The U.S. criminal justice system has created an endless supply of cheap labor that profits businesses and local and national governments. Does this system have connections to slavery
Florida Road Workers
Hey, Buddy!
Look at me!
I’m makin’ a road
For the cars to fly by on,
Makin’ a road
Through the palmetto thicket
For light and civilization
To travel on.
I’m makin’ a road
For the rich to sweep over
In their big cars
And leave me standin’ here.
Sure,
A road helps everybody.
Rich folks ride —
And I get to see ’em ride.
I ain’t never seen nobody
Ride so fine before.
Hey, Buddy, look!
I’m makin’ a road!
-Langston Hughes (1930)
Langston Hughes, a renowned African American poet, wrote this satirical poem “Florida Road Workers” after traveling to the U.S. South with anthropologist and novelist Zora Neale Hurston. While they met Black people such as sharecroppers, singers, and educators, Hughes also noted in his journals the chain gang prisoners who worked on the roads they traveled. The chain gang was a system in which prisoners were shackled together as they worked on public tasks like constructing railroads and ditch digging. As Hughes mentioned in his “Forward from Life” (1933) essay, this was a brutal system. The prisoners were beaten, whipped, and subjected to horrid working conditions.
Chain gangs, enabled by Jim Crow Laws and legalized racial segregation, emulated slavery in its targeting and exploitation of Black bodies for labor. Despite officially ending in 1865, slavery, and the exploitation of Black labor in general, was reproduced into multiple forms, including the criminal justice system that continues today. This essay dives into how and why Black people and their labor were used to build the economic and political foundation of the U.S. and the ways in which the criminal justice system became a mechanism for capitalistic exploitation.
Racial Capitalism and the Beginnings of the United States
To truly understand this history, we must go back to feudal Europe and its transition to capitalism, the economic and political system based on the private ownership and control of the means of production. The means of production refers to the mechanisms needed for goods and services, such as materials and labor. In understanding the process of capitalism, it is important to know who is the owner and who is owned, as well as how racism became integral to maintaining that economic divide. Cedric Robinson, author of Black Marxism (2020 [1983]), suggests that capitalism was racialized at its outset because racism was integral to feudal societies, particularly as a part of the colonization of European and Slavic territories (Robinson 2020 [1983]; Kelley 2020). So, whereas capitalism divided society into two groups (proletariat and bourgeois), racial capitalism speaks to the divisions within the classes (Kelley 2020). It especially divided the working classes using racial ideology to justify the exploitation of racial-ethnic groups, which was used to support the enslavement of Africans (Robinson 2020[1983]).
Racial ideologies were refashioned into myths and theories to justify the exploitation of Black people for cheap labor. For example, the Biblical story of the curse of Ham became a religious justification for slavery. In Genesis 9:25, Ham, Noah’s son, saw his father drunk and naked. Out of shame, Noah cursed Ham’s son, Canaan, stating, “Cursed be Canaan; a servant of servants shall he be unto brethren.” This story has been used since the 15th century to justify the enslavement of African peoples, mythologically interpreted as the cursed descendants of Canaan. Aristotle also contributed to racial ideologies with his climate theory, which was used to support Greek superiority. He argued that “extremely hot climate produced intellectually, physically, and morally inferior people who were ugly and lacked the capacity for freedom and self-government” (Kendi 2016, 17). These and other racial ideologies garnered public and political support and were used to justify the enslavement of Africans, which became integral to the economic system in the Americas.
Early America relied heavily on agriculture, specifically the production of tobacco, rice, sugarcane, and cotton (Timmons 2024). Slavery provided the means for producing these cash crops, leading to an exponential growth of the economy. Under this system of chattel slavery, the value of enslaved Africans was tied to their bodies, not their personhood. As chattel, moveable property, enslaved Africans were included in slaveowner’s material holdings as capital. Enslaved Africans were transactional as they were bought and sold. The need for more capital fueled not only the extensive kidnapping of Africans, but also the reproductive exploitation of Black women (Roberts 1997).
