Historian links slavery and Ferguson: US has always criminalized 'living while black'

The “peculiar institution” of slavery directly contributed to the fatal police shooting of Michael Brown, according to one expert, because American law has essentially criminalized “living while black.”

The U.S. has pretty much always outlawed behavior by blacks that is perfectly legal for whites, said Paul Finkelman, a University of Pennsylvania historian.

Many states, for example, legally barred black people from attending public universities or drinking from any public water fountain they wished.

Finkelman argues that Officer Darren Wilson needlessly provoked the 18-year-old Brown when he encountered him walking in the street, saying the officer might likely have issued a warning to a white person.

“All of this comes out of slavery,” said Finkelman, a senior fellow at the Penn Program on Democracy, Citizenship, and Constitutionalism. “We have for centuries passed laws which criminalize being black, criminalize living while black.”

This process began almost immediately, Finkelman said, in American colonies where most blacks arrived as slaves, but also in Virginia -- where slavery developed more gradually, but blacks were still treated more harshly under the law.

He cited a 1640 case involving a Virginia landowner who saw three indentured servants escape to Maryland, and he was either unable or unwilling to retrieve them and instead hoped to sell them to someone in the other colony.

However, a Virginia court feared this would set a precedent, the historian said, and ordered the “gentleman” farmer to bring them back and sentenced each runaway servant to 30 lashes.

Two servants – a “Dutchman” and a “Scotchman” – saw their servitude to the farmer extended by one year and were then ordered to spend three additional years serving the colony.

The third servant, a black man named John Punch, was ordered to serve the landowner for the rest of his life.

The law came to view slaves in “very complex ways,” Finkelman said, which reflected the complicated status black people held in American society.

"On the one hand, laws recognized the fundamental humanity of slaves," he said. "They were not treated as animals, and they were not seen as subhumans -- as the Germans saw Jews. It's a fundamentally different kind of view (of) people with significantly less status."

He said southerners saw blacks as people, and not simply property.

“The best evidence is in churches, which baptized them," said Finkelman, scholar-in-residence at the National Constitution Center. "White southerners generally believed that they had souls and would go to heaven, so it was illegal to murder them.”

A police officer like Darren Wilson could have been prosecuted for killing a slave, Finkelman said – but he most likely would not have been.

“Almost every one of these laws specifically says if you kill a slave escaping or in some other law enforcement context, you can’t be prosecuted,” he said.

Finkelman said it would be difficult to determine for sure whether a police officer would have been charged if he’d killed a slave engaged in the exact same behavior as Brown because so much conflicting evidence was presented to the grand jury.

“I have a feeling Darren Wilson doesn’t really know what really happened,” the historian said. “His story is both plausible and implausible.”

But based on what is established in the case, Finkelman said historical laws would most likely have favored Wilson.

“If police in the antebellum South stopped a black person and asked questions, and the black person resisted or tried to escape, there would be no issue of fault on the part of the police officer,” he said.

Many of the witnesses to the fatal shooting would have been barred from testifying against Wilson in the grand jury hearing, if the case had taken place prior to the passage of the 14th Amendment, because they are black.

Blacks were not permitted to testify against whites in the antebellum South, Finkelman said, and many states prohibited slaves from testifying against freed blacks.

Finkelman said antebellum laws prohibited the beating or killing of another person’s slave without the proper legal authority to do so, and violators could be prosecuted and sued by the slave’s owner.

“Of course, police wouldn’t be in that position,” Finkelman said. “That’s not in violation of the law because a policeman has the presumptive authority to do this.”

Slave owners were granted wide authority to punish their slaves, but they were prohibited from murdering them, and some particularly cruel forms of punishment – such as torture or cutting off limbs – were prohibited in some states.

One landowner was convicted of assault and battery in North Carolina for shooting a rented slave in the back as she tried to escape, Finkelman said.

But the state’s Supreme Court ruled in 1829 that the renter should be considered her owner – and Justice Thomas Ruffin wrote in his now-notorious decision that “the power of the master must be absolute, to render the submission of the slave perfect."

Finkelman said the general assumption throughout American history held blacks to be “inherently criminal.”

“That stems from slavery in very real ways,” he said. “One of the inheritances we have is the notion of African-Americans as inherently dangerous, and that plays into modern policing tremendously.”

Wilson told the grand jury he feared Brown would beat him to death inside his police SUV, and he described the teen as a "demon" who appeared to grow angry – not afraid – after the officer fired gunshots at him.

“Darren Wilson’s statements were remarkable for the way they show this inherent fear,” Finkleman said.