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Historicizing Racial Disparities in American Criminal Justice

By Professor Jeffrey S. Adler

The scholarship on the history of racial disparities in the U.S. criminal justice system is often curiously ahistorical.  It is commonplace for researchers, particularly those writing about the American South, to identify modern racial biases and to project them backward, onto a static, timeless past, implying that racial disparities have always existed or have at least existed continuously since the abolition of slavery.  In this formulation, time and place disappear into the ether of some undifferentiated Southern past.

            It would be folly to minimize the searing impact of racism on the American legal system, particularly in the South.  But it is also absurd to suggest that the role of the state institutions, law enforcement practices, prosecutorial discretion, and jurors’ and judges’ sensibilities have been fixed since Lee surrendered at Appomattox.  And yet highly regarded, influential scholars implicitly and occasionally explicitly make such an argument.  The conventional wisdom holds that, at least for violent crime, African Americans were always arrested, convicted, incarcerated, and especially executed at dramatically higher rates than whites and that a “New Jim Crow” rested on a rock-solid but historically indistinct old Jim Crow, which emerged during the years after the Civil War.  Pernicious disparities, it would seem, did not develop and shift over time or in response to specific historical circumstances.  Instead, they simply appeared and then remained static.

            In the research for my forthcoming book, Murder in New Orleans: The Creation of Jim Crow Policing (University of Chicago Press, 2019), I encountered a more complex, more contingent history of the relationship between race and criminal justice.  Analyzing over two thousand homicide cases in New Orleans between 1920 and 1945 and tracing every lethal encounter from the initial violence to its legal outcome, I found patterns that challenged the usual narrative. Simply put, the role of race in criminal justice changed dramatically between the two world wars.

During the 1920s, in homicide cases, African American New Orleanians were arrested, indicted, convicted, incarcerated, sentenced to death, and executed at lower rates than white residents.  Even the familiar chestnut about that “blacks who killed whites were almost certain to receive the death sentence” (James W. Clarke, Race, Violent Crime, and American Culture, p. 172) fails to stand up to empirical scrutiny.  Rather, in 1920s New Orleans, only 6.9 percent of the African American assailants who killed local whites went to the gallows.

            Such patterns did not reflect the absence of racial discrimination in the city.  Overt racism scorched daily life in New Orleans during the Roaring Twenties and permeated the operation of legal institutions.  In fact, the lower rates of punishment for African American killers were the product of the racial stereotypes of the era; the white New Orleanians who comprised all of the city’s police officers and all of Orleans Parish’s prosecutors, jurors, and judges insisted that African American residents typically lacked the intellectual capacity to form criminal intent.  Hence they argued that incarceration served little purpose and that premeditation was unlikely, virtually eliminating, for example, the possibility of capital verdicts.  Local policy makers insisted that isolation and segregation, rather than policing and punishment, would best safeguard respectable—white–residents.

            A series of social, ecological, and institutional changes during the 1930s, however, abruptly transformed this view and convinced white New Orleanians that African American residents posed a dire threat to social order.  Very quickly, the city’s criminal justice system assuming a new role, becoming a bulwark in the defense of white supremacy.  The municipal police militarized; detectives increasingly employed aggressive interrogation tactics and relied on coercion to extract confessions from African American suspects; police shootings of African American New Orleanians increased; district attorneys prosecuted African American defendants more aggressively and more often sought capital verdicts; jurors returned death sentences more frequently; and both the conviction rate and the execution rate for African American defendants soared.  Jim Crow criminal justice came of age in the city, and cops, prosecutors, jurors, and judges emerged as guardians of the local racial hierarchy.  At the same time, and as a product of the same process, white crime and white criminals seemed to disappear from the—white—popular imagination, becoming less worrisome for local law enforcers.  During the 1930s and early 1940s, while African American arrest, indictment, conviction, incarceration, and execution rates surged, white rates flagged.

            By the World War II era, modern racial disparities had emerged, and African American New Orleanians were arrested, indicted, convicted, and incarcerated at higher rates than white homicide assailants.  Between the 1920s and the early 1940s, the rate at which Orleans Parish juries returned death sentences against African American suspects leaped by 104.5 percent, while the rate for white suspects tumbled by 36.4 percent.  During the same span, the execution rate for African American killers tripled, and by the late 1930s local courts ceased to send any white murderers to the death chamber.  Rather, criminal justice officials reserved capital punishment for African American defendants.

            Ironically, this dramatic shift occurred as African American violence plummeted in New Orleans.  Thus, crime and punishment for African American New Orleanians moved in opposite directions.  When murder rates for these residents were high, punishment rates were low, and the spike in sanctions corresponded to a precipitous drop in violent crime.  In the operation of the local criminal justice system, perception trumped reality.

            The racial disparities in criminal justice that surfaced during the 1930s widened over time.  When data on conviction, incarceration, and execution rates are folded together for large spans of time, huge racial differentials are evident.  But aggregating the data in this fashion obscures crucial changes.  Lost in the formulation are the historical circumstances that fuelled the emergence and the expansion of race-based gaps.  Only by disaggregating the data and examining the proverbial trees, rather than the forest, can historians explore when and why these vicious racial disparities developed.


Jeffrey S. Adler is Professor of History at The University of Florida. His research and teaching interests focus on U.S. urban history, the history of American violence and criminal justice, and the history of American race relations. His most recent books have explored violence and policing in the American city, including First in Violence, Deepest in Dirt: Homicide in Chicago, 1875-1920 (Cambridge, MA: Harvard University Press, 2006) and Murder and the Policing of Race: New Orleans, 1920-1945 (Chicago: University of Chicago Press, 2019).

Image Credit: Peter Sekaer, Irish Channel, Future Site of St. Thomas Housing Project, St. Thomas and Felicity Streets, New Orleans, ca. 1936–38.

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