Due to their economic reliance on slavery, slaveowners used several tactics to protect and control their capital. There were many cases of resistance, including insurrections and escapes, since the start of the TransAtlantic Slave Trade. Slave Codes were created to quell any resistance and prevent violence against slaveowners. These codes established the enslaved as property and the permanency of their conditions. Enslaved Africans were controlled in every aspect of their lives. For example, they were prohibited from reading and writing, needed permission to leave the plantation, could not assemble without a white person present, and were subjected to other restrictive rules. Slave Codes required full submission of slavery by both enslaved Africans and white individuals, who would receive harsh punishment as well if they contested slavery. If a Black person or abolitionist violated the code, they were subjected to a brutal beating, whipping, and/or imprisonment (Russell 1998; Gabbidon and Taylor Greene 2019). In addition to Slave Codes, the Fugitive Slave Act of 1850, which required any enslaved person to be returned to their owner, even if they were in a free state, also legally protected slavery (Gabbidon and Taylor Greene 2019).
As these laws were implemented to establish control, slaveowners needed an agency to enforce these laws and maintain order, particularly in the South. Slave patrols were an organized group sponsored by the government to thwart insurrections, prevent any criminal activity by an enslaved person, and capture runaways. They had the power to enter homes of anyone who may be sheltering an enslaved person (Hassett-Walker 2021, 7). Slave patrols essentially protected the economic interests of slaveowners.
After the Civil War, many white Southerners believed it was in their best interest to continue patrolling and enforcing order. As a result, the agency that patrolled slaves was transformed into southern police departments (Hassett-Walker 2021; Gabbidon and Taylor Greene 2019).
The amendment ended slavery in its original form but also gave the South an opportunity to revive its economy through the continued exploitation of Black people. The enforcement clause, “except as a punishment for a crime whereof a party shall be duly convicted,” gave rise to and legal permission for the convict leasing system.
Fighting for Free Labor
By the mid-19th century, the North and South had different political and economic interests. The North capitalized on industry and manufacturing, moving away from the emphasis on manual labor. This region, above the Mason-Dixon line, also experienced growing support for abolitionism, which was concerning development for the South. The Antebellum South was still very dependent on slave labor for its economic and political stability and was willing to go to war to continue the exploitation of Black bodies. As Alexander Stephens, selected to be the vice president of the Confederate States of America, stated in his “Cornerstone Speech” on March 21, 1861:
The new [Confederate] constitution has put at rest, forever, all the agitating questions relating to our peculiar institution — African slavery as it exists amongst us — the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution . . .The prevailing ideas entertained by . . . most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was violation of the laws of nature…Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner–stone rests upon the great truth, that the negro is not equal to the white man; that slavery — subordination to the superior race — is his natural and normal condition.
This rupture was widened with the election in 1860 of Abraham Lincoln as he was against slavery. It is important to note, however, that although Lincoln opposed the institution of slavery, he stated in his first inaugural address (March 4, 1861) that “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so” (Lincoln, 1861). Yet, the following month, the Confederacy (South), who seceded from the Union (North), fired their first shots of the Civil War.
In 1862, President Lincoln signed the Emancipation Proclamation to free all enslaved people in the rebellious states, a law that would go into effect on January 1, 1863. This decree was a military measure to restore the Union and destabilize the South. Formerly enslaved people were encouraged to join the Union, and many did. Unfortunately, the law was not extensive. Enslaved people in border states were not freed under the Emancipation Proclamation. Also, enslaved people in Confederacy areas where the Union had taken over before the passing of the law were not free. The signing of the Emancipation Proclamation further tied the reasons for the Civil War to slavery.
