Labor bondage in America persisted long past the Emancipation Proclamation.
Vagrancy laws and discretionary policing allowed police in the American South to create convict work crews. They could be rented out to fund the government. Vagrancy laws were an instrument of a larger culture of racial hierarchy and social control of Black Americans.
Guest Post by Herb Rothschild
In Chapter 8 of the book, I recount our ultimately successful efforts to invalidate the unconstitutional provisions of the Louisiana and the New Orleans vagrancy statutes. This excerpt from the opening of that section, plus the footnote in which I provide the facts upon which the landmark U.S. Supreme Court ruling in this area of law was based, illustrate one way that Whites continued to oppress Blacks from the end of the Civil War well into the 1970s.
In Chapter 8 of the book, I recount our ultimately successful efforts to invalidate the unconstitutional provisions of the Louisiana and the New Orleans vagrancy statutes. This excerpt from the opening of that section, plus the footnote in which I provide the facts upon which the landmark U.S. Supreme Court ruling in this area of law was based, illustrate one way that Whites continued to oppress Blacks from the end of the Civil War well into the 1970s.
From the book:
In Europe, vagrancy statutes were enacted after the enormous death toll of the 1348-49 bubonic plague created a labor shortage. They were intended to prevent serfs previously bound to a single master’s land from seeking work on better terms elsewhere. So, too, vagrancy statutes were updated by states of the former Confederacy immediately after the Civil War to regain control of emancipated Black labor. Even the Freedmen's Bureau, which had a mandate to protect Blacks from a hostile Southern environment, cooperated with Southern authorities in rounding up black "vagrants" and placing them in contract work to revive production on the plantations.
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Eight of the nine states that used vagrancy laws in this way also instituted convict leasing—the hiring out of convict labor for work on plantations or public works projects. This created a financial incentive for the states to arrest and convict Black men. In 1898, some 73% of Alabama's annual state revenue came from convict leasing. So, using their vagrancy statutes, states like Louisiana were able to reintroduce slavery on a smaller scale. . . .
A legacy of those benighted times was that the vagrancy statutes, which remained on the books, usually were written with a breadth and vagueness intended to give police a pretext to haul into the station anyone they viewed as suspicious. In 1972, the U.S. Supreme Court invalidated a Jacksonville, Florida statute—and by extension all such statutes—"for vagueness, in that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute’, it encourages arbitrary and erratic arrests and convictions, it makes criminal activities that, by modern standards, are normally innocent, and it places almost unfettered discretion in the hands of the police.” [See footnote below.]
For civil libertarians, the vagueness of vagrancy laws was one reason they were defective and unjust. A second reason was that some of their provisions criminalized status rather than behavior, that is, for being something (e.g. unemployed or without a valid address) rather than doing something. As such, they were most often used to harass the poor. . . .
It seemed to us that the Louisiana statute should be declared unconstitutional on both counts—vagueness and wrongly criminalizing status. Regarding the former, among those it deemed vagrant are “Persons who loaf the streets habitually or who frequent the streets habitually at late or unusual hours of the night." Regarding the latter, among the vagrant are “Able-bodied persons without lawful means of support who do not seek employment and take employment when it is available to them."
Footnote: Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). Papachristou consolidated the appeals of eight convictions stemming from five separate actions by Jacksonville police. A portion of the facts presented to the court are worth citing to illustrate the ways vagrancy statutes habitually were used.
Margaret Papachristou and Betty Calloway were white females. Eugene Eddie Melton and Leonard Johnson were black males. Papachristou was enrolled in a job-training program sponsored by the State Employment Service at Florida Junior College in Jacksonville. Calloway was a typing and shorthand teacher at a state mental institution located near Jacksonville. She was the owner of the automobile in which the four defendants were arrested. Melton was a Vietnam war veteran who had been released from the Navy after nine months in a veterans' hospital. On the date of his arrest he was a part-time computer helper while attending college as a full-time student in Jacksonville. Johnson was a tow-motor operator in a grocery chain warehouse and was a lifelong resident of Jacksonville.
