Violence, Law, and the Twentieth-Century State

Type: Paper Session

Tags: African American; Legal and Constitutional; Women's History


Legal histories of struggles for race and gender justice are animated by a paradox: twentieth-century legal regimes demonstrated either a refusal or an incapacity to fully protect marginalized people; and yet, those most vulnerable to harm consistently turned to the state for legal redress. These state engagements were two-pronged. On the one hand, individuals and social movements fought to create mechanisms to hold accountable violent state agencies, such as police departments and prisons. On the other hand, victims of nonstate racial and gender violence challenged the state’s historic neglect of their harm and demanded recognition and protection through the courts and state and federal legislatures. Scholars of the civil rights, feminist, and anticarceral movements have abundantly documented these distinct fights against state violence and for state protection. This panel, however, considers these struggles together. Taking the contradiction of legal efforts to win protection from a violent and neglectful state as a starting point, this panel asks: why and how have individuals fought for state redress from racial and gendered violence, how did these legal pathways shape their strategies, and what were the outcomes? Within the larger context of gradual legal reforms for racial and gender equity, these efforts illuminate the victories, trade-offs, and unintended consequences of legal strategies to win protection from the state. The papers in this panel collectively address episodes where historical actors fought to wrest measures for safety and accountability from police departments and prisons, state and federal legislatures, and the courts. They also consider the promises and limits of such legal work in the context of Jim Crow, post-Civil Rights Movement activism against police and prison violence, and antiviolence feminism. Myisha Eatmon delivers a reappraisal of individual tort suits to challenge white-on-Black violence, arguing that Black plaintiffs helped to dismantle Jim Crow. Peter Pihos discusses how the reform of internal police discipline protocols in the Chicago Police Department during the 1970s produced the paradox of ongoing police brutality and the inclusion of Black police officers and leaders. Amanda Hughett reveals how state officials used prison grievance procedures instituted in response to imprisoned people’s litigation to suppress collective organizing efforts behind bars. And Anne Gray Fischer traces how antiviolence feminists in the 1990s lost the battle for “civil rights” legislation for survivors of gender-based violence to sue their attackers in civil court, even as they won the war to bend state force to purportedly protective ends through the passage of the 1994 Violence Against Women Act. Karen Tani, Professor of Law and History at the University of Pennsylvania, will offer comments. In response to the OAH's call to think through the “Pathways of Democracy” this panel explores the costs, constraints, and contradictions of forging roads to safety and equity through the law.

Papers Presented

Radicalism in the Mundane: Black Civil Litigation, “The State” and the Dismantling of Jim Crow

When we think of the heroes of the fight against Jim Crow, we often think of activists, attorneys, and movement martyrs like Rosa Parks, Ida B. Wells, or Martin Luther King, Jr., but rarely do we think of ordinary African Americans outside of the movement. On December 24, 1926, Philip Woods got into a violent altercation with a white conductor, G. O. Lord. Woods sued the railroad company for $3,000 in damages for civil assault and battery. He was awarded $200. The victim deemed the "amount of damages awarded him by the jury so grossly inadequate to compensate him for the injury received” that he appealed his case to the Mississippi State Supreme Court. This paper argues that ordinary African Americans, like Woods, who brought individual tort suits for incidents involving white violence helped chip away at one of Jim Crow’s control mechanisms: white-on-black violence. The paper also argues that if we include civil courts as a part of the state, then there is evidence of yet another way that African Americans used “the state” to gain legal recourse for white-on-black violence under Jim Crow. By viewing African Americans’ use of tort law and civil courts as engagement with the state, we are able to reimagine black radicalism under Jim Crow and the role, if any, that “the state” played in limiting white violence under Jim Crow. In the face of Jim Crow violence, standing up for oneself and suing white people and companies for violent attacks was radical.

Presented By
Myisha S. Eatmon, University of South Carolina

Policing the Police: How Demands for Internal Police Discipline Produced More Black Officers and Less Accountability

Police Departments have a fascinating and paradoxical relationship with self-policing that has led to unexpected political developments. During the 1960s and 1970s, under pressure from anti-corruption and anti-brutality activists, the Chicago Police Department developed an internal discipline system. While this system did little to punish officers for brutality, the new bureaucratic rules and procedures were frequently used to punish officers for infractions in the 1960s and 1970s. When the Afro-American Patrolmen’s League organized in 1968 to challenge the Department’s racism and brutality, the Department used these rules—among a panoply of harassing tactics—to punish them. This repression had a double-edged character: it stymied the League’s recruiting but simultaneously sharpened its politics and made its officers heroes to many black Chicagoans. This public support sustained the League, facilitating its pursuit of multiple avenues to ending police discrimination; by the 1980s, this produced a more diverse police force with black officers at the top. At the same time, the use of internal disciplinary procedures caused mainstream police officers’ organizations, like the Confederation of Police, to rebel. Their activism led by the 1980s to the development of a police bill of rights and other mechanisms making police discipline more difficult. Despite racial division, police officers shared grievances about the internal discipline system. Their subsequent activism in response to these grievances produced a more diverse police institution in which officers were less accountable.

