The true story of America’s most famous Wild West sheriff has much to teach us about our current criminal justice catastrophe
By: Trevor John Kallimani
Tags: Wyatt Earp, John Henry, Gilded Age, Police Shooting, Criminal Justice Reform

“From now on I see a red sash, I kill the man wearing it. So run you cur. And tell the other curs the law is coming. You tell ’em I’m coming! And Hell’s coming with me you hear! Hell’s coming with me!”

Tombstone theatrical release poster reproduced under fair use doctrine. Source:IMDB

It’s a safe bet that just about every American male born between the early 1970’s and the mid 1980’s can identify that quote from the 1993 blockbuster film, Tombstone, my generation’s version of the story of Wyatt Earp and his famous shootout at the O.K. Corral in Tombstone, Arizona in 1881.

In Tombstone, Wyatt Earp, played by Kurt Russell, was a reluctant hero, a man dragged into public service by needy townspeople and his own sense of duty. In the beginning of the film, the Earp brothers come to the Arizona boomtown to make bundles of money, and they are successful when Wyatt gains a stake in a failing casino and turns it around. However, despite their success all is not well in Tombstone. The townspeople live in constant fear of the Cowboys, a ruthless local gang who wear red sashes to identify their members.

Virgil Earp, played by Sam Elliott, the quintessential world-weary and wise westerner, is the first to crack under the weight of his heavy conscience, after saving a young child from being trampled by a group of rampaging cowboys on horseback. When Wyatt implores his brother to stay out of the local troubles and concentrate on getting rich, Virgil snaps back, “Hold on nothin’! I walk around this town and look people in the eye and it’s just like somebodies slappin’ me in the face. These people are afraid to walk down the street and I’m tryin’ to make money off of that, like some goddamn vulture!”

It makes for good entertainment and offers a seductively simple tale of good versus evil, but like so much of the Hollywood western film genre, it is a mythologized version of the real story. The real Wyatt Earp did in fact go to Tombstone with the goal of becoming a capitalist, but it was economic opportunism that brought him back into law enforcement, not his overactive sense of duty. The mistake here is to assume that profit and law enforcement were mutually exclusive goals in the 19th century American West or that any clear line existed between criminals and lawmen. As one of his most recent biographers the historian Andrew Isenberg observes, “As an adult, Wyatt convincingly acted the part of the upright lawman, but was never willing to sacrifice gambling, prostitutes, confidence games, or petty crimes to become one completely”.[1]

The young Wyatt Earp came of age during a period when the nation was going through its own painful growth spurt. The Civil War had created a powerful new federal government controlled by a Republican Party with ambitious goals: to spread the social and economic model of the free-labor North into the South and the West. They envisioned a nation of small shops, small farms, and small towns, but the war had not only ended slavery, a veritable revolution in the American South, it had also accelerated the process of rapid industrialization that was shattering the small-town America, which served as the Republican model for “reconstructing” the nation. The Republican Party that was to lead this transformation was an uncomfortable coalition of ex-Whigs, who believed in an active interventionist government, and “liberals” who, “embraced minimal government, a free market, individualism, and property rights”.[2] Opposition to slavery had brought them together, but the end of slavery threatened their tenuous cooperation. What is known as “Radical Reconstruction” is the roughly ten-year period after the Civil War, when the interventionists seized control and passed “radical” new legislation, including the first Civil Rights Act, the Enforcement Acts or Ku Klux Klan Acts, the Freedman’s Bureau Acts, and the 14th and 15th Amendments. The liberals eventually regained the upper hand on the “radicals”, with the support of an electorate that had always been both hostile to the idea of racial equality and fearful of investing too much power in the federal government.

