The Fugitive Slave Act took this criminalization further, essentially allowing white "man-catchers" to declare black people escaped slaves—again criminals—and remand them to custody. And there was great incentive to do so, as the individual enforcers of the act were given $5 if it were determined "that a slavemaster was not entitled to an alleged fugitive slave" but $10 if it were determined the slavemaster did have a right to his "property." A U.S. marshal refusing to participate could himself be criminalized and fined $1,000. A marshal who allowed an enslaved person to escape "would be liable to an owner for the full value."

One reason why I was hoping for a tighter history from The New Jim Crow is that I could intuitively feel the connections between the new system and the old. I thought that those links deserved more attention, more clarity, and would have strengthened the case. I suspect Kennedy would be skeptical of a "new" Jim Crow. Nevertheless, his history makes clear how much the old system of justice and the new have in common—criminalizing the behavior of black humans, punishing black humans under harsher terms, incentivizing the seizing of black bodies. I suspect there's even more.

The consequences of rendering black people criminals for being human have been profound and extend beyond the argument over whether we really are facing a "new" Jim Crow. The fact is that for most of our history, every black person who's ever actively resisted was effectively committing a criminal act. Harriet Tubman might grace postage stamps today, but in her time she was a criminal who likely would have been executed or sold South had she been caught.

Frederick Douglass was a flagrant criminal. And he knew it:

I appear before you this evening as a thief and a robber. I stole this head, these limbs, this body from my master and ran off with them.

The black men who served in the Union Army were regarded by the Confederate opposition not as soldiers but as outlaws:

We cannot treat negroes ... as prisoners of war without a destruction of the social system for which we contend .... We must claim the full control of all negroes who may fall into our hands, to punish with death, or any other penalty.

And it wasn't just the Confederates—80 percent of all Union soldiers executed for mutiny were black. Martin Luther King was a criminal. Rosa Parks was a criminal. Malcolm X was not just a criminal in his youth but regarded and treated as such by the FBI until the end of his life. Indeed, J. Edgar Hoover criminalized much of black leadership from Marcus Garvey to King to Malcolm to the Black Panthers for his entire career.

And Hoover did much more. When Viola Liuzzo was brutally murdered by white supremacists, Hoover's FBI spread rumors that she was heroin addict who liked to sleep with black men (a crime in several states.) The rumors had the intended effect:

... the July 1965 issue of The Ladies' Home Journal published a poll that asked if readers thought Liuzzo was a good mother. Fifty-five percent didn't. ("I feel sorry for what happened," said one woman in a focus group convened to talk about the Liuzzo story, "but I feel she should have stayed home and minded her own business.")

Why was Hoover so dead-set on criminalizing Liuzzo? Because Hoover himself was a criminal who'd placed an informant in the car with her murderers. The informant had cut his teeth beating the daylights out of Freedom Riders. Hoover did nothing to restrain him. Liuzzo's husband tried to defend her name. He later turned to drinking and died. Liuzzo's family sued the FBI and lost. Today the name of J. Edgar Hoover—an inveterate racist and scourge of black people—decorates the headquarters of the incorruptible FBI.