C. “[S] lavery ... as punishment for a crime”
This section examines religion's ideological connection to slavery and how slavery relates practically to criminal procedure. The Thirteenth Amendment to the United States Constitution begins with the statement: “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.” This amendment was not an outright ban on slavery since it legalized the imposition of slavery for one duly convicted for “crime.” Instead of wiping out the institution, the Thirteenth Amendment wed criminal justice and slavery by carving out an exception for criminals by reclassifying who could be enslaved--it was a shift from color to crime, which, over time, would prove to be largely one and the same.
As new hierarchies structured society, the Black Codes of the South were replaced by Jim Crow laws, which permitted authorities to arrest, prosecute, and imprison “coloreds” for behaviors in which whites could freely engage, and as a result, “blacks became a criminalized and demonized people.”
Under this system, criminals were exorcised from society, but not from the economic system, since the wedding of slavery and crime gave birth to convict lease schemes, chain gangs, and other various means of exploiting prison labor. Indeed, demonization of ex-slave populations helped to subdue and harness the people as a source of labor:
Imprisonment became an exorcistic ritual practice that removed demonized blacks from society, of which convict leasing became a way to reinsert blacks back into the economic order as slaves. White criminal punishment officials thus served as both exorcists and human resource managers for slavery all at once.
Two hundred fifty years of slavery made Americans proficient in the tactics of bondage and punishment, and “[t] he old slave system provided many traditions and customs for southern penology.” As the question of surveillance of slaves was of ultimate concern to slave owners, the need for constant surveillance created systems of identification that would become the precursors of modern day policing. The end of chattel slavery brought surveillance technology to the domain of criminal justice. The plantation gave birth to the “slave pass”--a written permission that slaves were forced to carry when traveling beyond the master's property--among other forms of surveillance, including organized slave patrols and a system of wanted posters for tracking runaway slaves. These three innovations worked in concert to limit slaves' mobility and power; the patrols have been described as an oft “overlooked tributary of modern American policing” and the tags as “an embryonic form of the modern [identification] .” These slaving tactics and technologies developed well before state-sponsored policing would begin in 1836, when the city of New Orleans created the first full-time civilian patrol. Thus, as a fully functioning system of criminal justice developed, the first civilian patrol inherited a tactical treasure from centuries of experience in slavery.
Prior to chattel slavery's evolution into penal forms, deep connections were forged between the institution of slavery and religion. For example, in the ancient Near East, slavery was a common practice and the institution had a pronounced presence in the social structure and ideology of the Jewish tradition--a practice that the Hebrew Bible takes for granted. Slaves were among the very first people circumcised under God's covenant with Abraham, were expected to live in fear of their master, and were classified as valuable property like cattle, gold, and silver.
Later in colonial America, Christian slave owners would point to other biblical passages to justify the enslavement of Africans. Justification often rested on a story that became popularly known as the “sin of Ham” or “curse of Canaan,” a narrative from Genesis about Ham, who comes across his father, Noah, sleeping off drunkenness and in the nude. As punishment for Ham's “sin” of seeing his father nude, Noah curses his own grandson, Ham's son Canaan: “Cursed be Canaan; lowest of slaves shall he be to his [brothers] .” In time, the curse was interpreted that Ham was ““burnt” and that his offspring had black skin, the mark that evidenced their subservience; how and when this narrative became an invective against Africans is debatable, but what is certain is that nowhere in the biblical teachings is the practice of slavery explicitly condemned, except that an Israelite could not be enslaved.
Christianity was a primary ideological ingredient that shaped American slavery, which contributed to formal systems of criminal justice. In the history of American punishment, the likening of prisoners to slaves was of central importance. Yet, of all religious influences on criminal justice, a religious experiment called the “penitentiary” would capture the world's imagination by apprehending the bodies of its citizens and illustrating a religious ritual legalized and institutionalized by the state as punishment.
