Articles on Modern Day Enslavement - Zola M Dube

Posts Tagged ‘Michael J Klarman’

North America’s Penal System – History’s record of modified social designs to sustain slavery

In 13 Days of Awareness: 13 Nations Profiled, North America on July 11, 2010 at 11:52 PM

The last thirty years have been, indeed, the era of a great and unparalleled American crackdown. This is an event that deserves a place on the grand American timeline, alongside wars, depressions, and other defining collective experiences… In impoverished parts of black America in particular, the crackdown has struck a disturbing percentage of the male population, with an impact comparable in its epidemiology to any plague. But not only inner-city blacks are involved: From white collar offenders, to minors of all races and segments of American society, the risk and severity of criminal punishment has grown by leaps over the last decades.

James Q. Whitman, Yale Law School (2003)

Less than 5 percent of the world’s population resides in the United States. Yet, it is the home of almost a quarter of the world’s prisoners or 2.5 million people held in penal institutions. North America also has the highest prison population rate in the world, or 756 per 100,000 of the population, followed by Russia (629/100,000), and Rwanda (604/100,000).  In Western Europe the median prison population rate is 95 per 100,000 or Germany (89/100,000), Netherlands (100/100,000), and France (96/100,000), for example (Walmsley, 2008).

American males of African decent comprise less than 7 percent of the U.S. population, but constitute nearly half of the people in prison. The Bureau of Justice Statistics, Prisoners (US Department of Justice) in 2000 reported American women of African decent, as having an incarceration rate of 205 per 100,000; and more than three times as likely as Latinas (60/100,000) and six times more likely than white women (34/100,000) to face imprisonment. A group has been added to America’s prison population; undocumented immigrants in America, where the law allows misdemeanor offenses to be charged as aggravated felony cases.

Some of the offenses for which Americans (Black, Latino, White, Native American, Asian, Oceanic) are locked up include loitering, writing bad checks, possession of marijuana, rape, and murder where violent crimes such as rape and murder among Blacks is 5% to 7%.  Under the three strikes law, lessor offenses such as loitering, writing bad checks, and possession of marijuana have resulted in cases of people sentenced to imprison for 25 years to life. The lesser offenses would rarely produce prison sentences in other Western countries.

In the 20th century questions about imprisonment and punishment typically revolved around retributivist philosophy. In part, as defined by Feinberg (1970): Retributivism opposes excessive harshness as much as excessive leniency, and opposes the violation of the offender’s rights in the interests of social expediency or personal spite and so on. For strong retributivist, it is their burden to justify violating the presumed moral ban on inflicting unnecessary pain.

An analysis of American history informs us that the institution of slavery financed and provided the physical backbone for the nation’s construction and development. Perhaps, the American Civil War should have resulted in undermining social hierarchy characterized by master/enslaved relationship and the broader institution of slavery that embodies deprivation of basic human rights – the right to education and literacy, to vote, to adequate food and shelter, to assemble, to move freely without harassment, to fair trail by jury of ones peers, etc. But, it did not. Acknowledging the legacy of enslavement, Whitman states, The pattern of continental punishment thus reflects the undiminished political power of an unforgotten hierarchical past. To this analysis can be added nuances of legalized bondage in the form of forced labor and human exploitation to create, buttress and perpetuate hierarchy, where the founding and ultimate motive is profit.

The primary catalyst of the Civil War from 1861 to 1865 – the next defining revolution after the American Revolution – was the battle over slavery. One year prior to the start of the war, Abraham Lincoln and the Republican Party won the election. The most prosperous sector of the Union’s economy was agriculture in Southern states. A prosperity dependent on 1 million enslaved Africans.

At the center of “King Cotton” maximum profits was the institution of slavery. Between 1793 and 1815 America’s cotton exports grew from 500,000 tons to greater than 800 million. In every effort to ensure the profitability of cotton, the terrors of the enslavement system, informed by the meting out of punishment to bolster human productivity, was intensified. Cotton production was of utmost social and economic value, having financed the Industrial Revolution in Europe and the development of capitalism in America.

