Ever have a “Eureka!” moment? During my legal research in the early 1980’s, I came across something that, beyond a reasonable doubt, confirmed what people had been talking about without much evidence, beyond the Thirteenth Amendment to 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” (emphasis added). (See the chart below, “A Comparison of New York State Laws and Regulations and Slave Codes.”)
Call the Thirteenth Amendment the Exception to the Emancipation Proclamation Clause. Herein lies the origins of hyperincarceration, not “mass incarceration,” because people formerly enslaved (Africans and their descendants) were the targets of this “Constitutional” Amendment.
Even before the “end” of “legal slavery,” in the 1820’s, Black people in America were disproportionately imprisoned. Gustave de Beaumont and Alexis de Tocqueville – the very same De Tocqueville who is famous for Democracy in America – came to America to study her penitentiary system. They found the disproportionate imprisonment of “Negros” in the Southern states. Their findings were documented in On the PENITENTIARY SYSTEM in the UNITED STATES and its APPLICATION to FRANCE (1833). Even before the Thirteen Amendment, when the peculiar institution was a powerful source of social control and punishment of Black people, white Southerners still found use for the penitentiary, which provided absolutely no penance for those in it.
One hundred and seventy-seven years later, Michelle Alexander picks up this thread from De Beaumont and De Tocqueville, in The New Jim Crow: Mass Incarceration in the Age of Colorblindness. One could argue that this book is the most important book in the last 50 years about the criminal legal system and its byproduct: “mass incarceration” (read hyperincarceration).
Alexander puts this age-old American problem in a context people seem to readily understand, that is, legal segregation, also known as Jim Crow. There is no official “end” date for segregation in America. Even legally speaking, it’s hard to argue that the U.S. Supreme Court decision in Brown v. Board of Education in 1954 ended legal segregation. When the Reverend Dr. Martin Luther King, Jr. was assassinated in 1968, 14 years after the Brown decision, he was fighting this protracted Civil Rights War against both legal (de jure) and de facto segregation. In the 1980’s, a Harvard University study found that New York City had one of the most segregated public school systems in the United States. Nonetheless, The New Jim Crow got masses of people to look at the criminal legal system in ways it had never been looked, through a lens that provided some clarity.
I would like to think that it’s clear that “mass incarceration” is not the new Jim Crow, but slavery reimagined, with bars.
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)|
*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.