Policing Jim Crow America: Enforcers’ Agency and Structural Transformations

Policing Jim Crow America: Enforcers’ Agency and Structural Transformations ANTHONY GREGORY “These districts are not usually protected by police—rather victimized and tyrannized over by them. No one who does not know can realize what tyranny a low-grade white policeman can exercise in a colored neighborhood.” W.E.B. Du Bois1 Scholars widely agree that law enforcers came to serve white supremacy in the post–Civil War United States. More elusive is the precise role taken by Du Bois’s “low-grade” officers in the “tyranny” they availed, whether they performed as interchangeable cogs or as petty dictators with wide prerogative over their local fiefdoms. Gunnar Myrdal observed that “the policeman is delegated to carry out” the punishment of “even minor transgres- sions of caste etiquette,” suggesting a mechanical rather than activist function. At the same time the “extra-legal backing by the courts” inflated the “prestige” of these caste enforcers, who were “weak men” with “strong powers.”2 Whether as pawns or tyrants, individual law enforcers appear small in the grand chronicle of racial oppression, a story dominated by formal and informal power structures. Legal historians have long studied these structures in transformation: how discursively manufactured hierarchies 1. W. E. Burghardt Du Bois, “The Position of the Negro in the American Social Order: Where Do We Go From Here?” The Journal of Negro Education 8 (1939): 553–54; see also, Silvan Niedermeier, The Color of the Third Degree: Racism, Police Torture, and Civil Rights in the American South, 1930–1955, trans. Paul Cohen (Chapel Hill: University of North Carolina Press, 2019), 18. 2. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper & Row, 1962 [1944]), 535–37. Anthony Gregory is a postdoctoral research associate at the Political Theory Project at Brown University <Anthony_Gregory@brown.edu, Anthony.Gregory@gmail.com>. He thanks Dylan Penningroth, Gabriel Beringer, Kavitha Iyengar, Giuliana Perrone, Jack Del Nunzio, Arthur Ghins, Antong Liu, Julia Netter, Lowry Pressly, Jonathan Simon, and the editorial team at Law and History Review for their very helpful comments on various versions and parts of this manuscript. Law and History Review 2021, page 1 of 32 © The Author(s), 2021. Published by Cambridge University Press on behalf of the American Society for Legal History Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms doi:10.1017/S0738248021000456 of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  2 Law and History Review 2021 became codified, how racial distinctions banished from the law books persisted through systemic enforcement disparities. Social and legal forma- tions propel the big story: at the nation’s founding, law constructed racial categories.3 Military occupation and the conflict between terror and democ- racy forged the periodization of Reconstruction and Redemption. Jim Crow statutes formalized racial caste. The technically illegal scourge of lynching meanwhile reinforced official repression, both in spontaneous coordination and as a murderous foil to the polite alternative of segregation. The rising formalistic state coexisted with lynching and then eventually subsumed it. Before, during, and after segregation, across constitutional watersheds and regional differences, purportedly colorblind laws ensnared blacks and whites unequally. As the modern state monopolized law and order and recognized civil rights, diffuse racial oppression persisted in police brutality, tortured confessions, show trials, a swelling of prisons, and a rise of executions.4 Police officers and sheriffs often stood at the intersection of these oppressions, and were central to major transitions between their forms. The literature recognizes their importance but tends to cast it as over- determined, even formulaic. Economists have pinned the frequency of lynching to factors of political economy.5 Critical criminology has rein- forced a structural emphasis. Nirej S. Sekhon has indeed found criminal procedure reformers overly fixated on “officer discretion,” a “narrowly individualistic conception” that has skewed both “law” and “scholarship.”6 3. See, for example, Christopher Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (New York: Cambridge University Press, 2010); and Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge: Cambridge University Press, 2018). 4. Michael J. Pfeifer, Rough Justice: Lynching and American Society: 1874–1947 (Urbana: University of Illinois Press, 2004). Niedermeier, The Color of the Third Degree, focuses on police torture’s modernizing substitution of mob violence. On the death penalty see Vivien Miller, “Hanging, the Electric Chair, and Death Penalty Reform in the Early Twentieth-Century South,” in Crime and Punishment in the Jim Crow South, ed. Amy Louise Wood and Natalie J. Ring (Urbana: University of Illinois Press, 2011), 170–91; and Seth Kotch, “The Making of the Modern Death Penalty in Jim Crow North Carolina,” in ibid.,192–214. 5. Economist Lisa D. Cook has divided the empirical research into explanations of “lynch- ing as an outcome” and the use of lynching “to explain other outcomes.” Factors in the first category include “a relatively large and immobile black population, depressed economic conditions among whites, perceived or real social or economic threat posed by blacks against white interests, the presence of a relatively more powerful Democratic Party, and inadequate legal [penalties] for significant crimes.” Cook, “Converging to a National Lynching Database: Recent Developments and the Way Forward,” Historical Methods: A Journal of Quantitative and Interdisciplinary History 45 (2012): 55–63, at 55. 6. Nirej S. Sekhon, “Redistributive Policing,” The Journal of Criminal Law and Criminology 101 (2011): 1171–226, at 1171–73. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 3 Prison abolitionist scholars such as Dorothy E. Roberts stress the irredeem- able racism of institutions.7 For both theoretical and disciplinary reasons, social scientists, activists, and historians have generally downplayed office holders and law enforcers’ agency.8 In a 2021 criminology article survey- ing four centuries of Black subjugation, historians Elizabeth Hinton and DeAnza Cook foreground the importance of “policymakers and officials at all levels of government,” but the literature they cite generally accentu- ates large institutional and historical patterns and not the decisions of indi- viduals up and down the power structure.9 But more granular attention to law enforcers’ agency can enrich schol- arly understanding of how “caste” became manifested in the particular.10 There are some methodological parallels that can be drawn from the liter- ature on power relations during slavery. Robert M. Cover’s Justice Accused has raised profound questions about abolitionist judges affirming slavery in antebellum courtrooms.11 Enforcers’ individual stories might indeed reaffirm structural explanations much as Sally E. Hadden’s Slave Patrols relates the individual patrollers to their institutional mission and Chandra Manning’s What this Cruel War Was Over uses soldiers’ thoughts to corroborate slavery’s centrality in the Civil War.12 The break between slavery and emancipation was incomplete but undeniably significant, one of numerous important transformations in the structure of oppression whose ambiguities flowed in part from the legal indeterminacy of the American state as it moved toward its modern form. Hendrick Hartog has accented “the implicit pluralism of legal authority,” which “may emerge from. . . governmental and quasi- governmental institutions and practices,” including “prosecutorial 7. Dorothy E. Roberts, “Foreword: Abolition Constitutionalism,” Harvard Law Review 133 (2019): 85. See also, Roberts, “Constructing a Criminal Justice Free of Racial Bias: An Abolitionist Framework,” Columbia Human Rights Law Review 261 (2007): 284–86. 8. See Amy Kate Bailey and Stewart E. Tolnay, Lynched: The Victims of Southern Mob Violence (Chapel Hill, NC: University of North Carolina Press, 2015), 10–15. 9. Elizabeth Hinton and DeAnza Cook, “The Mass Criminalization of Black Americans: A Historical Overview,” The Annual Review of Criminology 4 (2021): 261–86, Abstract. 10. For a broad exploration of “caste” in African American history see Isabel Wilkerson, Caste: The Origin of Our Discontents (New York: Random House, 2020), 151–58. Wilkerson’s theorization stresses enforcement and terror among the characteristic pillars of caste, but with more discussion of slavery and recent history than of the century after emancipation. 11. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1975). 12. Sally E. Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas (Cambridge, MA: Harvard University Press, 2003); and Chandra Manning, What This Cruel War Was Over: Soldiers, Slavery, and the Civil War (New York: Vintage, 2008). Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  4 Law and History Review 2021 discretion.”13 Prosecutors and politicians have always shaped the contours of racial oppression, but scholars have paid less attention to how law enforcers defined legal reality for many who found themselves subject to their jurisdiction. In the century after slavery they instrumentally con- structed the contours of white supremacy in legal action. Their countless decisions both reinforced and undercut the explicit rules of domination, which illuminated if not propelling important ruptures in the coherence between formal and informal power dynamics. A fuller understanding of the function of policing in the Jim Crow era will necessarily rely on a flawed source base. Official documents like police and sheriff reports, precinct orders, and court records, along with heavily slanted correspondence, personal journals, and periodicals can rep- licate the very “biases and oppression” researchers may wish to question.14 Scholars have also identified dangers in traditionally over-represented sources, particularly newspapers, to research lynching and racial oppres- sion. These have proven constraining sources ever since Ida B. Wells first relied on them, as Aleen J. Ratzlaff reminds us.15 On the other hand, a re-examination of familiar and underutilized sources could clarify the problematic role of enforcement in the rising modern liberal state, a development that routinized and standardized oppression and yet expanded each officer’s prerogative. Looking at the choices of police officers and sheriffs might help explain related ironies, such as how police departments came to resemble each other nationwide at the very peak of regional distinctions in segregation law. Both the post- emancipation lynching era and the postwar era of police abuse are marked by subtle interactions between policing and officially illegal brutality. If Jim Crow America began and ended with periods of exaggerated officer 13. Hendrik Hartog, “Pigs and Positivism,” Wisconsin Law Review 899 (1985): 935. 14. Lae’l Hughes-Watkins, “Moving Toward a Reparative Archive: A Roadmap for a Holistic Approach to Disrupting Homogeneous Histories in Academic Repositories and Creating Inclusive Spaces for Marginalized Voices,” Journal of Contemporary Archival Studies 5, Article 6 (2018), https://elischolar.library.yale.edu/jcas/vol5/iss1/6 (August 25, 2021). See also Kidada E. Williams, “Reconsidering the Lynching Archive,” Reviews in American History 41 (2013): 501–6. 