As the United States steadily developed outside the agricultural sector, with shifts in the economy of Northern United States, social designs – “law and order” and the rhetorical ethic on slavery – would be modified to sustain slavery. Innovations in communications, transportation and technology characterized the North. By 1850, society advanced around industry in the urban centers. Lincoln favored the direction of Northern states. He sought to preserve the Union and prevent Southern states from seceding to form a strong Southern Confederate.

As new states entered into the Union of the federal government, the aforementioned conditions created a growing divide between North and South. It was believed that if new states entered the Union in support of slavery it would tip the balance of power toward the Confederacy and determine the political and economic destiny of America along Confederate tendencies. Adoption of the institution of slavery would empower the South to block the more rapidly developing North.

By the middle of 1862 Southern states dominated the Civil War. In order to win, in support of the Northern vision towards manufacturing, Lincoln issued the Emancipation Proclamation through which the freed enslaved entered the Union Army against the Confederacy, providing the manpower to win the war. The future of slavery still hung in the balance.

It is because of cotton that slaves were brought here, because of cotton that Negroes [far] outnumber whites, because of cotton that the plantation system developed under slavery has been modified to continue ‘after freedom’.

– Hortense Powedermaker, Anthologist – Delta Frontier (Oshinsky, 1996)

In the following segment of this article, three critical areas of reinstitution since the post-Civil War, Reconstruction Period (1865-1875) will be examined: Slavery reinstituted through criminalization and imprisonment; Antebellum Black Codes/Slave Codes reinstituted through Black Codes; and Convict Leasing reinstituted through the privatization of contemporary industrial penitentiary complex.

Reinstituted Antebellum Black Codes/Slave Codes: Black Codes

At first, Black Codes described the laws enacted by British colonial and American governments from 1600s – 1776 to deny basic human rights and civil liberties of enslaved Africans in America. Measures were taken to minimize the threat of African uprisings and escape. Laws stipulated that the enslaved would serve for life, unless freed by their owner, and that any offspring of an enslaved woman was also a lifelong slave. The enslaved were not allowed to vote, carry arms nor to leave their homes without written permission. In 1786 George Washington complained about the assistance one of his runaways received from a “society of Quakers, formed for such purposes.” The Underground Railroad lead by Harriet Tubman and news moving through plantation communities about Nat Turner, Abolitionist like the Quakers, the Haitian Revolution, and the rhetoric of imported people of Africa and her descendants as equally human would incite the benefactors of slavery to tighten up the reins of enslavement.

One month before Lincoln signed the Emancipation Proclamation of 1862, colonial governments enacted special “Slave Codes” that, among other measures, officially legalized corporal punishment under slavery. This included physical abuse (whipping) and condoned maiming, rape, and murder as suitable forms of retribution. Though these acts of brutality and control over reproductive rights of women had been part of the institution of slavery in America for centuries, slave codes expanded and reinforced the legal statute of the institution.

During Reconstruction, individual states preserved and refined laws, with the support of the federal government. Although the term “Black Codes” reemerges after the 13th Amendment, its inception dates back to the 1600s. “Black Codes” is most often referred to legislation passed by Southern states at the end of the Civil War; reinstituted laws to reinstate bondage, sanction corporal punishment, and control the labor, movement and activities of newly-freed Africans and those still in bondage.

Reinstituted Slavery: Criminalization and imprisonment

13th Amendment, Section 1: 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.

Section 2: Congress shall have power to enforce this article by appropriate legislation.

It was not until the final era of slavery in the late 1800s that the United States established the penitentiary as an institution. Prior to the penitentiary, people of African decent, Native Americans, and white women were subsumed under the same class of degradation and exclusion from judicial status. The American government did not interfere with punishment delved out, particularly within the domestic and plantation domain. White men exercised corporal punishment on their wives and daughters. The institution of slavery gave license to punish Africans as whites saw fit (Davis 2000).

With the Civil War victory, came the restlessness of Southern Confederate states. The nation, at large, contended with societies dependence on free labor and myth of white supremacy. America solved the problem by transitioning Africans from the slave system to the penal system. Where except as a punishment for crime whereof the party shall have been duly convicted, free labor was preserved and reinstituted through this loophole of the 13th Amendment.

