Convict Slavery in America: From Colonization to Mass Incarceration
Because so many students and people in general believe that the 13th Amendment to the Constitution–the one that ended chattel slavery in the United States–perpetuated slavery and led to mass incarceration, I am working on a book that tries to dispel this unfortunate interpretation. A well-meaning group of activists, scholars, and incarcerated people attempt to explain the present condition of mass incarceration by reference to the past. The cause of wholesale black imprisonment today, they argue, is the historic exploitation of uncompensated black labor. Reading history backwards through a narrow telescope, they point their finger at the 13th with bitter irony and charge the amendment that promised to free the slaves, wittingly or unwittingly, included a loophole that allowed the mass re-enslavement of African Americans. These 13thers, as I call them, believe that without the exception clause, which allows “slavery or involuntary servitude” for people convicted of crimes, “slavery” would have ended and there would be no mass incarceration today. Thus, many 13thers believe that to end slavery today the flaw must be removed from our fundamental law.
Although Americans, including historians, tend not to refer to those sentenced to hard labor as slaves, the use of the designation is fair play. Coerced, unrequited toil is almost universally understood as the foundation of all forms of slavery, and indeed American public policy has equated the involuntary labor of convicts with slavery since the founding of the republic. While 13thers often do not make the distinction, they are pointing to the difference between blacks as chattel slaves and convict slaves. While both forms of slavery involved work with little or no recompense, the system of chattel slavery treated humans as property that could be bought and sold by private individuals like beasts of burden. The masters of chattel slaves also had the right to of ownership to the offspring of slave women and could sell them, too. Chattel slavery thus included an inherited status that created a common sense of identity and community for the predominately African descendants who came to form a unique ethnic group. In convict slavery, the sovereign power, the state deems a person a criminal for their behavior and on conviction enslaves and regulates the employment of the person. In liberal theory of penology, convict slavery is neither a condition of race nor birth–no one inherits the status–but rather a result of poor individual choices that lead to violations of the law that subject the individual to involuntary servitude or slavery.
In the thinking of 13thers, the prison industrial complex, founded on economic motives and logic of racial capitalism, has come close to restoring chattel slavery. The school to prison pipeline, which plagues black communities, virtually ensures the intergenerational convict slavery denied by liberal theory. The profits derived from prisons, they argue, benefits the state and enriches private corporations and become motivation for not only perpetuating but growing the system. Some 13thers believe the Amendment was written to perpetuate a system of white supremacy based on black slavery that is essential to the success of American capitalism. Black slavery evolved from chattel slavery to convict slavery almost as a national imperative.
Convict Slavery in America argues that the Thirteenth Amendment has nothing to do with the origins and trajectory of convict slavery in American history. It posits that chattel slavery and convict slavery were virtually twin born and developed side by side, and yet no one believed that the destruction of chattel slavery would impinge on the continuation of slavery as punishment for crimes, neither abolitionists in or out of Congress, black or white, nor planters and politicians in the post-bellum South. Contrary to popular depictions, convict slavery started as a predominately white institution, and after the Civil War, it took on a multi-racial, national dimension that chattel slavery never fully developed. Rather than springing forth in an ever-expanding system in the decades after the end of chattel slavery, mass incarceration develops in the aftermath of the expansion of equal citizenship and was not a product of a desire to spread convict slavery. Convict slavery became a feature of mass incarceration, not its motivating cause.