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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.

II. The Return of African-American Males to Institutionalized De Facto Slavery

The legal institution of slavery in the United States ended in 1865 with the adoption of the Thirteenth Amendment to the United States Constitution. However, the badges of slavery and bondage have lingered on into the twenty-first century as African-American males' constitutional rights are marginalized and abridged. Moreover, the Fifteenth Amendment was passed to ensure that the newly freed slaves had the right to vote. Yet, African-American males are systematically denied the opportunity to vote. Who would have thought that more than 100 years later, the descendents of newly freed slaves would be denied the right to vote under various state disenfranchisement laws? These laws have been upheld in most states, and achieve what slaves owners attempted to do with the Black Codes--prevent African-Americans from exercising their constitutional right to vote.

A. The Reactivation of the Black Codes Through State and Federal Statutes

After 1865, southern states passed a series of laws called Black Codes to control and limit the newly freed slaves' right to be free from human bondage. The Black Codes were designed to maintain some elements of slavery after the Civil War. The South had benefited from free slave labor, but after the Civil War, this readily-available labor pool diminished. Thus, plantation owners sought state and local governmental officials to promulgate legislation and ordinances that would again bind African-Americans to plantations. The ultimate goal of the Black Codes was to place the slave owners and the newly freed slaves in the same position as before the Civil War--in a system of free labor and bondage. There were no limitations to restrict laws placed on the newly freed slaves, especially in the south. For example, curfews and vagrancy laws were passed to place limits on their travel and the ability to leave the plantations. Vagrancy laws were especially insidious. A violation of a jurisdiction's broad and subjective vagrancy law resulted in substantial fines. A failure to pay the fine could result in the newly freed slave being forced to work on plantations, ostensibly to work to pay the fine.

As a result of the Black Codes, African-Americans were more harshly treated by state sentencing laws, prohibited from voting, restricted on travel, denied equal education opportunities, subject to racist prosecutors and judges, and lynched. Today, African-American males are similarly restricted in their ability to exercise their right to travel without fear of being racially profiled by law enforcement.There is also evidence that racial profiling of African-American males may lead to arrest and incarceration.

Our present legal system, especially the criminal justice system, has remnants of the Black Codes in state and federal laws. Specifically, state legislative branches of government have passed laws that have resulted in the mass incarceration of African-American males. The enforcement of statutes by the judicial system has also resulted in African-American males being disproportionately impacted by such laws. Similar to slaves, African-American males are disproportionately impacted by sentencing guidelines, state voting laws, law enforcement policies, prosecutorial abuse, and the death penalty. African-American males are also denied equal educational opportunities.

Unlike the Black Codes, these laws may not have been promulgated to intentionally marginalize the constitutional rights of African-American males; however, the effects of such laws are the same. African-American males are again treated as chattels in prison systems, which provide free labor and mass numbers of inmates to support an entire prison industry.

B. Mass Incarceration of African-American Males in the United States Penal System

The number of African-American males incarcerated in state and federal prisons is so startling that it is almost unbelievable. Specifically, in 2005 approximately 12% of African-American males in their late twenties were in prison or jail. The actual numbers are even more telling of the enslavement of African-American males in prisons and jails. At mid-year in 2005, of the 2.2 million individuals incarcerated, 543,000 were African-American males. Interestingly, black males in England face similar racial disparity in a common law justice system that also results in mass incarceration of black males. Indeed, the United States and England/Wales are among the industrial nations with the highest rate of individuals incarcerated in the world.

In addition, many states have invested billions of dollars in building new prisons to house the flood of African-American males who are on track for incarceration. There are no doubts that there will be a need for states to build additional prisons. The Justice Department reports that [a]bout 1 in 3 black males . . . are expected to go to prison during their lifetime, if current incarceration rates remain unchanged, and [a]n estimated 22% of black males ages 35 to 44 . . . had . . . been confined in State or Federal prison.

The government's War on Drugs has resulted in a disproportionate number of African-Americans being sentenced to prison. It has been suggested that the War on Drugs policy is a present-day Black Code that results in African-American males being targeted and sentencedto prison for extended periods of time. If this trend continues, it is projected that there will be more African-American males in prison than were enslaved between 1820 and 1860. Presently, there are more African-American males in prison than in college.

