On 19th June, 1865, in Galveston, Texas, Union army General Gordon Granger delivered the federal order to free African American slaves. It begins, ”The people of Texas are informed that in accordance with a Proclamation from the Executive of the United States, all slaves are free.” This moment is is generally accepted as the beginning of African American emancipation, and is marked every 19th June with the festival named Juneteenth.
The order followed the passing by congress on January 31, 1865 of the 13th Amendment to the US constitution, which freed slaves in US law. But while Section 1 of the 13th Amendment banned involuntary servitude among members of the public, it created a caveat that still plays a major part in modern US politics and racial inequality. It stated that:
“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.”
So the 13th Amendment, which banned slavery, introduced a new form of forced labour: that of unpaid or underpaid work in the US penal system. The entire amendment, unchanged, still exists today.
In reality, this meant that slavery or forced labour could happen legally in the US, if the victims were incarcerated. And so began the process of mass incarceration, in which arrests for relatively minor crimes have been used to bolster the number of people serving jail time, with a view to exploiting prison populations for free, underpaid or unsafe labour. Mass incarceration disproportionately affects people of colour. In the modern day, according to the American Civil Liberties Union, 1 in 3 black men in the United States will face a prison sentence at some point in their lifetime.
The US prison system did not always have the problems we see today: in 1831 French sociologist Alexis De Tocqueville spoke praisingly of the US prison system, which he noted was more humane than those he had witnessed in Europe. In his work Democracy in America, he denounced the crime of slavery, but noted the positive attributes of the US penal system. Much of this changed after the US civil war, and prisons in Europe ultimately advanced in terms of human rights beyond their US counterparts.
Mass incarceration has brought the US prison system to its breaking point. Today the US constitutes 5% of the world’s population, yet holds 25% of the world’s prison population. But this situation didn’t happen overnight. Here we explain the history of mass incarceration in the United States and its link to racial inequality.
The Black Codes
When the 13th Amendment was passed in 1865, former US slave owners saw their profits suffer. Former slaves could now make the life choices that did not exist under slavery: whether to raise a family, how to spend their time, and how to manage their workload or work-life balance. This presented the US economy with a problem: previously, African Americans were not entitled to these choices, so had been forced to work, often for long hours, in conditions that would not exist under a free system.
Many states passed “Black Codes”, or laws created to limit African Americans’ freedom post-emancipation. One defining feature of the Black Codes was their vagrancy law, which permitted local authorities to arrest freed people for minor infractions, and commit them to involuntary labour in prisons. African Americans were now arrested en masse for minor crimes, such as loitering, with the result that high numbers of African Americans were sent to prison, where they could be forced to work for free.
While Black Codes were passed in some states before the American civil war, the best known of them were passed between 1865 and 1866 by Southern states – just after African American slaves had been emancipated. The Black Codes in practice constituted laws that restricted African Americans’ freedom and compelled them to work for low wages. This period marked the beginning of the convict lease system, where incarcerated African American men were leased as labourers to private parties, such as plantations. This system was profitable for white business owners: by 1898, 73% of Alabama’s annual state revenue came from convict leasing. Modern commentators and historians have labelled this system as “slavery by another name.” In some states, the Black Codes even used text from the same codes used under slavery, simply substituting “Negro” or other words in place of “slave.”
The 14th Amendment & Civil Rights Act of 1866
Many Republicans in Northern states objected to the unfair legislation passed in the South to limit former slaves’ political freedoms, and they began to legislate to create freedoms for former slaves. Northern Republicans’ attempts to improve human rights for African Americans in southern states ultimately led to the passing of the Civil Rights Act of 1866, which ensured freed slaves were entitled to US citizenship, and to the creation of the 14th Amendment, also passed in 1866, which grants all US citizens equal protection under the law.
These two pieces of legislation ensured that freed slaves, including those that had been incarcerated, were technically entitled to political rights. But in reality, these political rights were curbed by the introduction of the Jim Crow Laws, which enacted racial segregation in the US, and voter suppression laws, which required many US citizens to fulfil certain criteria before being entitled to a vote. The Jim Crow Laws were ultimately overturned by the Supreme Court, and civil liberties for African Americans were ultimately protected in law in the mid 1960s, in response to mass demonstrations by the civil rights movement.
Don’t Believe Everything You See On TV
The racist stereotype of African American men being more likely to engage in criminality or violence began under slavery, but was bolstered during the 100 years after the civil war. The late 19th and early 20th century saw films such as “Birth of a Nation” surge in popularity, which depicted African American men as rapists or violent criminals. In Birth of a Nation (1915), the white supremacist Ku Klux Klan was depicted as necessary to preserve American values against African American men, who were portrayed as unintelligent and sexually aggressive. These stereotypes persists into the present day, further encouraged by legislation used to curb the sale of drugs, which disproportionately affected black Americans, in the mid to late 20th century.
The War On Drugs, The Three Strikes System & Prisons for Profit
While mass incarceration in the US began shortly after the American civil war, it greatly accelerated in the latter half of the 20th century. Beginning under President Nixon in the 1970s, attempts to tackle drug crime saw many pieces of legislation passed that escalated the number of people, particularly African Americans, who would experience jail time. Dubbing this the “war on drugs”, Nixon initially declared drug abuse “public enemy number one” at a press conference in June 1971.
President Nixon passed the Controlled Substances Act, which classified illicit substances based on their reported danger to the public. This ranking listed marijuana in the highest danger classification, with correspondingly lengthy jail sentences for offences, alongside hard drugs such as heroin. Nixon’s presidency also saw the introduction of mandatory sentencing laws, where those found guilty of drug-related crimes would be sentenced to a minimum stipulated term, regardless of circumstances or prior sentencing history. Statistics from the time indicate that white people used and sold drugs at similar rates to African Americans, yet a disproportionately high number of people of colour were given prison sentences under this Nixon-era legislation. This era also saw the introduction of stop and frisk searches, which are conducted disproportionately on people of colour.
