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.