Edgar Chimdi Okorie
Slavery didn’t end in 1865. However, I wouldn’t blame you if you thought it did. Following an emancipation proclamation, the assassination of a president, and four years of a brutal civil war, the ratification of the 13th amendment was supposed to cement the end of slavery. Instead, it laid the constitutional foundation upon which the business of slavery could thrive under a new guise—you know, a change in business model. With 323 million people, the U.S. has less than 5% of the world’s population, but over 20% of its incarcerated population—and I know we’d like America to be first place in a lot of things, but as millennial Twitter will tell you, “this ain’t it, chief.” The interconnected relationship between the 13th amendment, U.S. incarceration rate, and economic interests continue today to sustain this “ecosystem” of modern slavery.
How did we get here?
Let’s start with the text of the 13th amendment reproduced below:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The words following “except” and preceding “shall” have come to be known as the “exception clause” which in effect, permits slavery and involuntary servitude as punishment for a “duly convicted” crime—although a large population of people are currently held behind bars without a conviction.
Following the passage of the 13th amendment, laws were passed to take advantage of this constitutional exception to pursue “for-profit” endeavors. Widespread laws criminalized petty behavior such as loitering and vagrancy—essentially defining homelessness and unemployment as crimes. In chapter 3 of Frederick Douglass’s book titled, The Reason Why the Colored American Is Not in the World’s Columbian Exposition, Ida B. Wells describes how states used the exception clause to generate revenue:
The Convict Lease System and Lynch Law are twin infamies which flourish hand in hand in many of the United States…(states) claim to be too poor to maintain state convicts within prison walls. Hence the convicts are leased out to work for railway contractors, mining companies and those who farm large plantations. These companies assume charge of the convicts, work them as cheap labor and pay the states a handsome revenue for their labor.
The convict leasing system was so profitable that it generated income nearly four times the cost of prison administration in the states that allowed the practice. Mancini, M. (1978). “Race, Economics, and the Abandonment of Convict Leasing”, Journal of Negro History, 63(4), 339–340. To see just how profitable it was, in the state of Alabama, convict leasing accounted for about 73% of the state’s entire annual revenue in 1898. It is no surprise that the system continued to thrive in the U.S. until Alabama formally ended its practice in 1928. Fierce, Milfred (1994). Slavery Revisited: Blacks and the Southern Convict Lease System, 1865-1933. New York: Africana Studies Research Center, Brooklyn College, City University of New York1. pp. 192–193.
After Two World Wars
The tension filled social climate continued into the 50’s and 60’s—decades marked with widespread anxiety due to having dealt with two world wars, a persistent “Cold War” with the Soviet Union, and protests of US policies both domestic and abroad. Whether it was protesters decrying the disparity in civil rights between members of American society, or dissidents protesting U.S. engagements in foreign disputes in Korea and subsequently Vietnam, the interconnected tensions of race, public outcry, and policing created a climate ripe for a new wave of criminalization. All that was needed was a political will to make it official policy—enter Richard Nixon.
Outside of being remembered for a collection of abuses of power known as Watergate—which led to articles of impeachment and his eventual resignation—Nixon’s presidency came amidst a sociopolitical climate characterized by a destabilized America reeling from the traumatic assassinations of pivotal figures John F. Kennedy, Malcolm X, and Martin Luther King Jr. His presidency would leave a lasting imprint, deeply interwoven into the fabric of America’s current predisposition to criminalize its own people. His “war on crime” rhetoric marked an escalation that empowered the criminalization effort on a national level, which permeated into state governments. The U.S. state and federal prison population sharply increased during the Nixon presidency, and continued to increase under succeeding presidents Ford and Carter. During the Reagan administration, the entire U.S. state and federal prison population would more than double from 329,821 at the end of 1980 to 712,967 at the end of 1989, and during the Clinton administration, the prison population would increase by 45% from 970,444 in 1993 to 1,406,031 in 2001.
Nixon’s war on crime became Reagan’s war on drugs which became Clinton’s “tough on crime” stance—all contributing to an American culture of policy, policing, and criminal adjudication characterized by an inherent inclination to over-criminalize. That’s how we end up with mandatory minimum sentences for nonviolent offenses—a requirement that takes discretion away from judges and places it in the hands of eager prosecutors. Furthermore, Mississippi would apply truth-in-sentencing policies—requiring that inmates serve at least 85% of their sentence before being eligible for parole—to nonviolent offenders.
Today there are 1,562,000 prisoners held in U.S. state and federal prisons, with an additional 646,000 held in local jails across the country. Due to the burden this places on states and the federal government, a growing number of prisoners are held in private prisons—who are paid handsomely by state and federal governments to detain prisoners. Currently, 8.5% of the total state and federal prison population are held in private prisons. This wave of privatization has resulted in a 47% increase in the private prison population since 2000.
In California, a state that has been hit with recent surges of wildfires, some prisoners are paid $1 an hour plus $2 a day to help fight fires—and this use of inmates as low wage firefighters can reduce the state’s firefighting costs by up to $100 million annually. The growth of prison “in-sourcing”—using very low wage prison labor to support the production of goods and services—raises concerns among critics who stress the need to strike the right balance between preventing state and local government from having an incentive to over-incarcerate, and allowing prisoners to pursue reform and often earn higher wages working for private companies.
Despite the variance in opinion on how best to achieve this, it seems that most Americans are in agreement about one thing: the system needs reform. According to a recent poll by the ACLU, 91% of Americans are in support of prison reform—in other words, 91% of Americans are in unison saying, “this ain’t it, chief.”