Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist View

84 Pages Posted: 24 Jul 2019

Date Written: July 23, 2019

Abstract

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that a convicted person retained protection against any servitude that had not truly been inflicted as a punishment for crime. They challenged the validity of state criminal policy (for example, imposing servitude on blacks but not whites, or on offenders whose crimes were not serious enough to warrant servitude), the ways in which servitude was implemented (for example, placing offenders under the control of private masters outside prison walls), and the process by which individuals were condemned to servitude (for example, without an official sentence to hard labor).

The Republican reading faded from view after the Democratic Party regained control of the Deep South. For several decades, one-party, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment, correctly interpreted, authorizes such practices. Courts similarly honor the Democratic reading on the assumption that it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth.

Neither courts nor advocates have, however, taken into account the framers’ views. Their interpretation faded from view not because it was wrong, but because Democratic paramilitaries terminated Reconstruction, paving the way for white supremacist state governments to expand convict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented or shortened one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. Whether to continue denouncing the Amendment or to reclaim it for prisoners’ rights is, then, less a question of jurisprudence than of constitutional politics.

Keywords: Thirteenth Amendment, Mass Incarceration, Convict Leasing, Prison Servitude, Convict Race, Involuntary Servitude, Badges and Incidents of Slavery

JEL Classification: J47

Suggested Citation

Pope, James Gray, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist View (July 23, 2019). 94 N.Y.U. L. Rev. No. 6 (Dec. 2019). Available at SSRN: https://ssrn.com/abstract=3424857

James Gray Pope (Contact Author)

Rutgers Law School ( email )

NJ
United States
973-744-3642 (Phone)
973-353-1445 (Fax)

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