Honest History: How Fines and Fees Came to Harm Black Communities in Virginia

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Separate and Unequal: History of Virginia Criminal Laws, Courts, and Practices

Virginia Laws and Courts as Enablers of Enslavement: 1630-1865

As part of establishing and maintaining the system of chattel slavery, the Virginia General Assembly, including in its role as a court in the early colonial period, pioneered and enacted a series of interpretations and laws creating distinctions between enslaved Africans and white indentured servants and restricting the rights of free and enslaved Africans and their descendants within Virginia. As early as 1630, just 11 years after the White Lion carried about 20 to 30 enslaved Africans to the Virginia colony, the Virginia General Assembly punished people for interracial sexual relationships. In 1640, a Virginia court sentenced a Black man to lifetime enslavement while the white men with whom he fled Virginia were merely given extended indentures. And in 1667, the Virginia Assembly prohibited enslaved Africans and their descendants from seeking freedom through Christian baptism, declaring that baptism would not result in enslaved people being freed. This was cemented in 1682, when the General Assembly declared that anyone brought into the colony whose parentage and native country were non-Christian would be a slave.

Early Virginia laws often included targeted restrictions on Black people that sought to prevent any resistance or rebellion against enslavement. During the 1639-1640 legislative session, the General Assembly did not include Black people in a law arming all other “persons.” In 1669, an Act stated that if planters killed enslaved Black people while engaging in extreme forms of “correction” that would not be considered murder. And in 1680, four years after enslaved Black people joined Black and white indentured servants in a militia organized by Nathaniel Bacon, the Assembly prohibited Black people from carrying anything that could be a weapon, engaging in self-defense, and attempting to escape. 

As the fear of uprising grew, so too did the laws to restrict the basic human rights of Black people. In 1691, the Assembly passed a new law allowing anyone to kill an enslaved Black person who had escaped, banning release from slavery without the person being transported out of the colony, and punishing interracial marriages. And in 1692, the Assembly passed an Act allowing county notables to try and sentence enslaved people for capital crimes without a jury in “courts of oyer and terminer.”

In 1705, the General Assembly assembled a set of existing and new laws related to enslaved Black people and white indentured servants into one Act that became known as the “slave code.” This code cemented chattel slavery for Africans and their descendants in the English colony, and sought to further separate them from white indentured servants. It also continued the existing laws that permitted every planter to be a “petty tyrant” in the later words of George Mason, acting as judge, jury, and sometimes executioner of enslaved Africans and their descendants, while also creating court punishments for enslaved people that were different from those faced by other people. This code, which was revised multiple times over the next 160 years, would cause further harm across the nation as many states followed Virginia’s lead and passed their own “slave codes.”

In the 160 years between the General Assembly passing the 1705 “slave code” and the Union Army’s liberation of remaining enslaved Virginians in 1865 (with many having achieved freedom behind Union lines earlier in the war), enslaved Black Virginians faced a dual, intertwined system of control and punishment: a private system of planters, their hired help, and neighboring white people who were permitted by the law to use violence against enslaved people in many circumstances, and a public system with a separate set of laws for enslaved people and unequal punishments in Virginia courts. 

Those Virginia courts provided little opportunity for Black people to defend themselves. In 1732, the House of Burgesses prohibited Black people from testifying in any court case other than a capital trial for an enslaved person, although this was later loosened to allow testimony in civil and non-capital criminal cases for other Black people. Enslaved people in Virginia remained subject to trial, sentence, and execution by a court of oyer and terminer without a jury after the establishment of the United States. At the end of this process could be death, transportation to enslavement in other places, or even an early form of forced prison labor. In 1858, Virginia’s General Assembly said that some enslaved people who were convicted of acts that would otherwise result in transportation would instead be used as labor for public works projects. 

Virginia’s General Assembly also created a system of surveillance and control in the form of slave patrols that monitored movement by enslaved people. They did so by expanding powers for militia commanders to include appointing slave patrols that were allowed to seize any enslaved person traveling without a pass in addition to those who were attending meetings of enslaved people, as was previously allowed. Patrollers were incentivized by relief from other duties and, later, direct payment, and were particularly active on weekends, when enslaved people were most likely to be trying to travel to attend church services or visit family members on other plantations. As historian Philip J. Schwartz noted in his 1988 study of enslaved people and Virginia criminal laws, elite white Virginians created these laws because they were afraid: not only of what might happen if the large numbers of people they enslaved revolted, but also of real acts of resistance by enslaved Black Virginians.

