain white racial dominance is well established and plainly evident in the language of law itself as well as studies of its many misuses (Berry 1971/1995; Muhammed 2019). Of particular interest to us is how law is mobilized as a resource of racial dominance and how the networks, strategies, and frames imbricated in racist legal mobilization change and persist through time. Consider, for example, the “slave court,” a euphemism for a legal tribunal where there was no disguise of contempt for free and enslaved Black accused, and no pretense of equal protection. In South Carolina, these proceedings were held in what was formally the Court of Magistrates and Freeholders, which adjudicated purported legal and social violations committed by enslaved and free Black persons. These courts represented quotidian administrative, state-sanctioned forms of racial violence that, while occurring outside of the plantation proper, were nevertheless entwined with the plantation economy, politics, and normative structure, in effect carrying the past and present of enslavement into the courtroom and propelling it forward.
In her close study of these antebellum South Carolina courts, Megginson (2006) highlights the high degree of “discretion and inconsistency” that resulted in wide variation in the outcomes of cases heard by the court. She attributes this variation in part to “local conflicts among whites” who, wielding influence in and through law, effectively used free and enslaved Blacks to assert and secure their own interests. Exemplifying the extra/legal continuum of legal violence—including common disregard of Fifth Amendment protections against double jeopardy and commingled police and court injustice (Van Cleve 2016)—the court sometimes imposed whippings, its most commonly prescribed sanction, irrespective of whether such punishments had been “already inflicted by patrollers, owners, or both” for the same alleged infraction (Megginson 2006, 88).
In “Black Justice under White Law,” Michael Hindus (1976) traces the complex mix of law and custom constituting this web of racial control. Although Blacks could testify in trials of other Blacks and on their behalf against whites, for instance, “they were unable to contradict any statement of a white person or prosecutor.” While denied protections of common law, they were subject to specific (Black) legal codes as well as racial customs that served as “another form of unwritten law” (pp. 578–79). This web of extra/legal control was made explicit in an 1847 ruling (Ex parte Boylston 14 SC 20) that slaves could be legally punished for insolence toward whites even though this was not legally forbidden, on grounds that all statutes regarding the enslaved in South Carolina “contemplate throughout the subordination of the servile class to every free white person” (Hindus 1976, 579). White Americans grew accustomed to law’s disregard of Black human and civil rights, a long tradition that would again be invoked a decade later by the U.S. Supreme Court ruling that African Americans had “no rights which the white man was bound to respect” (Taney 1856).
Roots of this legal logic trace back to the colonial foundations of the nation, extending and reaffirming earlier statutes deploying law as an instrument of racial violence. Coursing through slave courts and patrols, subsequent penal regimes, and the siren songs of Carolyn Bryant and Amy Cooper, they extend as well to the present day. As both formal codes and more general sources of racialized legal socialization, the legal maneuvers institutionalized disregard of Black interests in law, and legal authority as a key instrument of white racial dominance of economic, political, and social relations.
Building on these foundational examples, next we highlight cascading repertoires of racialized legal violence, successively carried on through recombinations of actors and forms. Doing so helps to operationalize general understandings of the process of legal weaponization, as well as emphasizes how its reach spans economic, political, and social fields. Continuing with our South Carolina focus, we identify evolving and sometimes discontinuous (re)enactments of economically extractive, politically disenfranchising, and socially dominative practices enabled by white power in law.
While formerly enslaved African Americans in Charleston, South Carolina, jubilantly celebrated the “death of slavery” in 1865, the legal violence slavery helped to rationalize and encode would linger and sustain white dominance, historically and today (Reece 2020; Behrens, Uggen, and Manza 2003). In 1916, the assistant secretary of the State Board of Charities and Corrections reflected on this discontinuity as it bore upon the state’s penal system. “In 1866, before Reconstruction had interfered with control by the white people,” he wrote, “the general assembly passed an act to establish a State penitentiary,” which centralized control of state prisons. The maneuver paved the way for former Confederate officer Wade Hampton—one of the state’s largest slaveholders prior to the war, and its first post-Reconstruction governor in 1877—to build a statewide convict labor exploitation scheme that historians characterize as “slavery by another name” (Blackmon 2008).