Horace Greeley trying to coax a black man to shake hands with a member of the Ku Klux Klan and a racialized Irishman meant to symbolize the Democratic Party machine in New York, Tammany Hall. Greeley was an abolitionist before the war and a liberal Republican who ran against incumbent Ulysses S. Grant in 1872 under the banner of the Liberal Republican Party. Source: Library of Congress

“Gilded Age liberals sprang from a noble European and American lineage whose opposition to hierarchies and privileges made them enemies of the Catholic Church, monarchy, aristocracy, and human slavery.”.[3] The major problem with liberalism at the end of the 19th century was that it had become obsolete; it was good for challenging despotic Kings and despotic slave-owners, but inadequate for tackling the problems of industrialization and racial integration. Economic competition without government intervention or redistributive taxation was not creating the virtuous republic of small businessmen and farmers that liberals envisioned. Instead it was leading to ever greater concentrations of property and power at the top and ever greater precariousness and poverty at the bottom. Unfortunately for freed people in the South, the liberal laissez faire attitude towards regulation of the economy extended into everything, including their attitude towards preventing white aggression against black Americans; it turns out that doing nothing was not an effective strategy for combatting the Ku Klux Klan.

“Reconstruction in the West involved the same paradox as in the South: the expansion of individualism and contract freedom — hallmarks of a liberalism ideologically opposed to strong governments — under the sponsorship of a newly powerful state”.[4] This mismatch between the goals of a “newly powerful state” and the liberal ideology of the age opened up a gap for corruption and unscrupulous profiteering. As Stanford historian Richard White explains, “Fee-based governance represented an administrative strategy that was no less “modern” than the bureaucracies that came to define European states. It used fees, bounties, subsidies, and contracts with private individuals or corporations to enforce laws and implement public policy…The net result was an unwieldy and inefficient system that required few taxes but was ubiquitous and often intrusive.”[5] In a 2015 speech at the University of Oklahoma he reiterates this point, “Fee-based governance tied the profit motive to governing, but it’s great disadvantage was that it was notoriously corrupt and inefficient: if your fees depended on making arrests you will err on the side of making arrests, unless of course someone makes it more lucrative not to be arrested”.[6] It is within the context of this corrupt fee-based system that we should view the story of our famous Wild West sheriff. As White observes, “Imagine thousands of Wyatt Earps, and the problems, and opportunities, of American governance during this period become clear. Many American officials who got paid little could make a lot, which was one reason so many men and women aspired to what seemed like such minor offices and why political machines so valued the ability to bestow them…Fee-based governance made holding government office a profit center even for the honest.”[7]

Young Wyatt Earp circa 1870. Source: Wikimedia Commons

From the time he was born to the day he died Wyatt Earp lived a transient life operating on both sides of the law. As such he was both victim and beneficiary of America’s system of fee-based governance, eventually learning to play both sides. Wyatt’s father, Nicholas Earp, was already an experienced practitioner of patronage politics by the time the family moved from southern California to Lamar, Missouri, in 1869. Shortly after arriving Nicholas managed to get himself appointed justice of the peace. The next year Wyatt became constable, with “nothing to recommend him to the position other than his physical stature and his father’s endorsement”.[8] Even at this low end of the law enforcement food chain Wyatt and his father could make more money with a couple of arrests than the average industrial worker in America could make in a 70 hour week of honest labor. In 1871, after the death of his first wife to typhoid fever, Wyatt left Lamar amid quite credible accusations that he had embezzled $200 worth of taxes meant to fund a new school.[9] Shortly after he was arrested in Western Arkansas for horse theft across the border in Indian Territory (present-day Oklahoma). According to Andrew Isenberg, “ the question remains whether he committed the theft. The deputy marshals of the Western District were notorious for making arrests on specious charges simply to collect fees for their services”.[10] Earp faced a potential five-year sentence in prison if convicted but managed to escape from a make-shift jail along with several other inmates and never faced trial.

From there he moved to Peoria, Illinois, where he worked with his brothers Virgil and Morgan in the vice district, probably as an enforcer in one of the city’s numerous brothels. It is in one of these “houses of ill-repute” that he met his second wife, Sally, although there is some question as to whether the two were actually ever married. Pretending to be married was a common way of covering up the relationship between a prostitute and her pimp. He resurfaced in Wichita around 1873, again with his brothers, where they continued to practice the family business, running saloons and brothels.

