In the mid-1980s, while doing research on an essay, which I would entitle, “From the Plantation to the Penitentiary,” I came across something startling. I had already seen the connection between slavery and imprisonment, from the very beginning of the end of slavery, right in the 1865 Thirteenth Amendment of the U.S. Constitution, to wit, “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.”
This “loophole” in the Thirteenth Amendment that declared “slavery or involuntary servitude” illegal “except as a punishment for crime” was used to re-enslave Black people.
“Theories” of Black criminality did not truly develop until after Reconstruction (1877), to justify the new penal slavery, when all the gains Blacks had achieved through the 13th, 14th and 15th Amendments became null and void with the Hayes-Tilden Compromise (1876-77), which marks the end of Reconstruction and the “rise of the South.” (To understand Confederate monuments, memorials and statues, look at the aftermath of Reconstruction.) Additionally, new laws were passed and/or stringently enforced to ensnare Black people.
Today, what we term “mass incarceration,” better described as “hyper incarceration,” since Black people are grossly disproportionately imprisoned, not the masses, has its origins in that loophole in the Thirteenth Amendment. From the plantation to the penitentiary, from peonage to convict leasing to chain gangs to private prisons, to the various wars on crime….
The re-enslavement of Black people through the prison system was not only insidious, but it was also by design.
While researching the re-enslavement of Black people, I took a look at the Slave Codes. I then looked at New York’s Corrections Law, and New York’s Prison Rules and Regulations. It was as if I had discovered the Rosetta Stone! Laws that were operative in the New York prison system in the mid-1980s had the exact same language as the Slave Codes! See below chart, A Comparison of New York State Laws and Regulations and Slave Codes.
|New York State Laws and Regulations||Slave Codes*|
|Correction Law ⸹170(1). Contracts prohibited. The commissioner of correction shall not, nor shall any other authority whatsoever, make any contract by which the labor or time of any prisoner in any state prison, reformatory, penitentiary of jail in this state, or the product or profit of his work, shall be contracted, let, farmed out, given or sold to any person, firm, association or corporation; except that the convicts in said penal institutions may work for, and the products of their labor may be disposed of to, the state or any political division thereof or for or to any public institution owned or managed and controlled by the state or an political division thereof.||Art. 174. The slave is incapable of making any kind of contract, except those which relate to his own emancipation. (LA)
Art. I, ⸹1005. No master, overseer, or other person having the charge of a slave, must permit such slave to hire himself to another person, or to hire his own time, or to go at large, unless in a corporate town, by consent of the authorities thereof, evidenced by an ordinance of the corporation. (AL)
XXXIII. [N]o owner, master or mistress of any slave…shall permit or suffer any of his, her or their slaves to go and work out of their respective houses or families, without a ticket in writing under pain of forfeiting the sum of current money, for every such offence. (SC)
|Civil Rights Law ⸹79(1). Forfeiture of office and suspension of civil rights. Except as provided in subdivision two a sentence of imprisonment in a state correctional institution for any term less than for life or a sentence of imprisonment in a state correctional institution for an indeterminate term, having a minimum of one day and a maximum of natural life, forfeits all the public offices, and suspends, during the term of the sentence, all the civil rights, and all private trusts, authority, or powers of, or held by, the person sentenced.||Art. 177. The slave is in capable of exercising any public office or private trust. (LA)|
|Department of Correctional Services Directive #4201. The inmate shall write to the Superintendent expressing an intent to marry.||Art. 182. Slaves cannot marry without the consent of their masters, and their marriages do not produce any of the civil effects which result from such contract. (LA)|
|Standards of Inmate Behavior, 104.10. Inmates shall not conspire or take any action which is intended to or results in the takeover of any area of the facility, or, acting in a group, engage in any violent conduct involving threat of violence.
Standards of Inmate Behavior, 104.11. Inmates shall not engage in any violent conduct or conduct involving the threat of violence.
Standards of Inmate Behavior, 104.12. Inmates shall not lead, organize, participate, or urge other inmates to participate in work-stoppages, sit-ins, lock-ins, or other action which may be detrimental to the order of the facility.
Standards of Inmate Behavior, 104.13. Inmates shall not engage in conduct which disturbs the order of the facility.
|Art. I, ⸹1015. Riots, routs, unlawful assemblies, trespasses, and seditious speeches by a slave, are punished, by the direction of any justice before whom he may be carried. (AL)|
|Standards of Inmate Behavior, 105.10. Unauthorized Assembly or Activity. The unauthorized assembly of inmates in groups is prohibited. The size of the group is determined by local policy (generally five people).||Art. I, ⸹1020. Not more than five male slaves shall assemble together at any place off the plantation, or place to which they belong, with or without passes or permits to be there, unless attended by the master or overseer of such slave, or unless such slaves are attending the public worship of God, held by white persons. (AL)|
|Standards of Inmate Behavior, 105.11. Religious services, speeches or addresses by inmates other than those approved by the Superintendent or designee are prohibited.||Art. I, ⸹1022. Any slave who preaches, exhorts, or harangues any assembly of slaves, or of slaves and free persons of color, without a license to preach or exhort from some religious society of the neighborhood, and in the presence of five slave-holders, must – be punished. (AL)|
|Standards of Inmate Behavior, 109.13. Inmates who are on outside work assignments such as community service projects, or outside ground details shall not leave their assigned area.||Art. I, ⸹1008. No slave must go beyond the limits of the plantation on which he resides, without a pass, or some letter or token from his master or overseer, giving him authority to go and return from a certain place. (AL)|
|Standards of Inmate Behavior, 113.10. Inmates shall not make, possess, sell or exchange any item or contraband that may be classified as a weapon by description, use or appearance.
Standards of Inmate Behavior, 113.18. Inmates shall not be in possession of tools without authorization.
|Art. I, ⸹1012. No slave can keep or carry a gun, powder, shot, club or other weapon, except the tools given him to work with, unless ordered by his master or overseer to carry such weapon from one place to another. (AL)|
When we look at the above chart, it is patently clear that the same methods of social control of Black people who were enslaved in America were and are used in America’s prison system today.
Later, Andrew Hacker’s 1992 book, Two Nations: Black and White, Separate, Hostile, Unequal, confirmed my suspicions. Hacker posits that America’s criminal legal system is used as a system of social control of Black people that really doesn’t have anything to do with crime and punishment. In fact, after being duly punished for being duly convicted of a crime, the collateral consequences of a conviction, including the loss of the right to vote, often a lifetime ban in Southern states, further hinders people with the burden of a criminal conviction to fully realize liberty and the pursuit of happiness. Indeed, since 1877, reactionary Southern Whites and complicit Northern whites, have attacked and thwarted the post-Civil War amendments, that is, the 13th, 14th and 15th Amendments, from being fully realized.
When we see Trump playing the law and order “race card” in his bid for reelection, it is just a continuation of all the reactionary law and order legislation that started in 1877 to thwart the rights of Black people. And note that Democrats, most infamously Bill Clinton, also played this law and order race card.
Clearly, the cards have been stacked against Black people in the criminal “justice” game. Thus, when we talk about the current criminal legal system, it’s not simply a matter of reforming it — reforms only tweak the existing system and its structures. When we see and admit that the basis of today’s criminal legal system is built on the Slave Codes, then we need to abolish it, not reform it, and work towards something that moves us as a nation beyond the “perfect Union” some of the slave owning forefathers envisioned.
*The Slave Codes are followed by their states’ abbreviation. The Louisiana Slave Code of 1824; the Alabama Slave Code of 1852; and the South Carolina Slave Code of 1740.