A Historical Perspective on Police Oppression

It has long been observed that police departments can function to reinforce racial and class inequality.[1] Regardless of whether their creators intended that organized police departments have this effect, this has sometimes been the result through selective enforcement of laws and brutal interrogation tactics.[2] Examples abound from the 18th and 19th centuries.  Police conduct during prohibition particularly exemplifies the effects of police on poor communities and racial minorities.  During this era, police viewed their aggressive tactics as necessary to counter the United States’ “overly protective” criminal procedure laws.[3] Ironically, criminal law reformers were sympathetic to this viewpoint and sought to modify the laws of criminal procedure accordingly—one of the earliest reports on police misconduct recommended that congress consider a new code of criminal procedure with fewer loopholes that are favorable to defendants.[4]  The legal and judicial rules which they put in place to cabin oppressive police conduct actually served instead to rationalize it.

Some of the earliest examples of the police were established with the express purpose of targeting racial minorities. Slave patrols in colonial and revolutionary Virginia could search land owned by other white males for any escaped slaves without a warrant.[5] Upon catching an escaped slave, the patrol could administer a punitive beating of the slave. In an early form of qualified immunity, slave patrollers were immune from prosecution for any harm done slaves in the course of recapturing them.[6] Slaveholder themselves would frequently join patrols to ensure that their escaped “property” did not suffer excessive damage, rendering them unable to work in the fields the next day.[7] But patrols did not limit their activity to recapturing escaped slaves. They often raided religious gatherings which slaves who were not on the run also attended, on the theory that such meetings “undermined the authority of masters in the neighborhood.”[8] In this way, slave patrols were not focused on the narrow goal of recapture. They targeted numerous facets of the enslaved community.

Nor were slave patrols a specialized example of force in American history. Sociologist Phillip Reichel convincingly argues that slave patrols were a precursor to modern police, and refutes the hypothesis that urbanization is a prerequisite for formal police. These slave patrols moreover foreshadowed the racial dynamics of modern policing: slave patrols were “a means by which Southern whites could protect themselves and their property.”[9] They arose only in geographic areas where slaves outnumbered the white population, and “increased formality and organization” of the patrols were likely a reaction to slave revolts.[10] Therefore, slave patrols were about more than just recapturing slaves—they sought to prevent slaves from escaping or revolting in the first place. Reichel links this preventative role with a key function of modern police.[11] In slave patrols, we therefore see a clear precursor to modern police formed with a goal of racial control.

Selective enforcement of prohibition laws further supports the hypothesis that police functioned as agents of class and racial control. Police enforced prohibition laws extremely unevenly.[12] Poor people and racial minorities were subject to strict, brutal, and sometimes deadly enforcement—but the wealthy usually got off with no more than a slap on the wrist, if they suffered any consequences at all[13]. When police in Portland raided a corporate manager’s New Year’s Eve party to confiscate his alcohol, public outcry was so great that officials released him and dropped all charges.[14] Compare this to the deadly tactics that prohibition agents deployed in poor and rural communities or against racial minorities, which sometimes involved shooting first and asking questions later.[15]

While prohibition was a laughing matter to the upper-middle class, “[M]exicans, poor European immigrants, African-Americans, poor whites in the South, and the unlucky experienced the full brunt of prohibition enforcement’s deadly reality.”[16] Working-class people recognized these enforcement disparities. In an unsigned letter to the “Booze Dept,” one working-class man expressed his desire to see “the Rich Man’s Club raided for a change.”[17] Even local officials “denounced the Federal prohibition enactment as a measure against the poor man while permitting the rich man to get all the liquor he wanted.”[18]

Some scholars viewed prohibition as an “aberration of American justice.”[19] Parks contrasts prohibition with other types of vice laws, like drug laws, which are apparently still viewed as “supporting democracy and justice for all.”[20] But by whom? Certainly not the thousands of poor people imprisoned for possessing small quantities of marijuana, or those serving sentences for possession of crack that are eighteen times as long as the sentence for an equal amount of cocaine.[21] The parallels between modern and historical policing do not stop there. In Southern California during prohibition, the vast majority of Mexican-Americans arrested for selling alcohol had only sold four pints or less.[22] The statistics are similar for poor women who brewed liquor at home.[23] When it came to “socially marginal targets,” prohibition agents typically arrested those with small amounts of alcohol.[24] In some jurisdictions today, most drug dealing and possession arrests are for small amounts of cocaine, marijuana, or heroin.[25]

Far from a modern problem, the United Sates’ history of policing, particularly leading up to the Civil War and during prohibition, provided a blueprint for selective enforcement of laws against poor and minority communities.

 

[1] See, e.g., Sidney Harring, “Policing in a Class Society,” 551.

[2] See generally, Lisa McGirr, The War on Alcohol 92 (2015), “Selective Enforcement,” Marilynn Johnson, Street Justice 124 (2004), “Prohibition, the War on Crime, and the Fight against the Third Degree.”

[3] Wickersham Report on Lawlessness in Law Enforcement 8 (1931).

[4] Id.

[5] Sally Hadden, Colonial and Revolutionary Era Slave Patrols of Virginia 70 (1999).

[6] Id. at 76.

[7] Id.

[8] Id. at 80.

[9] Phillip Reichel, “The Misplaced Emphasis on Urbanization in Police Development” 8 (1992).

[10] Id. at 7.

[11] Id. at 8.

[12] See Lisa McGirr, The War on Alcohol 71 (2015), “Selective Enforcement,” Marilynn Johnson,

[13] Id. at 68.

[14] Id. at 89.

[15] Id.

[16] Id. at 71.

[17] Julian Comte, “Let the Federal Men Raid,” 172.

[18] Id. (Citation Omitted).

[19] Evelyn Park, “From Constabulary to Police Society,” 87.

[20] Id.

[21] See Fair Sentencing Act of 2010 (reducing disparity from 100:1 to 18:1)

[22] Lisa McGirr, The War on Alcohol 92 (2015), “Selective Enforcement.”

[23] Id. at 96.

[24] Id.

[25] See Human Rights Watch, The Human Toll of Criminalizing Drug Use in the United States, https://www.hrw.org/report/2016/10/12/every-25-seconds/human-toll-criminalizing-drug-use-united-states (noting that in 2015, “more than 78 percent of people sentenced to incarceration for felony drug possession in Texas possessed under a gram”).

 

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