Left: Wyatt Ear in the mid 1870’s. Source: PBS American Experience, Wyatt Earp. Right: Celia Ann “Mattie” Blaylock, Wyatt’s second or third wife depending on whether we count Sally. She ran away from her parents’ Iowa farm in the late 1860’s and eventually fell into prostitution, which is where Wyatt met her. Wyatt abandoned her in Tombstone, and she died a few years later from a laudanum overdose, possibly a suicide. Source: Wikimedia Commons

We tend to think of people in the Victorian era as excessively prudish about sex and other such “vices”, but while it is true that the moneyed merchant class of most Western cow towns frowned upon prostitution, gambling, and drinking, they turned a blind eye to all three for fear of driving away the cowboys and the economic activity they brought with them. Furthermore, fee-based governance meant that fines for prostitution were a major source of municipal funds in Western cow towns. This was also true of industrial cities in the Midwest and Northeast, such as Chicago and New York, where “boodle” from the sex trade greased the wheels of ward politics and “sporting directories”, essentially guides to the red-light district for out-of-towners, were readily available on any street corner, barber shop, or saloon.

In the arrest records of Wichita Kansas for 1874 the names that appear most frequently in connection with prostitution are Bessie and Sally Earp, the latter possibly the Sally Earp of Peoria. Various other Earp “wives”, “sisters”, and female “cousins” were arrested and fined for prostitution in that city during the time that the Earp brothers lived there.[11] But involvement in the sex trade proved no real barrier to a career in law enforcement in Wichita, where Wyatt eventually joined the police force and achieved some notoriety as a lawman. All of that ended again, however, when he was fired for physically assaulting one of his political rivals during an election campaign. He left Wichita for Dodge City in 1876, again with accusations of corruption and embezzlement trailing in his wake.

In Dodge city Wyatt was, “employed by the moneyed merchants who controlled Dodge to keep the peace so that the city could continue as a collection point for cattle — and moreover so that saloons and brothels could continue to siphon off the cowboys’ pay.”[12] In the film Tombstone, the “Cowboys” are a powerfully connected group of organized criminals who wear red sashes to recognize their members. They are introduced to the viewer with the obligatory massacre of a Mexican wedding party that any fan of Western films will recognize. This, like much of the Earp mythology, is a fabrication created by one of the first Wyatt Earp biographers in the thirties, a time when prohibition of alcohol created a powerful new class of organized criminals and FBI “G-Men” were being cultivated as popular heroes.[13]

Center: The Hollywood version of Curly Bill Brocius with fellow Cowboys as they gleefully dispatch their unarmed victims during the wedding-day massacre that opens the film. There is no credible historical evidence to support the existence of an organized “gang” of red sash-wearing cowboys. Source: Tombstone (1993).

In the 19th century West, “cowboy” was a term of derision and condescension, not a badge of honor; they were cowboys not cowmen.[14] Cowboys were low-wage workers, working in an industry that “quickly became corporate”, attracting speculative capital from theNortheast and Europe.[15] In this respect they were not so different from the low-wage immigrant factory workers in Chicago who processed the cattle they brought to market.[16] They were a heterogeneous lot of ex-Confederates, “ex-Union men, northerners, Indians, itinerant peddlers, and ex-slaves fleeing the terror and vassalage of the post-Reconstruction South”.[17] Like the Earps, cowboys were men set adrift by war and a period of rapid industrialization that produced more down years than good ones, what economic historians have come to label the “Long Depression”. They were simultaneously integral parts of the that industrial development and marginalized outsiders, and while there was a certain fraternal solidarity between cowboys on the trail, this never rose to the level of organization needed to put together a vast criminal conspiracy.

Wyatt would earn a name for himself as a lawman in Dodge City but claimed to have had enough of “lawing” by the time he and his brothers moved to Tombstone in 1879. Whether or not this is true, the Earp brothers learned fairly quickly that, even in a boomtown like Tombstone, becoming respectable Gilded Age capitalists was not so easy for men with no capital to begin with, no connections, and no experience in business other that managing brothels and gambling dens. Wyatt could do fairly well for himself as a professional gambler, but, as Andrew Isenberg explains, “ Tombstone…presented him with the possibility of moving beyond the faro table to enjoy the fruits of booty politics on a grand scale”.[18] As much as monetary gain, Wyatt sought a middle-class respectability that he could never achieve solely as a gambler or a pimp. Becoming sheriff of Pima or Cochise County offered the possibility of achieving both. Because the Southern Pacific Railroad ran through Pima county, the sheriff stood to make tens of thousands of dollars on tax collection fees, at a time when the average cowboy made maybe a couple hundred dollars a year.[19]

