How Ferguson’s Legal System Echoes An Ugly Past

Ferguson’s exploitative municipal court system echoes the South’s history of trumped-up legal charges designed to force blacks back into servitude.

Police arrest a demonstrator protesting the killing of teenager Michael Brown on August 19, 2014 in Ferguson, Missouri. Scott Olson / Via Getty Images

In 2012, a 32-year-old black man named Michael was sitting in his car in Ferguson, Missouri, cooling off after playing basketball, when a police officer accused him of being a pedophile stalking children in the adjacent park. When he objected, according to a recent Justice Department report, he was arrested at gunpoint and charged with eight violations of the city’s municipal laws, one of which was giving his name as “Mike” instead of “Michael.”

Michael told Justice Department investigators that “because of these charges, he lost his job as a contractor with the federal government that he had held for years.”

The Justice Department’s investigation into Ferguson, Missouri, began shortly after then-Police Officer Darren Wilson shot and killed Michael Brown in August. And now we know just how morally corrupt Ferguson’s city government actually is: For years, black residents have been forced into crushing debt or unemployment for little more than parking illegally or walking down the street. Authorities frequently compounded debts onto the original charges, issuing warrants for residents who couldn’t or didn’t pay. The St. Louis County housing authority denies public housing not just to those with felony convictions, but for “any criminal arrest, including for failing to pay fines or appear in court,” according to a report by the legal advocacy group Arch Defenders. A poor Ferguson resident could easily end up homeless, jobless, or locked up for being unable to pay a fine for “manner of walking in roadway.”

But Ferguson’s municipal legal system, designed to use trivial violations of law to bleed its most vulnerable residents of their meager resources, is hardly unprecedented, either in the region or in American history.

The 13th Amendment did not abolish slavery, not entirely. Instead, after Reconstruction, as the North surrendered the fight for black rights and the white men of the South violently reimposed systems of government based on white supremacy, blacks were coerced back into involuntary servitude.

Just as in Ferguson, the primary mechanism for this new slavery, as recounted by journalist Douglas Blackmon in his groundbreaking book Slavery by Another Name, was two-bit charges designed to impose legal debts on blacks they would be required to work off. Their “crimes” ranged from “changing employers without permission, vagrancy, riding freight cars without a ticket,” or even “adultery” or “selling cotton after sun set.” Blacks would be given no choice but to pay for their “crimes” with re-enslavement to private actors under horrifying conditions.

“Wildly disproportionate enforcement of statutes criminalizing often trivial conduct—or completely subjective or invented—conduct so that the laws overwhelming were applied only to African-Americans,” Blackmon wrote in an email to BuzzFeed. “The motivation for doing this similar as well, though not quite so precise an echo: to generate revenue for local and state governments through the leasing of convicts out to commercial enterprises as laborers and to generate payments to specific public officials—such as sheriffs—who were compensated primarily through ‘fees’ paid by those who were arrested and revenue they received from the state to cover the cost of feeding every prisoner.”

The subjugation of black Americans following Reconstruction to a state-backed regime of terror, forced labor, and racial apartheid is remembered in popular culture either as a necessity corrective to black lawlessness or, at best, in faded black-and-white photos of separate water fountains. But just as foundational to white supremacist rule in the South were laws that criminalized black existence not by just letter, but also by custom. White Southerners did not need to write race into their laws in order to convey the collective understanding that some laws were only meant to be enforced against blacks.

That history is crucial to understanding Ferguson, where the Justice Department found that its overwhelmingly white police force and municipal court system were designed to treat its mostly black residents “less as constituents to be protected than as potential offenders and sources of revenue.” City officials used the police force as “a collection agency for its municipal court,” urging police and court officials alike to squeeze ever more revenue from residents.

