In this blog, I overview of the character of various law enforcements in Western history in order to dispel the myth that one can trace modern policing to the slave patrols of the US south. I also dispel the myth that the penitentiary system represents, in Michelle Alexander’s words, a “new Jim Crow.” Before getting to that history, I spend some time clarifying the assumptions that form the basis for the antiracist arguments that lie in back of these and other myths; antiracism is a much larger project with much bigger goals. As those familiar with my blog know, I regard antiracism as constituting a quasi-religion. Applying my irreligious method of debunking, I bring the reader to the obvious conclusion.
Those who regularly read Freedom and Reason, or who have taken any of my college courses over the years (Freedom and Social Control, Criminal Justice Process, Criminology, Power and Change, etc.), know that, among other things, I’m a libertarian (see “The Philosophical Principles that Shape My Standpoint”). Skeptical of power, opposed to unjustified coercion, it follows I would be a critic of law enforcement.
Indeed, I am. As an exponent of US Bill of Rights, I advocate for sharply limiting police powers and strict adherence to due process in the criminal justice system (see “Dealing with the Police”). I have conducted workshops teaching young people how to safely assert their constitutional rights when interacting with law enforcement. My humanist and liberal commitments find our prisons too many and too big and doing a poor job of rehabilitating those who break our laws.
At the same time, that same research finds that the modern policing apparatus and the penitentiary system are necessary institutions for enhancing public safety in a democratic republic. Among advanced industrial democracies, the United States is remarkable for its extraordinarily high rates of crime and violence, especially in the central cities of our densely-populated urban areas.
The current situation is dire. After several decades of declining rates of crime and violence (attributable in part to a vast expansion of the criminal justice system beginning in the 1960s), criminal violence is on the rise. John Roman, criminal justice expert at the University of Chicago, told Vox that the increase in homicide in 2020 “is the largest increase in violence we’ve seen since 1960, when we started collecting formal crime statistics.” He added, “We’ve never seen a year-over-year increase even approaching this magnitude.”
At the end of 2020, police recording 322 homicides, Los Angeles saw a 30 percent increase over the previous year. There were 437 homicides in New York City year-end 2020, nearly 40 percent more than in 2019. Chicago police reported more than 750 murders, representing a more than 50 percent increase over the previous year. The situation is not abating in 2021. Cities in my adopted state of Wisconsin have also seen a drastic rise in murders.
Depolicing would be disastrous for those populations with the greatest exposure to serious criminal activity. In light of Black Lives Matters, it is a scandal that more attention is not focused on the fact that black males are drastically overrepresented among murderers and their victims. Black crime is an American tragedy, and the progressive politicians governing our cities are not only doing very little to stop it, but they appear to be doing quite a lot to exacerbate it (see “Progressives, Poverty, and Police: The Left Blames the Wrong Actors”; “‘If They Cared.’ Confronting the Denial of Crime and Violence in American Cities”; “Working Class Concern About Low-Income Housing is Not Intrinsically Racist”).
As progressives tell us that there are too many police, they also tell us that there are too many prisons. As John Pfaff has noted in his Locked In, although America could reduce the size of its prison and jail populations by decriminalizing drugs and ending the drug war, a reform I am completely behind, it would reduce them by only a small amount. We would still have prisons full of people who pose serious threats to the lives and wellbeing of others. More than half of those incarcerated in our state prisons are there for violent crimes (aggravated assault, murder, rape, and robbery). If we want fewer police and fewer prisons, then we will need fewer criminals.
* * *
Both modern policing and the penitentiary emerge in urban areas across the trans-Atlantic system during the latter eighteenth century as instruments to manage changed conditions resulting from the transition from feudalism and the overthrow of the ancien régime to the capitalist mode of production and the bureaucratic state. More than any other mode of production, due to the degree of inequality, proliferation of commodities, culture of desire, and disruption of traditional norms and values, capitalism is associated with a greater criminogenesis. The modern police accompany the appearance and development of industrial capitalism as an apparatus functioning to control the discontented and discipline labor beyond the structure of legitimate employment. Penitentiaries are erected to contain and correct the demoralized and the recalcitrant.
Given the centrality of political-economic structures and forces in shaping the evolution of man’s societal institutions and cultural sensibilities, the facts of history demand a focus on the social relations of production and the chaos of capitalist accumulation if a truly humane solution to the crime problem is to be had. Criminal justice is in need of reform, not abolition. Ultimately, our focus should be on capitalism and its discontents. (See my “Mapping the Junctures of Social Class and Racial Caste: An Analytical Model for Theorizing Crime and Punishment in US History.”)