The famous gunfight at the O.K. Corral had more to do with Wyatt’s ambitions, than any credible threat to his or his brothers’ lives, and the legendary Clanton “gang” of Tombstone were little more than a struggling family of ranchers, “propertyless migrants” not so very different from Wyatt and his brothers.[20] This is one of the reasons that public opinion turned against him shortly after the shootout. Ironically, the incident would prove to be the beginning of the end for Wyatt’s political aspirations in southern Arizona.[21] He got by for the rest of his life as a gambler and confidence man.

A caricature of Wyatt refereeing the Sharkey-Fitzimmons fight (1896). Wyatt made a controversial below-the-belt call that gave Sharkey the win and the heavyweight title. It was widely believed that Earp had been involved in fixing the match. Source: Wikimedia Commons

Tying law enforcement and criminal justice to the profit motive hurt any Americans not able to shield themselves with big bank accounts and powerful connections. But while the system commonly preyed on poor workers and transients like Wyatt and the cowboys, being white offered these men protection. The story of the Earp family is riddled with white men who steal horses and cattle, white men who engage in prostitution and gambling, white men who are arrested and then escape from poorly guarded jails, and white men who kill. The Earps made enough money from their prostitution and gambling schemes to easily pay off any fines connected with those activities, and in any case, there always seemed to be at least one Earp brother working in law enforcement simultaneously profiting from the fines.

Even murder of a law officer could be overlooked if the killer was white and had friends to vouch for him. This was the case for Curly Bill Brocius who unintentionally killed Tombstone city Marshal, Fred White, while White was trying to disarm him. One Tombstone resident described Brocius as, “ pleasant enough when sober but dangerous when under the influence of liquor”. Brocius was well-known in Arizona and had friends who would vouch for his character. He was even reportedly friendly with Virgil Earp, who took over the job of city Marshal when Fred White was killed. Curly Bill was tried and acquitted by a friendly jury that were willing to give him the benefit of the doubt and pronounce the killing an “accident”.[22]

Not only was white crime regularly overlooked, but among a population who often saw government as corrupt and only serving the rich, outlaws like Jesse James were becoming national folk heroes. The real Jesse James was a thief, a cold-blooded killer, and a defender of white supremacy both during and after the Civil War, but dime novelists, and later Hollywood, turned him into a noble Robin Hood of the Wild West.[23] At the same time popular media was cultivating the image of black men as bloodthirsty criminals and rapacious violators of white womanhood.

By the time Birth of a Nation (1915) opened in cinemas, the image of the rapacious black criminal was a well-worn trope of American popular culture. In this scene Southern Belle Flora Cameron is horrified when Gus, a freed black soldier, asks her to marry him. When she refuses he chases her through the woods. The scene ends tragically, with Flora hurling herself off of a cliff rather than be “defiled” by her pursuer. Her death is avenged by the “heroic” Ku Klux Klan. This was the highest grossing film in the United States until it was dethroned by Gone with the Wind (1939).

Fee-based governance fostered a general distrust of law enforcement and sympathy for white criminals like Jesse James, but this sympathy did not extend to racial minorities, who were the main victims of the system. In 1866 the principal chief of the Choctaw in Indian Country complained that the Choctaw were “annoyed and harassed” by deputy marshals, who arrested “numbers of our citizens for offenses alleged to have been committed.” According to the Choctaw, “the main inducement” of this overzealous enforcement of the law was “to make fees thereby”.[24]

Former slaves in the South found themselves in a similar situation. There was widespread fear that freed slaves would go on a bloody rampage to avenge their enslavement; the white southern code of honor would have required no less. But as Richard White points out, “There was violence in the South but it was usually at the hands of white outlaws, bushwhackers, and unreconciled Confederates. Black people were victims not perpetrators. Their collective restraint was remarkable.”[25] Nevertheless, “black codes” in the South Manufactured a crime wave which coupled with the infamous loophole in the 13th amendment, lead to a system of convict leasing that has been described by one historian as nothing more than “slavery by another name”.[26] Richard White summarizes:

