Property, Penality, and (Racial) Profiling

Abstract

This Article historicizes societal associations of “blackness” with criminality through an examination of the peculiar property security role of criminal law enforcement mechanisms (and spaces) in the service of slavery in the early American South. Drawing on archival and other historical source material to illuminate previously understudied functions and functionaries of law in a slave society, the Article demonstrates how the “mass incarceration” of slave property in penal facilities for matters falling entirely outside the dictates of the criminal law — whether for discipline, “safekeeping,” or sale — was a central element of the everyday law of slavery in early America. These practices not only shaped law enforcement in this period, but also helped to cement the cultural entwinement of race and criminal suspicion in the region.

Keywords: Legal History, Slavery, Property, Criminal Suspicion, Antebellum U.S. History, Law Enforcement