The 13th Amendment and Its Impact on Mass Incarceration
June 13, 2022
Modern-day prison labor in the United States is rooted in the Thirteenth Amendment of the U.S. Constitution and has created a system of slavery that we are more comfortable with. Because of a loophole in the Thirteenth Amendment, Black Americans have historically and presently been subjected to structural disadvantages that reinforce cheap labor from the vestiges of slavery.
Incarcerated Americans have been deemed “slaves of the state” which led to the current situation for incarcerated Americans, including the loss of constitutional and voting rights, egregious underpayment for labor, prevention from unionizing, and the list goes on. The development of the prison industrial complex between government and industry, forces many state organizations, public institutions, and universities to utilize the “services” of prison-made goods.
Background: Tracing Modern-Day Slavery to the 13th Amendment
On December 6, 1865, the 13th Amendment to the U.S. Constitution was ratified, the text of which stated that:
“Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Although many celebrated the abolition of slavery, the 13th Amendment created an exception to allow slavery to continue by other means. The 13th Amendment has been used to force incarcerated people in the United States to participate in labor and other arduous tasks against their will.
Through the rise of laws targeting Black Americans and en masse conviction, Black Americans have been disproportionately incarcerated and oppressed by the carceral system. While many agree now that the enslavement and bondage of human beings is immoral, unethical and against American democratic values, many are unaware of the forms slavery takes in today’s society and the institutions and practices that are its direct descendants.
Throughout the second half of the 19th century, laws were created that were specifically meant to target Black people. Actions like “mischief” and “insulting gestures” were criminalized and widely enforced throughout the country, especially in the South.
The resulting increase in incarcerated Black people proliferated the market for convict leasing, a system in which southern states contracted their prison populations to outside industries at a price.
Thus, incarcerated people were soon being systematically exploited for their labor. This practice became the law in 1871 when the Virginia Supreme Court in Ruffin v. Commonwealth declared that incarcerated people were legally indistinguishable from enslaved people, or, to quote the court, “slaves of the state.”
The ruling legitimized the notion that incarceration is merely another form of slavery, but one that the general public is much more comfortable with or is unaware of altogether.
Additionally, Southern states also began creating large prisons during this time in order to house the growing population of incarcerated people. The demand for prisons continued to rise as the number of people charged with crimes increased in the South.
Many of these prisons were built on old plantation land, and some even continued the tradition by being named after the plantation that they were built on. One such example is the Louisiana State Penitentiary which is commonly referred to as “Angola” after the former plantation on the land it is situated.
As the era of convict leasing slowed, the Jim Crow era ushered in new policies and laws that disproportionately impacted Black Americans. The Jim Crow era can be defined as “a set of laws, policies, attitudes, and social structures that enforced racial segregation across the Southern United States from the Civil War to the mid-to-late 20th century.”
Though many discriminatory laws and practices introduced during Jim Crow have now been repealed, the practice of mass incarceration has since replaced them.
Michelle Alexander, scholar and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, describes this as a process where “people are swept into the criminal justice system, branded criminals and felons, locked up for longer periods of time than most other countries in the world who incarcerate people…and then released into a permanent second-class status in which they are stripped of basic civil and human rights, like the right to vote, the right to serve on juries, and the right to be free of legal discrimination in employment, housing, access to public benefits.”
This system has been put in place in order to control every aspect of the lives of incarcerated people. It also reaches far outside of American prisons and penitentiaries and into our cultural norms and political institutions. In many states, including Wisconsin, people with felony convictions lose their right to vote until the end of their sentence, despite paying taxes. Didn’t this country determine taxation without representation fails…
The New Era of mass incarceration in America began in 1973 and continues to this day. This new era can be attributed to three causes of disparities in state imprisonment. The first of that being a new era of policymaking in the criminal justice system.
These new policies expanded the use of imprisonment as punishment for all felony charges, eventually becoming widely used for sex and drug offenses. Additionally, more policies were adopted with the goal of increasing the likelihood and longevity of imprisonment.
The implementation and strict enforcement of harsh drug laws is viewed as one of the main reasons for the large racial disparities that are seen in prisons today. According to scholars, black people are four times as likely as white people to be arrested for drug offenses and 2.5 times as likely to be arrested for drug possessions despite the fact that white people and black people use drugs at the same rate.
The creation of policies like “Stop-and-frisk” allowed for police officers to stop and question anyone who they deemed suspicious. Because racial disparities begin at the initial encounter people of color have with police their race is more likely to impact the outcome of the interaction.
Evidence shows that initial police stops are unlikely to result in incarceration, however, the prevalence of prior convictions increases the chances of future incarceration, something that disproportionately impacts people of color.
Implicit bias impacts the perceptions the public can have of people of color. Multiple pieces of evidence point to the fact that beliefs about the dangerousness and threats to public safety are related to these perceptions. Scholars have found that people of color receive harsher punishments than their white counterparts because they are perceived as being more violent and imposing a greater threat to public safety.
The media’s reporting and perceptions of crimes has a large impact on the public opinion of crime. It has a tendency to focus on the most serious crimes, mainly those committed by people of color. This therefore causes the news to be flooded with images of people of color portrayed as criminals which impacts the public’s perception of all people of color.
The third disparity is structural disadvantages that disproportionately impact people of color. These disadvantages impact people of color long before they have any interaction with the criminal justice system.
Disparities that occur during imprisonment are the result of social factors including things related to poverty, employment, housing and family issues that may impact what happens to them during their very first encounter with law enforcement.
Scholars have found that Black Americans make up the majority of people living in poverty where a large amount of socio-economic vulnerabilities can cause higher crime rates, thus exposing them to disparities in the criminal justice system that may negatively impact them.
America makes up 5 percent of the world’s population; however, we house 25 percent of the world’s inmate population as a whole causing us to have the largest incarceration rate in the world. Out of the total 6.8 million incarcerated population, 2.3 million are black.
According to a report by Dr. Ashley Nellis, Black Americans are incarcerated in state prisons across the country at more than five times the rate of whites, and at least ten times the rate in five states. Because of this, mass incarceration has become a method of disenfranchising Black voters, shrinking the electorate, and engineering voter suppression.
The high rate of incarceration among black people has major impacts on their mental and physical health and overall quality of life. Even though the 13th amendment protects against “cruel and unusual punishment” in America, prisons are overcrowded, have harsh conditions, exploit the labor of the incarcerated people, and lack the proper capacity to respond to national emergencies like pandemics.
Why are we as a society more comfortable with slavery in its current form?