Fee-based governance and pervasive racism gave Southern sheriffs and deputy sheriffs strong incentive to arrest black people for misdemeanors. The fines assessed for misdemeanors, largely property crimes, provided money for the sheriffs, and when poor defendants could not pay the fees, officials obtained the money by leasing out the convicted. The Southern practice of assessing penalties for nonpayment of debts and assigning forced labor if the defendant failed to pay provided similar fees for court officials, and more prisoners for leasing. The system had the added advantage of providing local revenue to keep down taxes.[27]

Contracts for the debt created by fees and fines could be sold from one employer to another, meaning black men and women continued to be sold long after the official end of slavery. Lewis Blackmon starts his book, Slavery by Another Name, with the arrest of Green Cottenham in 1908 on charges of “vagrancy”, essentially not being able to prove that he was employed. He was summarily sentenced to 30 days of hard labor, but because he could not pay the “fees to the sheriff, the deputy, the court clerk, the witnesses” his “sentence was extended to nearly a year of hard labor.” The next day his debt was sold to a subsidiary of the U.S. Steel Corporation.[28] He would not live through the year. In many cases former slaves found themselves forced to work for the very same white men they had called “master” before the passage of the 13th amendment.

Calling this system “slavery by another name” is arguably understating the fact. A slave was considered by law as property, an asset, and a very valuable one at that. This meant that slave-owners had very little financial interest in working their slaves to death, or at least not too quickly. As one lessee explained it, “Before the war we owned the negroes…If a man had a good negro he could afford to keep him…But these convicts, we don’t own ’em. One dies, get another.”[29]

Consider for a moment the story of another legendary figure of the late 19th century, John Henry the “steel drivin’ man”. The mythical John Henry was a free black Hercules who lost his life in an epic contest of man against machine. The most recent iteration of his legend is an upcoming Marvelesque superhero film on Netflix, with actor, bodybuilder, and ex-professional football player Terry Crews playing the lead role, but the real John Henry was only 5ft1, small even by the standards of the 19th century. He was born a free man in New Jersey, but like many northern black men he had followed the Union Army south into Virginia. His small stature probably prevented him enlisting in the army, so he possibly got work as a cook or a laborer, or he might have been one of the many hundreds who harvested bones, selling them to a local fertilizer dealer who gave cash, no questions asked. The influx of free black men in many places in the South caused panic and outrage among the local white populations.[30] They were used to black people who understood the southern code of deference owed to white men and women.

Historian Scott R. Nelson identifies the young man on the right in another photo as, “Beal[e]ton, Va: John Henry, Servant, at Headquarters, 3d Army Corps, Army of the Potomac,” noting that he is roughly the same height as the John Henry who was arrested in Prince George County in 1866. Reproduced here under fair use doctrine. Source: Shorpy

John Henry was arrested in April 1866 for stealing “something of value” from Wiseman’s grocery store in Prince George County, Virginia, not far away from the place where the first slaves were brought to the English colonies in 1619. Henry was tried under Virginia’s black codes by a prosecutor who did his utmost to ensure that he was charged with a felony rather than a misdemeanor. This required that the stolen goods be valued above twenty dollars, highly unlikely given that an auditor had valued everything in the store at no more than fifty dollars. Nevertheless, at the tender age of nineteen years old John Henry was sentenced to ten years in a Virginia penitentiary. This turned out to be a death sentence for the young man.[31]

Virginia’s prisons were chronically underfunded, especially after the destruction of the war. This problem was made worse with Virginia’s black codes, which “invented a crime wave” that lead to more dangerous overcrowding.[32] Convict leasing was seen as a way to relieve pressure on prisons and fund state law enforcement and other programs. Ironically, this system was promoted, in Virginia, by a Quaker abolitionist from the North, named Burnham Wardwell, who saw prison leasing as a positive reform, a way of putting inmates in better kept facilities and out of Virginia’s decrepit prisons.[33] It was also seen as an effective way of exposing prisoners to the reforming effects of honest hard work.

