Abstract

Excerpted From: Jonathon J. Booth, Policing after Slavery: Race, Crime, and Resistance in Atlanta, 96 University of Colorado Law Review 1 (2025) (354 Footnotes) (Full Document)

Atlanta, Georgia, is currently embroiled in a years-long struggle over the construction of a massive police training facility. The facility is being built on forested land that once housed the Atlanta Prison Farm, where for several decades prisoners were forced to grow food and raise animals for the profit of the prison system. Opponents of the project, who call the facility “Cop City,” argue that it will further entrench the pattern of racist and brutal policing that has characterized law enforcement in Atlanta for decades. An occupation of the forest and widespread protests against the facility have led to domestic terrorism charges against dozens of protestors, the arrest of bail-fund organizers on felony fraud charges, and the death of one activist, who was shot fifty-seven times by the police.

In August 2023, Georgia's Attorney General charged sixty-one anti-Cop City activists under the state's Racketeer Influenced and Corrupt Organizations (RICO) statute. The one-hundred-page indictment alleges that the indicted activists conspired to prevent the police training center from being built--but fails to identify a specific illegal enterprise. The indictment characterizes the protestors as motivated by anarchist ideology and states that they seek to promote ideas such as “collectivism, mutualism/mutual aid, and social solidarity.” Among the alleged overt acts in furtherance of the conspiracy are camping in the forest, a transfer of $61.21 for “forest kitchen materials,” and one defendant signing his name as “ACAB.” Many of the indicted activists are not accused of participating in any illegal activity other than their involvement in the broader alleged conspiracy. As part of its lengthy analysis of the protestors' ideology, the indictment states, “[o]ne of the most common false narratives promoted by Defend the Atlanta Forest is that of police aggression.”

This Article shows that after the destruction wrought by the Civil War, Atlanta's White powerbrokers hoped to transform their city into a regional leader. They believed that economic growth required a modern police force to control the crime and disorder they associated with the city's burgeoning Black population. The racism and brutality at the heart of contemporary protestors' critiques of the Atlanta Police Department, I argue, have been features of policing in the city since the department's creation 150 years ago in 1874. Once the department was created, Atlanta's police used their discretion to arrest Black Atlantans disproportionately for vague, petty offenses. Obtaining convictions for those petty offenses was easy because the city's Recorder's Court, where minor offenders were tried, lacked due process protections. The high case load and lack of procedural protections made it extremely difficult for the accused to prove their innocence against the word of an officer. Those convicted were assessed onerous fines. If they could not pay, they were forced to work off the fines on the chain gang, building Atlanta's streets while wearing striped prison uniforms. Whether it acquired revenue or free labor, the city benefitted tangibly from these minor convictions and its leaders had no interest in reforming its criminal legal system. Consequently, Black Atlantans have protested the city's criminal legal system since the first years after the Civil War, and that legacy of protest continues to this day.

This Article places the birth and growth of the Atlanta police in context by exploring the full scope of Atlanta's criminal legal system in the decades between the end of the Civil War and the first decade of the twentieth century. In so doing, this Article analyzes the connections Atlantans made between race and crime, the adjudication and punishment of minor offenses, and the variety of Black protests against the criminal legal system. This Article is based in part on a variety of archival sources, including decades of arrest and prosecution data that, for the first time, allow for a quantitative assessment of the impact of the system of policing inaugurated in 1874 on Atlanta's residents. These statistics not only reveal the extraordinary growth in the number of arrests in the decades after the formation of the police force--leading Atlanta to have the highest arrest rate in the country by the turn of the twentieth century--but also demonstrate that Atlanta was an early adopter of mass order-maintenance criminalization. In 1902, for example, 83 percent of all arrests were for the petty order-maintenance offenses of disorderly conduct, drunkenness, or idleness.

The historical literature on policing has developed largely independently of related legal scholarship. This Article bridges the gap between the two by investigating the central research questions of the legal scholarship through the lens of the historical literature and using historical sources. It breaks new ground in four ways.

First, this Article demonstrates that the Atlanta Police Department was a new institution that developed in response to post-slavery conditions: It was designed to proactively make mass arrests for minor offenses and to maintain White supremacy in a rapidly growing city in which residents, theoretically, had equal rights. This Article disrupts simplistic, monocausal narratives of police development by explaining why Atlanta's police history does not fit neatly into established categories. Atlanta's force was not directly copied from England or Northern cities; unlike those police forces, it was not designed primarily to prevent riots and crime. Nor was it a corrupt organization staffed by lazy and incompetent officers more concerned with collecting a paycheck than making arrests. Nor was Atlanta's police force a direct descendant of the pre-war slave patrol system, where many scholars have located the origins of Southern police forces.

A key reason why the history of Atlanta's police does not fit well into existing categories is that most policing scholarship focuses on Northern cities in the second half of the twentieth century. This vital work has clearly demonstrated the centrality of resource extraction and racialized social control to policing in recent decades, but it does not explore the origins of these characteristics. In addition, there are a handful of works that focus on policing in the antebellum South. These works demonstrate that antebellum Southern police forces served to control diverse urban populations including free people of color and immigrants, along with enslaved people. Little research, however, examines the numerous Southern cities that created police forces only after emancipation. This Article begins to fill that gap and demonstrates that Atlanta's new police force had the same goal as police forces in other cities, Southern and Northern: enforcing racialized social control on a free, urban population.