At the time of their arrest the four of them were riding in Calloway's car on the main thoroughfare in Jacksonville. They had left a restaurant owned by Johnson's uncle where they had eaten and were on their way to a nightclub. The arresting officers denied that the racial mixture in the car played any part in the decision to make the arrest. The arrest, they said, was made because the defendants had stopped near a used-car lot which had been broken into several times. There was, however, no evidence of any breaking and entering on the night in question. Of these four charged with "prowling by auto" none had been previously arrested except Papachristou, who had once been convicted of a municipal offense.
Jimmy Lee Smith and Milton Henry were arrested between 9 and 10 a.m. on a weekday in downtown Jacksonville while waiting for a friend who was to lend them a car so they could apply for a job at a produce company. Smith was a part-time produce worker and part-time organizer for a Negro political group. He had a common-law wife and three children supported by him and his wife. He had been arrested several times but convicted only once. Henry was an 18-year-old high school student with no previous record of arrest. That morning was cold, and Smith had no jacket, so they went briefly into a dry cleaning shop to wait, but left when requested to do so. They thereafter walked back and forth two or three times over a two-block stretch looking for their friend. The store owners, who apparently were wary of Smith and his companion, summoned two police officers who searched the men and found neither had a weapon. But they were arrested because the officers said they had no identification and because the officers did not believe their story.
5 comments:
As Mr. Rothschild says, he was fighting oppression of African-Americans well into the 1970s. It’s delusional to imagine that all vestiges of it have suddenly disappeared. The persistence of systemic racism is evident in disparities between Blacks and Whites in such areas as education, income, access to healthcare and incarceration levels.
Antagonistic to social justice, right-wing ideologues undermine it with weapons of mass distraction, convincing the gullible that evil progressives are creating “discomfort” in their children by teaching them the sort of history Mr. Rothschild describes. They call it “Critical Race Theory,” as if a graduate level law school course were being taught in K-12. I suppose that makes it seem more sinister to the credulous.
The fact is, our history is as rife with atrocities as any other nation’s. Our treatment of African-Americans and indigenous peoples in particular were appalling examples of man’s inhumanity to man. Rather than trying to whitewash and forget about it, we should remember and learn.
Thank you Mr. Rothschild. Powerful indeed.
This reminds me of the book True Paradox, where law professor David Skeel notes that flawed legislators writing flawed laws, enforced by flawed law enforcement, and adjudicated by flawed jurists are serial obstacles to the promise of a just society. It doesn’t mean we should stop trying of course. It's a struggle worth pursuing, but it's a long arc.
This story of a noble effort gives one some cause for optimism. Change can happen.
The mission is to be diligent in our consideration of others, and support those who confront discrimination head on. Yet this could not have happened in a society that did not respect the rule of law, and to the point, judges who are truly unbiased and fair minded. If Republicans have their way this value would be swept aside without a thought, like a fly on their croissant.
It's interesting to note the archaic wording of the statute, like something written in the age of powdered wigs.
There are those who say things like “racism is just as bad in this country as it ever was.“ They ought to read this essay and reflect on how much better things have gotten.
As an amateur student of words, I enjoy looking up etymologies and tracing the developments of usages over time. “Vagrant” and “vagrancy” are primarily pejorative terms these days, especially as far as progressives are concerned, because they are often taken to impute deficiencies in character, say shiftlessness, or idleness, to uncharitably include folks who might simply see better opportunities elsewhere. The “vag-“ root basically means wandering, or wanderer; one of currently unfixed abode. Related words are “vagabond”, “vagary”, and even the legal term Mr. Rothschild also employs here: “vagueness”, as in of unfixed or unreliable meaning.
The evolution of “vagrant” and “vagrancy” into present-day politicized terms is almost amusing when we consider the actual nature and conduct of many folks today, those on whose behalf many others seek protection from a supposed slur. But like the ex-serfs seeking work post-plague, the specific folks Mr, Rothschild cited in that civil rights SCOTUS case were far from unproductive layabouts. Imagine those applying “vagrancy” then seeing it denounced now too, but in sympathy for many maintaining fixed, unlawful and filthy tent-camps on city sidewalks, substance-addled professional leeches with no desire whatever to seek gainful employment.
As the pretext turns…..
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