John Henry was leased out to the C&O railroad to do work that the Irish and other free white workers refused to do, tunnel through the Appalachian Mountains using steam drills and nitroglycerin. He died sometime around 1873 probably from silica dust inhalation, one of over a hundred convicts who died working on the Lewis Tunnel in Virginia. He was buried in an unmarked grave on the grounds of the Virginia State Penitentiary, among the first victims of a system of prison leasing that would expand dramatically in the decades that followed, ensnaring Green Cottenham in 1908.[34] Both Wyatt Earp and John Henry had their criminal records wiped away from the popular myth, arguably for very different reasons, but ultimately because the real stories called into question the fairness and impartiality of American justice.

The economic liberalism of the 19th century was a failure in the eyes of most Americans to such an extent that by 1912 the presidential race offered up four progressive candidates, including a socialist who won over five percent of the vote. In 1913 the 16th amendment allowing for the imposition of progressive income taxes passed with incredible ease and widespread support, a measure of how far the country had come ideologically. Economic liberals experienced a comeback in the “Roaring 20’s” only for the experiment to fail again in the most spectacular fashion, leaving the field to the New Deal Coalition that dominated American politics until the late 1960’s. But out of the social turmoil of the 60’s and 70’s a new Republican party emerged, a party with ambitious goals both at home and abroad, coupled with an ideological aversion to taxes and “big government”. Among their ambitious goals was a “war on crime” that would require enormous government intervention and expenditure. Into the gap created by this paradox, again, fee-based governance insinuated itself and found fertile ground to grow.

Predictably, allowing the profit motive to enter into law enforcement has again created a myriad of perverse incentives. This has led the self-appointed “Land of the Free” to imprison more of its population by far than any other country in the world.[35] The proliferation of private prisons and the perverse incentives they create are a prime example of how fee-based governance has encouraged this mass incarceration, but possibly more worrying is the phenomenon of criminalizing poverty itself, through the harsh sanctioning of minor deviance.[36] When the UN Special Rapporteur on extreme poverty visited the United States in 2016 he reported that:

In many cities and counties the criminal justice system is effectively a system for keeping the poor in poverty while generating revenue to fund not only the justice system but diverse other programs. The use of the legal system, not to promote justice, but to raise revenue, as documented so powerfully in the Department of Justice’s report on Ferguson, is pervasive around the country. So-called ‘fines and fees’ are piled up so that low level infractions become immensely burdensome, a process that affects only the poorest members of society who pay the vast majority of such penalties.[37]

As the report mentions this system of fee-based governance was a major source of the discontent that erupted in Ferguson in 2014. States have become so dependent on this form of financing that some have even faced budget problems caused by dropping crime rates. Nevada, a state that has no corporate or personal income tax, estate tax, or capital gains tax, has recently faced the possibility of being forced to close its judiciary because of a drop in the number of traffic citations.[38] If the system is racist, and it most certainly is, much of that racism cannot be extricated from poverty and profit.

Harriet Cleveland, Source: SPLC

The case of Montgomery, Alabama, resident Harriet Cleveland is typical of how this system works. Harriet, like Green Cottenham a hundred years before her, was a victim of what is called today “offender-funded” justice, a form of fee-based governance that aims to shift the cost of law enforcement away from taxes and onto people who break the law. She was originally fined because she was too poor to buy car insurance but obliged to drive to work in order to keep her job. The original fines were a couple of hundred dollars, but she couldn’t pay on the spot, so her debt was turned over to Judicial Correction Services, a private company that offers fine collection and probation supervision services to cash-strapped state and local governments. They tacked on several hundred dollars in service fees and a monthly “supervision” fee. When she lost her daycare job during the 2008 recession and fell behind on payments, her debts ballooned into the thousands of dollars. She took a title loan out on her car at a 300 percent interest rate. The care was repossessed, and she feared that her house was next. By June 2013 she had paid nearly three-thousand dollars, but still owed almost the same amount. Much of what she paid was going to her JCS fees, leaving the original fines unpaid, which incurred more penalties and fines. She ended up spending several days in jail “sitting out” her probation debt. With help from the Southern Poverty Law Center she successfully sued the city and won on the claim that she was being held in a modern form of debtors’ prison.[39]