Reinstituted Convict Leasing: Contemporary privatized penitentiary sector

In the absence of the institution of slavery to hold people in bondage, guarantee free labor and exercise total control over the lives of people of African decent, America adopted the Convict Leasing System. Under this system the full potential of the 13th Amendment, with its inherent loophole for free labor, is fully realized. Development of a legal framework to criminalize and duly convict new freemen and women was imperative. Thereby, redirecting people to the conditions of enslavement through legalized bondage in the form of forced labor and human exploitation to create, buttress and perpetuate hierarchy and profits, as mentioned earlier.

The Convict Leasing System is traced back to the period of the Emancipation Proclamation and Reconstruction Era beginning in 1865. People were roped back into the slave system under the guise of punishment for criminal offenses.  Michael J. Klarman (2004) provides a detailed example of criminal surety, a variant of convict leasing in this United States v. Reynolds (1914):

…a criminal-surety law, which authorized the state to hire out minor criminals to private parties who paid their fines and court costs in exchange for promises to labor at specified rates (usually several months) to pay off expenses. Breach of surety contract was itself a criminal offense, which usually lead to another surety contract of longer duration. Those laboring under such agreements often had first been convicted of vagrancy, petty larceny, or some other “Negro crime,” such as incitement of insurrection or trespass.

Klarman continues to describe other petty criminal offenses leading to forced labor:

One could be convicted and hired out for crimes as minor as using offensive language. For such a crime, one might be fined ten dollars plus twenty-five dollars in court costs, which would take eight months to work off. Local law enforcement officers were frequently in cahoots with planters and conducted “vagrancy roundups” or otherwise “manufactured” petty criminals during harvesting season when labor was in great demand.

Criminal surety, with the capacity to extend prison terms for minor offenses, is strikingly similar to North America’s contemporary three strikes law; though it appears that today’s sentences for minor, nonviolent offenses are significantly longer than during the era of convict leasing. The law has been expedient in California. In March 2010 Randal C. Archibold wrote an article about the states current challenge of  severe prison overcrowding. Qualified inmates are being released early. In January 2010 the LA Times reported that the governor of California, Arnold Schwarzenegger, was considering outsourcing American prisoners to Mexican penitentiaries. “Vagrancy roundups” is hauntingly similar to the current practice of Stop and Frisk in New York City communities such as Bedford Stuyvesant, Harlem, and East New York; where young African American and Latino males are targeting to produce their identity cards by police or face booking at the local precinct.

The Convict Lease System was characterized by private organizations leasing out prisoners to work for farmers and businessmen. The work force supplied free labor for the agricultural sector on former slave plantations and the logging, railroad and construction industries.

In the contemporary era, the emergent prison industrial complex, which is fueled increasingly by privatization trends, recalls the early efforts to create a profitable punishment industry based on the new supply of “free” black male laborers in the aftermath of the Civil War.

Angela Y. Davis

An exposition on American’s legacy of slavery and Convict Lease System, leading up to today’s prison system, makes it impossible to support the idea that the system is humane and rehabilitative. The ulterior motive is engineering human populations via criminalization for the purposes of forced labor and exploitable humans towards the final objective: corporate profit. The extent of historical parallels between Convict Lease System and contemporary privatized penitentiary sector in legal tactics to capture prisoners are staggering.

Eric Schlosser is a writer on the history and impact of marijuana law enforcement. In 1997, he was interviewed by PBS Frontline on the War on Marijuana (click for video). His insights provide an account of cases of “habitual offenders” under the third strike law and punishment.  In fifteen states you can get life for nonviolent offenses related to marijuana. Killing someone with a gun will net you an average sentence of about six years. Perhaps, the discrepancy lies in the fact that it is far easier and expedient to increase prison populations roping in “habitual offenders” committing nonviolent offenses (at least three times) than people who murder with guns.

Scholosser points to a correlation between targeted groups and designated offenses. He cites historical demographic shifts in the war on marijuana. Offenders represent a diverse group of Mexicans, African-Americans, beatniks, jazz musicians, hippies, and hip-hop artists; in what he describes as the war on nonconformists. Even Lil’ Wayne (click for 2008 video) has picked up on bias drug laws and extremity of sentences, offering this highly insightful analysis.

