Slavery, the 13th Amendment, and Mass Incarceration: A Response to Patrick Rael

This post is a rebuttal to Patrick Rael’s “Demystifying the 13th Amendment and Its Impact on Mass Incarceration.”

Dear Professor Rael,

I just finished your article, “Demystifying the 13th Amendment” regarding Ava DuVernay’s documentary “13th,” and I am (pun intended) completely mystified at your thesis given that you are someone who seems to be a serious historian. While we may take issue with certain of the moves that are made in the film, such as what some have described as its use of outdated statistics and an over-emphasis on the private prison industry at the expense of analyzing the public prison system which is in fact the core of the prison industrial complex, the main pivot of the film in respect to the exception clause is in fact uncontroversial when one looks at the actual history of racialized incarceration in the US. Indeed, this history, as Angela Davis, George Jackson, and Assata Shakur remind us, actually started for Africans aboard slave ships, in slave pens, and on slave plantations.

And, this is not just a point made by politically imprisoned Black radical intellectuals. US jurisprudence has avowed the connection in no uncertain terms at many junctures – even after the moment that you say a clear line had been drawn between slavery and imprisonment. Just listen to J. Christian, a Virginia Supreme Court Justice in 1871, in Ruffin v Commonwealth, a case that allowed for the enslavement of prisoners, in which he states that the prisoner has “as a consequence of his crime, not only forfeited his liberty, but all his personal rights ….He is for the time being the slave of the state. He is civiliter mortuss [civilly dead]; and his estate, if he has any, is treated like that of a dead man.” What this makes apparent is that your statement that “the law had long distinguished between slavery and incarceration” by the end of the Civil War, is categorically wrong. No such clear distinction had even been made for white prisoners (Ruffin in this case was actually a white man), but the law definitely had made no such distinction in respect to Africans whom the law had defined as sub- to non-human for hundreds of years before the Ruffin decision.¹

What Ruffin expresses in boldface terms; and, more importantly, what the experience of Black imprisonment has revealed from the Convict Lease Camp, to the chain gang, to the prison plantation, to the modern penitentiary, is that systems of modern incarceration cannot be disentangled from their moorings in the original systems of mass racialized incarceration that Black people endured during chattel slavery such as the slave pen, the slave ship, and the plantation. That is, despite your attempt at refuting the slavery/imprisonment nexus in your addressing of the exception clause in the 13th Amendment, your analysis reveals a severely flawed conceptualization of the reach, purpose, and consequence of this most damaging moment of liberal racism in U.S. legal history. I happen to know more than a little in respect to the subject. I have written an entire chapter on the exception clause in my recent book, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary.

It is shocking that in order to prove your point you draw upon the very moment in the Congressional record that actually proves the opposite of what you argue in your article. When Charles Sumner took part in the Congressional debate around the wording of the amendment he did so because he feared that the wording would do much more than create what you describe as “confusion” if passed with language re-legalizing slavery as punishment for a crime. And the reason why he made such a point at Congress in arguing against the exception clause was that he knew that the former Confederacy could use it as a legal means to re-enslave the African population under color of law.

Indeed, members of the former confederacy were not “confused” at all about the way in which the exception clause offered cover for Black re-enslavement. This is indicated in parts of the congressional record you must be unaware of such as that offered in regard to the Black Codes in which a southern clergyman said in his testimony that “we must now make a code that will subject as many crimes to the penalty of involuntary servitude, and so reduce the Negroes under such penalty again to practical slavery.” Carl Schurz also expounded upon this at length after his tour of the southern states.