Second, this Article shows that White citizens' beliefs about the causes of crime and the connections between race and crime, which I call “lay criminology,” influenced policing strategies. Scholars have long recognized that popular perceptions about the causes of crime and the relationship between race and crime are spread and shaped by the media and that these perceptions have an important effect on police policy and tactics. No scholarship, however, has addressed the relationship between popular criminological ideas and police practices in the post-emancipation South. This Article demonstrates that Atlanta's newspapers promoted lay criminological ideas that connected crime to Black leisure and family life. More directly, newspapers also demanded that the police force take action against Black leisure by raiding saloons and dancehalls. The police responded by making an enormous number of arrests in such raids.

Third, this Article analyzes how minor offenses were policed and prosecuted in Atlanta. It adds a new layer to our understanding of the history of order-maintenance policing by showing that mass criminalization of minor offenses began soon after emancipation as a response to the urbanization of Georgia's Black population. This type of policing caused a variety of harms to the city's Black residents, including forcing thousands each year to pay fines or labor for weeks on the chain gang. Recent scholarship has demonstrated the importance of low-level arrests in enforcing White supremacy and social control today, especially when the arrests result from a strategy of order-maintenance policing, which expanded rapidly in the “broken windows” era of the 1990s. This Article argues that social control through mass arrests for minor offenses is a constitutive element of the modern American criminal legal system and dates to the system's earliest days.

In addition, this Article provides a historical dimension to the growing literature on misdemeanor enforcement in low-level courts. It does so by examining the unfairness of Atlanta's Recorder's Court, which adjudicated offenses against city ordinances. The literature on low-level courts emphasizes that such courts have few procedural protections and are characterized by discretion, informality, rapid adjudication, and social control. In the aftermath of the Department of Justice's 2015 report on policing and misdemeanor adjudication in Ferguson, Missouri, scholars have also examined the economic and social impact of the fines and fees that result from low-level interactions with the criminal legal system. This Article demonstrates that the conclusions of this literature are part of a broader pattern that dates back to the nineteenth century, where the Recorder's Court generated large amounts of revenue in fines and inflicted a wide variety of harm on the city's Black residents.

Fourth, this Article shows that the complaints of biased and brutal policing that motivate contemporary police reform activists, including those protesting the construction of Cop City, have been present for a century and a half. A proper understanding of this history has never been more urgent. Over the past decade, in Atlanta and around the country, powerful movements have challenged the power of police and highlighted the ongoing toll of police discrimination and violence. This Article shows that, as far back as the 1860s, Atlanta's Black residents, across class lines, protested the criminal legal system and police abuses while envisioning a more equitable city where improved social conditions would reduce crime.

By placing Black protest at the center of the history of policing, this Article highlights the historical foundation upon which the recent legal literature on policing and social movements builds. Until recently, much of the legal scholarship examined the questions arising out of the post-civil rights movement Constitution: how police can avoid abuse of power, achieve legitimacy, and support procedural justice. In recent years, inspired in part by the Black Lives Matter movement, some scholars have moved away from these themes to fundamentally critique policing itself. Scholarship in this vein has called to democratize, disband, disaggregate, reimagine, or abolish police. This critical scholarship has justified its call to make fundamental changes to policing by focusing on the physical and financial harm that policing does to subordinated communities. This Article demonstrates that the harm of policing reaches back at least to the mid-nineteenth century. In addition to inspiring more fundamental critiques of policing, the Black Lives Matter movement has also led legal scholars to focus on the importance of social movements to criminal law. Yet the history of Black protest is underdeveloped, especially protest of the criminal legal system between the end of Reconstruction and the formation of the National Association for the Advancement of Colored People in 1909. This Article shows that the centrality of the criminal legal system to Black protest is part of a long tradition and has shaped American criminal justice institutions since emancipation.

In sum, this Article demonstrates that the new system of policing that developed in Atlanta after the Civil War supported White supremacy and spurred strong resistance from Black residents of the city. Racially biased low-level enforcement has been a part of American policing since the end of slavery. The Article proceeds as follows: Part I describes Atlanta's pre-police law enforcement system and shows how that system developed into the modern police force created in 1874. Part II surveys the lay criminological beliefs of Atlanta's leaders, illuminating how most White Atlantans connected Blackness to crime and believed that Black leisure activities were an important driver of criminality. Part III examines the practices of policing and prosecuting Black Atlantans and demonstrates that the vast majority were arrested for minor violations, such as disorderly conduct, and faced trial in the Recorder's Court with little due process. Part IV explores the variety of Black protests against the criminal legal system, including the Black middle class's attempts to create an alternate criminology focused on improving social conditions and the Black working class's more direct resistance to the police. Part V examines the lessons that this history holds for our contemporary understanding of policing.

[. . .]

This Article has emphasized the multifaceted nature of policing in Atlanta and demonstrated the connections between the institutions of policing, lay criminology, the prosecution and punishment of order-maintenance offenses, and Black protest. It illustrates the importance of new police forces in enforcing White supremacy after emancipation and catalogs the harms that policing imposed on Black Atlantans. This history demonstrates how oppressive structures such as White supremacy can survive even revolutionary changes in the law such as the Reconstruction Amendments. Similarly, the twentieth century civil rights movement transformed American law and vastly increased Black political power, resulting in, among other things, the election of Black mayors in cities as diverse as Chicago, New York, and Atlanta. But the problem of discriminatory policing in those cities and beyond remains, accompanied as always, by demands for police reform and abolition. The pro-police backlash of the past two years has demonstrated how difficult it is to achieve even minor police reforms. Only time will tell which side will determine the future of law enforcement in American cities; but the struggle over Cop City, however it is resolved, may portend the future.

Jonathon J. Booth is an Associate Professor of Law at the University of Colorado Law School.