Particularly in the United States, race has always played a central role in constructing presumptions of criminality. After the abolition of slavery, former slave states passed new legislation revising the Slave Codes in order to regulate the behavior of free black slaves in ways similar to those that had existed during slavery. The new Black Codes proscribed a range of actions — such as vagrancy, absence from work, breach of job contracts, the possession of firearms, and insulting gestures or acts — that were criminalized only when the person was black. With the passage of the Thirteenth Amendments to the Constitution, slavery and involuntary were putatively abolished.
However, there was a significant exception. In the wording of the amendment, slavery and involuntary servitude were abolished “except as a punishment for crime, whereof the party shall have been duly convicted.” According to the Black Codes, there were crimes defined by state law for which only black people could be “duly convicted.” Thus, former slaves, who had recently been extricated from a condition of hard labor for life, could be legally sentenced to penal servitude.
In the immediate aftermath of slavery, the southern states hastened to to develop a criminal justice system that could legally restrict the possibilities of freedom for newly released slaves. Black people became the prime targets of a developing convict lease system, referred to by many as a reincarnation of slavery. The Mississippi Black Codes, for example, declared vagrant “anyone/who was guilty of theft, had run away [from a job, apparently], was drunk, was wanton in conduct or speech, had neglected job or family, handled money carelessly, and… all other idle and disorderly persons.” Thus, vagrancy was coded as a black crime, one punishable by incarceration and forced labor, sometimes on the very plantations that previously had thrived on slave labor.
Mary Ellen Curtin’s study of Alabama prisoners during the decades following emancipation discloses that before the four hundred thousand black slaves in that state were set free, ninety-nine percent of prisoners in Alabama’s penitentiaries were white. As a consequence of the shifts provoked by the institution of the Black Codes, within a short period of time, the overwhelming majority of Alabama’s convicts were black. She further observes:
Although the vast majority of Alabama’s antebellum were white, the popular perception was that the South’s true criminals were its black slaves. During the 1870s the growing number of black prisoners in the South further buttressed the belief that African Americans were inherently criminal and, in particular, prone to larceny.
In 1883, Frederick Douglass had already written about the South’s tendency to “impute crime to color.” When a particularly egregious crime was committed, he noted, not only was guilt frequently assigned to a black person regardless of the perpetrator’s race, but white men sometimes sought to escape punishment by disguising themselves as black.
Douglass would later recount one such incident that took place in Granger County, Tennessee, in which a man who appeared to be black was shot while committing a robbery. The wounded man, however, was discovered to be a respectable white citizen who had colored his face black.