When Charles Sumner argued for not having a “slavery as punishment for a crime” clause in the 13th Amendment he may have felt there was a clear distinction between the systems in the North in respect to White prisoners, but he knew full well that any such distinction would fall apart at the seams when southern and national white supremacist law set its sights on a newly freed Black population that was said to be only productive at the spur of plantation style punishment. This fear was corroborated nearly two years after the 13th Amendment was passed when Sumner came to Congress armed with a copy of the Annapolis Gazette, and unveiled a slave auction advertisement from one of its pages dated December 1866. The advertisement read: “Public sale. The undersigned will sell at the Court House Door in the city of Annapolis at 12 o’clock, Monday, on Saturday, 8th December, 1866,a negro man named Richard Harris … convicted at the October term, 1866 … for larceny and sentenced by the court to be sold as a slave. Terms of sale, cash. William Bryan, Sheriff Anne Arundel County.”

For this county sheriff / neo-slave auctioneer there was a decided lack of what you call “confusion” about the re-enslaving function of the exception clause vis-a-vis Africans in the US. Your point that “the law had long distinguished between slavery and incarceration” is actually factually wrong even in relationship to White prisoners until at least as late as the 1820s (the prison Sing Sing was built by white prisoners who were spurred to build the prison by being whipped by a warden who fashioned himself as prison slave master). However, to reiterate, even as the long standing interconnected positionalities of prisoner and slave had begun to diminish for White prisoners by 1865, there was no such clear distinction for those who had been defined as human commodities at law for generations. In fact the Annapolis auctioning of Black prisoners as slaves under the cover of an exception clause had been in practice in Maryland, Ohio, Illinois, and Indiana up to the eve of the Civil War, and the County Sheriff knew full well that there was nothing in the 13th Amendment which would keep him from continuing this practice.

The fact is that this sale of Black prisoners as slaves in Maryland and other states was but a drop in the bucket when we consider the way in which courthouses in general in the former Confederacy became virtual auction blocks with both private concerns and state governments capitalizing on the fact that slavery remained legal as punishment for a crime. The horrific conditions Black people experienced under convict leasing, chain gangs, and prison plantations were in fact refabrications of slavery that were allowed to exist after 1865 because of the exception clause, the Black Codes, and other legal maneuvers. And this is not a “theoretical opinion” — this is what the testimony of Black prison slaves from 1865 to the present screams out!

As an historian I am frankly surprised by the fact that you have somehow managed to miss the entire historical literature on the post-Civil War turn to prison slavery including books by authors such as David Oshinsky (Worse than Slavery), Alex Lichtenstein (Twice the Work of Free Labor), everything by Angela Davis on what she calls the transition from “the prison of slavery to the slavery of prison,” Sarah Haley (No Mercy Here), Talitha LeFlouria (Chained in Silence), and Douglas Blackmon (Slavery by Another Name). All of these works — as well as my own — express the way in which white supremacist law refabricated slavery in both “old” and updated forms using the exception clause as legal cover. The fact is that a major catalyst of southern industrialization after the Civil War was a product of neo-slave labor in the form of convict leasing, chain gangs, and prison plantations.

It is also particularly amazing to me that you actually attempt to say that there is a clear distinction between chattel slavery — or what you call an “old labor regime” — and what you call a “new” labor regime like convict leasing. First, such a move plays into the long-standing liberal white supremacist notion that slavery was an exceptional blip on the radar screen of U.S. modernity rather than a constitutive component of that modernity. Secondly, and more importantly, this argument reveals a patent lack of awareness of the actual conditions endured by Africans who were leased to private companies like U.S. Steel, and Tennessee Coal and Iron — or who were sent to chain gangs and prison plantations.

Many convict lease camps such as “Smithonia,” a 20,000 acre neo-plantation that was owned by Confederate Colonel James Smith were operated by former slave owners. They used many of the very same punishment and terrorism methods in the late 19th Century and into the 20th Century that they used before the Civil War. Early prison slaves were subjected to many “old-style” punitive methods (along with modern innovations of racial terrorism) that were born on the slave plantation: these included legally unredressable rape, whipping, chaining over long distances (or what in “old” parlance was called “the coffle”), slave ship style “tight packing” in mobile chain gang boxcars, mauling by bloodhounds, coerced musical and theatrical performance, and outright murder.