New Era, New Slavery
The Civil War ended in April 1865, leaving the South in a poor state. The war was largely fought on southern territory and left many cities destroyed. Additionally, with the passing of the 13th Amendment, slavery officially ended, and this caused the South to struggle economically. The 13th Amendment, as important as it is, however, provided a loophole for the South. According to the 13th Amendment,
“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.”
The amendment ended slavery in its original form but also gave the South an opportunity to revive its economy through the continued exploitation of Black people. The enforcement clause, “except as a punishment for a crime whereof a party shall be duly convicted,” gave rise to and legal permission for the convict leasing system.
Under this new system, prisoners were leased to planters, business owners, and corporations. Prisoners labored in such industries as brickyards, plantations (cotton and sugar), turpentine farms, sawmills, and railroads (Mancini 1996; Lichtenstein 1996). Local, county, and state governments and the contractors benefited greatly from the labor of prisoners, who were forced to work with minimum or no pay (Blackmon 2008; Mancini 1996). The contractors (business owners, corporations, etc.) were completely responsible for the prisoner, including providing food, clothes, shelter, health, and protection. The lack of state oversight and responsibility led to increased revenue for the government. Yet, it also contributed to the abuse of prisoners, who had no government protection.
Convict leasing, according to Matthew Mancini, was “one of the harshest and most exploitative known in American history” (1996, 2). The prisoners were subjected to dismal conditions. They lived in poor housing with little protection from harsh weather conditions. Many prisoners would stay in close quarters, which would lead to the spreading of communicable diseases like tuberculosis. Prisoners were also beaten and tortured by guards, which contributed to the death of many individuals (Weinstein 2021).
Similar to slavery, the private corporations, business owners, and planters attached value to the bodies for labor and not their humanity. In fact, a convict was worth less than an enslaved person. As explained by Mancini in One Dies, Get Another: Convict Leasing in the American South (1996), individual prisoners were a small investment, so if they died or were released, it did not significantly affect the capital of private contractors, as opposed to an enslaved person. Enslaved people had significant value individually (Mancini 1996, 23), especially because they were counted as chattel. However, there were several key similarities between both oppressive systems. As argued by Mary Ellen Curtin, both convict leasing and slavery depended on forced labor for profit and full submission to white authority (slave owner and contractor), which was reinforced by the state (2000, 102).
White authority was established and maintained through the legislating of racist laws and practices that contributed to the over-incarceration of Black people into the Southern convict leasing system. At the end of the Civil War, several states, starting with Mississippi and South Carolina, created the Black Codes – a post-slavery version of Slave Codes. Black Codes, which varied among the states, controlled the behavior and movement of African Americans (Fierce 1994, 77). For example, the codes required that African Americans document their employment every year or they would be fined, arrested, and leased out to pay for their debts – a legal expectation that had no equivalent for white Americans, who were not expected to demonstrate employment. Mississippi’s Black Codes required that African Americans have proof of employment for the upcoming year in January. If they quit their job contract, they forfeited their earned wages and could be arrested. In South Carolina, if a Black person did not have a permanent resident or “respectable employment,” they could be considered vagrants and punished accordingly. W.E.B. Du Bois further explains:
The Negro’s access to the land was hindered and limited; his right to work was curtailed; his right of self-defense was taken away, when his right to bear arms was stopped; and his employment was virtually reduced to contract labor with penal servitude as a punishment. And in all cases, the judges of the Negro’s guilt or innocence, rights and obligations were men who believed firmly, for the most part, that he had “no rights which a white man was bound to respect.” (Du Bois 1963 [1935], 167)
Black Codes ensured that white Southerners had an endless supply of cheap labor through the convict leasing system and mandatory employment of African Americans. As Douglas A. Blackmon emphasizes in his work Slavery by Another Name (2008), by the 1900, one of the primary purposes of the Southern judicial system was to force African Americans to submit to the labor demands and social norms of white citizenry (7).