Despite a clear history of the origins and evolution of modern law enforcement and the penitentiary, there are those also critical of the police and prisons who present a false narrative about their origins. In particular, there is a claim that, if we are properly oriented in our critique of power, we can see a direct line from police to slave patrols. This claim comes alongside the claim that the criminogenic conditions that disorganize our neighborhoods and imperil the safety of our citizens are a type of racist libel, that the statistical profile of those most likely to harm others is a racist construction designed to bring into disrepute an entire community. When social scientists speak frankly about the problem of black crime, they risk the accusation of anti-black racism.
Not a benign obscurantism, the false narrative obscures the class character of the criminal justice system by shifting public attention to a history of racism and the alleged persistence of force behind it, namely white supremacy. Accusations of racism amid frank talk is a tactic to derail scientific understanding of the character of crime in the West. An agenda appears to be at work here. Indeed, the deadly consequences of delegitimizing public safety must have powerful interests in back of it. The lives of thousands of people are sacrificed annually for these interests.
In criminology, we have a name for those who treat the criminal law and its enforcement as the imposition of social constructions serving the narrow interests of elites—we call them “left-idealists.” Historically, left-idealists have paid attention to the problem of the capitalist state at the expense of proletarian crime. This species of Marxist-inspired though emerged on the grounds of an amalgam of critical theory and postmodernist thought taken up by the New Left. Critical criminologists, such as Richard Quinney, William Chambliss, and Stephen Spitzer, advanced the thesis that crime was a social construct legitimizing asymmetrical power relations. Quinney’s 1970 The Social Reality of Crime arguably defined the genre. “Crime,” Quinney writes, “is a definition of human conduct in a politically organized society.”
To differentiate those of us who work from a materialist conception of history from the idealists, we claim the label “left-realism” (see my “Demoralization and the Ferguson Effect”; see also my “Marxist Theories of Criminal Justice and Criminogenesis”). We do so to signal the difference in focus while declaring our continuing commitment to proletarian politics. Realists stress the points that concern for the disorganizing effects of crime, as well as the victims of crime, does not signal conservative or right-wing politics. We don’t deny crime and violence, but instead identify perpetrator and victim, while rooting crime and violence in the chaos of capitalist accumulation and exploitation. Unlike left-idealists, we neither treat criminals as heroes nor sacrifice their victims upon the altar of anti-capitalism. To put this another way, we eschew ideology.
When realism returned to the left in the 1980s (see Ian Taylor’s 1982 Law and Order: Arguments for Socialism, Jock Young and John Lea’s 1984 What is to Be Done About Law and Order, and Richard Kinsey et al’s 1986 Losing the Fight Against Crime), there was hope that the left would veer away from the New Left corruption of Marxist thought and back towards scientific foundations of historical materialism. But the realists were up against a force that appeared to have more behind than working class energy. As critical theory was mainstreamed and institutionalized in the academy, especially in the development of critical race studies in the 1990s, left-idealism mutated into a style of Hegelianism where it is theorized that white racial desire constructed a system to systematically privilege white people. This ideology was further mainstreamed and institutionalized across America’s institutions.
Those who “center race,” academese for shifting the focus from class (or everything else) to racial identity, push idealism on the left even farther away from a critique of capitalism and thus understanding of the criminogenic forces that lie at the heart of this mode of production. As a species of Hegelianism, critical race theory commits a double error: it flips base and superstructure, and, to the extent its conclusions shape policy (and it’s clear that they do), it makes life for working people—and black people in particular—more difficult. And markedly more dangerous, as the drastic rise in murder indicates.
* * *
Dwelling on the intellectual problems of leftwing idealism generates a discourse that waxes rather esoteric. But there is a political reality confronting us all: the myth that modern policing grew out of southern slave patrols has an ideological function; it means to delegitimize the apparatus of policing by associating it with a slaveocracy enabled by racial hierarchy. This move ties it to the greater false narrative: that the history of the United States, not just the history of policing, can best be or even only understood as the history of racism, with every transformation that another narrative might portray as overcoming an oppressive structuring portrayed instead as the deft reconfiguration of society in such a way as to perpetuate and even deepen white supremacy. According to popular antiracism, we now live in a society where white power is so deep and concealed that a special theoretical and conceptual language must be taken up to make it apparent in order to continue the struggle against it. That is the language of antiracism.
In its claim to have revealed unseen forces operating behind the seen, antiracism resembles a religious ideology, where those who rehearse scriptures may behold a truth unknown to infidels. Its formulas call into being a reality that serves the immediate interests of its moral entrepreneurs and long-range goals of it benefactors. The world it calls into existence is one corrupted by racism without racists. A world that is institutionally racist without any racist institutions. A world that is systemically racist despite the absence of a racist system. Only the antiracists can see the sin that pollutes western civilization. Only the antiracists can exorcise the devils of racism.
