I. Crafting a Caste System: Post-Reconstruction Lawmaking in the South

The Civil War and its aftermath fundamentally altered the social, economic, and political landscape of the American South. By freeing the slaves and establishing their rights as citizens on equal political footing with their former masters, the Reconstruction Amendments both eliminated the South's primary source of free or cheap labor and created substantial political competition for white Southerners whose democratic system had never included a black voting bloc. Ironically, the amendments' criminal exceptions also provided the means to circumvent both of these changes.

A. Political Oppression Through Felon Disenfranchisement

Most African Americans still lived in the South following the Civil War, constituting more than forty percent of the region's population, and a majority in states like Mississippi, Louisiana, and South Carolina. Even toward the end of Reconstruction in 1877, black people had established themselves as a formidable Southern political force. Using their new, constitutionally protected voting rights, black men were elected to state and national positions in the 1872 and 1876 elections.

This promising era ended abruptly in 1877, however, when federal troops were withdrawn from the region as part of the Hayes-Tilden compromise, a political agreement in which Republicans relinquished control over the South in exchange for the Presidency. With federal forces no longer present to enforce the radical new legal equality that had been constitutionally created just a decade earlier, Southern states were eager to regain the power they had lost. The Fourteenth Amendment empowered such states to restrict voting rights on the basis of criminal conviction, providing a means of restraining black voting power.

Felon disenfranchisement can be traced back to ancient Europe, where individuals convicted of infamous crimes were routinely punished with civil death, which included, among other things, losing all citizenship rights. English settlers imported this idea into their colonial laws upon their seventeenth century arrival to North America. After the Revolutionary War was won and America established as an independent nation, the framers of the Constitution allowed disenfranchisement laws to persist by giving each state broad authority to design its own voter qualification procedures. This power, coupled with the criminal exception encoded within the Fourteenth Amendment, allowed felon disenfranchisement to be used as a racially discriminatory measure immediately following Reconstruction and continuing into the present day.

Although the Fourteenth and Fifteenth Amendments banned the explicit race-based disenfranchisement of black people, each state has the authority to set its own voter qualification standards under Article I, Section 4 of the Constitution. In addition to poll taxes, literacy tests, grandfather clauses, and violent intimidation, felon disenfranchisement emerged as a legal means of preventing black people from voting. Though some historians argue that the Fourteenth Amendment's participation in rebellion or other crime provision was clearly intended to apply narrowly to the former Confederacy, the language allowed for broader application and Southern lawmakers did not hesitate to use the provision as a discriminatory tool.

Indeed, in 1901 the president of the Alabama constitutional convention stated that the purpose of the proceedings was to establish white supremacy in this State to the extent permissible within the limits imposed by the Federal Constitution. Similarly, delegates to the 1890 Mississippi constitutional convention intentionally sought to craft a disenfranchisement law that would apply disproportionately to African American offenders. State legislators achieved racially discriminatory results through race-neutral language by carefully tailoring their laws to only disenfranchise those convicted of specific furtive offenses, such as theft and burglary-- crimes believed to be most often committed by black people.

Even the Mississippi Supreme Court acknowledged the motivation and effectiveness of this lawmaking technique in an 1896 decision discussing its recently enacted electoral laws:

It is in the highest degree improbable that there was not a consistent, controlling directing purpose governing the convention by which these schemes were elaborated and fixed in the constitution. Within the field of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race. By reason of its previous condition of servitude and dependence, this race had acquired or accentuated certain peculiarities of habit, of temperament, and of character, which clearly distinguished it as a race from that of the whites,--a patient, docile people, but careless, landless, and migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites. Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone. A voter who should move out of his election precinct, though only to an adjoining farm, was declared ineligible until his new residence should have continued for a year. Payment of taxes for two years at or before a date fixed many months anterior to an election is another requirement, and one well calculated to disqualify the careless. Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder and other crimes in which violence was the principal ingredient were not.

Though felon disenfranchisement was just one of many legal forms of political oppression employed in the South following Reconstruction, it has proven the most enduring and long lasting, largely due to its explicit constitutional endorsement. Empowered by the criminal exception to citizenship rights, Southern lawmakers were able to manipulate felon disenfranchisement as a means to legally and constitutionally prevent black people from exercising their political power.

B. Forced Labor Through Convict Leasing

In addition to unprecedented black political competition, the post-Civil War South faced a fundamentally altered economic system. During the existence of slavery, the region's agrarian economy depended upon the labor of enslaved black workers who, being more property than employee, were allotted enough food and lodging to survive but were forbidden any other basic freedoms. Emancipation and the ratification of the Thirteenth Amendment rendered such labor conditions illegal and the former Confederate states, facing war damage and massive casualties, could not rely on the familiar black laborers upon whose backs many a plantation and fortune had been built. Historian David M. Oshinsky describes the seemingly hopeless position of white planters:

Desperate planters and farmers struggled simply to survive. Their slaves had been freed; their currency was worthless; their livestock and equipment had been stolen by soldiers from both sides. In the fertile Yazoo Delta [of Mississippi], plows and wagons were as scarce as mules, with no means to buy new ones. The cavalryman fortunate enough to have been paroled with his horse . . . was the envy of his neighbor.

Many of these farms were now tended by women and elderly men, the war having wiped out more than one-quarter of the white males in Mississippi over the age of fifteen.

