Everybody got quiet.
“He watching the kids,” Kiera said finally. Then she changed the subject. “I just mad you got those flip-flops. You sure you don’t want me to get you a nice pair of shoes?”
Patrick repeated, “Y’all can go home.”
But nobody moved.
“I want to know what’s gone happen,” Kiera said.
“Y’all know what’s gone happen.”
At this, even Kiera fell silent. She went outside to smoke a cigarette and then came back.
—
THE TRIAL HAS disappeared from courtrooms, existing mostly on television. The jury, inherited from the English legal system, was uniquely American by its aspiration to be made of the defendant’s “neighbors and peers,” the community that bore the cost of the crime. In the 1700s and early 1800s, American juries were entrusted not merely with making a legal evaluation but a moral decision. The statistics were telling: Overwhelmingly, in murder cases, juries refused to convict. At the turn of the nineteenth century, more than three-quarters of Chicago homicides, for instance, led to no punishment. As criminal-law professor William Stuntz writes, One historian’s study of Chicago homicide cases in that period reads like a compendium of bar fights that got out of hand, nearly all of which took place in front of witnesses and most of which ended in defense victories.
This bygone, more democratic incarnation of criminal justice applied only to the urban North. Lynching—that ultimate rejection of legal procedure, as Stuntz puts it—was the most prevalent form of “justice” in the Delta. Lynchings and mob violence were sanctioned, and often abetted, by state power. During the Elaine massacre, the local police, with the aid of federal troops, rounded up over a thousand black people. At the Helena jail, the police beat, tortured, and electrocuted them. “The Negroes were whipped unmercifully. Every time the strap was applied it would bring blood,” a white police officer later testified. “We whipped them to make them tell what we wanted them to tell. We wanted them to tell facts that would convict themselves and others under arrest.” He also stated that at least one of the white men who had died might, in fact, have been accidentally killed by other whites: He recalled hearing one of the men in his posse shout, “Look out! We are shooting our own men!”
Eventually, based on confessions that were mostly coerced, the prosecutors indicted 122 black people and charged 73 for first-degree murder. Twelve men were put on death row. In each of these twelve trials, the all-white jury returned a verdict in less than ten minutes as armed whites surrounded the courthouse. The Supreme Court reversed six of these convictions. But locally, there was little public reckoning. Over four decades after the massacre, two residents of Phillips County would write an article that set out, as they explained, to list some “facts.” All those accused of complicity in the Elaine riot were given fair trials, wrote the local historians. No mob violence was attempted….Phillips County had always, before this riot, and has since, enjoyed the reputation of having peaceful relations between the races. The account was printed in the Arkansas Historical Quarterly in 1961. Thirty-five years passed, and in 1996, the Phillips County Historical Quarterly printed the same article again.
Still, as barbaric as the history of criminal justice is in the South, the number of lynchings declined after the first two decades of the twentieth century: In 1900 there were, on average, one hundred lynchings a year. By the eve of Brown v. Board of Education, lynchings had essentially ended. Grassroots movements in the South—not federal intervention—from communist radicals to local NAACP branch members made the difference. They organized, they spoke out, they dramatically changed public consciousness, to the point where white Southern elites were embarrassed by lynchings. By the time of the Civil Rights Movement, new leaders such as King placed the burden of change on the federal government, demanding that it intervene in the Southern states on behalf of black people. And in many ways, these leaders succeeded: The Civil Rights Act of 1965 was a sweeping piece of legislation that dismantled the South’s Jim Crow laws.
But pinning one’s hopes on the federal government is dangerous: What if the federal government turns on you? This was what happened after the passing of the Civil Rights Act. The hoped-for knight in shining armor instituted a series of measures targeted at the black poor. Policymakers began to distance themselves from the basic idea that poverty was a root cause of crime. Education, employment, and housing programs, although sometimes defended on their own terms, were increasingly framed as having nothing to do with lowering crime, writes the historian Elizabeth Hinton. Overt racism was less palatable, but “crime” became the strategic, and politically acceptable, way for politicians to make statements about race: Crime was, as it is today, a code word for what poor black people do.
The story of criminal justice, from the viewpoint of the rural South, is also one of Northern hypocrisy: Attacking the Jim Crow South had been the focus and fulcrum of the progressive moment in the 1950s and 1960s. Segregation was seen as a Southern problem, not a Northern one. Yet once massive numbers of black migrants from the South entered the Northerner’s backyard, and deindustrialization created a large jobless population in urban centers, punitive policies were devised and carried out. It was not just former segregationists who advocated for a war on crime, but rather a bipartisan consensus of policymakers, as Hinton writes, acting in closed circles or as part of a larger coalition. Federal agencies distributed millions of dollars to states, mandating them to control crime; state governments pursued convictions; the massive number of cases junked up the system, making the jury trial a pipe dream. Among these punitive policies were the long sentences for drug-related crimes that would incarcerate Patrick’s father and uncle. Mass incarceration is the most damaging manifestation of the backlash against the Civil Rights Movement, writes civil rights attorney and professor Michelle Alexander. It was out of these years that the plea bargain was born and bloomed.