Excerpted From: Ion Meyn, White-on-Black Crime: Revisiting the Convict Leasing Narrative, 2024 Wisconsin Law Review 533 (2024) (125 Footnotes) (Full Document)

IonMeynBetween 1880 and 1915, the Southern criminal legal system enslaved and re-enslaved legally emancipated Black persons. Under the conventional account, convict leasing was facilitated by the Thirteenth Amendment, which permitted enslavement of anyone “duly convicted” of a crime. Those convicted who could not pay their fines were leased to businesses, which promised to pay the prisoner's debt in exchange for labor. Under the conventional account, expansively worded vagrancy laws permitted law enforcement officers to articulate probable cause as they targeted Black persons for arrest. Under this account, however discriminatory the enforcement practices, those convicted were factually and legally guilty.

Based on empirical data, this Essay challenges this conventional account to contend many Black persons sent to forced labor were not “duly convicted” but were victims of White-on-Black crimes such as kidnapping, perjury, false imprisonment, peonage, reckless endangerment, and reckless homicide. Accepting this alternative account has significant repercussions. First, the term “convict leasing” becomes over inclusive; it transforms Black victims into criminals as it erases the underlying White-on-Black crime. Second, the alternative view discredits the historical Black crime rate because it includes crimes that were in fact committed by White perpetrators. Third, the alternative view centers White beneficiaries, inviting a close analysis of their criminal conduct and a forensic accounting of ill-gotten gains. Fourth, in the face of doctrinal efforts to erase the state's responsibility for racism, the alternative view highlights the state's role in constructing and maintaining racial subordination. .

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Under the conventional account, convict leasing was an odious but legally legitimate practice. Recent attention given to the Thirteenth Amendment's “duly convicted” exception helps expose the criminal legal system's critical role in racial subordination. The prevalence of statutes that targeted Black persons or granted broad discretion to arrest also support this account. This conventional view provides an explanation for a significant number of cases in which a person was arrested, convicted, and sent to forced labor.

And yet, there is growing evidence that many convictions were not facilitated by law, but rather the result of conspiracies to kidnap able-bodied Black men. Archival county-level data indicates convictions occurred in lockstep with the labor needs of businesses that contracted with local state actors. In addition, records indicate numerous personal accounts from victims and their families that arrests and convictions occurred in the absence of any criminal suspicion or probable cause. These statistics and testimonials suggest many Black “convicts” were victims of human trafficking. Given the nature of the trafficking--multiple sites of detention and transfer among multiple parties--a criminal conspiracy was formed. Additional crimes such as reckless endangerment and reckless homicide were the natural and foreseeable result of this conspiracy.

Archival research is woefully incomplete, reflecting the social and political commitment to the racial order. Acknowledging racial harms challenges the racial order; erasing racial harm is, conversely, a tool of maintaining that order. One can see this erasure played out today on the national stage, with presidential candidates denying America was ever a racist country. This erasure of the racial order finds doctrinal support: less than twenty years after chattel slavery, and in the midst of debt peonage, lynching, racial terror campaigns, and convict leasing, the Court wrote, “there must be some stage in the progress of a [Black person's] elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.”

Blackmon shared that, before he launched his investigation into convict leasing, historians he spoke with told him that “the details of what really happened couldn't be determined. Official accounts couldn't be rigorously challenged, because so few of the original records of the arrests and contracts under which black men were imprisoned and sold had survived.”

But, as Blackmon found during his investigation:

[I]n the attics and basements of courthouses, old county jails, storage sheds, and local historical societies, I found a vast record of original documents and personal narratives revealing a very different version of events. In Alabama alone, hundreds of thousands of pages of public documents attest to the arrests, subsequent sale, and delivery of thousands of African Americans into mines, lumber camps, quarries, farms, and factories. More than thirty thousand pages related to debt slavery cases sit in the files of the Department of Justice at the National Archives. Altogether, millions of mostly obscure entries in the public record offer details of a forced labor system of monotonous enormity.

That these historical resources have been virtually undisturbed indicates the weak foundations upon which the conventional account of convict leasing sits.

The picture is thus incomplete. Within the area of criminal law, historians and sociologists continue to conduct case studies that reveal a fine-grained understanding of on-the-ground deprivations that help to excavate the topography of racial harm. Such works represent original perspectives based on historical research to uncover what many White academics and commentators for so long could not or did not want to see. There is much research to be done. But the picture that begins to emerge suggests our conventional framing of the period is incomplete if not erroneous: those who were “duly convicted” might more often represent the exception, not the rule.

Assistant Professor, University of Wisconsin Law School.