How We Got to Mass Incarceration: Emancipation, Reconstructions, and Reactions

With the Union victory and freeing of enslaved people in 1865, Black Virginians began organizing through associations, churches, schools, and participation in the political process to create real opportunities for themselves and their children. This included advocating for reforms to the criminal code and fairer tax policies. One in four delegates to the constitutional convention of 1867-1868 was Black, and together with white Republicans, they passed a constitution that provided voting rights to all men over age 21 except certain former confederates and directed the General Assembly to create a system of free public education. In 1880, Black legislators were part of the coalition with white Republicans and Readjusters who reformed the tax system, strengthened public education, removed the poll tax as a prerequisite for voting, and banned public whipping posts. Although many of these policies were led by Black advocates and legislators, the changes benefited the great majority of people living in Virginia, across racial lines.

These reforms were short-lived, however. Racist backlash, propelled by inflammatory rhetoric about “Black domination,” and the suppression of Black voters led to reactionaries seizing control of state power. Many of the prior reforms were repealed, and after the 1896 Plessy v. Ferguson Supreme Court decision, Virginia codified existing racial segregation into the state constitution and state law. 

The 1902 Constitution reinstated the poll tax and created literacy tests as requirements for voting, mandated segregation in public schools, and included in the disqualifications from voting not only felony convictions and offenses related to honesty but also petty larceny. The poll tax required any person who wished to register to vote to prove that he had paid a poll tax of $1.50 (the equivalent of $56 in 2025) every year for three years preceding the election. Continued economic challenges due to the long enslavement of Black Virginians, followed by the segregated labor market and the barriers to land ownership, left Black Virginians with little to no ability to make or accrue money. The poll tax effectively priced Black Virginians out of participating in democracy. Between 1901 and 1905, voting by Black men dropped about 90% and voting by white men dropped by almost half. For parts of the 20th century, in practice the Byrd political machine paid poll taxes for their supporters, while tax collectors created barriers for Black people trying to pay the poll tax.

With lawmakers working to control and limit the rights of Black Virginians, the criminal legal system became a formalized means for perpetuating legal slavery by subjecting Black Virginians to punishments of unpaid work in harsh conditions. In contrast, the courts subjected very few white people to these punishments. These actions began almost immediately after the end of the Civil War. In 1866, the Virginia General Assembly passed a law allowing local officials to force into employment anyone who appeared unemployed or refused to work at low wages, and subjected anyone who tried to escape such a situation to work without pay while wearing a ball and chain. Although the Union Army’s commanding general for Virginia forbade enforcement of the law, it remained on the books until 1904. 

In 1871, the Supreme Court of Appeals of Virginia declared that incarcerated people were, in effect, “slave[s] of the state,” explicitly reversing abolition for these individuals. In the late 19th century, Virginia “leased” people – mostly Black – to private companies to work in quarries and on canal and railroad projects. According to one report in 1881, the death rate in the Richmond and Allegheny Railroad camp was seven times higher than inside the state-run penitentiary. In the 20th century, the leasing system evolved into a system of convict road camps operated by the State Highway Commission and Virginia State Penitentiary. Virginia law still allows prison labor to be used to build and maintain roads or on other public works projects.

The Impact of “Tough on Crime,” “Broken Windows,” and Mass Incarceration: Policy Choices Pushed Black Virginians into the Legal System

After decades of work, Black communities and white allies succeeded in ending laws and public policies that segregated schools and public transportation and overturned laws banning interracial marriage. Further, some of the more egregious laws preventing Black Virginians from voting were overridden by the Federal Government with the passage of the Voting Rights Act of 1965, the 24th amendment to the U.S. Constitution that banned poll taxes in federal elections, and court cases, including a 1966 Supreme Court ruling that poll taxes violate the equal protection clause of the 14th Amendment. Despite these significant strides, the legacy of racism in the commonwealth remained, and explicitly discriminatory laws evolved into the more subtle disenfranchisement we see today.