Presented By
Peter Constantine Pihos, Western Washington University

From Democracy to Bureaucracy: How State Officials Used Prison Grievance Procedures to Crush Prison Organizing

During the early 1970s, imprisoned workers across the nation launched a surprisingly successful movement to unionize. This paper reveals how state officials stymied their efforts by leveraging newly created prison grievance procedures to undermine their ability to organize. Inspired by vibrant Black Power and labor organizing campaigns beyond the prison gates, prisoners’ unions sought to establish a “prison democracy.” They wanted a say in the policies that affected their lives. They pursued this goal through collection action and by filing lawsuits that sought to compel prison officials to institute grievance procedures and other procedural checks on prison officials’ power. At first, state officials opposed such procedural reforms. But as prisoners’ unions garnered strength, state officials embraced them as weapons to suppress the organizing campaign. In the 1977 Supreme Court case Jones v. North Carolina Prisoners’ Labor Union, state officials succeeded in limiting prisoners’ First Amendment rights by arguing that grievance procedures already offered prisoners a sufficient avenue to voice their complaints. By focusing on state officials’ use of prison grievance procedures, this paper helps to explain the persistence of America’s harsh penal practices, despite the promise of the prisoners’ rights movement. Under pressure from imprisoned activists and the courts, state officials legitimized their penal institutions by transforming them into modern bureaucracies. They did so without offering imprisoned people a voice in prison governance. Once in control, state officials redirected the bureaucratic mechanisms to better reflect their managerial desires, among them the suppression of collective organizing.

Presented By
Amanda Bell Hughett, University of Illinois Springfield

Legal Antiviolence Feminism and the Violence Against Women Act

In 1994, Bill Clinton signed the Violence Against Women Act (VAWA) into law. At the time of passage and in the years since, critics have charged VAWA with pushing a mass incarceration agenda under a feminist banner. VAWA tackled nonstate violence with heightened policing and severe carceral penalties, leaving both men and women of color vulnerable to proliferating forms of state violence. While VAWA’s creation of new offenses and tougher sentencing laws remained intact, one key provision in the original bill was subject to intense debate, and ultimately overturned by the Supreme Court: the right of survivors of gender-based violence to sue their attackers. This was a major setback for the predominantly white feminists, including legal scholar Catharine MacKinnon, who, throughout the late 1980s and early 1990s, fought for (and, in some states, won) “civil rights” legislation that gave survivors legal standing to sue men for injuries in civil court. This paper offers a history of this overturned VAWA provision through a study of the political and intellectual debates surrounding the pursuit of legal redress for violence against women through civil courts, as well as a discussion of early test cases of such suits. This paper explores why white legal feminists lost their battle for federal “civil rights” legislation. It argues, however, that they won their war. An excavation of these pre-VAWA debates and lawsuits exposes legal feminists’ reliance on state force to win the protection of women from violence—which, in practice, meant the state predation of marginalized people.

Presented By
Anne Gray Fischer, University of Texas at Dallas

Session Participants

Chair and Commentator: Karen Tani, University of Pennsylvania
Karen Tani is a Professor of Law and an Associate Professor of History at the University of Pennsylvania. She is the author of States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (Cambridge University Press, 2016), which won the Cromwell Book Prize from the American Society for Legal History in 2017. Other published work has appeared in the Yale Law Journal, the Law and History Review, and Publius: The Journal of Federalism, among other venues. She is currently working on a history of disability law in the late twentieth century. She holds JD and PhD degrees from the University of Pennsylvania.

Presenter: Myisha S. Eatmon, University of South Carolina
Myisha Eatmon is finishing a dissertation, titled Public Wrongs, Private Rights: African Americans, Private Law, and White Violence during Jim Crow, at Northwestern University. Her work explores black legal culture in the face of white-on-black violence under Jim Crow and black civil litigation’s impact on civil law. She has earned the AHA’s Littleton-Griswold Research Grant, received the Mellon/ACLS Dissertation Completion Fellowship, and is a Kathryn T. Preyer Fellow and a J. Willard Hurst Fellow through the ASLH. Myisha is committed to the recovery of lost histories and voices, to the cultivation of historical and civic debate, and civic engagement.

Presenter: Anne Gray Fischer, University of Texas at Dallas
Anne Gray Fischer is an Assistant Professor of Women’s History at the University of Texas at Dallas. Articles drawn from her manuscript on race, gender, and the sexual policing of women in the twentieth century have appeared in the Journal of American History (as the recipient of the Louis Pelzer Memorial Award from the OAH) and the Journal of Social History. Prior to beginning her position at UT-Dallas, Anne was the book review editor for the Journal of American History.

Presenter: Amanda Bell Hughett, University of Illinois Springfield
Amanda Hughett is an Assistant Professor of Legal Studies at the University of Illinois at Springfield and an affiliated researcher at SUNY-Buffalo’s Baldy Center for Law & Social Policy, where she spent two years as a postdoctoral fellow. She holds a Ph.D. in history from Duke University and has previously served as a Law and Social Sciences Doctoral Fellow at the American Bar Foundation. Amanda is currently at work on a book that traces how government officials reshaped prison policy in response to the prisoners’ rights movement of the 1970s. In 2018, she won the Law and Society Association’s dissertation prize.

Presenter: Peter Constantine Pihos, Western Washington University
Peter C. Pihos is an Assistant Professor of History at Western Washington University, where he teaches courses on African American history and modern U.S. history. He has a Ph.D. in History from the University of Pennsylvania and a J.D. from New York University. He has taught at a wide variety of institutions, including Deep Springs College and the Arête Project. He is writing a book on black police officers from the 1960s to the 1980s.