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Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: a Revisionist Account

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Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: a Revisionist Account 41816-nyu_94-6 Sheet No. 43 Side A 12/10/2019 14:44:50 \\jciprod01\productn\N\NYU\94-6\NYU602.txt unknown Seq: 1 6-DEC-19 15:21 MASS INCARCERATION, CONVICT LEASING, AND THE THIRTEENTH AMENDMENT: A REVISIONIST ACCOUNT JAMES GRAY POPE* Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpreta- tion that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that convicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end, such as raising state revenue, generating private profits, or subjugating black labor. Within a few months of the Amendment’s ratification, the Republican majority in the Thirty-Ninth Congress had outlawed the early, race-based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which the Senate postponed when the focus of Republican strategy shifted to black voting rights. The Republican reading faded from view after the Democratic Party regained con- trol of the Deep South. For several decades, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment authorizes such practices. Courts similarly honor the Democratic reading on the assumption it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth. Neither courts nor advocates have, however, taken into account the framers’ views. 41816-nyu_94-6 Sheet No. 43 Side A 12/10/2019 14:44:50 Their interpretation sank from sight not because it was wrong but because Democratic paramilitaries terminated Reconstruction, freeing states to expand con- vict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. * Copyright © 2019 by James Gray Pope, Distinguished Professor of Law & Sidney Reitman Scholar, Rutgers Law School. Darrell A.H. Miller, Ahmed White, and Noah Zatz provided extensive feedback, revealing weaknesses in the argument and suggesting improvements. Jim Atleson and Dorothy Roberts pointed out a serious gap that I tried to fill. Many thanks also to Ricky Blum, William Carter, Dennis Childs, Jack Chin, Michael Hallett, Peter Kellman, John Leubsdorf, Cortney Lollar, and Rebecca Zietlow for sharing their wisdom on numerous points. Finally, the Article benefitted from discussions at the American Society for Legal History Annual Conference in Las Vegas, Nevada, October 27, 2017, and the Conference on the Thirteenth Amendment and Economic Justice, University of Las Vegas, March 13, 2018. 1465 41816-nyu_94-6 Sheet No. 43 Side B 12/10/2019 14:44:50 \\jciprod01\productn\N\NYU\94-6\NYU602.txt unknown Seq: 2 6-DEC-19 15:21 1466 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1465 INTRODUCTION ................................................. 1467 R I. ORIGINAL MEANINGS OF THE PUNISHMENT CLAUSE .... 1470 R A. Pre-Ratification Discussion of the Punishment Clause .............................................. 1474 R B. Discussion and Enactment of the 1866 Civil Rights Act .................................................. 1478 R C. The Kasson Resolution and the Kasson-Thayer Bill . 1485 R D. Interpretive Significance of the Early History ........ 1490 R II. CONVICT LEASING AND THE PUNISHMENT CLAUSE ..... 1501 R A. Convict Leasing and the Original Meanings of the Punishment Clause .................................. 1506 R 1. Servitude in the Employ of Private Businesses . 1509 R 2. Punishment Too Harsh for the Particular “Crime Whereof the Party Shall Have Been Duly Convicted” ...................................... 1510 R 3. Servitude Inflicted Without Any Sentence to Hard Labor ..................................... 1511 R 4. As a Punishment for “Crimes” Shaped Not for Public Protection, but for Labor Extraction and Racial Control .................................. 1511 R 5. Convicted for the Purpose of Generating Public Revenue and Private Profit...................... 1513 R 6. Undermining the Free Labor System ............ 1514 R B. Punishment Clause Jurisprudence During the Era of Convict Leasing ..................................... 1515 R C. The Present-Day Significance of Convict Leasing . 