The Rule of Law is the most powerful tool in shaping people’s actions, regardless of whether these laws factor in the people that they affect. The most notable example dates back to 1619, when the first ship of ‘twenty odd’ slaves arrived in a small settlement in the USA¹ forming the exploitative model upon which the backbone of American society, as we know it, was built. An ‘American Dream’ built on forcing masses of people from their homes in Africa and selling them into labour.
This ruthless practice should have died with the 13th Amendment (1865), outlawing slavery,² however, it seems lawmakers left a gaping loophole to be abused for the following decades. The 13th Amendment provides a sole exception to this constitutional reform: those who are convicted of a crime. Thus, mass incarceration for the purpose of convict leasing presented itself to be the most viable solution for states to avoid haemorrhaging money³ and so slavery was not abolished, but rather merely rebranded.
New vagrant state laws licensed this mutation of slavery through the undue criminalisation of former slaves over petty offence laws such as a lack of ‘lawful employment’,⁴ undoubtedly a targeted attempt to enable the lucrative system of convict leasing on a mass scale. This way, convict leasing was able to pick up where slavery had left off. The practice singlehandedly fabricated panic and fear around the newly emancipated by fuelling the narrative interlinking criminality with being a black individual, justifying putting them behind bars because they had become a ‘threat to society’, according to these new laws.
Although copious amounts of the alleged crimes were insignificant and harmless, the repercussions manifested in substantial damage, perpetuating unjust persecution. By 1870, Southern states had achieved filling their prisons with 95% black inmates⁵ and later, in 1908, Georgia’s convict leasing system was found to be operating with 90% black inmates.⁶ The state never fully recovered and a 2021 study by The Sentencing Project found that Black people were incarcerated at a disproportionate rate of 5 times more than White people in Georgia⁷ despite Black people making up only 31.4% of Georgia’s residents,⁸ with penal labour remaining entirely constitutional.
Today, the narrative of criminality in predominantly black and ethnic minority groups has led to a deeply divided nation, scarred by mass incarceration. The racial disparities are both at an individual level, with the life outcomes of children with an incarcerated parent being severely impaired, as well as on a societal level, with both the stagnation and degradation of entire communities being targeted by a deeply prejudiced system. As of December 2022, 1.2 million people were in prison in the United States as a whole, only 31% of which were white,⁹ despite white people making up 75.5%¹⁰ of the population, further pointing to the prevalent injustice that remains unchanged. There simply cannot be adequate reform of the prison system until the racial underpinnings and the history of disproportionate, targeted incarceration is fully addressed.
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1. John Rolfe, Records of the Virginia Company, Volume 3, p.243, Jan 1619/20
2. Constitution of the United States, Amendment XIII, "Abolition of Slavery," (Ratified on December 6, 1865).
3. Robert Perkinson (2010). Texas Tough: The Rise of America's Prison Empire. Henry Holt and Company. p. 105. ISBN 978-1-429-95277-4.
4. (1866) Mississippi Black Codes, 3. Mississippi Vagrant Law, Sec.2
5. Adamson, “Punishment After Slavery,” 1983, 558-61
6. Alex Lichtenstein, “Good Roads and Chain Gangs in the Progressive South: 'The Negro Convict is a Slave,'” Journal of Southern History, 59, no. 1 (1993), 85-110, 90.
7. The Sentencing Project. "One in Five: Ending Racial Equality in Incarceration." https://www.sentencingproject.org/publications/one-in-five-ending-racial-inequality-in-our-criminal-justice-system/
8. World Population Review. "Black Population by State." https://worldpopulationreview.com/state-rankings/black-population-by-state.
9. Prisons Report Series : Preliminary Data Release https://bjs.ojp.gov/library/publications/prisons-report-series-preliminary-data-release
10. United States Census Bureau https://www.census.gov/quickfacts/fact/table/US/RHI125222
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