15. See, for example, Aleen J. Ratzlaff, “Ida B Wells and Coverage of Lynchings and Antilynching Efforts in Selected Mainstream Newspapers, 1892–1894,” in After the War: The Press in a Changing America, 1865–1900, ed. David B. Sachsman and Dea Lisica (New York: Transaction Publishers, 2017), 247–68; Susan Jean, “‘Warranted’ Lynchings: Narratives of Mob Violence in White Southern Newspapers, 1880–1940,” American Nineteenth Century History 6 (2005): 351–72; Kristin L. Gustafson, “Constructions of Responsibility for Three 1920 Lynchings in Minnesota Newspapers,” Journalism History 34 (2008): 42–53. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 5 discretion, then legal historians should attend to overt and covert ways that law enforcers have defined law in action. That question, the part played by enforcers in constructing legal oppres- sion, drives this article, a critical synthesis of literature on the century after emancipation, with the aim of suggesting a future research agenda. This article’s following sections explore the shifting demographics of enforce- ment during Reconstruction; policing inequalities alongside lynching in the late nineteenth century; the interplay between policing and segregation statutes, colorblind criminal law, and mob violence in the Jim Crow South; the concurrent modernization of racialized policing across the continent; and the displacement of informal mob law and formal racial caste by a national regime of extralegal police violence, unequal patterns of incarcer- ation and execution, and federal protections of civil liberties and civil rights. In each phase of racial control, law enforcers acted—whether as tyrants or pawns, recalcitrant participants or even contingent rebels—to shape the transformation of the structures around them. Policing Black Americans after Emancipation In 1871 the Nashville Tennessean published an explanation for “the Kuklux”: “Law” was now “decided by negro jurors, administered by negro justices and enforced by negro police.” Such officials offered “little security to person and property.”16 If the race of personnel ever mattered to outcomes, it was during Reconstruction, when Black law enforcers had new power to exercise discre- tion. Long reliant on slavery’s discipline, the Civil War–era South “had no machinery, no adequate jails or reformatories,” according to Du Bois. Its “police system” regulated “blacks alone, and tacitly assumed that every white man was ipso facto a member of that police.”17 After emancipation came a scramble over the machinery directed to enforce the Black Codes dur- ing early Reconstruction, then opened to Black officers during Radical Reconstruction. Scholars have understood the importance of these post- emancipation enforcers but they deserve more focus. In Vengeance and 16. “Latest Developments of the Situation in South Carolina,” The Nashville Tennessean, July 6, 1871, 2. 17. W.E.B. Du Bois, The Souls of Black Folk: Essays and Sketches, Twelfth Edition (Chicago: A.C. McClurg & Co., 1920 [originally published 1908]), 178. Recent scholarship has challenged Du Bois’s argument. For an account of police discipline aimed at “poor whites,” see Keri Leigh Merritt, Masterless Men: Poor Whites and Slavery in the Antebellum South (Cambridge: Cambridge University Press, 2017). On racial policing and lib- eralism through the Civil War see Adam Malka, The Men of Mobtown: Policing Baltimore in the Age of Slavery and Emancipation (Chapel Hill: University of North Carolina Press, 2018). Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  6 Law and History Review 2021 Justice, a sweeping history of nineteenth-century Southern criminal justice, Edward L. Ayers discusses local law enforcement but places greater emphasis on correctional systems.18 In police and sheriff positions, and up and down state systems, Black inclusion carried high stakes, as revealed in studies of the 1860s and 1870s. Blacks “served as sheriffs, chiefs of police, and policemen,” as Leon Litwack notes.19 Eric Foner’s history of Black office holders shows African Americans briefly dominating Beaufort, South Carolina’s police force and at least forty-one Black sheriffs serving throughout the South.20 Dennis C. Rousey’s work on New Orleans suggests an interplay between social forces and individual choices. As the most pronounced example of the period’s Black policing, New Orleans is unrepresentative of general Southern trends, but it spotlights the power of police decision making. On the one hand, the city had a distinctive legacy of Black police from about 1804 to 1828, a product of a relatively large free Black population and military expe- rience in the War of 1812, and so Rousey finds it “appropriate” that the city “witnessed the debut of black policemen in the postwar South.” Within the “decentralization in the American criminal justice system,” these structural peculiarities manifested in Black policing.21 But individual choices, from top to bottom, often drive the story. General Sheridan chose to include former Union soldiers and the Black community chose to pressure the mayor to inte- grate the police force. Black officers chose vigilance in fortifying against white resentment and demonstrated unsurpassed productivity despite their hardships. They opted to arrest whites and blacks “without any pattern of racial discrimination” despite massive social pressure.22 New Orleans was atypical because Black law enforcers did not enjoy the same power in most other places. But generally the high stakes of their inclusion spurred the Redeemers to challenge it in the 1870s. The backlash happened piecemeal through new legal restrictions and violence.23 In 18. For example, Ayers describes a Savannah police force in 1875 in military imagery: disciplined and dressed like the Confederate Army. Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South, Reprint edition (New York: Oxford University Press, 1985), 173. 19. Leon F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow (New York: Vintage Books, 1998), 247. 20. Eric Foner, Freedom’s Lawmakers: A Directory of Black Officeholders during Reconstruction, revised edition (Baton Rouge: Louisiana State University Press, 1996 [orig- inally published 1993]), xvii, xxvii. 21. Dennis C. Rousey, “Black Policemen in New Orleans during Reconstruction,” The Historian 49 (1987): 223–43, at 225–26. 22. Ibid., 228, 230, 232. 23. Walter M. Burton, of Union County, Texas, had to rely on a white deputy for arrests. In 1876, Democrats in Jefferson County, Mississippi, passed a new bond requirement to keep Black people out of sheriffs’ offices. Foner, Freedom’s Lawmakers, 33, 110. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 7 1871, a British newspaper described a Groesbeck, Texas riot that resulted from a Black officer killing a white man while attempting to arrest him for illegally carrying a firearm. The local Democratic Party’s militia took to arms. The Black police deployed by Governor Edmund Davis had to choose when to fight and when to retreat—“seeing they were likely to be summarily butchered”—when to “barricade. . .themselves” and when to march in force to the city.24 Throughout the South, violence purged Black sheriffs and Reconstruction unraveled. A mob forced Peter Crosby to resign from Warren County, Mississippi, in 1874, although federal troops helped reinstate him in January 1875. In Coahoma County, Mississippi, a bloody election campaign displaced John M. Brown. Redeemers continued to defeat Black sheriffs in Louisiana and elsewhere into the late 1870s.25 Just as Black law enforcers shaped policing patterns, so too would white enforcers. Litwack gives a structural explanation for why the “experiment” of Black law enforcement “proved short-lived”: “their very presence . . . undermined the foundations of white supremacy.” Whites then undertook to “extinguish the memories of black juries, judges, police, and legisla- tors.”26 When facing a white aggressor and Black victim, the white police were “more apt to arrest the victim than the aggressor,” as W.E.B. Du Bois averred in Black Reconstruction.27 Scholars have regarded this report of racism reliable despite purportedly equal criminal codes. As the “enforcers of white supremacy,” writes Litwack, “the police assumed a pivotal role.”28 But the question remains: how much of enforcement’s role was typecasting and how much improvisation? Litwack hints at the importance of ideas. Law enforcers employed bru- tality with the “ideological conviction” tracing back to slavery “that blacks understood only force.”29 Examining the transmission of racial ideology between society and elected sheriffs or professional police could clarify their specific function. Generalizing from Georgia outward, Ayers stresses social cohesion: “Savannah’s pattern of white police supported by white citizens had become the rule in the urban South.” White men dominated 24. “Outrages in the Southern States,” The Manchester Guardian, October 31, 1871, 5. 25. Foner, Freedom’s Lawmakers, 54, 28, 79. 26. Litwack, Trouble in Mind, 263, 249. 27. W.E.B. Du Bois, Black Reconstruction: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880 (New York: Russell & Russell, 1963 [originally published 1935]), 699, cited by Latonya Thames Leonard, “Veneer of Civilization: Southern Lynching, Memory, and African-American Identity, 1882–1940” (PhD diss., University of Mississippi, 2005), 7. 28. Litwack, Trouble in Mind, 263. 29. Ibid., 264. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  8 Law and History Review 2021 the “machinery of the police and courts” and consequently Black people “found themselves singled out for arrest, indictment, conviction, hanging, and long sentences” while whites received punishments “as lenient as ever.” Whites dominated grand juries and newspapers emphasized the cruelties afflicting white convicts.30 As Reconstruction’s reverberations subsided within law enforcement, discretion once again brought structural changes. By the dawn of the twen- tieth century only a handful of Black officers worked Southern cities. George Doyle served in New Orleans until 1906, expelled by disciplinary hearings after a Black man accompanying his beat fatally shot a white bar- tender said to be illegally serving alcohol on Sunday. The police inspector whose decision allowed removal conceded he would not “not strain . . . to save” a Black officer “as he might . . . a white officer.” The inspector had also instructed Doyle to limit Sunday Law investigations to African American violators.31 Discretion over internal procedures succumbed to public sentiment, finalizing the racial transformation of a department whose racial makeup had proven vital. The Nadir of Legal Clarity “The most conspicuous failure of American civilization is the American policeman,” wrote William Ralston Balch in 1882. “Were he merely a fail- ure as an element of our social structure it would not be so bad, but he is everywhere the supreme disgrace of the day.”32 The story of Southern policing becomes disjointed after Reconstruction in the period often called the “nadir” of American race relations.33 Scholars have long addressed the story through the New South’s cultural proxies. Balch’s quotation appears in historian Laylon Wayne Jordan’s 1980 study of Charleston’s police department, in which “the politics of police was a local politics” where the Populists determined personnel as had the Redeemers, Republican 30. Ayers, Vengeance and Justice, 173, 223, 224, 227. 31. K. Stephen Prince, “The Trials of George Doyle: Race and Policing in Jim Crow New Orleans,” in Wood and Ring, Crime & Punishment in the Jim Crow South, 29, 22. Prince notes that the presence of Black police officers had represented a tension between the ideas and practice of white supremacy, ibid., 18. 