Following the Civil Rights movement in the 1950s and 60s, state and federal policymakers began to implement laws that do not explicitly target Black people, but effectively do. As legal scholar and civil rights lawyer Michelle Alexander argues, policy choices to create mass incarceration and mass felonization of Black people allowed discrimination on the basis of involvement in the criminal-legal system to replace laws and policies that explicitly used racial classifications as the basis of discrimination. This includes the high toll of fines and fees on people – often Black people – caught up in the system of mass incarceration. 

Beginning in the 1980s, new policies and practices proliferated the criminal legal system, resulting in police arresting and states imprisoning more people than ever. These included “tough on crime” policies that lengthened prison sentences through mandatory minimums and other changes to sentencing and “broken windows” policing that resulted in increased arrests for petty crimes like jaywalking, driving infractions, and bounced checks. (“Broken windows” policing is based on the theory that arrests for minor infractions curb crime through reducing visible signs of disorder.) In New York, where broken-windows policing was particularly rampant, police arrested Black residents at an increased rate. Misdemeanor arrests as a share of the population more than doubled for Black residents between 1990 and 2010, rising to 7.5 arrests for every 100 Black residents, compared to a peak of just 1.4 arrests for every 100 white residents in 2011. And after controlling for self-reported delinquency rates, the shift toward punitive sanctions resulted in significant increases between 1980 and 2000 in charging Black and Latino boys with a crime, trying them in court rather than using diversion options, and then placing them in a correctional institution. 

As a part of this campaign to curb crime, politicians began targeting individuals experiencing substance use disorders, calling it the “War on Drugs.” This policy shift led to yet another slew of racially skewed incarcerations by implementing harsher punishments for drugs more often associated with Black people and implementing mandatory minimum incarceration sentences. Even though most drug users are white, most of those arrested and imprisoned for drug-related offenses are people of color. Not only did these campaigns do little in the way of curbing crime and addiction, but they were a primary contributor to the wave of mass incarceration of Black Americans.

Not only were the courts incarcerating Black Americans at an astounding rate, but they were also holding Black Americans longer with the implementation of mandatory minimums and the abolishment of parole in Virginia. Virginia lawmakers abolished discretionary parole, the ability to be released from incarceration before the expiration of a sentence, for felonies committed in 1995 or after. This policy change requires individuals to serve at least 85% of their sentences with the ability to earn “good-time credits” toward an earlier release date. Individuals who may have previously been released before serving 85% of their sentence were now being held longer simply for the classification of their crime, without considering the situational and individual nature of their cases. 

Policymakers implemented these changes when the Virginia prison population was at its highest after the “War on Drugs” and “Tough on Crime” policies, further harming Black Virginians who experienced these longer periods of incarceration. 

As shown in Figure 1, Virginia incarcerated 151 people for every 100,000 state residents in 1969. After little change through 1974, Virginia’s prison incarceration rate grew 58% by 1980 to 242 people for every 100,000 residents. Then it jumped 70% to reach 412 people for every 100,000 residents by 1990, the first year for which data by race is available from Vera Institute’s data hub. In that year, Virginia was incarcerating Black people at more than four times the rate it was incarcerating white people. 

The rate at which Virginia locked people up – especially Black people – continued to climb in the 1990s and early 2000s. Almost every year between 1994 and 2006, Virginia incarcerated Black people in its prisons at more than six times the rate it incarcerated white people. When overall incarceration rates peaked at 711 people in Virginia prisons for every 100,000 Virginia residents in 2007, almost five times the overall rate in 1974, the rate was 2,223 Black people in Virginia prisons for every 100,000 Black residents. That was almost seven times the rate at which Virginia was incarcerating white people (383 to 100,000). Although incarceration rates and the particularly high incarceration of Black people have lessened some in recent years, as of 2022, Virginia incarcerated Black people at almost four times the rate of white people, and overall incarceration rates in 2024 were still more than three times 1974 rates.

Locking up more people didn’t make our communities safer, with incarceration having little to no effect on violent crime, and between 2000 and 2015, 19 states successfully reduced both incarceration and crime rates. In recent decades crime rates have had a limited relationship with incarceration rates, instead being related to other factors. One study of state variation in incarceration between 2012 and 2019 found that factors like unemployment rates (higher unemployment was associated with lower incarceration rates), poverty rates (higher poverty was associated with higher incarceration), and demographics (more residents of color was associated with more incarceration) explained much of the variation in incarceration rates across states. Rising – or falling – incarceration is a policy choice, not an automatic response to or driver of crime rates.