A. The Post -Bellum Era: Convict Lease and Planation Prisons

In the aftermath of the Civil War, the passage of the 13th, 14th, and 15^th Amendments seemed to promise an end the abolition of slavery, due process and equal protection at both state and federal levels, and full citizenship via the franchise (at least for Black men).

Angela Y. Davis, in Are Prisons Obsolete?, traces the initial rise of the penitentiary system to the abolition of slavery; “[I]n the immediate aftermath of slavery, the southern states hastened to develop a criminal justice system that could legally restrict the possibilities of freedom for the newly released slaves.” There was a subsequent transformation of the Slave Codes into the Black Codes and the plantations into prisons. Southern states quickly passed laws that echoed the restrictions associated with slavery, re-inscribed the property interests of “whiteness,” and criminalized a range of activities of the perpetrator was black. These laws were enforced by former slave patrols turned police agencies, with the assistance of extra-legal militias, and the white citizenry in general, who are merely protected by these same police, but per Wilderson “not simply “protected” by the police, they are--in their very corporeality--the police.” All this becomes possible because the 13th Amendment--“Neither slavery nor involuntary servitude shall exist in the United States”--contained a dangerous loophole- “except as a punishment for crime.” This allowed for the conversion of the old plantations to penitentiaries--the 18,000 acre Louisiana Penitentiary at Angola is a case in point-- and the creation of prison “farms” such as Parchmann in Mississippi and the infamous Tucker Prison Farm and Cummins Prison Farm in Arkansas. Sheriffs, jailors and wardens leased out entire prisons to private contractors who literally worked thousands of prisoners to death in labor camps, on chain gangs, and in prison farms. These prisoners were largely black; in the post-Civil War South the racial composition of prison and jail populations shifted dramatically from majority White to majority Black, and in many states increased ten-fold. As Davis notes, “the expansion of the convict lease system and the county chain gang meant that the antebellum criminal justice system, defined criminal justice largely as a means for controlling black labor.” The re-institutionalization of slavery via the criminal legal system also served to effectively undo the newly acquired 15th Amendment right to vote. This was legislatively curtailed by the tailoring of felony disenfranchisement laws to include crimes that were supposedly more frequently committed by blacks. In the post-Civil War period, existing felony disenfranchisement laws were expanded dramatically, especially in the South, and modified to include even minor offenses. This legislation, in combination with literacy tests, poll taxes, grandfather clauses and ultimately, the threat of white terror, essentially denied Blacks the right to vote until the mid-twentieth century.

The 14th Amendment's promise of due process and equal protection was insufficient to override this continued economic exploitation and civic exclusion. This was due to a series of Supreme Court rulings that interpreted the 14th in support of state's rights, white supremacy, and against Black inclusion. In United States v. Cruikshank (1876), the Supreme Court ruled that that “The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.” decision, in a case involving the bloody Colfax Massacre, forbade the Federal Government from relying on the Enforcement Act of 1870 to prosecute actions by white paramilitary groups that had been violently suppressing the Black vote. This decision paved the way for nearly a century of unchecked white extra-legal violence and lynching that served to enforce white supremacy in both law and practice.

On matters of racial equality, the most famous Supreme Court ruling of the era was Plessy v. Ferguson (1896). Post slavery, white supremacy in the law was accomplished by the introduction of a series of segregationist Jim Crow laws that mandated Black exclusion from white spaces, even in public accommodations. In a challenge to legalized segregation of public transportation in the state of Louisiana, Plessy argues that these laws have denied him equality before the law. The majority disagrees and sets forth the principle of “separate but equal.” Justice Brown (1896) writes for the majority,

It is claimed by the plaintiff in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is ‘property,’ in the same sense that a right of action or of inheritance is property ... We are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called ‘property.’ Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man. The sole dissenter in Plessy sets up the juxtaposition between Jim Crow and color-blindness that frames the contemporary debate on race today. Justice Harlan, while acknowledging the reality of white supremacy, decries its support with the law, but with cold comfort:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. Even post-Emancipation, Blacks had no claim to the property rights of whiteness, nor full and equal access to rights of citizenship that entailed. White supremacy and anti-Blackness persisted in law, even in the face of Amendments to the Constitution, which purported to undo the same.