But don’t take my word for it. Here is testimony from a woman named Mentha Morrison in a letter that she wrote to Pres. Theodore Roosevelt in 1903 with respect to the regime of imprisonment that her husband Jackson Morrison received at “Smithonia” as a result of being unable to pay a fine in court: “He was sentenced to the chain gang in 1901 … and sold to Col. James Smith on Nov. 30th 1901 … Col. Smith inflicts inhuman punishment on the person of his convicts, and whips them unmercifully . . . Mr. President I appeal to you to do something for my husband. Will you please cause an investigation of that Camp … it will be found that there are numbers of persons (both men and women) serving as slaves there…” With all due respect, your attempt to argue that forms of racialized imprisonment such as convict leasing, the chain gang, and the prison plantation “stopped short of actual slavery” rings problematic at best when held up to the light of such testimony by the actual Black people that experienced prison slavery.

And my points are not limited to “old” forms of neoslavery that occurred from 1865 to World War II. Are you going to tell me that today, when we have Black men from places like New Orleans East being currently sent to Angola prison plantation, an 18000 acre slave plantation that became the state penitentiary of Louisiana (and the largest maximum security prison in the country) after the Civil War, and are made to pick cotton and soybeans in the same slave plantation fields that their ancestors did going back to the 18th Century that it “stops short” of actual slavery? I think such a claim would be difficult to hold on to if you were to have a conversation with someone like Robert King Wilkerson or Albert Woodfox, two of the “Angola 3” who spent 30 and 43 years in solitary confinement at Angola neo-plantation because they worked as Black Panthers to try to stop prison rape and plantation field work at Angola.

My points are also not limited to areas south of the Mason-Dixon. I think your claims about a stark slavery/imprisonment distinction would also be hard to maintain for those across the country who just recently organized one of the biggest prison strikes in US history against conditions that they refer to as prison slavery. From the prisoners’ perspective neoslavery is not simply about forced labor nor about what happens in the supposedly exceptional white supremacist south: it is about a systematic program of dehumanization, physical torture, spatial entombment, familial dislocation, white supremacist ideology, forced relocation (i.e. kidnapping), the forced sterilization of Black and Brown women prisoners, shackled births, and the de facto punishment of sexual slavery, all of which amount to what Saidiya Hartman would refer to as the most boldface “afterlives” of the original system of mass incarceration known as slavery. It is not necessary for us to fall into the trap of the liberal white progress narrative in order for us to see the specificity of our current moment of racial capitalist injustice. I think we can be attentive to what Amiri Baraka describes as the “changing same” or what Du Bois described as “old wine in new bottles” in seeing that the present prison industrial complex is informed at its core by America’s original prison industrial complex: chattel slavery.

I wish to be clear that none of this is meant to say that chattel slavery and prison slavery are exactly the same. Rather, it is to point out that any attempt to treat of slavery and “mass incarceration” as distinct falls flat in the face of history and the present day catastrophe that is the prison industrial complex. Imprisoned and formerly imprisoned voices such as those of Mentha Morrison, Assata Shakur, Angela Davis, the Angola 3, James Yaki Sayles, George Jackson, the 30,000 members of the historic California Prison Hunger Strike of 2013, are all in a much better position to comment on the relationship of chattel slavery and mass incarceration than anyone who has never been encaged inside one of the neo-plantations known as prisons that currently imprison well over 2 million people. What these voices reveal, if listened to, is a concerted demand that we pay close attention to the ways in which the chattel slavery principle has infused the predicament of Black freedom from the moment of its legal birth.

Dennis R. Childs is an Associate Professor of African American Literature at the University of California, San Diego. His book, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary (University of Minnesota Press, 2015), offers a cultural, legal, and political history of racial capitalist misogynist incarceration in the U.S. from the late nineteenth century through the prison industrial complex. Follow him on Twitter @Dennis_R_Childs.