Crime and Punishment in American History - Lawrence M. Friedman [60]
Particularly effective was the criminal-surety system, which had carried over from the bad days of the Black Codes. If a black was convicted of vagrancy, or some minor offense (petty larceny, drunkenness), and fined, he became (as we have seen) in effect a kind of slave; he was turned over to a white employer who paid the fine and got a laborer in return. For the black, moreover, there was no way out once he was forced to work. If a black signed a labor contract to get out of jail and then quit the job or ran away or otherwise failed to perform the work, many southern laws made this an offense in itself.50 The cycle would start all over again, with the black deeper and deeper in trouble and debt.
The “ultimate sanction,” the really heavy structure that propped up the labor system of the South, was the penal system. Typically, southern convicts (overwhelmingly black) were leased out for work on chain gangs or labor gangs. The lessees were worse than Simon Legree; they worked black bodies as hard as they could; they made use of “shackles, dogs, whips, and guns,” and “created a living hell for the prisoners.” The mortality rates on these chain gangs were staggering. Two hundred eighty-five convicts were sent to build the Greenwood and Augusta Railroad between 1877 and 1880. Almost 45 percent of them died—and these were young black men in the prime of their lives.51 You can imagine what it would take, what cruelty, what conditions of work, to kill off almost half of these men.
Outright racial segregation began in the period after the Civil War. Before the war, segregation was taken for granted. Since that was no longer the case, the long arm of the law was needed. In November 1865, a Mississippi statute penalized railway officials who allowed “any freedman, negro, or mulatto, to ride on any first class passenger car ... used by ... white persons”; an exception was carved out solely for “negroes or mulattoes, traveling with their mistresses, in the capacity of nurses.” A Florida law of the same year made it a crime for any “negro, mulatto, or other person of color” to “intrude himself ... into any railroad car ... set apart for the exclusive accommodation of white people.” The punishment was whipping or the pillory.52 Reconstruction swept away these particular laws, but later, in the 1880s, segregation laws began to appear once more.53
Was segregation legal? The question came before the United States Supreme Court in 1896, in the famous (or notorious) case of Plessy v. Ferguson.54 Louisiana, in 1890, had passed a Jim Crow law dealing with railway carriages. Any passenger who insisted on “going into a coach or compartment to which by race he does not belong” was subject to a fine. Homer Plessy, a light-skinned black, bought and paid for a “first class passage on the East Louisiana Railway from New Orleans to Covington,” took a vacant seat in a whites-only coach, and was “forcibly ejected” and thrown into the parish jail of New Orleans. His defense: the law was unconstitutional, a violation of his rights under the Thirteenth and Fourteenth amendments.55t
The Supreme Court turned a deaf ear, by an eight-to-one majority. Justice Henry B. Brown wrote the majority opinion. Brown saw nothing wrong with accommodations that were “equal but separate.” (The genius of the English language, through some mysterious urge toward euphony, reversed the two adjectives; and the doctrine in Plessy came to be universally known as the “separate but equal” doctrine.) Brown’s opinion was racist to the core. “Social prejudices,” said Brown, may not be “overcome by legislation”; it was a “fallacy” to imagine that “equal rights cannot be secured to the negro except by an enforced commingling of the two races.... Legislation is powerless to eradicate racial instincts.” Brown thought the relationship between the two races was part