1525 R III. MASS INCARCERATION AND THE THIRTEENTH AMENDMENT ............................................ 1527 R 41816-nyu_94-6 Sheet No. 43 Side B 12/10/2019 14:44:50 A. Mass Incarceration from a Thirteenth Amendment Perspective .......................................... 1528 R B. The Current Jurisprudence of the Punishment Clause .............................................. 1533 R C. Republican Understandings Applied to Present-Day Prison Labor ....................................... 1538 R 1. Servitude Inflicted Without Any Sentence to Hard Labor ..................................... 1540 R 2. Punishment Too Harsh for the Particular “Crime Whereof the Party Shall Have Been Duly Convicted” ...................................... 1546 R 3. Servitude in the Employ or for the Benefit of Private Businesses ............................... 1546 R D. Mass Incarceration and the Badges and Incidents of Slavery .............................................. 1550 R CONCLUSION ................................................... 1553 R 41816-nyu_94-6 Sheet No. 44 Side A 12/10/2019 14:44:50 \\jciprod01\productn\N\NYU\94-6\NYU602.txt unknown Seq: 3 6-DEC-19 15:21 December 2019] MASS INCARCERATION & THE 13TH AMENDMENT 1467 “[A]s the Constitution of the United States [gives] the power to inflict involuntary servitude as a punishment for crime, a suitable law should be framed by the state jurists [to] enable them to sell into bondage once more those Negroes found guilty of certain crimes.” —John T. Morgan Former Confederate General, 18661 “Slavery’s still alive Check Amendment 13 Not whips and chains All subliminal Instead of ‘ni**a’ They use the word ‘criminal’” —Common, featuring Bilal for Ava Duvernay’s film, 13th, 20162 INTRODUCTION The Thirteenth Amendment prohibits slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”3 From John T. Morgan to Common, Americans of many political stripes have read the exception broadly to strip Thirteenth Amendment protection from any person convicted of a crime. Today, even the fiercest critics of mass incarceration gener- ally accept that the Punishment Clause permits practices they con- demn as brutal and exploitative.4 This stance reflects the prevailing jurisprudence. “The Thirteenth Amendment,” asserts Circuit Judge Richard Posner, “has an express exception for persons imprisoned 41816-nyu_94-6 Sheet No. 44 Side A 12/10/2019 14:44:50 pursuant to conviction for crime.”5 On this view of the Clause, a sen- 1 SIDNEY ANDREWS, THE SOUTH SINCE THE WAR: AS SHOWN BY FOURTEEN WEEKS OF TRAVEL AND OBSERVATION IN GEORGIA AND THE CAROLINAS 324 (1866) (quoting county newspaper’s paraphrase of a public speech). 2 COMMON, FEATURING BILAL, Letter to the Free, on BLACK AMERICA AGAIN (Def Jam Recordings 2016). 3 U.S. CONST. amend. XIII, § 1. 4 Ava Duvernay’s film 13th, for example, casts the Amendment as the villain, affirmatively authorizing convict leasing, mass incarceration, and the sale of convict labor to private corporations. See 13TH (Netflix 2016) (paraphrasing the Amendment and concluding: “So once you have been convicted of a crime, you are in essence a slave of the state”); see Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 HARV. L. REV. 1, 8 (2019) (observing that prison abolitionists rarely draw on the Constitution and that some view it as a cause of the problem). 5 Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999) (emphasis added); see also Hale v. Arizona, 993 F.2d 1387, 1394 (9th Cir. 1993) (“Convicted criminals do not have the right freely to sell their labor and are not protected by the Thirteenth Amendment against involuntary servitude.”); Ray v. Mabry, 556 F.2d 881, 882 (8th Cir. 1977) (calling an inmate’s complaint against required 90–120 hours of manual work per week “meritless” 41816-nyu_94-6 Sheet No. 44 Side B 12/10/2019 14:44:50 \\jciprod01\productn\N\NYU\94-6\NYU602.txt unknown Seq: 4 6-DEC-19 15:21 1468 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:1465 tence of imprisonment renders a person vulnerable to servitude at the discretion of legislatures, administrative agencies, or prison officials for any variety of purposes including generating
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