You know the way religion works: one is either inside (here, the antiracist) or outside of the church. You are either in (antiracist) or out (racist), as Ibram X Kendi tells us. That there is no existence beyond the binary tells us that those who advance the scheme mean to include everybody in it, as if their unscientific worldview determines the truth for all of us. So the racist infidels stand outside the church and define themselves as such for denying or rejecting the truth. (Me, I am an apostate in this religion. A recovering antiracist.)
There is nothing in Western civilization that CRT doctrine doesn’t seek to draw within its scope (even epidemiology). Most insidious is its goal of transforming the foundation of Western jurisprudence into a system of race-based equity in which whites are targeted for special control (“Race-Based Discrimination as a Model for Social Justice”; “Human Rights versus Group Rights in Law and Reason: Checking Postmodern Creep”). According to CRT, the system of individual justice, with its emphases on equal treatment, presumption of innocence, rational adjudication of fact, reasonable standards of action and doubt, and state burden of proof, is a catalog of mechanisms designed for perpetuating the oppression of blacks and advancing white privilege.
The New Left idealism reifies groups based on phenotypic characteristics and ancestry and pushes a new normative system to replace such oppressive ideas and practices as individualism and human rights based upon the scientific awareness of species being. This is an extremist ideology.
* * *
The facts ascertained through standard historiography tell a very different story about the history of policing from the one antiracists are telling. With our feet on the ground we see that the modern police emerged in urban areas under the influence of those organic intellectuals animated by the same Enlightenment values that separated church and state, promoted free speech and assembly, abolished the slave trade and, eventually slavery, affirmed the right of women to participate in politics, and dismantled Jim Crow segregation. The same humanist and liberal values that discovered human rights also established the ideals of the modern justice system. The slave patrols simply do not present with the character of the rational bureaucratic organization that distinguishes modern policing from its predecessors, but rather resemble instead the civilian watch organizations organized by the lords on the estates during feudalism.
In early Anglo-Saxon times, the frankpledge burdened adult males, drawn from families in the area and organized into small groups, to watch and protect the community from disorder and violence. They were ordered into tithings under the command of a tithingman. Tithings were in turn integrated into larger structures known as hundreds each under the authority of a hundredman. The hundreds were organized as shires under the authority of shire-reeves. (To the extent that the institution of the sheriff derives its name from the shire-reeve, the modern sheriff’s office is bureaucratically aligned with the discipline and procedures of modern policing.)
Like the frankpledge system, slave patrols, founded in the early eighteenth century, were civilian in character and recruited adult males from the community to watch and protect. To be sure, the fact of racialized chattel slavery compared to the character of serfdom of medieval England makes a difference, but the agrarian context of both the southern plantation and feudal estate systems differentiate both frankpledge (and later the principle of posse comitatus) and slave patrols from modern law enforcement.
The slave patrols were abolished with the Civil War and the logic of modern policing, its organizational structure and disciplinary protocols, was imposed on the South during reconstruction and industrialization. However much the police were called upon to enforce the laws of Jim Crow segregation (police officers are obligated to enforce all law), with corruption and excesses acknowledged, the logic of the slave patrols were not taken up by the modern policing apparatus. There really is no direct line between civilian patrols and today’s professional law enforcements. The Civil War was a disjunctural moment in American history. In its aftermath, modern policing become the dominant form of official coercive social control in the south and followed the discipline of its northeastern origin.
This is not a history “that does make us feel bad,” as Connie Hassett-Walker recently put it in an article for the American Bar Association. This is history untwisted by an agenda to delegitimize the institution of policing.
What about prisons? The penitentiary system developed in tandem with modern policing. The northeast was industrialist and mirrored the social logic of urbanizing Europe under capitalism. George Rushe and Otto Kirchheimer document this history in their landmark Punishment and Social Structure, published in 1939. They show that the penitentiary and modern penology are born and move in tandem with the rhythms of the capitalist mode of production in its industrialist phase of exploitation. Policing and prisons in the US context mirrored the modern control apparatus of the advanced nations of Europe. The development is nearly simultaneous owing to the shared culture of the trans-Atlantic sphere.
In an important continuation of Rusche and Kirchheimer’s thesis, Christopher Adamson, in his 1984 “Toward a Marxian Theory of Penology: Captive Criminal Populations as Economic Threats and Resources,” published in Social Problems, looks at penology in the United States during the nineteenth century in light of the business cycle and labor supply. “A systematic theory of the economic functions of imprisonment can be constructed with reference to the interaction between the crime- and class-control strategies of prison reformers, prison administrators, and government officials, and their financial and industrial goals,” he concludes. Using the model, Adamson is able to show that “changes in business conditions and labor supply coincided with identifiable stages in the development of penology.”