Just as with the convict-leasing system in the South post-Reconstruction, the “crimes” with which Ferguson residents were charged were often not crimes at all, and were almost exclusively enforced against blacks. Records examined by the Department of Justice showed that blacks, despite only comprising about 67% of the population, accounted “for 95% of Manner of Walking charges; 94% of all Fail to Comply charges; 92% of all Resisting Arrest charges; 92% of all Peace Disturbance charges; and 89% of all Failure to Obey charges.” Between 2012 and 2014, blacks were accounted for for 85% of vehicle stops, 90% of citations, and 93% of arrests made by FPD officers.”

Some have argued that Ferguson is less a product of racism than an overbearing local government. But Ferguson’s very existence is molded by a century of discriminatory zoning and housing policy. Ferguson was created; its people did not end up there as an accident of history. And as the Justice Department report shows, Ferguson officials used racial stereotypes to rationalize the bankrupting of its citizens as punishment for pseudo crimes, even as they shielded each other from the consequences of the same offenses.

Ferguson’s municipal legal system, conceived as a vehicle for revenue generation, was similarly designed not to be navigable. Authorities often failed to notify residents of warrants, piled fines on top of residents without regard for ability to pay, and railroaded the defense attorneys hired by those who could afford them. Citations often lacked the underlying offense, never mind how and where to pay the fine.

More than simply a source of cheap labor or civic revenue, the convict-leasing system of the late 19th and early 20th century was an effective weapon in the white crusade to disempower blacks politically, prevent them from rising out of poverty, and keep blacks in their place. “African Americans were trapped in a catch-22 between the laws criminalizing the mores of black life and other laws that effectively barred them from assimilating into mainstream white American society or improving their economic position,” Blackmon wrote.

The devastating effects of Ferguson’s city government are chronicled in detail in the Justice Department report. Residents were imprisoned, lost their jobs, or were mired in debt for years. In Ferguson, a town of some 21,000 people, the number of outstanding warrants is 16,000, which exceeds the 13,635 voters registered in 2012. Much has been made of the composition of Ferguson’s entirely white political leadership, but Ferguson residents with outstanding warrants may simply not wish to risk their homes, jobs, or families to cast a ballot.

“I think there’s a reasonable concern about doing things like going and voting when you have a warrant, because you’re identifying yourself to government officials and someone might call the police and pick you up,” said Tony Rothart of the Missouri ACLU.

The South’s neo-slavery, Blackmon writes, lasted until World War II. Despite an initial wave of outrage when the federal government attempted to prosecute white farmers for peonage during the Theodore Roosevelt administration, the federal government quickly tired of attempting a second emancipation and abandoned the effort. There was simply no popular support for it. Instead, backers of neo-slavery understood that to keep the feds at bay, they simply needed a more effective bureaucracy that “performed at least the bare rituals of due process and cloaked their actions behind claims of equality,” which ensured that “the crudest abuses of blacks and violations of their protections under law would rarely ever be challenged.”

Similarly, public outrage over Ferguson may be subsiding, even as the causes of the riots and protests that followed Brown’s slaying come ever more clearly into focus. Just 18% of whites closely followed the coverage of the Justice Department’s Ferguson report. Though many Ferguson officials have resigned, Ferguson’s legal system is hardly the exception, and without popular support and a commitment by the federal government, Fergusons all over America may withstand the outrage.

Barack Obama is fond of quoting Martin Luther King Jr.’s declaration that the arc of history bends toward justice. But the history of racism in America is one of growth in fits and starts, devastating setbacks, empty victories, and shaky progress. Too often, racism is reduced to hurtful words instead of a force that destroys lives.

The neo-slavery of the post-Reconstruction convict-leasing system, which caused incalculable suffering and deprived the emancipated of their promised freedom, is gone. Jim Crow segregation has been outlawed. But America is innovative in finding legal ways to preserve its racial caste system.

In August 2014, according to the Justice Department report, a Ferguson police officer responding to a call forcibly removed a man from his apartment and slammed him against a wall. When the man said, “You don’t have a reason to lock me up,” the officer responded, “N*****, I can find something to lock you up on.”

A Southern sheriff in 1880 might have said the same thing.

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