The recidivism rate for African-American males released from prison is also extremely high. Thus, the prison population continues to grow with new and returning African-American male inmates. This revolving door of imprisonment of African-American males is comparable to slaves who escaped from slavery but were easily tracked down by slave owners and returned into slavery. Because other institutional policies prohibit the employment of individuals with criminal records and the education system fails to train and educate African-American males, they often return to prison. This vicious cycle repeats itself over and over again.

1. Federal Prison Population of African-American Males

The incarceration of inmates in federal prisons continues to rise at an alarming rate. As the number of inmates in some state prisons is decreasing, the opposite is true for federal prisons. Approximately 200,000 inmates are in the federal prison system, which includes inmates in privately managed federal facilities. African-Americans represent approximately 40% of federal prisoners.

African-American males face racial disparities in the federal system as it relates to sentencing and time served. African-Americans, particularly males, are disproportionately impacted by federal sentencing policies. It is widely known and accepted that African-American male offenders are disproportionately impacted by the federal sentencing guidelines. The Federal Sentencing Reform Act was promulgated in 1984 to limit probation in the federal system, thus resulting in offenders serving longer sentences. Even with state laws that attempt to be consistent in sentencing regardless of race, African-American offenders still serve more time than whites for rape and violent offenses in state prisons.

Under the sentencing guidelines, African-Americans receive longer and more severe penalties for the use and sale of crack cocaine, compared to whites, who receive less time in prison when they are charged with the use and sale of cocaine. Indeed, whites who are arrested and charged with cocaine may be able to receive rehabilitation provided by their health care providers, in lieu of incarceration. The United States Sentencing Commission has recommended to Congress changes to the sentencing guidelines on the usage of crack and cocaine, which would have a lesser discriminatory impact on African-Americans. However, Congress has failed to take any meaningful actions. Similarly, after the Civil War, the newly freed slaves received harsher penalties than whites who committed the same or similar criminal acts. A prime example of disparity exists in cases involving the stealing of a hog by a black slave versus a white offender. Professor Finkelman describes the disparity in a Virginia law against stealing hogs, which provided a penalty of twenty-five lashes on a bare back or a ten pound fine for white offenders, while non-whites (slave and free) would receive thirty-nine lashes, with no chance of paying a fine to avoid the whipping. Similarly, African-American males received longer sentences than whites for violating the same laws.

2. State Imprisonment of African-American Males

The states with the highest incarceration rate per 100,000 residents are Louisiana, Georgia, Texas, Mississippi, Oklahoma, Alabama, Florida, and South Carolina. Even more striking, the southern states have the highest incarceration rate of any other regions in the country. How ironic that the states with some of the highest rates of incarceration in the country are southern states where slavery was prevalent. The mass incarceration of African-American males in the South has the effect of creating state slave plantations.

After Hurricane Katrina hit New Orleans and Louisiana, news reports vividly reported on the mass incarceration of African-American males, not only in local jails throughout the state, but also at the Angola Prison. The Angola Prison houses 5,000 prisoners, of which 75% are African-Americans. The Angola Prison is considered to be one of the largest prisons in the country and has had a history of being one of the worst prisons in the country. The prisoners at Angola were depicted in the Academy Award-nominated documentary The Farm. Similar to enslaved blacks, most prisoners at Angola, reportedly 85%, will never be released but will die while in prison. What makes the Angola Prison so unique is that it was previously an 8,000 acre plantation where thousands of slaves provided free labor. African-American males are disproportionately housed in other state prisons that have the reputation of abusing prisoners or maintaining a slave-like environment.