32. Quoted in Laylon Wayne Jordan, “Police and Politics: Charleston in the Gilded Age, 1880–1900,” The South Carolina Historical Magazine 81 (1980): 35–50, at 35. 33. This periodization traces to Rayford W. Logan, whose The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson (New York, Da Capo Press: 1997), is an expansion of his The Negro in American Life and Thought: The Nadir, 1877–1901 (New York: Dial Press, 1954), both of which focus more on national politics than local policing. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 9 Radicals, and spoils-system Jacksonians before them. The Populist purge was “anti-Irish” and “anti-Catholic,” and they dumped “all five blacks on the force” as well. As a consequence, “equal protection of life and property . . . was not always extended” to African Americans, according to one contemporary.34 Despite Jordan’s emphasis on partisan politics, the Balch quote suggests an outsized toxicity of the lone “policeman,” not merely representative of social corruption but its leading paragon. Late-nineteenth century lawmen appear as both pawns of inequity, inhabiting ad hoc and primitive institu- tions, as well as its apotheosis. The secondary literature has tended to regard the Gilded Age South’s weak policing infrastructure as more signif- icant than its enforcers, who were presumably too scarce to establish insti- tutional legacies. Enforcer discretion is evident in the period’s common thread, an unequal application of colorblind law. In 1876, Mississippi’s facially race-neutral “Pig Law” notoriously empowered law enforcement to target Black people for petty theft. Historians have long pinpointed the law for swelling pri- sons, a trope subject to some revisionism.35 The consequences of these types of measures were profound for policing and the carceral state. Scholars stress that convict leasing stunted police modernization while pat- rimonial debt criminalization incentivized egregious sheriff practices. William Stuntz argues that the South had less policing than the North partly because “the heavy use of convict labor” provided a “fiscal benefit” whereas police “represented fiscal cost.”36 Douglas Blackmon’s popular account observes that sheriffs and justices of the peace were compensated for fining Black Americans. One justice of the peace ordered all defendant property relinquished in almost every one of 225 debt claims that “he heard between 1878 and 1880.”37 The sorts of sources that Blackmon uses might reveal how much this system relied on sheriffs’ complicity. Lynching remains the most studied and yet indefinite link between late- nineteenth century law enforcement and customary racism. Lynching is the paradigmatic example of legally ambiguous collective action expressed 34. Jordan, “Police and Politics,” 49. 35. See Matthew J. Mancini, One Dies, Get Another: Convict Leasing in the American South, 1866–1928 (Columbia: University of South Carolina Press, 1996). 36. William J. Stuntz, The Collapse of American Criminal Justice (Cambridge, MA: Harvard University Press, 2011), 40. Indeed, the historiography focusing on the period’s policing institutions, even when exploring racial tensions, typically centers on the class con- struction of the urban North. See Sam Mitrani, The Rise of the Chicago Police Department: Class and Conflict, 1850–1894 (Urbana: University of Illinois Press, 2013). 37. Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (New York: Anchor Books, 2008), 63–64. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  10 Law and History Review 2021 through the most personalized violence. Lynchings were, in Michael J. Pfeifer’s words, “everyday enactments” of white supremacy with particular meaning within the whole.38 In Lynching and Spectacle, Amy Louise Wood has described lynching as the “primary representation of racial injustice and oppression.”39 The universal significance of these atrocities has inspired scholarly attempts to study lynching beyond its most familiar settings.40 Attempts to synthesize a century’s work by activists, social sci- entists, and historians have pressed for widening the vantage across time, space, and historical actors.41 Others have underlined connections between past and present. Wood and Susan V. Donaldson identify the contemporary significance of lynching to “racial disparities in the death penalty[,] to police brutality, to hate crimes, to the torture of prisoners.”42 While contending with lynching as a component of the social structure of the Jim Crow era South, recent lynching scholarship has stressed “race, gender, sexuality, and social class,” highlighting the importance of individ- uals in three important ways. First, studies of brutality and defiance have personalized victims.43 Second, law enforcers’ use of discretion has 38. Michael J. Pfeifer, “At the Hands of Parties Unknown? The State of the Field of Lynching Scholarship,” Journal of American History 101 (2014): 832–46, at 844. 39. Amy Louise Wood, Lynching and Spectacle: Witnessing Racial Violence in America, 1890–1940 (Chapel Hill, NC: University of North Carolina Press, 2009), 1. 40. The extension of inquiry has found continuities beyond the temporal and spatial post- emancipation South, complicating the legal relationship between lynching and formal anti-Black oppression. See, for example, Amy Louise Wood and Susan V. Donaldson, “Lynching’s Legacy in American Culture,” The Mississippi Quarterly 61 (2008): 5–25; William D. Carrigan, “The Strange Career of Judge Lynch: Why the Study of Lynching Needs to Be Refocused on the Mid-Nineteenth Century,” Journal of the Civil War Era 7 (2017): 293–312; Terence Finnegan, “‘Politics of Defiance’: Uncovering the Causes and Consequences of Lynching and Communal Violence,” Journal of American History 101 (2014): 850–51. 41. Pfeifer, “At the Hands of Parties Unknown?” 832–36. In important respects, attempts at synthesis are relatively new. As Pfeifer notes (833), C. Vann Woodward’s “highly influ- ential” tome has only two paragraphs on lynching. Origins of the New South, 1877–1913 (Baton Rouge: Louisiana State University Press, 1951). Pfeifer has urged examination across space and time and has sought to bring “mob violence in the west” and Southern lynching into a tale of the “larger cultural war over the nature of criminal justice.” Pfeifer, Rough Justice, 2. 42. Wood and Donaldson, “Lynching’s Legacy in American Culture,” 15. Sociologists have also discovered a strong negative correlation across jurisdictions between instances of lynching and modern hate crime enforcement. Bailey and Tolnay, Lynched, 29, citing Ryan D. King, Steven F. Messner, and Robert D. Baller, “Contemporary Hate Crimes, Law Enforcement, and the Legacy of Racial Violence,” American Sociological Review 74 (2009): 291–315. 43. Pfeifer, “‘At the Hands of Parties Unknown?’” 837–41. Kidada E. Williams has emphasized how lynchings have “transformed” “victims’ families.” Williams, “Regarding Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 11 emerged in narratives that emphasize race and gender.44 Third, cultural his- tory has underscored the performative dimension that marks each lynching a discrete spectacle whose enablers helped construct social reality. Officers could encourage or discourage the spectacle by protecting audiences or blocking their view, which Wood observes could provoke “disorderly resistance.”45 Both similarities and variations across performative contours indeed reveal structure’s explanatory limits. Lee Ann Fujii’s study of Indiana, Pennsylvania, and Minnesota, asks how absent “Southern norms, these northerners still managed to pull off ‘Southern-style’ lynch- ings.”46 Wood finds “no consistency even in individual localities,” where one sheriff might “have preferred private hangings, whereas his suc- cessor allowed public ones.”47 Public legitimacy could hinge on law enforcement’s posture toward the spectacle, at least until mobs reached critical mass. Was lynching legal or extralegal? Were their perpetrators legal agents? As the grisliest expression of white supremacy, lynching escalated in inde- terminate relation to positive law, which complicates assessments of the enforcers’ legal agency. Faced with many moving parts, scholars have sought legal meaning that transcends historical particularity. But attempts to define lynching stumble over legal status, soliciting fraught fusions of theory and history. Social scientists examining change often seek a fixed, however paradoxical definition that stresses formal illegality along- side social approval. Economist Lisa D. Cook’s call for a comprehensive national database assumes that victims died “illegally” and “under the pre- text of protecting justice or tradition.”48 Michael Weaver’s study of public legitimacy defines “Lynching [as] the extralegal use of lethal force to the Aftermaths of Lynching,” The Journal of American History 101 (2014): 856–58, at 856. See also, Finnegan, “‘Politics of Defiance,’” 851; and Bailey and Tolnay, Lynched, 2. 44. As Estelle Freedman has written, “Police sometimes invoked the threat of the mob to extract confessions from black men accused of rape.” Freedman, Redefining Rape, Sexual Violence in the Era of Suffrage and Segregation (Cambridge, MA: Harvard University Press, 2015), 252. Kris DuRocher notes that lynch mobs frequently “placed girls in the front . . . when storming jails or courthouses” to discourage police and militia from respond- ing with gunfire, showing that gender construction mediated the mob’s de facto legal status. DuRocher, “Violent Masculinity: Learning Ritual and Performance in Southern Lynchings,” in Southern Masculinity: Perspectives on Manhood in the South since Reconstruction, ed. Craig Thompson Friend (Athens: University of Georgia Press, 2009), 46–64, at 56. 45. Wood, Lynching and Spectacle, 41. Wood discusses one police chief who “forbade the selling of lynching photographs . . . because he deemed them ‘indecent’” (214). 46. Lee Ann Fujii, “‘Talk of the Town’: Explaining Pathways to Participation in Violent Display,” Journal of Peace Research 54 (2017): 661–73. 47. Wood, Lynching and Spectacle, 29. 48. Cook, “Converging to a National Lynching Database,” 56. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  12 Law and History Review 2021 punish some alleged crime or violation of custom or tradition.”49 Lynching often involved the “vestiges of legal proceedings,” note Amy Kate Bailey and Stewart E. Tolnay, who suggest this useful paradoxical framing still poses problems. The venerated National Association for the Advancement of Colored People (NAACP) definition that assumes “the pretext of service to justice or tradition” nevertheless “excludes fatal encounters with the police [and] sheriffs.”50 In any event, the perpetrators’ legal self-conceptualization mattered. “Mobs often bent over backward to establish the guilt” even of those “already lynched,” explains Wood, indi- cating legal pretense outlasted the killing.51 For historians, trying to pin down any definition relying on positivist legality is aiming at a moving target. Ashraf H.A. Rushdy defends using both “a capacious definition” and more “specific definitions” to serve both “longue durée” narrations and granular studies. Rushdy’s broader def- inition is similar to the social scientists’: “an act of extralegal collective violence by a group alleging pursuit of summary justice.”52 Working def- initions yet yield a circular problem: defining lynching through legal status while narrating its impact on legal development. The legal meaning of lynching varied up and down the polycentric political order and across time. Christopher Waldrep has looked to community standards and lan- guage in determining the “legitimacy or illegitimacy or mob law.”53 Perhaps enforcement decisions collectively determined whether social sanction constituted de jure legal status. To relate structural changes and individual actions historians might follow Waldrep’s concession that “the word ‘lynching’ cannot be defined,”54 and instead focus on brutalities sharing a family resemblance. Although police decision making is not its typical focus, the literature starkly illustrates enforcers’ capacity in instantiating oppression that both transgressed and moved the boundaries of law. On the whole, law enforce- ment enabled something akin to a lynching regime.55 They almost never 49. Michael Weaver, “‘Judge Lynch’ in the Court of Public Opinion: Publicity and the De-legitimation of Lynching,” American Political Science Review 113 (2019): 293–310, at 296. “Lynchings” once regularly included non-lethal vigilante violence. See Ashraf H.A. Rushdy, American Lynching (New Haven, CT: Yale University Press, 2012), 29–30. 