These transitions, leveraging new laws and logics to maintain racist extraction and exclusion, relied on broad networks of state and nonstate actors. Following the brief “interference” of the Reconstruction government, white “redeemers” resumed formal control of the South Carolina courts and state legislature in 1877, and this state power was substantially rooted in orchestrations of racial terror (e.g., the Ku Klux Klan Hearings; see Alexander 2015). The state legislature passed a series of laws meant to renew access to involuntary labor, combining the resurgence of white supremacy with new Black Codes (e.g., vagrancy laws) and debt peonage schemes to re-create “a ready pool of involuntary [Black] labor that could be tapped whenever whites faced any sort of labor emergency” (Cohen 1976, 52).
In South Carolina and across the former Confederate state, penal systems were devised to vacate Black freedoms and reassert the precedent of racial dominance in and through law. “Guided by a white determination to return the Negro to ‘his place,’” William Cohen (1976, 56) writes, “the problems of crime, tax relief, internal development, and control of the labor force all intersected in the convict-lease system” (p. 56). Convict leasing in South Carolina and most other southern states became a key resource in the rebuilding of commercially vital rail networks destroyed in the Civil War. Railroad labor agreements illustrate the role of legalized labor extraction as both motive and means of racial violence. In Spartanburg, for instance, railroad officials used ties to local Ku Klux Klan (KKK) groups to threaten and enact violence on workers. Blacks were unprotected by law from both extra/legal violence and horrific labor conditions. Convict lease mortality rates approached 50 percent. South Carolina’s warden opined in 1879 that “casualties would have been less if the convicts were property having a value to preserve” (Cohen 1976, 54).
Police violence (direct and structural) was also central to the reestablishment of racial dominance, with “the zeal of law-enforcement authorities” tracking with the rising economic benefits posed by convict labor (Cohen 1976, 57). Police worked in tandem with legislatures and courts to harvest this economic benefit, and in service to broader political and social agendas, in a repertoire that endures in contemporary patterns of overpolicing and underprotection in extra/legal contexts (see Harris 2016; Van Cleve 2016; U.S. Department of Justice, Civil Rights Division 2015). The brief examples illustrate that postemancipation reassertions of white social, economic, and political dominance involved more than a transition from one system to another. Buttressed by the disenfranchisement of Black Americans, they illustrate how law was reconfigured as a resource of racial dominance, and that complex networks, strategies, and frames imbricated in racist legal mobilization both change and persist through time. This evolution has relied on state and nonstate actors working on several fronts, within and around law, including legislatures, courts, police, vigilantist groups, and industry, working in tandem or on parallel tracks to manage a pliable system of white supremacy older than the nation itself.
Disarming White Supremacy
We began our survey of racially weaponized law with examples of white women deploying their status, and privileged distress, as an instrument of legal violence. Returning to the Mississippi Delta and New York’s Central Park, the approach here demonstrates that our attention should fix not only whom Ms. Bryant and Ms. Cooper can access on demand when purportedly challenged or threatened, but also the entitled agency they can exert to themselves to become emissaries of control, through access to an institutional system that has continuously enabled the maintenance of white power in the face of racialized threats (Gilmore 1996; McRae 2018; Roberts 1997). We have shown that American law has historically reserved this disciplinary power for whites and been organized to limit Black protection from its harm. Alongside economic and political uses of this racialized legal violence highlighted above, social dominance—including the control of privileged access to, and status within, social space—is clearly a fundamental motivation in the deployment of legal violence, historically and today.
It is instructive to return to South Carolina slave courts, which were wide open to manipulations by white accusers and authorities of various sorts (complainants, owners and overseers, “patrols,” freeholders, juries, lawyers, and magistrates), such that variations in court outcomes were significantly driven by immediate white community interests. Whereas conviction rates were around 60 percent in most cases from 1818 to 1860, they rose to nearly 90 percent in cases involving “threats to white authority” (Hindus 1976, 586). Paradoxically, and not, free Blacks were six times more likely to be tried than the enslaved in “slave courts,” a statistic Hindus (1976) attributed to white harassment of formally free Black people (p. 584). One can hardly imagine the nineteenth-century versions of current social media tropes like “BBQ Becky” and “Pool Patrol Paula,” or their male equivalents and counterparts, except to be certain of the greater power and threat of their racially encoded complaints, especially in moments where Blacks offensively performed freedom. In nineteenth-century South Carolina, a free Black man reportedly petitioned “for a return to slavery, complaining that he was accused of every crime that occurred in his district,” hoping reenslavement might protect him from the routine harassment and presumably more grave threats of racialized legal violence (Hindus 1976, 584).
