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Floyd D. Weatherspoon

Permission Pending: Floyd D. Weatherspoon, The Mass Incarceration of African-american Males: a Return to Institutionalized Slavery, Oppression, and Disenfranchisement of Constitutional Rights, 13 Texas Wesleyan Law Review 599 (2007) (151 Footnotes Omitted)


In a class discussion with law students in my African-American Males and the Law Seminar, I asked them if they could think of an institutional system where mass numbers of individuals are involuntarily placed in servitude for extended periods or life. In addition, they lost the right to vote, to freely travel, to obtain an education, to gain meaningful employment, were more harshly punished than whites who committed the same crimes, and housed in deplorable conditions. Without hesitation, the law students responded that I was describing the institution of slavery in America or the period after Reconstruction. In reality, I was describing the present status of African-American males in America who are imprisoned in mass numbers. The present day plight of African-American males parallels the experiences of Africans who were enslaved in America and the experiences of African-Americans after Reconstruction.

Similar to the mass number of Africans enslaved in America during the colonial period and prior to the Civil War, mass numbers of African-American males have temporarily or permanently lost the right to vote, to freely travel without harassment from governmental officials, to obtain a quality public education, to obtain meaningful employment, and are often punished more severely than whites who commit the same crimes.

The theme of this conference explores the quest for freedom and justice by reflecting on the seminal anti-slavery case, Somerset v. Stewart. In Somerset, a black male slave sought freedom through the English court system. James Somerset was enslaved in Virginia. He subsequently traveled to England with his master, Charles Stewart. There, Somerset escaped and sought the assistance of the English court system for freedom. Somerset's lawyers made a compelling and convincing argument to Chief Justice Lord Mansfield that English law did not support the slave owner's claim that he could, at will, remove his slave from England and sell him to another owner in another country.

With much trepidation, Mansfield granted Somerset's freedom based on the principle that there was no positive English law supporting the slave owners' claim. Mansfield held that he could not say this case is allowed or approved by the law of England; and therefore the black must be discharged.

How ironic and sad that more than 200 years after the Somerset decision, African-American men in America continue to seek freedom and justice through an American justice system unsympathetic to the plight of African-American males. Similar to James Somerset, African-American males in the United States have faced a long and treacherous journey for justice and equality. From Dred Scott, to Plessy, to Scottsboro Boys, and Brown, the journey continues to evolve. Moreover, at every step of the American justice system, African-American males face racial disparity.

This Article expands on the plight of James Somerset by exploring how the American justice system disenfranchises African-American males of their constitutional rights of liberty and equal justice, thus placing them in a system of de facto slavery. This Article will also reveal how the American justice system has not only had a devastating impact on the social and economic status of African-American males, but also on their constitutional rights of freedom and justice. Specifically, this Article explores how the mass incarceration of African-American males is a system of involuntary servitude for life, similar to the institution of slavery. This Article documents the mass incarceration of African-American males in federal, state, and local prisons and jails throughout the United States. Evidence is presented that illustrates a direct correlation between the incarceration of African-American males and the loss of their rights to vote in state elections throughout this country.