While scholars debate whether Nixon’s drug policies were racially motivated, former Nixon staffer John D Ehrlichman has claimed that the legislation aimed to target black Americans specifically:
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
During Carter’s presidency, private companies were permitted to operate prison labour programmes. For decades prior to this point, prison labour was operated exclusively by the state in an attempt to remove market competition. Carter also passed legislation that allowed goods produced by prison labourers to be transported across state lines. This legislation paved the way for the prison-industrial complex that exists today, the term that refers to the exploitation of prison labour by private companies for financial gain. From 1980 to 1994, prison industry profits were to jump from $392 million to $1.31 billion.
Nixon’s were only the beginning of drug policies, and prison sentences for drug-related crime vastly accelerated under Ronald Reagan’s presidency. Passing the Anti-Drug Abuse Act in 1986, mandatory minimum sentences for the distribution of cocaine and crack cocaine were introduced. The law introduced much more severe punishments for the distribution of crack cocaine than cocaine alone. There is a 100 to 1 ratio in prison terms for crack versus powder cocaine: if someone were to be caught with 5 grams of crack cocaine they would face a five-year prison sentence, but it would take 500g to receive this sentence if caught with cocaine. In the popular media, powder cocaine was associated with white America, whereas crack cocaine was associated with communities of colour, and the long prison sentences associated with crack cocaine disproportionately affected black Americans. Some commentators have speculated that this discrepancy was racially motivated.
In 1992, a study of US prison sentencing during Reagan’s presidency would find that Black and Latino Americans were detained for disproportionately long sentences when compared to their white counterparts. The study attributes this disparity to the introduction of mandatory minimum sentencing,
President Reagan also expanded surveillance laws in an attempt to tackle drug crime: the Military Cooperation with Law Enforcement Act allowed the US military to provide wide-raging intelligence to pursue drug crime. Also introduced was the first Truth In Sentencing legislation, which aimed to limit parole for prisoners, to ensure incarcerated people would be incarcerated for the entirety of their original sentence.
Over Reagan’s presidency, the prison population doubled, from 329,000 to 627,000. This rise in incarceration hit people of colour the hardest.
George H W Bush
George H W Bush’s presidency saw the largest increases in resources for law enforcement in US history. Legislation passed during his presidency allocated nearly $1.5 billion in 1990 for the construction of new federal prison beds, which was an increase of $1 billion from 1989. By the end of his presidency, Bush had presided over a 56% increase in incarcerations, and 9.18% of all black people in the US were either in prison, on probation or on parole. By comparison, 1.76% of the white population was in similar circumstances. Over the course of Bush’s presidency, the number of black men in prison increased by 300,000.
Clinton’s presidency saw the introduction of The Violent Crime and Law Enforcement Act, which created the “three strikes” system. This required a mandatory life sentence for any felony violent crime conviction that comes with two other prior convictions. Clinton also expanded the death penalty, introducing sixty new capital punishment offences, including non-homicidal narcotics offences, which disproportionately affect people of colour. Clinton’s presidency saw nearly two-thirds of people sentenced to the death penalty were black, a rate nearly seven times that of their representation in the US population.
Clinton also created a “one strike” policy for public housing, where anyone living in publicly owned housing found guilty of a drug offence was banned from future accommodation.
What does modern incarceration look like?
According to the ACLU, the prison population has increased by 700% since 1970, and the US penal system now holds 2.3 million people in jail. Prison Policy Initiative, a think tank, estimates that 470,000 people residing in prison in the US have not yet been tried, meaning they have been incarcerated despite being assumed innocent in the eyes of the law.
25% of the contemporary prison population were imprisoned after being found guilty of misdemeanours, such as jaywalking or sitting on a pavement. According to Prison Policy Initiative, 1,700 young people are also imprisoned for “status” offences, or behaviours that are not law violations for adults. These could include running away from home, truancy or incorrigibility.
There are stark racial disparities in the modern US prison system, and black Americans make up 40% of the incarcerated population despite representing 13% of the US population. According to the National Association for the Advancement of Colored People, African Americans are incarcerated at five times the rate of white people, and if African Americans and Hispanics were arrested at similar rates to white people, the US prison population would decline by 40%. Female incarceration rates have risen faster than men’s in the 20th century, and many women are behind bars as a result of financial obstacles such as an inability to pay bail. Racial disparities in the US prison system have decreased in the last decade, but African Americans and Latino Americans are still overrepresented in US prisons.
As the 13th Amendment stipulated, prison inmates are often used as inexpensive labour, being required to work while in detention. Federal law requires private contractors to pay minimum wage for inmate work, but workers are often denied safety rights that would apply to unincarcerated workers. In one example, two inmate firefighters died in work-related fires in California, in 2017, due to poor safety standards.
The use of prison labour has become a lucrative business. In the last year alone the Corrections Corporation of America (CCA), the second-largest private corrections company in the US, generated $1.9 billion.
Modern-day mass incarceration in the US is the result of a decades-long political and economic process, where politicians keen to appear tough on law and order have passed legislation aiming to increase prison populations without inmate rehabilitation in mind. Some politicians, such as Bill Clinton, have denounced the decisions they made on the US penal system while in office. But while private prison contractors continue to have extensive lobbying power in Washington, the situation appears intractable. Slavery may have ended in the US in the 1800s, but it is clear that exploitation of African American workers continues.