The enormity of this power is evident in the claims disproportionately generated around the idea of the white woman, and by white women themselves, particularly to mobilize a network of extra/legal actors into vigilante violence, or more general political power. Speaking to an estimated crowd of twenty-five hundred people as the guest of honor at the 1911 family reunion of South Carolina state legislator John Ashley, the state’s governor, Coleman Blease, was asked if he was an advocate of lynching. He was of course legally and politically strategic in replying that he was not, before adding, “When a negro touches the person of a white woman the sooner the negro is swung to a limb of a tree the better” (West 2008, 181). Yet as we have stressed, this ubiquitous ordeal of white dominance of and through law links a number of agents of disciplinary power, not all of whom are state actors. In particular, formal and informal (both auxiliary and self-appointed) police play a critical intermediary role. As Emer de Vattel (1844) observed in The Law of Nations, police hold a fluid role in disciplinary power, “linking the absolute power of the monarch to the lowest levels of power disseminated in society” (p. 162). By “acting where [the monarchy] could not intervene,” the police then “filled in the gaps, [and] linked them together, guaranteed with its armed force an interstitial discipline and a meta-discipline” (Foucault 1977, 215). Crucial for our purposes, the powers of legislatures, courts, and police are not fixed to an autonomous legal realm, but a wider network of extra/legal structures that together institutionalize racist legal violence. The network is routinely activated by white polities who often hoard political influence, seek to control the legal order, and mobilize law and custom in complaints of injury and threat, to demand or deny disciplinary action. This dynamic is not only present within and dependent on policing and courts, but also schools, elections, juries, coroner inquests, journalism, and more (Gaby et al. 2021).
Although we have begun to trace this web via the particular instantiation of South Carolina’s slave court and its afterlives, our interests and arguments are more universal. We are interested in the challenge of measuring and countering what Rothberg (2019) terms our “structural inheritance” of inequality rooted in histories and legacies of racist violence, the legacy that Sharpe (2016) describes as “the weather.” Settler colonialism, enslavement, Jim Crow, and mass incarceration organize related repertoires of control—one generation to the next. The change entailed by that process is not merely a resurfacing of the functionally familiar, but a recalibration of repertoires, a recombination of forms and actors that enables continuity across eras past, present, and future. Against a tendency to read these eras in succession, we argue that these transitions are less stark, involving overlapping cultural and institutional elements that are reconfigured over time.
Beyond naming the past institution of the “slave court” as something echoing today, we can analyze its extra/legal aspects to trace a repetition of durable logics and networks of control through the postemancipation period, into the present and future. This perspective challenges research and policy to attend to the recurrent network dynamics of racialized violence, rather than isolate instantiations in a given time and institutional context. If calls to “defund the police” and “reimagine public safety” fail to broadly engage the extra/legal tentacles of the motivating problems and actual mechanics of racist overpolicing and underprotection, racialized legal violence may more easily mutate through the reconfiguration of repressive policy and practice. We require a more expansive account of the actors implicated in racially unjust policing, but also a more capacious assessment of racialized legal violence, of which formal policing is an integral but component part. Truly transformative racial justice requires that we address the durable repertoires and nimble networks of racialized legal violence recurring over time, the slaveries by so many names, and their durable constitutive elements.
Footnotes
Notes
Geoff Ward is a professor of African and African American studies at Washington University in St. Louis. His research focuses on the racial politics of social control and pursuit of racial justice, historically and today.
David Cunningham is a professor and chair of sociology at Washington University in St. Louis. His research focuses on the causes and consequences of racial inequity and conflict.
Hedwig Lee is a professor of sociology and codirector of the Center for the Study of Race, Ethnicity, and Equity at Washington University in St. Louis. Her research focuses on the social determinants of racial and ethnic health disparities.
Sarah Gaby is an assistant professor of sociology and criminology at the University of North Carolina, Wilmington. Her research focuses on social movements, organizations, education, and inequality with a particular focus on youth civic engagement.