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Popular Justice Reborn? 


Elizabeth Dale (@ElizabethRDale) is a professor of history and law at the University of Florida, and the author of five books on the history of criminal law, including Criminal Justice in the United States: 1789-1939.

This post is part of a symposium on Jocelyn Simonson’s Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration. Read the rest of the posts here.


Jocelyn Simonson opens Radical Acts of Justice by reflecting on a vexing linguistic practice in contemporary criminal courts: the habit of referring to individual prosecuting attorneys as “the People” (“as in ‘Would the People like to request a lunch break?’”). Simonson suggests this practice reflects an ideological assumption that undergirds the modern criminal legal system: the belief that the official enforcers of criminal law enact justice on behalf of the entire political community. That assumption is precisely what’s being challenged by the social movement collectives whose work Simonson chronicles. By advancing conceptions of justice that promote, rather than deny, the humanity and belonging of criminalized people, these groups, as Simonson puts it, are “living out a new definition of ‘the people,’ recasting the concepts of safety and justice so that those ideas can no longer support the status quo.”

As a historian of criminal legal institutions in the United States, my own research has focused on the long shift from a system of informal, non-professional, participatory criminal law enforcement (popular justice) to a system of formal, centralized, bureaucratized criminal law enforcement (official justice). For the first century and a half of U.S. history, ordinary people played an active, indeed central, role in the process of judging and punishing wrongs—a phenomenon deeply intertwined with liberal traditions of popular sovereignty and popular constitutionalism, but also inextricable from white supremacy and patriarchy. By recounting how ordinary people lost their power to administer criminal law, I hope to supplement Simonson’s account of radical groups reclaiming a role for the people in the criminal legal system with an historical understanding of popular justice in all its virtue and vice—both within and outside the formal legal system.

Popular Justice Within the Law

Well into the nineteenth century, formal processes of criminal law empowered ordinary people to enforce their visions of justice. Consider a typical homicide prosecution. Upon report of a murder, local community residents were deputized to find and seize a criminal suspect. Other residents were then sworn in as a jury of inquest, to listen to neighbors’ statements and thereby determine the cause of a sudden death. Other residents were called to sit on the grand jury, charged with determing whether someone should be indicted for the crime. If an indictment was issued, other residents served on the trial jury, where they would determine whether the evidence established the guilt or innocence of the accused. Moreover, nineteenth-century juries often had the power to decide not just facts but also law, substituting their own vision of justice for any instructions received from the judge. This power was limited in many states by the late nineteenth century, but it continued, most notably in Illinois, into the early decades of the twentieth century.

When ordinary people occupied these roles, they staked their claim to a share of power within the legal order. To put it in Simonson’s terms, they acted as “the people.” Laura A. Edwards, locating roots of this claim of authority in older English legal traditions, has characterized these popular actions as maintaining the peace. Larry Kramer has called it popular sovereignty or popular constitutionalism. Like Kramer, I’ve argued that people who played these roles were acting constitutionally, exercising a popular version of the police power. The police power, of course, is the power that undegirds the criminal legal system. It is the power the prosecutor claims to exercise when acting as “the people.”

Of course, this police power, even before it was centralized into government agencies, was never distributed equitably. As Edwards has demonstrated, “the people” driving criminal proceedings was overwhelmingly white and male. Yet, even in the early nineteenth century, the criminal legal system’s many layers did offer some spaces where women, free Black people, and even enslaved people briefly had a voice in the criminal system. Women might be called as experts in cases involving childbirth. Free Black and enslaved people could offer unsworn testimony as witnesses in inquest hearings. Members of all three groups might be part of the popular audience on court days, participating in the crowd’s subtle shaping of proceedings. Such exercises of power within criminal legal process became seeds for larger demands for constitutional personhood.

Popular Justice Outside the Law

Acts of popular justice, rooted in a constitutional claim of democratic-republican authority, were never limited to participation within legal process. Ordinary people also exercised their constitutional police power through extralegal action.

Consider the resistance of Chicago’s Black community to nineteenth-century racial apartheid. In the decades before the Civil War, Chicago’s Black activists wrote articles, held Colored Conventions, and organized assemblies and boycotts to protest the Illinois Black Code, which restricted the rights of Black citizens in the state. After 1850, when Congress passed the Fugitive Slave Act, one of Chicago’s Black activists wrote a widely circulated report denouncing the new law. Three hundred Black men and women then gathered at an indignation meeting, where they issued a resolution condemning the Act and calling on the Chicago government to refuse to comply with its terms. That meeting also created an all-Black vigilance committee, directed to patrol the city streets and stop any slave catcher who tried to seize a Black Chicagoan. Although Chicago’s Black residents had no voting power, their actions bore fruit: the city council endorsed the indignation meeting’s resolution. Later, a Chicago mob prevented a slave catcher from kidnapping a neighbor. Black Chicagoans also contested the Fugitive Slave Act by violating it, housing people who fled slavery.