Former slaves were not immune to the harsh realities of the desolate Southern economy; while owners of dying plantations or struggling farms desperately worked to salvage subsistence living from their property and goods, black people rarely possessed property or goods from which to make such a living. Many former slave masters pressured former slaves to enter lifetime [work] contracts, hoping that the black population's economic desperation and fear of violent intimidation would enable the recreation of slavery. In 1865, for example, a former South Carolina slave master ordered black people formerly enslaved on his plantation to enter into such agreements. Four refused and were driven off the plantation without pay. When armed guards were dispatched to retrieve them, two were killed, one escaped, and the fourth, a woman, was recaptured and tortured. Despite these terrorizing tactics, former slaves generally remained unwilling to relinquish their newfound freedom.

The federally run Freedman's Bureau eventually refused to approve lifetime labor contracts. Then, largely spurred by coercive labor practices in the New Mexico territories, Congress restricted slavery-like contracts by enacting the Anti-Peonage Act of 1867. Under Congressional authority to pass laws enforcing the Thirteenth Amendment, the Anti-Peonage Act prohibited forced labor, even as a form of debt repayment. Due to the Thirteenth Amendment's criminal exception, however, the law had no application to prisoners convicted of a crime. For black Southerners, this would prove a fateful omission.

The free black population was often blamed for the South's defeat and desperate post-war condition. Their marginalized position rendered them particularly vulnerable to persecution and exploitation at the hands of the criminal justice system, especially one designed for that very purpose. Former slaves' new status as freed men and women, coupled with the Thirteenth Amendment's language permitting involuntary servitude as punishment for crime or rebellion, provided the South with an opportunity to create a new population of slave laborers with laws that, although ostensibly colorblind, would effectively reestablish the white supremacist power structure so fundamental to the region's operation.

As early as fall 1865, the Mississippi legislature passed a series of Black Codes outlining prohibited acts that constituted crimes when committed by free black people. These laws criminalized vagrancy and enticement to vagrancy, pressuring black people to return to their former plantations. Other prohibited behaviors included causing any disturbance of the peace, speaking or acting in any way that insulted others, treating animals cruelly, possessing firearms, vending alcohol, or serving as a Christian minister without a license. Legislators also sought to enforce social separation of the races by declaring intermarriage punishable with lifetime imprisonment. These laws joined already existing and selectively enforced prohibitions against theft.

The link between black labor and evolutions in post-Civil War Southern criminal lawmaking is most clearly illustrated by statutes that branded black people criminals for not working:

An 1865 Mississippi statute required African American workers to enter into labor contracts with white farmers by January 1 of every year or risk arrest. Four other states legislated that African Americans could not legally be hired for work without a discharge paper from their previous employer-- effectively preventing them from leaving the plantation of the white man they worked for. In the 1880s, Alabama, North Carolina, and Florida enacted laws making it a criminal act for a black man to change employers without permission.

Before long, this brand of criminal laws spawned an overwhelming population of black convicts in Mississippi and the many states that had codified their own Black Codes. While a black prisoner was a rarity during the slavery era (when slave masters were individually empowered to administer discipline to their human property), the solution to the free black population had become criminalization. In turn, the most common fate facing black convicts was to be sold into forced labor for the profit of the state.

Beginning as early as 1866, Southern states adopted systems of convict leasing through which farmers or businesses could temporarily purchase primarily black prisoners to do agricultural or other forms of work at a very low cost to the lessee, and a very high profit to the lessor. The high potential for profit and high demand for laborers created substantial corruption and abuse of the criminal justice system. Countless individuals were sentenced to years of forced labor when unable to pay the court fees associated with prosecution for minor crimes. In 1895, after investigating the health conditions of a Mississippi prison mine, Dr. Thomas Parke, a Jefferson County health inspector, observed: The largest portion of the prisoners are sentenced for slight offenses and sent to prison for want of money to pay the fines and costs. . . . They are not criminals . . . .

The deplorable working conditions and disregard for laborer safety common at convict leasing labor sites, as well as state-run penal plantations such as Mississippi's infamous Parchman Farm, led historian David M. Oshinsky to conclude that this form of involuntary servitude permitted by the Thirteenth Amendment was actually worse than slavery. Antebellum slave masters typically made a substantial investment in purchasing a slave and thus had significant incentive to protect the health and safety of the black laborers on their plantations. In contrast, convict leasing rates were very low, and the region's corrupt criminal justice system guaranteed a plentiful supply of laborers such that it was cheaper to replace workers who died of illness or injury than it would be to implement practices aimed at preventing harm altogether.

In the decades after the Civil War freed the slaves and the Constitution was amended to abolish slavery in America, countless men, women, and even children toiled and often died in the conditions of forced labor, under the auspices of law and order, neatly tucked into the easily manipulated criminal exception to the Thirteenth Amendment. For Southern lawmakers intent on reestablishing a pool of black forced labor and white dominance over it, this loophole provided a means to do so constitutionally, with little risk of federal intervention. Hiding behind the criminal law as justification, these states paved the way for a twentieth century fraught with the same violations of rights, economic oppression, and inhumane treatment that had marred the black experience in America for centuries before. As Douglas A. Blackmon writes in Slavery by Another Name:

For the next eighty years, in every southern state, the questions of who controlled the fates of black prisoners, which few black men and women among armies of defendants had committed true crimes, and who was receiving the financial benefits of their re-enslavement would almost always never be answered.