Policing & the Courts: Instruments of Control

Long before there were municipal police departments, the South had slave patrols — armed white men empowered to stop, search, and whip any Black person found off the plantation without a pass. Established as early as 1704 in the Carolinas, these patrols are widely regarded as a direct ancestor of American policing. From the beginning, a core function of organized force in America was the surveillance and control of Black people. (See chattel-slavery.)

When slavery ended, the machinery of control adapted (see racial-caste). Police and courts enforced the Black Codes and fed the convict-leasing system, arresting Black people on vague charges like "vagrancy" so their labor could be sold. Southern courtrooms — all-white juries, Black testimony against whites barred — turned the law itself into an instrument of caste, as the Scottsboro case made notorious. And the highest court blessed it: in Dred Scott (1857), United States v. Cruikshank (1876), and Plessy (1896), the Supreme Court ruled, again and again, that Black Americans were owed less.

In the twentieth century the tools modernized but the function held. The War on Drugs justified a vast expansion of policing that fell, by every measure, hardest on Black communities; "broken windows" theory and stop-and-frisk subjected millions to suspicionless stops — in New York, overwhelmingly of Black and Latino people. The historian Khalil Gibran Muhammad has shown how crime statistics were marshaled to manufacture a myth of Black criminality that justified all of it.

Crucially, this is also a money system. In 2015 the U.S. Justice Department found that Ferguson, Missouri ran its police and courts as a revenue machine — ticketing and jailing Black residents to fund the city budget through fines and fees, a modern echo of convict leasing. Cash bail jails people too poor to pay before any trial. The criminal-justice system, Michelle Alexander argues in The New Jim Crow, now performs the work that slavery and Jim Crow once did — marking millions of Black Americans as a permanent caste. (See mass-incarceration and who-benefited.)

From the slave patrol to the traffic-fine court, the through-line is the same: organized law as a tool of racial and economic control — and, just as often, of profit.

Closing the courthouse door. In the modern era the Supreme Court has made the courts themselves nearly useless for challenging racial bias in the justice system. In McCleskey v. Kemp (1987), presented with rigorous statistical proof that Georgia's death penalty fell far more heavily on those who killed white victims, the Court ruled 5–4 that such evidence of systemic disparity could not prove discrimination in any individual case — and warned that accepting it would call the entire criminal-justice system into question. Michelle Alexander, in The New Jim Crow, calls it the "Dred Scott of our era": together with decisions like United States v. Armstrong, it closed the courthouse doors to claims of racial bias in policing, prosecution, and sentencing, immunizing the system from the challenges that might reform it.