Crime and Punishment in American History - Lawrence M. Friedman [61]
At about the same time, the South effectively disenfranchised its black citizens, through a mixture of legal tricks and violence. And the criminal justice system was lily-white: there were no black police, prosecutors, judges, or jurors. Even in ordinary cases—cases of theft or minor assault—and even when all the parties were black, color inevitably bent the processes of justice in southern criminal courts. A black defendant, uneducated and without a lawyer, entered a courtroom of whites who were convinced he was guilty, or that his rights, feelings, interests mattered less than that of whites, if they mattered at all. Edward Ayers’s study of two southern counties found conviction rates for blacks much higher than for whites in the late nineteenth century; whites were convinced that blacks were congenital thieves, and this belief was deeply embedded in southern folklore. Blacks, for their part, mistrusted white justice, and for good reason. Ayers quotes a blues song:
White folks and nigger in great Co’t house
Like Cat down Celler wit’no-hole mouse.57
White justice was most harsh, and lashed out most savagely, if a black offended against the system of white supremacy itself, or violated the “code” of the South. In these situations, a black man could expect no mercy whatsoever. The punishment, often enough, was death. The end of the nineteenth century was, we shall see, the golden age (as it were) of lynch law, in all its cynical brutality. u
The Other Americans
For most of American history, race law meant, above all else, the law of black and white. But there were other races and other minorities in America, and they, too, came into contact with the criminal justice system in ways that set them apart from the majority.
Historically, the most important of these groups were the many native tribes. They always occupied an anomalous position, legally speaking. There were Indians who lived among the whites and were subject to white laws;58 and then there were tribal Indians who ran their own legal systems, and whose dealings with the whites were of an entirely different nature—often a relationship of war.
Formally, there were few norms that applied specifically to Indians within white communities, in peaceful relationships—except for the common provision that made it a crime to sell liquor to any Indian.59 Where white settlers and native tribes collided, the results were often bloody; the history of the Native Americans in this country is a history of suffering, defeat, banishment, retreat, and, all too often, outright slaughter. White settlers, first oozing and then flooding into lands the natives lived in, sometimes met armed resistance; this almost invariably brought massive retaliation. In one unusual but revealing incident, in 1862, a military commission tried nearly four hundred men of the Dakota tribe for murder, rape, and robbery. The trial grew out of a small war between the Dakotas and white settlers in Minnesota, and later also between them and units of the U.S. Army. Three hundred and three of the defendants were convicted and condemned to die (about seventy defendants were acquitted). On December 2, 1862, thirty-eight Dakota men were hanged at Mankato, Minnesota. These proceedings were, to say the least, irregular.60
When the native tribes were no longer a military threat (and when most of the good land was in the hands of settlers, who had gotten it by hook or by crook), national policy made an abrupt turn. The goal of policy now became assimilation rather than destruction: the native peoples were to be absorbed into the bosom of American society. From this standpoint, the well-known case,