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It is also true that the entire legal premise underpinning the multiple felony charges filed against each of us was steeped in the United States' centuries-long defense of white supremacy. The anti-rioting statute under which we were charged, which calls for a maximum sentence of 10 years if convicted for rioting where serious injury or at least $5,000 in property damage occurs, was passed in 1967 by Congress in the wake of black urban uprisings in that decade. Prosecutors used the new statute against black D.C. residents the following year.
But the connection goes deeper.
The unifying legal theory of our prosecution was that we engaged in a conspiracy, and were therefore each equally liable for all property destruction or injury that occurred that day. This theory of liability stems from a mid-20th century Supreme Court decision in a moonshining and tax evasion case, but conspiracy law's modern origins extend back to the founding of this country and beyond as a legal weapon of colonialism and counterinsurgency, primarily against black revolt in the founding of the American state.
At the end of the 1600s, as the population of enslaved Africans in America grew, "the more encompassing category of 'whiteness' ascended," writes Gerald Horne in Counter-Revolution of 1776, where Horne argues that the Anglo-Saxon settlers' war for independence entrenched slavery. By 1680, one colonial legislature had drafted a bill "to prevent Negroes' insurrection," and this was followed by a torrent of similar anti-conspiracy legislation in the colonies over the next several decades in response to planned and executed rebellions by African people and their sometimes-allies: European servants and Native Americans resisting invasion.
One of the most famous pre-1776 conspiracies was the New York Conspiracy of 1741, in which prosecutors accused black enslaved people and poor whites of conspiring to burn the city and overthrow the colonial governor. The colony's narrative, as established by a fire-breathing judge named Daniel Horsmanden, was that a multiracial group held secret meetings at a white-owned tavern for months before setting fire to the governor's home, a church, and horse stables in wealthy white neighborhoods. Four white and 30 black people were sentenced to death for their alleged role in the plot, and an additional 70 enslaved Africans were exiled from the colony.
At the trial, which took on the sort of puritanical zeal also legible in the J20 case, the prosecution coerced witnesses into affirming the judge's racist belief that the "conspiracy was of deeper design" and "more dangerous [a] Contrivance than the Salves [sic] themselves were capable of." The most serious transgression, in the law's eyes, was the conspiracy of comradeship between whites and blacks against colonial rule. After all, it had only been a few decades since "whites had achieved a sense of race solidarity at the expense of blacks" in some of the colonies around 1700, according to contemporary historian T.H. Breen.
Elite settlers threatened by the growing population of Africans saw the creation of pan-European solidarity (i.e., "whiteness") in the colonies as necessary to gird against constant rebellions. Key to the eventual supremacy of the concept of whiteness, Horne writes, was that it not be interrogated too hard, lest "the loose threads of class hierarchy that this racial category otherwise obscured" unravel and ruin the entire colonial project.