50. Bailey and Tolnay, Lynched, 7, 3. 51. Wood, Lynching and Spectacle, 82. 52. Rushdy, American Lynching, 5, 17, 20. Emphasis in original. 53. See Christopher Waldrep, The Many Faces of Judge Lynch: Extralegal Violence and Punishment in America (New York: Palgrave MacMillan, 2002), 8. 54. Cited by Rushdy, American Lynching, 5. 55. The phrase “lynching regime” appears in the literature but without much theorization. Its imprecision allows for inductive analysis. Michael Ayers Trotti uses it to accentuate Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 13 arrested perpetrators but beyond that their posture was more variable. In Litwack’s words, law enforcement “often stood by helplessly,” “on occa- sion actively participated,” and even appeared in press photos alongside lynch mobs and the accused.56 Although W. Fitzhugh Brundage describes sheriffs’ attempts to curb lynching, he concludes that “local authorities typ- ically showed little inclination to prosecute mob members.”57 Scholars could more exhaustively study police and sheriff decisions on whether to step in. Sheriffs could “make or break a lynching,” as Toby Moore says.58 To explain the decline in lynching, Bailey and Tolnay implicate enforcers’ technological improvements but also note enforcers’ “deter- mined efforts” to stop many lynchings.59 The choices to intervene could have helped transform its racial importance, an under-studied question. In 1888, one Birmingham sheriff violently resisted the mob that sought to kill a white prisoner arrested for murdering his family. The percentage of white victims declined after the 1880s. Blacks became far more likely victims, which might have correlated with decisions to intercede.60 Within the context of lynchings, law enforcers made consequential cal- culations weighing social costs, their own safety, and the urgency of short- term order over long-term justice. In November 1890 the sheriffs of Shelby County, Alabama, went to some lengths to protect a Black prisoner accused of assaulting a white woman. They disguised him in women’s clothes and navigated him through the mob.61 In 1904, one Mississippi sheriff, working alone with a pistol, saved a Black man accused of child rape from a lynching, even crossing through New Orleans.62 Sheriffs faced social constraints and risks in taking such measures. In 1895, in Live Oak, Florida, the sheriff protected a Black prisoner differences between the West and the South. “The Multiple States and Fields of Lynching Scholarship,” The Journal of American History 101 (2014): 852–53, at 852. For an earlier use see Vijay Prashad, “Black Gandhi,” Social Scientist 37 (2009): 3–20, at 5. 56. Litwack, Trouble in Mind, 296. 57. W. Fitzhugh Brundage, Lynching in the New South: Georgia and Virginia, 1880– 1930 (Urbana and Chicago: University of Illinois Press, 1993), 79, 181, 182. Brundage also defines lynching as “extralegal violence,” ibid., 6. 58. Moore notes that “The most serious allegations of black-on-white crimes provoked not legal but vigilante punishment, and sheriffs again often found themselves in pivotal roles.” Toby Moore, “Race and the County Sheriff in the American South,” International Social Science Review 72 (1997): 54. 59. Bailey and Tolnay, Lynched, 19. 60. E.M. Beck, “South Polls: Judge Lynch Denied: Combating Mob Violence in the American South, 1877–1950,” Southern Cultures 21 (2015): 122–23. 61. Beck, “Judge Lynch Denied,” 126. 62. “Single-Handed Overawed Mob,” The Atlanta Constitution, March 29, 1904, 7. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  14 Law and History Review 2021 on two occasions, and lost re-election.63 Another officer had “every inten- tion of fulfilling my oath” to protect a jailed suspect, but succumbed to the “half a dozen. . . leading citizens—businessmen, leaders of their churches and community.” Sheriff W.M. Waltrip sought to protect two accused arsonists in Franklin County, Alabama, in 1891. He was “heartily opposed to mob law” but a “larger portion of the people, black and white,” sup- ported the lynching and fearing for his life he relented.64 In the twilight of the century, conspicuous social contradictions revealed potential tension between the lynching regime and law enforcement. As segregation policies drove regional differentiation in written law, Northerners lost their stomach for lynching often without gaining sympa- thy for its victims. As Ayers writes, most whites in the North and South attributed the surge in lynching, taking 700 lives from 1889 to 1893, to “an epidemic of the ‘New Negro crime.’”65 The tension between social attitudes and legal status appeared in the often-cited “first” definition of lynching. An 1896 Ohio law turned on the perpetrators’ legal intentions and self-conceptualization. Lynching was “any violence” visited upon persons targeted by a “mob,” itself defined as a group “assembled for any unlawful purpose” intending to inflict harm “or pretending to exercise correctional power.”66 Meanwhile, lynching was defended as a positive and legal good in the South. Looking at the 1902 novel The Virginian, Rushdy quotes a judge saying that “far from being a defiance of the law,” lynching is “an assertion of it.”67 In 1905 James Elbert Cutler defined lynching as “an illegal and sum- mary execution” whose perpetrators had to “some degree the public opin- ion of the community.”68 On this score, further research could distinguish the decision of law enforcers to thwart individual lynchings from their de facto failure to vig- ilantly police lynching as a social institution. Police and sheriffs’ naviga- tion of this legal landscape intensified as legal oppression followed trends of urban modernity. 63. Beck, “Judge Lynch Denied,” 127. 64. Litwack, Trouble in Mind, 296. 65. Ayers, Vengeance and Justice, 238. Ida B. Wells was especially focused on rebutting the association between lynching and criminality. See Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (Cambridge, MA: Harvard University Press, 2010), 60. 66. Cited by Rushdy, American Lynching, 19. 67. Ibid., 1. 68. James Elbert Cutler, Lynch-Law: An Investigation into the History of Lynching in the United States (New York: Longmans, Green, and Co., 1905), 276. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 15 The Interlocking Oppressions of the Jim Crow South In 1923 Du Bois described “the black man” as “a person who must ride ‘Jim Crow’ in Georgia.”69 Du Bois’s positivist definition of the Black race, bound by regional law, was salient. Dawning with the Progressive Era, a modern system of racial oppression—formalized in segregation and disenfranchisement—spread and hardened in the South.70 Yet a national story accompanied this regional one. Southern Jim Crow unfolded in a transformative period for a nation that, in Richard Hofstadter’s words, “was born in the country and has moved to the city.”71 Nationwide, pro- gressive reformers were mixed on racial questions.72 David Taft Terry’s study of Baltimore—that middle ground of North meeting South— observes that the “ideological foundation of Jim Crow segregation” in the cities was “Progressivism.” While “night riders and vigilante mobs” kept blacks from “challenging” rural whites, “‘professional’ and ‘modern’ police forces under the guise of law and order but guided by white suprem- acy enjoyed broad permission” to reinforce white dominance in the city.73 Even as technological and policy development made urban police forces resemble one another nationwide, multiple means of control overlapped and interacted in the South to oppress Black Americans in ways even more systematic than during the post-Reconstruction “nadir” of race rela- tions.74 Police administered these overlapping oppressions and clarified their tensions. In implementing segregation, unequally enforcing an expanding criminal law, and acting ambivalently toward lynching and racial terror, Southern law enforcers helped define the meaning of Jim Crow law in all its unstable reliance on formal and informal authority. 69. W.E.B. Du Bois, “The Superior Race” (1923), in W.E.B. Du Bois, A Reader, ed. David Levering Lewis (New York: Henry Holt, 1995), 477. 70. See Pippa Holloway, Living in Infamy: Felon Disenfranchisement and the History of American Citizenship (Oxford: Oxford University Press, 2014), 81; and Anne Valk and Leslie Brown, Living with Jim Crow: African American Women and Memories of the Segregated South (New York: Springer, 2010), 13. 71. Richard Hofstadter, Age of Reform: From Bryan to F.D.R. (New York: Vintage Books, 1955), 23. 72. According to Muhammad, while Southern progressives often criticized Jim Crow and Northern racial liberals resisted the “rising tide of northern segregation, discrimination, and violence during the Progressive era,” their social scientific approach reaffirmed discrimina- tory assumptions. Muhammad, Condemnation of Blackness, 9, 27, 67, 158. 73. David Taft Terry, The Struggle and the Urban South: Confronting Jim Crow in Baltimore before the Movement (Athens: University of Georgia Press, 2019), 38, 39. In Northern Louisiana, enforcers of Jim Crow segregation aimed to tamp down the influence of “white working-class mobs,” according to Pfeifer, Rough Justice, 49. 74. See Rayford Logan, The Negro in American Life and Thought: The Nadir, 1877– 1901. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  16 Law and History Review 2021 The impact of segregation statutes is such a foundation of modern his- toriography that statutory structure and language have long overshadowed an interest in police decision making in implementing these statutes. C. Vann Woodward’s groundbreaking revision of Jim Crow periodization depicted the contingent rise of 1900s segregation statutes as “the most elaborate and formal expression” to reinforce customary domination.75 In Barbara Welke’s words, “Jim Crow reaffirmed the connection between status and race.”76 Did lawmen have a special place in this codification of custom? On the one hand enforcement was diffuse: “the Jim Crow laws,” Woodward explains, “put the authority of the state or city in the voice of the street-car conductor, the railway brakeman, the bus driver, the theater usher, and also into the voice of the hoodlum of the public parks and playgrounds.”77 Ayers describes streetcar conductors as enforcers, imposing order in the “‘twilight zone’ of race relations.”78 In her examination of gender, race, and the railroads, Welke has revealed private guardians of property exercising “regulatory power” that already “embedded the most ‘natural’ of social divisions.” And yet official police reinforced the whole system, including the dispersed maintenance of codified law that itself affirmed customary caste. They arrested blacks and whites found “in violation of the state segregation law,” as Welke notes.79 Although historians devote more time discussing the courts, Litwack writes that the police “played a critical role as the enforcers of Jim Crow.”80 Closer study of how police choices converted official decrees into legal outcomes could highlight divergences between theory and practice. When Montgomery segregated street cars in August 1900, its ordinance invested enforcement in the “police power of a police officer” and fined company agents who refused to comply. But it allowed exceptions for “negro nurses having in charge white children or sick or infirmed white persons,” suggesting some place for police discretion.81 Abundant are the fruits of 75. C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 2001 [originally published 1955]), 7. 76. Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (Cambridge: Cambridge University Press, 2001), 306. 77. Woodward, Strange Career of Jim Crow, 107. 78. Edward L. Ayers, The Promise of the New South: Life After Reconstruction (New York: Oxford University Press, 2007 [originally published 1992]), 433. 79. Welke, Recasting American Liberty, 326, 317. 80. Litwack, Trouble in Mind, 256. 81. “Will Separate Races on Cars,” 1900 August 7, Q17402, Montgomery Advertiser, August 7, 1900, 1, Alabama Department of Archives and History, 624 Washington Avenue, Montgomery, Alabama, 36130, https://digital.archives.alabama.gov/digital/ collection/voices/id/2796 (August 26, 2021). Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 17 such methodological reorientation toward workaday state actors in Peggy Pascoe’s What Comes Naturally, which explores how the administrative state implemented anti-miscegenation policy. Pascoe focuses not on police but on the bureaucratic task of delineating ambiguous race categories, sometimes left to county clerks deciding which marriages to affirm.82 Yet marital segregation initially relied on “criminal arrest and imprison- ment” along with judicial nullification of interracial marriages. Extrapolating from Alabama, where 343 men and women faced criminal charges between 1883 and 1938, Southern police arrested thousands for interracial marriage, leaving behind arrest records and perhaps documenta- tion of their thoughts.83 Pascoe was chiefly concerned with the systemic, yet her attention to discretion could inspire historians to extend such scrutiny to the earlier police enforcement of anti-miscegenation and segregation law. Discriminatory residential law could also use this treatment. As Black Americans moved into white neighborhoods in the early twentieth century, white majorities passed segregation codes. Roger L. Rice traces such laws from Baltimore in 1910 and Richmond in 1911 to other municipalities in Virginia, North Carolina, and Georgia. Soon enough Louisville, St. Louis, Oklahoma City, and New Orleans followed suit. Rice hints at criminal enforcement. The Louisiana ordinance faced challenges in “both civil and criminal cases” and a criminal judge upheld it. A Baltimore ordinance was presented before the “Committee on Police and Jail of the City Council.”84 On the margins, police determined who could live where. As segregation swept the South, enforcement of basic laws ensnared the races unequally. As Litwack explains, the “entire machinery of justice. . . functioned as a formidable instrument of social control,” securing the “absolute power” of whites to “control blacks” despite “criminal and civil codes” that “implied that the legal system was colorblind.”85 An enforcer could routinely destroy a Black person’s life over nothing. After one Georgia police officer asked the names of a group of Black youth, and had trouble spelling “Ulysses,” he felt so humiliated when Ulysses offered to write it himself that he punched the young man to the ground. Ulysses was arrested, fined more than he could pay, and damned to a chain gang. While both formal and informal oppression inhabit this 82. Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009), 133–35, 143–45, 153. 83. Ibid., 134–35. 84. Roger L. Rice, “Residential Segregation by Law, 1910–1917,” The Journal of Southern History 34 (1968): 179–99, at 181–82, 186–87. 85. Leon Litwack, How Free Is Free? The Long Death of Jim Crow (Cambridge, MA: Harvard University Press, 2009), 18. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  18 Law and History Review 2021 story, the officer chose to take offense, to beat and arrest the young man to salve his bruised ego. Presumably he chose not to intervene in court to save Ulysses from forced servitude to the state.86 White police chose how to treat Black victims as well as suspects. Ayers and others repeat an officer’s frank admission of the double standard: “If a n*gger kills a white man, that’s murder. If a white man kills a n*gger, that’s justifiable homicide. If a n*gger kills another n*gger, that’s one less n*gger.”87 This quote reappears in historiography covering a broad time frame—Ayers is bringing texture to a late-nineteenth century discus- sion—but the original statement occurred in the late Progressive Era, a reminder that informal enforcement standards persisted. Moore discusses “[t]he curious southern practice of ‘white patronage,’ by which whites cemented black dependence by protecting blacks from punishment of black-on-black crime” an exploitative practice that relied on “the coopera- tion of official law enforcement.”88 Valk and Brown highlight police inac- tion against “white-on-black rape and sexual assault.” Police, “like many other white southerners, considered black people so sexually immoral” that they assumed consent.89 If police attitudes mattered so too did their choices, and instances of wel- come conduct only underscore that abuse was sometimes elective. So over- whelming is the record of unfair treatment that Brandon T. Jett argues that historians have overlooked cooperation and “nonviolent interactions between police and African Americans.” Jett stresses the agency of Black people who assisted police, served as witnesses, provided evidence, apprehended suspects, for their own ends: community protection and to shape narratives of their social position.90 Also under-studied are police decisions either to destroy Black lives or serve as public servants, however problematically. Well-intentioned police agency might seem trivial alongside the early twentieth century’s rise of white supremacist mob violence, but even here choices mattered. Law enforcement decisions to escalate tensions could erupt into racist crowd behavior, demonstrating both the limits and expanse of an officer’s choices. An enforcer’s power to propel a mob was immense, but it soon took on a life of its own. The scholarly 86. Litwack, Trouble in Mind, 264, citing Albon L. Holsey, “Learning How to Be Black,” American Mercury XVI (1929): 421–24, at 424. 87. Quoted in Ayers, Vengeance and Justice, 231. 88. Toby Moore, “Race and the County Sheriff in the American South,” 50–61, at 53. 89. Valk and Brown, Living with Jim Crow, 9. 90. Brandon T. Jett, “Many People ‘Colored’ Have Come to the Homicide Office: Police Investigations of African American Homicides in Memphis, 1920–1945,” in Wood and Ring, Crime & Punishment in the Jim Crow South, 35, 38. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 19 recognition of this dynamic is about as old as the phenomenon. Ida B. Wells exposed race riots and lynching as vengeance against African Americans who resisted police.91 In 1904, Mary Church Terrell described a familiar sort of incident from two years before: a “well to do and law- abiding” Atlanta Black man named Richardson had “been so imprudent to a white man” that “the sheriff led out a posse, consisting of the city police, to arrest Richardson.” The confrontation resulted in four white police being killed, Richardson being burned to death, and a riot.92 Kevern Verney and Litwack are among the modern historians who have documented police confrontations triggering mob violence.93 Police calculations carried high stakes when multiple sides took up arms. In the September 1906 Atlanta “race riot,” the police became “prudently scarce, interceding mostly to disarm blacks” while white gun purchases rose, Litwack writes.94 Black people in turn “mobilized” in armed defense against “arresting officers, abusive railroad and streetcar conductors, exploit- ative employers, lynch mobs, and police violence.”95 When Black Americans rose up, police influenced white retaliation. Even the press at the time reveals the police killing two African Americans, arresting 257, searching their premises for weapons, and holding seventy-five in custody.96 Police crucially held Black people to different standards of self-defense, mixing private and public enforcement of Black subordination. As Chris Bray explains, criminalizing self-defense brought legal force to racial ter- ror. Blacks resisting subjugation “caused consternation within the Jim Crow regime” where “violence was supposed to flow in only one direc- tion.” Even when “white authorities . . . embraced armed black resistance and self-defense” they sometimes did so to reaffirm Jim Crow. Bray writes of the “bitter irony” of one Black woman who successfully used segrega- tionist logic for the legal right to public space.97 More often police simply disregarded such rights. (Up North in the 1918 Philadelphia riots, Khalil Gibran Muhammad finds “the criminalization of black resistance to white violence” a major factor in the “disproportionate arrests of blacks.” 91. Ida B. Wells, Mob Rule in New Orleans, Robert Charles and His Fight to the Death (Chicago: 1900). 92. Mary Church Terrell, “Lynching from a Negro’s Point of View,” The North American Review 178 (1904): 853–68, at 860. 93. Kevern Verney, Black Civil Rights in America (New York: Routledge, 2000), 63; and Litwack, Trouble in Mind, 316. 94. Litwack, Trouble in Mind, 316. 95. Ibid., 424. 96. “Brownsville is Raided,” The Atlanta Constitution, September 26, 1906, 3. 97. Chris Bray, “‘Every Right to be Where She Was’: The Legal Reconstruction of Black Self-Defense in Jim Crow Florida,” The Florida Historical Quarterly 87 (2009): 352–77, at 356, 377. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  20 Law and History Review 2021 Police regarded Black self-defense “as a criminal offense regardless of the circumstances” and disarmed them through warrantless searches. Muhammad points to “moments when white policemen intervened to pro- tect blacks who reportedly did not fight back,” to show that Black resis- tance was sometimes more feared than Black skin.)98 Apace with segregation and unequal policing, Southern lynching per- sisted with an unstable relationship to law enforcement. The ambiguity arises partly within the broader confusion of the legal status of lynching alongside governmental modernization. Michael J. Pfeifer argues that the emergence of the death penalty in the modern state was “the eventual com- promise” between an early era of “rough justice” racial violence and a sub- sequent era of due process-based formalism aimed in part at curbing lynching. The debate over Pfeifer’s due process thesis often turns on whether these coexisting oppressions were complementary or rivalrous forces resolving in a formalist synthesis.99 Some scholars have criticized Pfeifer for flattening distinctions.100 Bailey and Tolnay argue that Pfeifer has overstated the rivalry between lynching and the modern state.101 In general, some scholars have pushed for sharper distinctions between the democratic state and the mob; others have found in lynching reasons to iden- tify democratic liberty as historically contestable.102 Although lynching sup- posedly “demarcated a border between civilization and savagery,” Jesse Carr rejects the association with “‘lawlessness’” and characterizes lynching as “a technique of law enforcement.”103 For victims of policing and lynching, the distinctions occupied a contin- uum. Within cities, as Terry notes, “lynching” long served as metaphor for 98. Muhammad, Condemnation of Blackness, 217. 