The incarceration of African-Americans in state prisons starts even before they become adults. The Justice Department reports that between 1985 and 1997 African-American inmates under 18 years old represented 58% of individuals under 18 years old in state prisons. Similarly, blacks were born into a system of slavery and remained in slavery from their childhood to an adult life of enslavement. The length of time African-American males serve in state prisons and jails has also grown. As a result of the State Truth-in-Sentencing Laws, which require offenders to serve a substantial portion of their[prison] sentence, the laws require offenders to serve 85% to 88% of their sentence, depending on the offense. The Violent Crime Control Act of 1994 provided for grants to states to build additional prisons and jails if they passed truth-in-sentencing laws. The enforcement of drug laws has had the greatest impact on the substantial increase in the incarceration of African-American males in state prisons.

A majority of states have passed truth-in-sentencing laws which have resulted in African-American males being incarcerated for longer periods of time, regardless that their behavior was good while in prison.

During the past 15 years, states have promulgated three-strike laws, which have resulted in offenders being incarcerated for life after their third qualifying offense. The State of California has used this law to incarcerate more than other states. It has resulted in more than 40,000 individuals receiving mandatory sentences under two/three strike laws. The State of California prison population is over 171,000. The State acknowledged in 2005 that prison facilities can no longer adequately and safely accommodate the large number of inmates. African-American male prisoners have been disproportionately impacted by these laws. Recent studies on the impact of the three-strike law and decreasing crime is negligible.

3. African-American Males in Local Jails

In 2002, more than 600,000 individuals were in local jails in the United States. African-American numbers disproportionately represented 40% of those in local jails, of which a majority were African-Americann males. In 2005, the number of individuals in local jails grew to approximately 750,000. The states with the highest jail populations are California, Texas, Florida, Georgia, and Pennsylvania. As in previous surveys, African-American males, particularly those in their twenties and thirties, are disproportionately incarcerated in local jails.

4. African-American Males on Probation and Parole

As the number of individuals incarcerated explodes so does the number of individuals on probation and parole. In 2004, more than four million individuals in the United States were on probation. A combination of individuals on probation or parole reached approximately five million. As with other data on correctional populations, African-Americans disproportionately represented one-third of those on probation.

5. Prisons for Profits

The mass incarceration of African-American males is part of a $20 billion prison industry. The privately managed prison system is similar to slave owners who profited from slavery. Corporations have contracted with states and the federal government to manage prisoners for profit. The numbers of private facilities continue to rise at an alarming rate. At the end of 2005, the number of inmates in private prisons was over 80,000. The use of private prisons by government, especially states, to house and supervise inmates has a long, troubling history in America. Often though, history reveals the abusive conductin human treatment of inmates at the hands of private contractors. The incarceration of African-American males supports an entire industry as it did during slavery when slaves were used to harvest cotton. The mass incarceration of African-American males provides for jobs, building contracts, medical services, and purchases of products and services. Major corporations, in particular, benefit from the millions of individuals incarcerated by charging exorbitant fees for phone usage, by selling food products to feed prisoners, and by selling uniforms. For example, in 1999, the Department of Justice reported that more than 200,000 individuals classified as staff were employed in jails and more than 150,000 were employed as correctional officers. In addition, the Federal Bureau of Prisons in 2003 employed approximately 15,000 correctional officers and 35,000 staff employees.

C. Voting Disenfranchisement of African-American Males

Approximately 1.4 million African-American males' ability to vote in this country has been abridged temporarily or permanently. States have promulgated voting laws which prohibit prisoners, parolees, and ex-felons from voting. State disenfranchisement laws represent the new poll tax, literacy test, grandfather clause, and property ownership requirements that were previously used to exclude African-Americans from exercising their right to vote.

The exclusionary voting policies of states were exposed in the 2000 presidential election, when it was determined that more than 200,000 African-American males of voting age in Florida were denied the opportunity to vote. Extensive legal scholarship has been published on voter disenfranchisement laws, and the devastating impact of such laws on African-American males. However, states have been slow to modify their disenfranchisement statutes to ensure that all their citizens have the opportunity to vote, as guaranteed by the Constitution and the Voting Rights Act. States that have established procedures to re-enfranchise ex-felons have made the process highly complicated or too costly for ex-felons to pursue.