Often, extralegal methods of popular justice performed social functions quite similar to the functions performed by formal legal processes. Community members employed gossip and whisper networks to judge, shame, and shun those who violated local standards; sometimes, those whispers even drove the targets of community outrage into temporary or permanent exile. Guilds, congregations, and fraternal or ethnic organizations offered members informal means of settling business disputes and other claims against fellow group members without involving courts. Congregations held hearings and excommunicated members who violated temperance oaths. And in the name of economic justice, consumers boycotted and picketed shops to protest unfair or immoral business practices; likewise, abolitionists organized boycotts of goods produced by enslaved labor.

Extralegal justice also involved violence. Communities set fire to buildings that they claimed housed brothels. Farmers and ranchers banded together into groups that chased, beat, and sometimes killed suspected horse or cattle thieves. Workingmen’s groups destroyed imported goods that threatened their livelihood or attacked fellow workers who undercut their rates. Mobs destroyed railroads, dams, and other government-authorized creations they believed threatened their lives or property. Ordinary people commonly understood such actions not as violations of the law but as expressions of popular sovereignty. In this way, police power was exercised not only through participation in formal legal processes but also through extralegal, indeed often illegal, activities.

White Supremacy, Procedural Reforms, and the Rise of Official Justice

Whether rooted in claims to constitutional authority or not, expressions of popular police power often assumed ugly forms. Lynch mobs justified racist violence by claiming they had to take the law into their own hands, to ensure their communities were protected and justice was done. Vigilante groups that attacked and killed abolitionists and immigrants in the nineteenth century echoed those justifications, as did white mobs that targeted Catholics, pacifists, and labor organizers in the early decades of the twentieth century. In short, popular justice increasingly became a tool of white supremacy and workplace tyranny.

Again, examples from Chicago are instructive. Across the first decades of the twentieth century, racist white groups employed the tools of Black activists—indignation meetings and boycotts—to help segregate the city’s neighborhoods and schools. White business owners nullified laws, refusing to comply with statutes that prohibited racial discrimination. Mobs of white workers attacked Black workers hired as strikebreakers by white-owned businesses deliberately fomenting anti-Black violence. When Black families tried to move into homes in so-called white neighborhoods, they were threatened, physically attacked, and their homes were bombed or burned. Those attacks by whites were usually justified as defense of families, property values, or neighborhood safety, and were rarely punished. In marked contrast, Chicago’s police arrested the city’s Black residents who armed themselves to protect their neighbors and homes from white violence during the city’s 1919 race riot.

And anti-Black violence was not, of course, confined to Chicago. Lynch mobs prowled the states of the former confederacy. During the violent Red Summer of 1919, white mobs attacked Black bodies, homes, and businesses around the country.

Ultimately, extralegal violence was a major driver of legal transformation. Governments, acting through legislatures and judges, often at the behest of business and economic elites, passed reforms that consolidated their authority and checked the popular powers that they characterized as democratic excesses or assaults on order. Ostensibly, their target was the most violent expression of rough justice: the lynch mobs and vigilantes who regularly seized, judged, and punished without any sort of review. To root out such forces, political leaders expanded the power of police departments and found money to buy them more weapons. That those same police departments would become the chief perpetrators of racial terror in the century to come was perhaps a foreseeable irony.

Reformers did not limit themselves to targeting rough justice. Across the twentieth century, they sought to control the democratic excesses of criminal law in other ways, acting to strip away popular powers to judge and punish within the legal system. The rise of the plea bargain, the growth of qualified immunity, the doctrine of prosecutorial immunity, and restrictions on habeas corpus helped to create an opaque system that acts with impunity against families and communities who lack the power and resources to adequately defend themselves.

These reform efforts were often supported, even pushed, by racial justice activists, who hoped formal law would guarantee greater fairness than mob justice. Those hopes were typically dashed; the inequalities and injustices that marked popular justice were simply imported into the courts. Rule of law supplanted the lynch mob. As the judiciary and prosecutors came to dominate the courts, the legal system increasingly took over the role that extralegal racial terror had previously played in socially reproducing racial hierarchy.

Recovering Popular Justice in the Twenty-First Century?

To be sure, such criminal legal reforms never entirely eliminated the violent extralegal enforcement of white supremacy. In Chicago, well into the middle of the twentieth century, white mobs continued to terrorize Black families who moved into the “wrong neighborhood,” with police looking the other way or actively assisting. Old arguments about protecting a community from harm resurfaced in the era of massive resistance to school desegregation. Yet, unlike older instances of extralegal justice, these mid to late twentieth century forms now operated in the shadow of a vast, efficient, undemocratic system of judgment and punishment maintaining social control and racial hierarchies via what Jonathan Simon has called governing through crime.

That undemocratic system, as the actors in Simonson’s book understand, depends for its preservation on the absence of public oversight or review. In that respect, Simonson’s book confirms Larry Kramer’s argument that the loss of popular sovereignty is the loss of a vital check on the power of the courts and the judiciary. But Simonson’s book does more than detail the loss of that check. It also offers a picture of how that check is being reclaimed. The groups whose work Simonson details, along with others doing similar or complementary work — know your rights and bystander training, jail support, prisoner family support, prisoner-led abolitionist groups, and re-entry assistance programs — play a vital role in restoring popular democracy by challenging official justice and asserting the popular power of ordinary people in the courts. That their tactics operate both within and outside the law places them in a long history of popular contestation over what, and who, defines justice in our communities.