The recognition of free labor as the path to great profit is indelible within the American legal, judiciary and corporate framework. An estimated 3.5% of the 2.5 million prisoners in the USA produced goods and services worth about $1.5 billion. These include, high-end, mainstream, strong brand recognition products. In the book Fair Trade Coffee by Gavin Fridel, Starbucks, a fair-trade certified company, is cited for Christmas products packed by Signature Packaging Solution, a company that employs inmate labor from the Washington State prison system. Gavin states:

The use of prison labour in North America has been growing since the later 1980s as companies have sought to reduce costs by exploiting prison workers, who are paid very low wages, without health or retirement benefits, and can be instantly laid off without consequence when they are no longer needed after the holiday rush.

In the article From the Convict Lease System to the Super-Max Prison, Angela Y. Davis (2000) recounts in historical and contemporary detail the streamline that connects the Convict Lease System and contemporary prison industry sector. There may be an attempt by proponents of privatization of the prison system to deny the connection and ask society to regard the arrangement as altruistic and detached from legacy, however, the statistics reveal a different reality:

African-Americans represent 12.7% of the US population and 15% of US drug users – 72% of all drug users are white (1999). 36.8% of African-Americans are arrested for drug-related crime (1998). African-American’s represent 48.2% of American adults in state, federal prisons, and local jails (1998). African-Americans represent 42.5% of prisoners under sentence of death (1999).

The history of African-American people in the penal system, including inter-generational family members imprisoned, has become something of an American sub-culture. In 2001 Alicia Keys released her debut CD and what has become her signature song, “Fallin”. It accompanies a highly acclaimed video under the same titled, directed by Chris Robinson, replete with all of the nuances of today’s prison culture; including a clip of imprisoned African American women working on a vast plantation, under armed surveillance. Her followed up is  “A Woman’s Worth”, depicting the challenges of reentering society after imprisonment. Both videos feature the reality of African-Americans, women, and people of color disproportionately caught up in the penitentiary system.

The current legal and judicial framework under which America’s penal system operates predates retributivist theory and is based, quite simply, on the 13th Amendment. In the case of institutional enslavement, contemporary human exploitation, and privatization of the prison sector there is a burden on the top-tier of society’s hierarchy; among whom the Confederacy dictates the character and execution of contemporary American ethical authority. Theirs is to defend the notion of their advancement from rapacity and atrociousness.

Information and history paint the picture of American society. In 1862, of the 2.5 million America soldiers in the Civil War an estimated 200,000 Americans of African decent fought to preserve the Union, preempt the expansion of the institution of enslavement across the United States, and free those still held in bondage. Later, in 2010, 2.5 million Americans, disproportionately of African decent, are currently imprisoned within the nation’s penal system through which they are made available for free labor.

– Zola Dube

Whitman, James Q. (2003) A plea against retributivism. Buffalo Criminal Law Review 7: 85-107

Walmsley, Roy.(2008) World prison population list. International Centre  for Prison Studies. School of Law London, King’s College.

Donziger, Steve ed. (1996) The Real War on Crime: The Report of the National Criminal Offenders. New York: Harper Perennial

Davis, Angela Y. (2000) From the Convict Lease System to the Super-Max Prison. States of Confinement: Policing, Detention, and Prison. New York: St. Martin’s Press. pp. 60-74

Joel Feinberg (1970). The Expressive Function of Punishment, in Doing and Deserving 95-118

Klarman, Michael J. (2004) From Jim Crow to Civil Rights: The Supreme Court and the struggle for racial equality. New York: Oxford University Press, p. 74

Oshinsky, David (1996) Worse Than Slavery: Parchman Farm and the Jim Crow Justice System. New York: The Free Press, p. 114

Fridel, Gavin (2007) Fair Trade Coffee: The prospects and pitfalls of market-driven social justice. University of Toronto Press Incorporated. Toronto: p. 253

Statistical Abstract of the United States (1999), Sourcebook of Criminal Justice Statistics, (1998), National Household Survey of Drug Abuse (1998) and Bureau of Justice Statistics Bulletin: Prisoners and Jail Inmates at Midyear (1999)