Black Codes were repealed after the passing of the 14th and 15th Amendments. The 14th Amendment provided “equal protections under the law”, and the 15th Amendment gave African American men the right to vote. However, white Southerners were steadfast in their want of free labor and control of African Americans. Thus, Jim Crow laws were established, which legalized racial segregation and restricted the activities of African Americans and other groups of color. For example, there were segregated schools, cemeteries, water fountains, building entrances, and other public and private amenities and buildings. Even as the racially restrictive laws changed, the main premise of controlling Black bodies continued.
By the 1940s, convict leasing systems in all states ended, though some ended earlier than others. It declined largely due to public criticism of its harsh treatment of convicts, declining profits, and opposition from the U.S. labor movement (Fierce 1994; Todd 2020). In response, the criminal justice system changed again, but this time to the chain gang model. This new system marked the end of private contractors leasing prisoners; instead, local and state governments now took over responsibility for the convicts. Similar to slavery and the convict leasing system, the chain gang labored under harsh conditions. As they worked on public streets, the prisoners would be monitored at gunpoint and whipped as they labored (Browne 2007, 44). The chain gang system ended in the 1950s due to the negative public response to the brutality.
Despite the end of these early forms of the penal system, prison labor continues to profit both businesses and state and national governments. Further, federal laws since Jim Crow have contributed to the contemporary mass incarceration of African Americans, perpetuating the inequalities grounded in slavery.
Cheap Labor as Punishment Today: Prison Industrial Complex
In December 2023, former and current inmates in an Alabama prison filed a class action suit accusing the Alabama State of Corrections’ prison labor program as being a form of “modern day slavery.” As stated in their class action suit, the plaintiffs explained that they were forced to work for little or no pay “for the benefit of the numerous government entities and private businesses that “employ” them” (Council et a.l v Ivey et al.). They argue that, as a part of the prison labor program, inmates were employed by approximately 100 public employers and 575 private companies. They also worked on prison projects. If the prisoners chose not to work or were sick, they risk receiving a disciplinary infraction. Further, the plaintiffs allege that “since 2019, the Parole Board, at the direction of Governor Ivey and Attorney General Marshall, has unlawfully refused to release people from prison and further skewed the racial composition of the incarcerated population by wrongfully denying parole to thousands of Alabamians—and to Black Alabamians in particular” (Council et al. v. Ivey et al.). The longer the laborers were incarcerated, the more profit the Alabama Department of Corrections and business partners earns, as argued in the class suit (Council et al. v. Ivey et al.). The forced labor of the plaintiffs and class members, inside and outside of prison, amassed more than $450 million annually for the State of Alabama, according to the class suit.
A few months earlier, in September 2023, incarcerated men in Louisiana State Penitentiary filed a class action suit due to working in dangerous conditions for little to no pay. These men are forced to work under searing heat (up to about 100 degrees), picking crops, while heavily surrounded by guards. Similar to the Alabama case, they would be punished, via solitary confinement or disciplined otherwise, if they did not perform as required.
This extension of the convict leasing system has been conceptualized by scholars and activists as the “prison industrial complex.” This concept refers to the relationships of the government, media, private corporations, and correctional facilities in the exploitation of prison labor (Davis 2003). This concept was introduced in opposition to the belief that the rise of incarceration is due to an increase in crime (Davis 2003). Instead, however, incarcerations rates are rising due to the pursuit of profit along with racism and discriminatory laws and practices such as the national War on Drugs. In fact, some scholars consider the War on Drugs as the start of the modern prison industrial complex (Peterson 2016; Davis 2003). As proven since the beginning of slavery, the U.S. government, through the judicial system, has worked to have an endless supply of cheap labor for the economic and political success of the country. This strategy has clearly been effective.