There have been a number of unsuccessful constitutional challenges of state felon disenfranchisement laws. In Wesley v. Collins, an African-American male alleged that Tennessee's disenfranchisement law violated Section 2 of the Voting Rights Act of 1965. The court denied there was any violation of the Act. The court stated that [the state] may disqualify convicted felons from voting public without unlawfully interfering with equal opportunity of blacks to participate in the political process and to elect representatives of their choice.

Recently, the Circuit Court of Jefferson County in Alabama held in Gooden v. Worley that an Alabama law denying the right to vote to citizens convicted of moral turpitude was void until the legislature decided what crimes fall under this definition. The ruling may provide felons the right to vote.

The Supreme Court in Richardson v. Ramirez, held there was no Fourteenth Amendment limitations on states promulgating disenfranchisement laws. Justice Marshall in a dissenting opinion stated:

It is doubtful . . . whether the state can demonstrate either a compelling or rational policy interest in denying former felons the right to vote. The individuals involved in the present case are persons who have fully paid their debt to society. They are as much affected by the actions of government as any other citizens, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of the right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.

A majority of states prohibit individuals in prison, on probation, or on parole from voting. During the past decade, most states have eliminated the lifetime prohibition of ex-felons from voting. However, Florida, Kentucky, and Virginia disenfranchise ex-felons for life, even though African-American males are disproportionately harmed by such laws. According to the Sentencing Project, nine other jurisdictions--Alabama, Arizona, District of Columbia, Maryland, Mississippi, Nebraska, Nevada, Tennessee, and Wyoming--have laws that partially disenfranchise ex-felons.

Interestingly, the states that disenfranchise ex-felons for life are located in the South. The greatest concentration of slaves was also located in the South. And those slaves were also denied the right to vote. Moreover, the southern states have the highest percentage of African-American males incarcerated in the country.

After Reconstruction, southern states in particular, as well as other states, passed disenfranchisement voting laws to control and limit blacks' right to vote. For example, the State of Georgia restricts people from voting if they are in prison, on probation, or on parole, resulting in approximately 66,000 African-American males being denied the opportunity to vote. The present-day effect on African-American voters, and particularly African-American male voters, is still prevalent. For example, in Virginia, it is estimated that 110,000 African-American males are unable to vote, 100,000 in Alabama, 200,000 in Florida, 150,000 in Texas, and 80,000 in Mississippi. African-American males continue to face state restrictions on their right to vote.

State disenfranchisement laws are not limited to just voting but also to employment, housing, and the opportunity to serve on a federal jury. For example, many employers have policies which prohibit the employment of individuals with criminal records. Again, African-American males are adversely impacted by such laws and policies, similar to periods of slavery and past Reconstruction. The mass numbers of African-American males who are incarcerated will face the collateral effect of imprisonment once they are released and seek to exercise their constitutional rights.

Even though the concentration of the most severe voter disenfranchisement laws is in the South, other parts of the country have similar laws. Rhode Island had the most restrictive felon disenfranchisement laws in New England. Approximately 2% of the voting-age population are unable to vote due to having a felony conviction, whereas 20% of African-American males of voting age are prohibited from voting. Similarly, the State of Washington's disenfranchisement and restoration policies were challenged by racial minorities in Farrakhan v. Gregoire. Even though there was compelling evidence that there was a racial bias in Washington's criminal justice system which impacts minority ex-felons' right to vote, the court held that the State of Washington's felon disenfranchisement law did not violate Section 2 of the Voting Rights Act.

III. Conclusion

The mass incarceration of African-American males has resulted in the subordination of their constitutional rights of freedom and equal protection under the law. The struggle continues for African-American males to find their rightful place in society.

The massive disenfranchisement of African-American males in this country further isolates them from the general public. The isolation of African-American males is already evident in employment and education. The denial of voting further subordinates their status socially, economically, and politically. Without the right to vote, African-American males are devalued by the various political systems that promulgate policies that disproportionately impact their constitutional rights. Re-enfranchising African-American males will empower them to actively participate in our system of democracy. A failure to do so reverts African-American males to second class citizens, or even worse, subordinates them to a system of de facto slavery.



. Copyright 2007, Floyd Weatherspoon, Professor of Law, Capital University Law School (Columbus, Ohio).