One could argue that Harriet Cleveland’s story ends with a relatively happy ending, but she was exploited for profit and suffered for years before she got any help, and all of that just for a couple hundred dollars in traffic tickets. Her case is surprisingly typical; about 80 percent of arrests in the United States are for low-level misdemeanor offenses.[40] Moreover, it is worth considering how the same system works for those with enough money and power to pay, bribe, or extort their way out of trouble, even when they have committed horrible crimes. The recent Netflix documentary Filthy Rich, which tells the story of Jeffrey Epstein’s child molestation Ponzi scheme, offers a jarring portrayal of a system that very clearly “treats you better if you are rich and guilty, than if you are poor and innocent”.[41] Following Epstein’s first conviction for “soliciting prostitutes” he was shifted to offender funded probation, literally paying the salaries of the officers tasked with his surveillance. The roughly $128,000 he paid to his “supervisors” amounted to pennies for a man of his wealth, but ensured that they were willing to look the other way as he daily violated the terms of his probation, probably allowing him to recruit and rape more young girls while he served out his “sentence”. As Alabama state judge Tommy Nail concludes with regards to his own states’ fee-based system, “When you inject a profit motive into the criminal-justice system, you’re opening it up to corruption and abuse.”[42]

Our ignorance of the past has allowed old failures to be sold as innovative new solutions. It is cliché but forgetting the past has doomed us to repeat it, and while we’re on the subject of clichés, we need to ditch the caricatural popular images that we hold of “criminals” and “lawmen”. These stereotypes profoundly affect our attitudes towards crime and enforcement of the law. We need to stop talking about “bad apples” and “good apples”, on both sides of the law, and accept that we are all just apples, and we all have a few spots. John Henry and Green Cottenham were likely no angels, because angels if they exist are not of this world. Maybe Henry really did steal something from Wiseman’s Grocery, and both men possibly, even probably, got a little too drunk from time to time, visited prostitutes, or gambled their money away. For good or ill, these activities were important parts of late 19th and early 20th century workingman’s culture. The Earp brothers were no angels either, but their whiteness not only protected them from the worst abuses of fee-based governance, it offered the possibility to profit legally from that same system.

Fee-based governance did not create racism, but it certainly did amplify racism and allow it to hide behind seemingly racially neutral policies. What was true then is still true today. Tying the profit motive to criminal justice creates a powerful incentive to generate more crime out of petty offenses and zero incentive to reform or reinsert people once they are inside the system. Even for officers who enter the profession with the best of intentions, the current environment puts them under intense pressure to produce arrests. They inevitably choose the path of least resistance by targeting people who are the least likely to mount any kind of legal challenge to their arrest. Cynicism towards the law and law enforcement sets in, and the people targeted justifiably feel that they are treated unfairly, leading to the types of tense encounters that all too often end in violence.

The typical “criminal” much more closely resembles Harriet Cleveland, than the bloodthirsty super-predator of popular myth. Think back to some of the police killings that we have witnessed over the last few years; nearly every one of them started with an arrest for some petty misdemeanor. As university of California law professor Alexandra Natapoff recently pointed out in an interview on NPR, “It’s surprising to many people to realize that misdemeanors — these low-level, often chump-change offenses that many of us commit routinely without even noticing it — make up the vast majority of what our criminal system does,” and “the vast majority of ways that individuals interact with police.” She suggests, “shrinking the net…by shrinking our misdemeanor codes, …reducing arrests”, and taking other measures to ensure that we are not overzealously policing peoples’ everyday lives.[43] The problem is that we have a system with built-in monetary incentives to create an ever-larger net.

As Van Jones predicts in 13th, the documentary which has exposed millions of Americans to the problem of mass incarceration, “We don’t know what the next iteration of this will be, but it will be.” Moneyed interests in America have a history going back to the Gilded Age of infiltrating reform movements in order to advance their own interests. Financially powerful lobbies continue to push for more intrusive laws and heavier fines and penalties, not in the interest of the public good, but rather in order to increase their bottom lines.[44] Exposure of the private prison industry has already caused the money to start moving towards for-profit parole services, half-way houses, and prison release programs.[45]

More recently, we have seen calls for defunding police departments gaining steam, and certainly we can find better ways of keeping our neighborhoods safe than the type of militarized police forces we have built up over the last few decades. But there is something that bothers me about this new “defunding” movement. Call me cynical, but it seems like a slogan that will all too easily be coopted by the same political forces that have pushed for the chronic underfunding and outsourcing of vital public services for the last four or five decades. If this vibrant reform movement does not address the fact that we have turned criminal justice into a business, I fear that we will create just one more iteration of “slavery by another name”.