The War on Drugs, which began in the late 60s, is largely responsible for the mass incarceration of African Americans today. In her seminal work, The New Jim Crow, scholar Michelle Alexander argues that “Convictions for drug offenses are the single most important cause of the explosion in incarceration rates in the United States” (2012, 60). This began during former President Richard Nixon’s campaign in which he declared drugs as “public enemy number one.” Nixon’s Domestic Policy Chief John Ehrlichman explained that the president had “two enemies: the antiwar left and Black people.” So, Nixon knew that if his administration could get the public to correlate Black people with heroin and the antiwar left with marijuana, “then criminalizing them both heavily would disrupt their communities.”
The War on Drugs would continue into and intensify over the next couple of decades with Black and Latinx communities. President Ronald Reagan’s administration intentionally used the media to capitalize on public fears of drugs in inner-city communities to garner support for his Anti-Drug Abuse Act of 1986, which established mandatory minimum prison sentences for 5 or more grams of crack cocaine (Alexander 2012). (In contrast, powder cocaine received lower prison sentences for higher amounts, 500 grams. It’s worth noting that this variation of cocaine was often associated with white communities [Vagins and McCurdy 2006; Equal Justice Initiative n.d.]) The Anti-Drug Abuse Act of 1988 expanded the 1986 act. At this point, tenants could be evicted from public housing if they were involved in criminal activity. A few years later, Congress under President Bill Clinton passed the Violent Crime Act of 1994, which intensified the mass incarceration rates. This law established mandatory life sentences for some three-time offenders (“three strikes you’re out” law) and provided additional funding to state and federal judicial agencies, including law enforcement (Alexander 2012). This law contributed to the largest increase in state and federal prison populations in history (Alexander 2012).
Repeating History
On September 20, 2023, Bureau of Justice Statistics of the U.S. Department of Justice’s Office of Justice Programs released the breakdown of convicts in state and federal prison in 2022. According to the press release, the prison population is composed of the following racial percentage: 32% black, 31% white, 23% Hispanic, 10% multiracial or some other race, 2% American Indian or Alaska Native, and 1% Asian, Native Hawaiian or Other Pacific Islander. Despite African Americans only representing approximately 13% of the U.S. population, this group has the highest incarceration rates. The Sentencing Project One in Five “Executive Report” explains: “But with the prison population in 2022 nearly six times as large as 50 years ago and Black Americans still imprisoned at nearly five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable” (Ghandnoosh et al. 2024).
These statistics not only prove the persistent judicial targeting of African Americans, they also reveal how the labor of African Americans continues to provide cheap labor for corporations and state and federal governments. Prison labor has contributed to major businesses such as Target, Walmart, and Whole Foods. The agricultural work on prison farms and barns have been very profitable for these companies. Further, prisoners are also sent to local businesses to work, such fast food restaurants as McDonald’s, Wendy’s and KFC, like in the Alabama case. Further, private prisons, which are facilities controlled by a third party that is contracted by the government, have also benefited from prisoners and prison labor. Since President Biden’s 2021 Executive Order to phase out the federal dependency on private prisons, the U.S. Bureau of Prisons has decreased its reliance on private prisons. However, there are still a large number of people incarcerated in these facilities.
The U.S. criminal justice system exemplifies the concept of racial capitalism. It has been very effective in exploiting racialized others for profit. Even as activists, scholars, and politicians have worked to address the criminal justice system, such as ending the convict leasing system or lessening the federal reliance on private prisons, Black people continue to be socially managed, overly incarcerated, and exploited for labor. As Michelle Alexander argues, the criminal justice system has recreated the racial caste in the U.S. (2010) that was enforced by Jim Crow, Black Codes, and Slave Codes. This system extends to beyond the prison walls to the policing and surveillance of Black individuals and communities.
If we are ever to change the criminal justice system, we must first address the ways in which societal and institutional racism has been fundamental to the development of our country and our capitalist society. Toni Morrison says it best: “Racism will disappear when it’s, A, no longer profitable, and no longer psychologically useful. And when that happens, it’ll be gone. But at the moment, people make a lot of money off of it, pro and con”. Racism is a very profitable business. How can we end it knowing that the country has and continues to profit from it?
References
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