Thus a body of materialist scholarship shows that Modern policing emerges to manage the lumpenproletariat, those displaced during the enclosure movement, as well as thrown into the industrial reserve. The prisons were developed as a class-based system of incapacitation, management, and rehabilitation. The entire system was wrapped in the rational language of deterrence and crime control.
Acknowledging the power of Rusche and Kirchheimer’s thesis in explaining the development of the modern carceral system, Michael Foucault observes in Discipline and Punish that “forced labor and the prison factory appear with the development of the mercantile economy. But the industrial system requires a free market in labour and, in the nineteenth century, the role of forced labor in the mechanisms of punishment diminishes accordingly and ‘corrective’ detention takes its place.” Race plays a peripheral role in the development of modern punishment. Shifting the analysis from class to race distorts this history.
Virginia excepted, thanks to Thomas Jefferson’s fascination with the architecture of discipline and surveillance, prisons did not exist in the South. Prisons were unnecessary in the context of agrarian capitalism based on slave labor, just as they were unnecessary during feudalism, as the serfs were controlled by the lords and the tithing system. As Rusche and Kirchheimer document, in serfdom and slavery, punitive mechanisms ruling the labor force were corporal in character, focused, Foucault emphasizes, on the body, since, in most cases, the body was “the only property accessible.” What existed instead of highly organized law enforcements were civilian patrols appropriate to the open spaces of rural life.
The south was agrarian capital with a political-cultural apparatus analogous to the system of estates in feudal Europe. Because of this, even for some time after abolition, convict leasing, and later the chain gang, to be sure forms of penal labor not unknown in the northeast and the west, were the major forms of carceral control in the south, and the burden of the system fell disproportionally upon blacks in the south as black were overrepresented among the reserve army of labor in the wake of the collapse of the plantation system.
The development of the modern criminal justice system and the rhythms of the last century and a half (at least) were not shaped by the dynamics of agrarian capitalism, but by the chaotic business cycles and the longer waves of industrial capitalism. This force explains the bob swinging above the point between retribution and rehabilitation. As the industrial reserve shrinks and swells with the expansion and contractions of industrial capitalism, so the value of labor increases and decreases, the value of labor determining the worth and the fate of those proletariat—failing to resist the temptation to harm members of their class, and taking up the techniques of neutralization that allow them to rationalize immoral action, what Marx and Engels call “primitive rebellion”—unfortunate enough to move in criminogenic conditions.
Penitentiaries grow up with industrialization and urbanization, as those displaced by the rationalization of agricultural production, the fracturing of landed power, and the enclosure of the commons (or the collapse of the planation economy), enter cities and towns looking for employment or, when employment not forthcoming, resorting to innovative means for obtaining needed or desired goals.
Why the overrepresentation of blacks in arrests and prisons? I provide a detailed explanation of this in a recent FAR Podcast. To summarize here, blacks, having migrated from agrarian areas to urban ones with the transformation of the United States in the wake of the Civil War, became concentrated in disorganized urban areas and thus more susceptible to the ideology of primitive rebellion, exacerbated by the shift in consciousness from class to race antagonisms. This development was further exacerbated by the fracturing of the black family and the return of mass immigration in the wake of the successes of civil rights in the 1960s.
These developments, and the government response to the drastic rise of crime and violence that followed them, explain the overrepresentation of blacks in serious street crime. To state matters bluntly, black overrepresentation in serious street crime explains black overrepresentation in the carceral system. Racial disparities in this area are not a product of systemic racism in the criminal justice process. We have known this for decades.
* * *
A shift in analysis from class to race in the CRT species of left-idealism conceals the true underpinnings of mass incarceration. The true underpinnings of mass incarceration are found in the denationalization project pushed by globalizing elites, a project enabled by the social disorganization and multiculturalism that destabilizes urban neighborhoods. This is not the first time the United States has experienced a crime wave in its urban centers. Mass immigration in the late-nineteenth century and the early twentieth century produced a similar explosion in crime and violence. Mass immigration and its rationalization cultural pluralism is industrial capitalism unchained. We are seeing European cities currently disorganized by the same processes.
The wilding of industrial capitalism and corporate power disorders communities, which sets the criminogenic conditions that provoke the criminal justice response. CRT obscures this dynamic by leveraging the Hegelian method of starting from the surface and rationalizing its structure and history for ideological reasons that are not in the material interests of the proletariat. Rather than starting with an objective analysis of the structure, found in the organization of social forces and relations inhering in the mode of production, that explains the surface in terms of those material interests, i.e., capitalist interests, in jockeying for power it starts from the point of view of grievances already addressed and dresses its politics in academic and social justice clothing.
freedom and reason 