99. Pfeifer, Rough Justice, 7, 27, 144. In his prequel The Roots of Rough Justice: Origins of American Lynching (Urbana, Chicago, and Springfield: University of Illinois Press, 2011), Pfeifer further developed the early chapters of this history. 100. Michael Ayers Trotti has suggested that Pfeiffer’s “focus on state formation and the growing and contested power of law obscures” the many differences between Southern and Western lynching. Trotti, “The Multiple States and Fields of Lynching Scholarship,” The Journal of American History 101 (2014): 852–53, at 852. 101. Bailey and Tolnay argue that the state accommodated rather than rivaling mobs who seized victims “from the custody of sheriffs” or jails, and observe that judicial procedure was an unsatisfying substitute for ritual humiliation. Bailey and Tolnay, Lynched, 19. 102. Ashraf H.A. Rushdy finds inherent tension between democracy and customary terror, and at best “an uneasy coexistence” between the rational state and mob law. Rushdy, American Lynching, 3. 103. Looking at the discursive construction of lynching as a “righteous, even radically democratic institution,” Jesse Carr attributes the violence to “modernization, rapid industri- alization, and cutting-edge. . . technologies.” Jesse Carr, “The Lawlessness of Law: Lynching and Anti-Lynching in the Contemporary USA,” Settler Colonial Studies 6 (2016): 153–63, at 154, 155, 158. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 21 “state-sanctioned violence” that “underpinned Jim Crow across the South”, both the “routine, institutionalized forms” of humiliation and the unbridled countryside terror.104 Indeed, as Kidada E. Williams explains, the decline of rural massacres did not mark the end of “racialized killings,” which African Americans may have continued to call “lynchings.”105 Pascoe notes that South Carolina Governor Cole Blease “defended lynching” to manage ‘black brutes’” as a complement to the administrative state’s anti- miscegenation policy.106 More attention to enforcers could reconcile the larger story of lynching and the liberal state. Contrasting sheriffs with police could draw out differences between rural and urban settings, elected and appointed authority, and could indicate whether lynching was an instrumental phase in the development of a due process-oriented state, a vestigial practice incompatible with modernity, or both. At the turn of the century, police had an interest “to deny legitimacy of the mob as an agent of social control,” as E.M. Beck puts it.107 The early twentieth- century South saw some polarization between law enforcement and the mobs, an impasse that sustained the lynching regime through years of uncertainty. Radicalized societal forces mobilized against the procedural state. Sometimes officially deputized bands of citizens performed kill- ings.108 Sometimes politicians lent their full support.109 Perhaps it was no coincidence that spectacle lynching escalated alongside procedural for- malization of police forces. Ostentatious lynching drew mobs that could overpower police and thus police forces had to closely weigh the costs of intervention.110 Sometimes, of course, official police forces also partic- ipated in lynchings. The infamous Waco, Texas lynching of 1916 was wit- nessed by a reported 20,000-person mob. Although the Chicago Defender indicated that “Police, Ministers and Professional Men” were complicit, the reporting did not clarify their role.111 Police sometimes sparked and lost control of lynchings just as they did with riots. The “committee of twelve” who summarily convicted Tom Clark sentenced him to hanging but the 104. Terry, The Struggle and the Urban South, 38. 105. Williams, “Reconsidering the Lynching Archive,” 504. 106. Pascoe, What Comes Naturally, 166. 107. Beck, “Judge Lynch Denied,” 135. 108. See Jesse Carr, State Sanctioned Web site, https://statesanctioned.com/view-by-form- of-collusion/ (November 17, 2021). 109. Litwack, Trouble in Mind, 296. 110. Jesse Carr, State Sanctioned Web site, https://statesanctioned.com/allen-brooks/ (August 26, 2021). 111. "Southern White Gentlemen Burn Race Boy at Stake," Chicago Defender, May 20, 1916, 1. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  22 Law and History Review 2021 mob burned him alive, at which point the enforcers’ choices could not be undone.112 Southern law enforcers seemingly became more willing to intervene to stop lynchings when they were able to meet or exceed the physical force arrayed against them. Some scholars have downplayed the importance of impeded lynchings.113 But Beck has documented many “threatened, foiled, averted, and failed lynchings,” and finds that by the early twentieth century, more were thwarted than completed. Most often, officials moved the targets to a different jail or protected them “with additional guards, the militia, or state troops.” In one dramatic instance in 1921, Sheriff John Logan of Polk County, Florida, deputized a whole crowd to escort a prisoner. Beck gives a “crude and approximate estimate that without such efforts, “an additional 2,000 southerners,” mostly Black men, would have perished.114 Local and state interference with lynching followed discernible trends through the interwar period. Militia protection of prisoners against lynch- ing rose for the last quarter of the nineteenth century, then declined until World War I, and then increased again. Individual enforcers often spurred these institutional responses. Police sometimes chose to resist a mob long enough for state militia to subdue it. In July 1920 in Alamance County, North Carolina, a sheriff and his deputies held a mob at bay long enough to call for backup from the governor. In 1932 in Rockingham County, Virginia, police rigged a water hose as a deterrent, buying time to bring the National Guard.115 A closer look at the officers and their decision mak- ing would illuminate the transformation of lynching’s legal meaning along- side the formalized oppression of the progressive police state. Policing a Jim Crow Nation In 1934, San Francisco Police Captain Arthur Christiansen ordered his com- pany “to arrest on sight every negress prostitute.” Any of his subordinates who tolerated this “very vicious criminal element” would “be severely dis- ciplined.”116 Far removed from the South, Christiansen’s order nevertheless 112. “Fiend Burned at the Stake for Assault and Murder,” Daily Picayune, September 29, 1902, https://statesanctioned.files.wordpress.com/2015/05/thomas-clark-daily-picayune- 09291902.pdf (November 17, 2021). 113. See also, Ryan Hagen, Kinga Makovi, and Peter Bearman, “The Influence of Political Dynamics on Southern Lynch Mob Formation and Lethality,” Social Forces 92 (2013). 114. Beck, “Judge Lynch Denied,” 118, 119, 125, 126, 135–36. 115. Ibid., 118, 121, 128. 116. Captain’s Order No 72, March 19, 1934, Box 3:9 Captain’s Orders, January–April 1934, San Francisco Police Records, Bancroft Library, University of California, Berkeley. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 23 seems to exemplify the Jim Crow era. His directive to enforce colorblind vice law selectively presented subordinates with a choice: carry out this racist directive or face potential discipline. In the early twentieth century, rigid racial codes distinguished the South, and yet nationwide, racialized policing was the coin of the realm. While scholars like Risa L. Goluboff and Richard Rothstein have examined dis- crimination outside the South, the line between state-enforced and state- tolerated alienation is even muddier with policing.117 Ayers finds surpris- ing comparisons across the Mason–Dixon line beginning in the late nine- teenth century: at the moment when the regions diverged on segregation. Despite a “striking resemblance,” Southern cities had smaller forces, were more preoccupied with public intoxication and fighting, and indeed arrested “considerably fewer [people] than Northeastern police.”118 While whites dominated Southern forces, Samuel Walker writes that “New York City did not appoint its first black policeman until 1905.”119 Because uneven policing and protection shaped the lived reality of Jim Crow, categorizing the oppression as legal or extralegal is not straightfor- ward. If, in addition to riding separately in Georgia, a Black man had to fear police everywhere, Du Bois’s construction of race, delineated by Southern segregation statute, was perhaps too regional and positivist. Jim Crow made the South unique, but police made America a Jim Crow nation. Familiar elements across regions included unstable relationships to mob violence, a weaponized language of Black criminality, and a ubiquitous practice of unequal enforcement. Police officers’ decision making mediated these structural factors. The white-dominated Northern police had an uncertain disposition toward anti-Black terror. The scholarly emphasis, once again, has been structural, an examination of indirect ties between police and violence. But sometimes police stopped the mobs, sometimes they joined, and some- times vigilantism both strengthened and frustrated formal governance. In 117. Risa Goluboff explains that “economic discrimination and exploitation” reduced apparent regional distinctions in segregation. Risa L. Goluboff, “Lawyers, Law, and the New Civil Rights History,” Harvard Law Review 126 (2013): 2319. Rothstein describes Berkeley’s police chief alerting the Federal Bureau of Investigation (FBI) that a Black man had entered an all-white residential community despite the discriminatory fede- ral mortgage loan regime. Richard Rothstein, The Color of Law: The Forgotten History of How Our Government Segregated America (New York: W.W. Norton, 2017), 66. 118. Ayers, Vengeance and Justice, 225. 119. Samuel Walker, A Critical History of Police Reform: The Emergence of Professionalism (Lexington, MA: Lexington Books, 1977), 11. Walker writes that racial and ethnic tensions “overshadowed those of economic class” in modern policing, which he seeks to explain through a synthesis of “urbanization-social control and the Marxist” interpretation rather than explore how police made law (xiii). Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  24 Law and History Review 2021 the August 1900 New York riot sparked by a Black man killing a white police officer, Walker describes city police helping the mob of “white law- lessness” brutalize African Americans, arresting no whites and encourag- ing “open season on blacks.”120 Although “it took one hundred . . . officers” to pacify white rioters, Waldrep cites an anonymous New York Times letter suggesting that the incident proved that Black criminality went beyond the South.121 The same year in Chicago, according to the Atlanta Constitution, a crowd besieged a Black man after he hit a “white man who had been tormenting him.” This time the police confronted the white mob, dispatching “their clubs freely to disperse their crowd.”122 Sometimes lawmen faced pressure in both directions, as confrontation took courage but politics penalized inaction. The Illinois governor refused a sheriff’s reinstatement in 1909 for having failed to “use the utmost human endeavor to protect the life of his prisoner.”123 Muhammad observes that some police decided to “rescue blacks from mobs rather than simply arrest them after they were beaten.”124 In many if not all instances, such decisions could have mattered, sometimes enor- mously. Muhammad quotes a letter from B.G. Collier and Richard R. Wright, Jr., that pinned the 1918 Philadelphia riot on police agency: “But for the sympathy of the police, their hobnobbing with the mob, what has now become the disgrace of Philadelphia would have been nothing more than a petty row.”125 Similar police behavior character- ized racial riots in 1917 East St. Louis and 1919 Chicago.126 Simon Balto suggests the importance of local policing in driving a continuity of racial oppression well after the Civil Rights Act. He frames the story largely in terms of policy changes, and yet gestures toward police decisions to arrest victims and tolerate mobs in Chicago’s Red Summer of 1919—a riot “crit- ical to the historical relationship between black Chicago and the police department.”127 The racist, ideological underpinnings of unequal policing also unified the nation’s police forces. As Hinton and Cook have noted, “ideas about innate 120. Walker, A Critical History of Police Reform, 120–21. 121. Christopher Waldrep, African Americans Confront Lynching: Strategies of Resistance from the Civil War to the Civil Rights Era (Lanham, MD: Rowman & Littlefield, 2009), 61. 122. “Police Save a Chicago Negro,” The Atlanta Constitution, September 7, 1900, 2. 123. “Sheriff Pays for Lynching,” Atlanta Constitution, December 7 1909, 1. 124. Muhammad, Condemnation of Blackness, 216. 125. Ibid., 218. 126. Walker, A Critical History of Police Reform, 121–22. 127. Simon Balto, Occupied Territory: Policing Black Chicago from Red Summer to Black Power (Chapel Hill: University of North Carolina Press, 2019), 27, 29. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 25 black criminality sanctioned the terror of mob violence.”128 These factors have driven a fruitful focus on the criminological dialogue uniting police across regions, but the cultural and intellectual historiography have only said a little about the police. Kali N. Gross’s Colored Amazons, showcasing Philadelphia’s treatment of Black women convicts from the late nineteenth to the early twentieth century, reveals that intensified “muscle to policing” exacerbated crime and its attendant racial ideology.129 Gross traces the “tactics” of tracking expected recidivists through their formalization in Pennsylvania’s 1899 Act for the Identification of Habitual Criminals.130 One wonders whether enforcers regarded these tactics as a constituent or incidental element in creating law. Muhammad’s The Condemnation of Blackness has gone furthest to show how a racialized criminology unified North and South in a racial project with a seeming clean break from the regionalized divisions of the Civil War. The hardening construction of Black criminality came alongside the decline of eugenic conceptions of ethnic white criminality. Muhammad does not emphasize the enforcers’ own attitudes. Because “the mistreatment of African Americans” does not alone show that “[r]ace mattered to city officials and reformers,” Muhammad looks for larger trends including Black reformist support for anti-crime forces.131 Yet police decisions crucially pushed every step in the feedback loop in which racist enforcement propelled racist criminology propelled racist enforcement. Scholars interested in the sociology of knowledge might look more to the practitioners who contributed to the rise and decline of criminolog- ical assumptions. August Vollmer, Berkeley’s police chief who brought police departments across the nation and world into conversation with academia, deserves more focus. Still somewhat under-studied is his par- ticular complicity in eugenics. He believed in hereditary criminality and belonged to the American Eugenics Society, but his influence on this front deserves more examination.132 By the 1930s he was recommending studies denying the particular criminality of Black people. His acolytes ran police departments around the country—from Wichita to Honolulu— 128. Hinton and Cook, “The Mass Criminalization of Black Americans,” 269. 129. Kali N. Gross, Colored Amazons: Crime, Violence, and Black Women in the City of Brotherly Love, 1880–1910 (Durham, NC: Duke University Press, 2006), 70. 130. Ibid., 136–37. 131. Muhammad, Condemnation of Blackness, 13, 43, 82, 192. 132. See Willard M. Oliver, August Vollmer: The Father of American Policing (Durham: Carolina Academic Press, 2017), 500. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  26 Law and History Review 2021 and had marked innovations to his approach.133 Tracing the academic treatments on racial criminology through these departments would be a worthwhile project. Clearly, Northern as well as Southern police, having embraced racist ideas, conducted themselves differently toward blacks and whites. One area warranting closer study is how the modernization of the criminal code, particularly vice law, facilitated racialized police enforcement on the ground. Historians writing in the shadow of the War on Drugs have rec- ognized the historical discrimination in vice policing. The “targeted enforcement of nonviolent crimes” constituted a tool of interwar racial con- trol, Hinton and Cook note.134 It is fruitful to bring the methods that power fine-grained histories of Progressive Era anti-vice crusades into conversa- tion with Michelle Alexander’s thesis that biases direct modern colorblind law toward “systematic mass incarceration of people of color.”135 But Muhammad’s examination of vice policing reveals sophisticated plan- ning beyond mere over-policing. The campaign against “white slavery” fix- ated on Black men along with foreign whites. In the 1910s, vice policing targeted Black communities in Chicago, New York, Philadelphia, New Orleans, and other cities. These “anticrime forces. . . acted with impunity” but their racial impact was more than disproportionate enforcement. Cleaning up Philadelphia neighborhoods for the white working class some- times meant the strategic neglect of Black neighborhoods. Under a reformist tough-on-crime Philadelphia mayor, “whites looked after their own” while “black crime fighters” mostly lacked the “active support of the police” and other officials. In the 1920s police gave known criminals, who assisted them in anti-corruption efforts, a free hand to terrorize Black neighborhoods. Muhammad discusses New York’s purposeful toleration of vice in some areas. In the early 1930s, New York police made up deficiencies in arrest quotas by targeting Black residents in Harlem.136 This strategic policing relied on precise implementation. Individual police exercised some of their most consequential discretion through the exercise of brutality and torture. In principle, professionalizing progressives like Vollmer condemned these technically illegal practices but only seldom formally or practically corrected them. Kevin Boyle describes 133. Vollmer to R.C. Francis, November 9 1934, Vollmer, August 403 Correspondence and Papers, Letters Written by Vollmer, Box 43: November–December, Bancroft Library, University of California, Berkeley. 134. Hinton and Cook, “The Mass Criminalization of Black Americans,” 270. 135. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Revised edition (New York: The New Press, 2012 [originally published in 2010]), 57, 60. 136. Muhammad, Condemnation of Blackness, 133, 192–198, at 193 and 198, 259. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 27 the unwritten police code of 1920s Detroit: outwardly the police station was “a civil temple, an evocation in stone and sculpture of the Western tra- dition’s highest ideals,” but inside this “façade. . . corruption was rampant, and every Negro in the city knew that justice received here would be tem- pered at best, lethal at worst.”137 In a more pedestrian sense, unequal enforcement meant the harassment, neglect, and violent abuse of Northern African Americans. As Kenneth Kusmer put it, “black people [in Cleveland] could without contradiction say that they received both too little and too much” police protection.138 The problem expanded with technology. Shannon King has shown how New York police enforcement in the 1930s and 1940s subjected Black people to “constant suspicion of being criminals, brutal treatment when in police custody, and the presence of police officers as an occupying force in black neighborhoods.” In sum, the 1930s and 1940s New York Police Department (NYPD) “both overpoliced and underprotected black New Yorkers.”139 Speaking generally of the urban 1960s, Kevern Verney describes enforcers who were “almost always white and not resi- dents of the ghettos that they patrolled” and whose “aggressive preventa- tive policing tactics” produced shootings and brutality.140 One might assume that patrol cars empowered the reach of police as pawns or as “low- grade tyrants.” Civilizing Brutality The 1931 trial of nine young Black defendants falsely accused of raping a white woman in Scottsboro, Alabama, was a critical juncture in multiple civil rights engagements. As eight of them wrote, their trial was marred by crowds threatening to lynch them, “toting these big shotguns.”141 Subjected to torture, the nine teenagers endured a notorious and defining episode in the modernization of the criminological state. Law enforcement protected them from the mob, after which they were “handcuffed and 137. Kevin Boyle, Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (New York: Henry Holt, 2004), 171. 138. Muhammad, Condemnation of Blackness, 249. 139. Shannon King, “A Murder in Central Park: Racial Violence and the Crime Wave in New York during the 1930s and 1940s,” in The Strange Careers of the Jim Crow North: Segregation and Struggle outside of the South, ed. Brian Purnell and Jeanne Theoharis (New York: New York University Press, 2019), 44, 50. 140. Verney, Black Civil Rights in America, 63. 141. "Scottsboro Boys Appeal from Death Cells to the Toilers of the World," The Negro Worker, May 1932, 8–9. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  28 Law and History Review 2021 beaten . . . with rifle butts,” in the words of one victim.142 Three intertwined stories flow from the interwar period through the 1960s: the decline of lynching and mob terror; the routinization of discriminatory policing and correctional practices, both legal and illegal; and the nationalization of law and public opinion toward the abolition of segregation and the reform of state criminal procedure. The pre-eminence of the Scottsboro case in these national stories is well known, but less appreciated is the impact of police discretion. The police chose to prevent lynching and to extract con- fessions through torture. They opted for procedural oppression. These choices proved pivotal in the formalistic state’s conquest and absorption of lawless racial terror, and in its eventual rejection, however incomplete, of both lynching and police torture. Of course, one can question the fable of national forces taming parochial brutality. Some of the literature on crime control stresses a continuity of oppression beyond the Civil Rights Act, as a modern war on crime, mili- tarized policing, and mass incarceration reconstituted Jim Crow through other means—in the North as well as the South.143 Others attribute this continuity not to federal policy innovations but to earlier twentieth-century grassroots political development.144 But insofar as a discernable chapter of oppression ends in the decades after World War II, with national move- ments, legislation, and litigation delivering a historical rupture, individual police are still an underemphasized factor. As the lore often implies, despite the North and South having converged in many policing practices, the mid-century discourse became regionally polarized. Unequal policing became especially pronounced in the last decades of the segregated South.145 Electoral politics and the federal judiciary reinforced this diver- gence of geographical attention. Criminal justice fueled civil rights litiga- tion, which shaped national understandings of the South. This federal civilizing of Southern discipline, whatever its limitations, invites attention to law enforcers, who were ubiquitous in the confluence of misconduct allegations, lynching reform, coercive interrogations, and the struggle 142. Niedermeier, The Color of the Third Degree, 15. 143. Hinton examines the “overall focus of domestic policy” retreating “from fighting poverty to controlling its violent symptoms.” Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, MA: Harvard University Press, 2016), 21. See also Alexander, The New Jim Crow. 144. Simon Balto’s “intensely local book” argues that the core elements of enforcement leaving African Americans both “overpatrolled and underpotected” had been established in early twentieth-century city regimes. Balto, Occupied Territory, 5, 2. 145. Blacks alone were arrested and fined for public cursing on Alabama’s South Bessemer line according to Robin D.G. Kelley, “‘We Are Not What We Seem’: Rethinking Black Working-Class Opposition in the Jim Crow South,” The Journal of American History 80 (1993): 75–112, at 108. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 29 over segregation. Their decisions ultimately attracted scrutiny in the 1950s and 1960s that seemed to reinvigorate the faded promise of Reconstruction.146 It is tempting to see mid-century procedural liberalism as overwhelming whatever importance law enforcers’ agency had in an earlier period of pro- vincial enforcement. But even everyday examples of formalism smothering racial lawlessness implicated police decisions and highlighted the ongoing importance of law enforcers’ discretion. In Florida in 1928, a conspiracy reached the police chief who worked with several subordinates to conceal a detective’s murder of a Black bellboy. William M. Beachey refused orders to hide the body. His disobedience and willingness to testify led to the murder indictment of a lieutenant and detective.147 Throughout the 1930s, NAACP and American Civil Liberties Union (ACLU) lawyers understood police misconduct as a problem of agency as well as of insti- tutions. They stressed the urgency of pursuing civil and criminal penalties against abusive police, hoping that even in failure such efforts would dis- courage brutality.148 The decades of declining lynching, moreover, saw changing trends at the state and local levels. In the interwar period, the white mob’s desire for de facto legal approval became increasingly unrequited, including among law enforcement.149 Sometimes police attitudes preceded public sentiment and sometimes they lagged, as social pressure on police and sheriffs to “take meaningful steps to prevent lynchings” increased in the 1920s, according to Brundage.150 Where sociologists can convey the scope of these interac- tions between enforcement and society, historians can bring texture to the decisions to intervene. Police decisions mattered through the end of the Jim Crow era. The grand narrative often ends with national institutions and movements overcoming a racist lawlessness tolerated by local enforcement. Beginning 146. Miranda v. Arizona, 384 U.S. 436 (1966), for example, brought indirect federal reg- ulation of coercive interrogations through the exclusion of evidence. 147. “Reign of Terror Charged to Police of Florida City,” The Atlanta Constitution, March 3, 1928, 1. 148. Report Rendered to ACLU and NAACP on the Killing of Stafford G. Dames, Jr, on July 27, 1937, NAACP Administrative File, Subject File: Discrimination: Police Brutality: Stafford Dames, July–September 1937. 149. William D. Carrigan and Clive Webb describe an incident in Pueblo, Colorado, in 1919, when a mob lynched two Mexicans out of vengeance for the murder of a police offi- cer. They had kidnapped the wrong men from the local jail, from which law enforcement had taken the correct suspects for additional protection. Carrigan and Webb, “The Lynching of Persons of Mexican Origin or Descent in the United States, 1848 to 1928,” Journal of Social History 37 (2003): 411–38, at 419. 150. Brundage, Lynching in the New South, 239 Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  30 Law and History Review 2021 in the 1940s, as Goluboff has observed, the Civil Rights Section of the federal Department of Justice sought a holistic defense of Black Americans, target- ing “police brutality,” “involuntary servitude, lynching. . . and voting rights cases.”151 Historians have revealed ironies in this federal development. Even as the FBI began to take local abuses seriously, its surveillance of Black Americans became pervasive.152 Moreover, federal authorities justi- fied their attention by exaggerating the agency of local officials—by refram- ing lynching as constitutionally legible and correctable state action—even as state officials were probably less complicit than before. In his argument about the confluence of legal nationalism, the administrative state, and the FBI, Waldrep explains that the Department of Justice “fudged the line between ‘police brutality’ and ‘lynching.’”153 The convergence of these issues accommodated a “conceptual shift” under President Harry Truman toward “affirmative federal power,” writes Goluboff, “to protect not only New Deal economic security but also African Americans’ . . . right to be free from bondage, lynching, and police brutality.”154 Political scientist Daniel Kato sees federal action as the overdue end of “constitutional anarchy,” the fulfillment of the “will of a sovereign nation to enforce or not to enforce its own laws.”155 More attention to local enforcement could illuminate the mid-century transformation of white supremacist control, alongside civil rights and civil liberties reforms. Beck situates the motivations of even local enforcers in the larger epic of “the emergence of a strong state” and “the establish- ment of law and order.”156 But local law enforcers did not see all parochial racial injustices in the same light.157 Into the 1940s, sheriffs continued their “political role” of keeping Black citizens from voting “at all,” as Moore 151. Risa L. Goluboff, The Lost Promise of Civil Rights (Cambridge, MA: Harvard University Press, 2007), 112. 152. See Waldrep, The Many Faces of Judge Lynch, 169–77. On the FBI’s ironic posture, see Kenneth O’Reilly, “The Roosevelt Administration and Black America: Federal Surveillance Policy and Civil Rights during the New Deal and World War II Years,” Phylon 48 (1987): 12–25. 153. Christopher Waldrep, “National Policing, Lynching, and Constitutional Change,” The Journal of Southern History 74 (2008): 589–626, at 618. 154. Goluboff, The Lost Promise of Civil Rights, 142. 155. Daniel Kato, Liberalizing Lynching: Building a New Racialized State (New York: Oxford University Press, 2016), 10, 18. 156. Beck, “Judge Lynch Denied,” 136. 157. In 1939, North Carolina’s justice of the peace proudly recalled his much earlier time in the Red Shirts, armed with “rifles and shotguns” to deter Black voter registration, but was much more nuanced about lynching. Roger T. Stevenson, “Justice of the Peace,” in Such as Us: Southern Voices of the Thirties, ed. Tom E. Terrill and Jerrold Hirsch (Chapel Hill: University of North Carolina Press, 1978), 262, 265, 267. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  Policing Jim Crow America 31 puts it.158 Studies of police and sheriff testimonials as they turned on lynching but maintained other caste mechanisms, might reveal their under- standing of the different prongs of white supremacy. Conclusion In considering the colossal story of racial oppression from the 1860s to the 1960s, it might seem myopic to summon more attention to individual police. A compelling structural emphasis suggests two frameworks, some- what in tension. One points to the inexorability of white supremacy itself, the central structure that persisted from emancipation for the next century and beyond. The other seeks out change, both formal and informal. The struggle for equality did not always find progress or declension but tra- versed complex twists and turns, from presidential through Radical Reconstruction, from Redemption and the New South through the Jim Crow era and on to Civil Rights and mass incarceration. Inequality mutated but endured through these importantly different eras: through the informal law of lynching, the over-policing and under-protection of African Americans, police torture and brutality, and the construction of a Black criminal archetype that transcended the Mason–Dixon line. But even to understand the interplay between the greater structure of white supremacy and its many different and sometimes contradictory man- ifestations, a closer look at individual law enforcers, the discretion accorded to them, and the decisions that they undertook, promises to clar- ify and better our understanding of the history of lynching and racial vio- lence in nineteenth- and twentieth-century America. Law enforcement discretion has conspicuously bookended the greater story of racial oppres- sion after emancipation. Historians should extend Pascoe’s sharp method- ical focus on county clerks to other enforcers and bring the daunting panorama of institutional mechanisms of racial control into greater relief. Police department documents, sheriff office records, captains’ orders, offi- cer correspondence, and other primary sources can underscore how much enforcer discretion helped shape the complex construction of interlocking oppressive structures. An examination of a Southern city’s police sources over three decades could provide a new social and granular history. Including the early twentieth century could reveal if and how police selec- tively enforced segregation statutes. In a broader sense, law enforcement might hold the key to understanding a key political and legal puzzle: how the rising liberal state exacerbated some elements of racial oppression 158. Toby Moore, “Race and the County Sheriff in the American South,” 53. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456  32 Law and History Review 2021 while displacing others through its paradoxical elevation of bureaucratic administration, empowering both individual police and the inexorable engine of punitive correction. With the modern state came the faceless levi- athan as well as each enforcer’s exaggerated power over life and death, to act as both tyrants and pawns within the structures they occupied and sometimes transformed. Downloaded from https://www.cambridge.org/core. IP address: 54.157.250.224, on 29 Dec 2021 at 13:22:43, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248021000456