© 2020 Trevor J. Kallimani

[1] Isenberg, Andrew. Wyatt Earp: A Vigilante Life, 7.

[2] White, Richard. The Republic for Which it Stands: The United States during Reconstruction and the Gilded Age, 1865–1896 (Oxford History of the United States) 1st Edition, 172.

[3] Ibid., 3.

[4] Ibid., 113.

[5] Ibid., 357.

[6] Teach-In on the Western Frontier.

[7] White, 359.

[8] Isenberg, 55.

[9] Ibid., 60.

[10] Ibid., 66.

[11] Ibid., 81.

[12] Ibid, 96.

[13] Ibid, 96, 113–5.

[14] Fraser, Steve. Class Matters: The Strange Career of an American Delusion, page 123.

[15] White, 593

[16] Ibid, 125–33. Also see Cronon, William. Nature’s Metropolis: Chicago and the Great West.

[17] Fraser, 123.

[18] Ibid, 115.

[19] White, 359. Isenberg, 135–7. Fraser, 133.

[20] Isenberg, 96, 115–28.

[21] Ibid., 147–50.

[22] Ibid., 135.

[23] Stiles, T.J. Jesse James: Last Rebel of the Civil War. Jesse. James’ support of white supremacy was one of the reasons for his popularity.

[24] White, 358. Isenberg, 62. In 1874 the House of Representatives conducted an investigation, which confirmed the charges of fraud and corruption made by the Choctaw. Today Native Americans are killed by police at a higher rate than any other group in the country. Native American Police Killings. Isenberg also notes, “As in other parts of the Reconstruction-era South, white violence against African-Americans in western Arkansas was rarely punished: three white men who killed an African-American man in 1869 were acquitted because the only testimony against them came from African-American witnesses. White supremacist societies operated with such impunity that the Van Buren baseball team called itself the Ku Klux Klub.” 63.

[25] White, 30.

[26] Blackmon, Douglas A. Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II

[27] White, 422.

[28]Blackmon, 1.

[29] White, 422.

[30] Nelson, Scott Reynolds. Steel Drivin’Man: John Henry, the Untold Story of an American Legend, 41–58.

[31] Ibid., 56.

[32] Ibid., 58.

[33] Ibid, 68.

[34] Ibid, 92.

[35] Yes, U.S. locks people up at a higher rate than any other country

[36] The Institute for Policy Studies, The Poor Get Prison. Lawsuit: Arizona’s Use Of Private Prisons Violates The U.S. Constitution

[37] Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights

The Brennan Center for Justice has a very thorough summary: The Steep Costs of Criminal Justice Fees and Fines “Cash-strapped state and local governments rely on criminal fees to raise revenue for other purposes as well, thereby avoiding the politically unpopular step of raising taxes. Most jurisdictions impose certain fees on every defendant convicted, regardless of the nature of the offense. For example, one convicted of a misdemeanor in Florida is charged a $20 court cost fee, a $3 Court Cost Clearing Trust Fund fee, a $60 Fine and Forfeiture Fund fee, a $20 Crime Stoppers Program fee, a $50 prosecution fee, a $50 crime compensation fee, and a $20 Crime Prevention Fund fee, and potentially others.”

[38] The Atlantic, “The Problem with Funding Government Through Fines”

[39] The New Yorker, “Get Out of Jail, Inc.”

[40] NPR, Law Professor on How Misdemeanors ‘Sweep’ Blacks into The Criminal System.

[41] Bryan Stevenson in the Netflix documentary, 13th.

[42] The New Yorker, “Get Out of Jail, Inc.”

[43] NPR, Law Professor On How Misdemeanors ‘Sweep’ Blacks Into The Criminal System.

[44] How for-profit prisons have become the biggest lobby no one is talking about

Private prison firm quietly ramps up GOP lobbying efforts as Trump expands immigrant detention centers

[45] “Get Out of Jail, Inc.” The New Yorker.