The 13th Amendment abolished slavery after the Civil War—but not for all. Lawmakers left a loophole, also known as the “ Punishment Clause,” within the Amendment that outlawed slavery “except as a punishment for crime whereof the party shall have been duly convicted.” As a result,slavery was not outlawed in prisons. To this day, legalized slavery has bent the American criminal justice system, fanned the flames of mass incarceration, and stripped millions of people—particularly Black Americans and people of color—of their most basic human rights.
Immediately following the ratification of the 13th Amendment, during Reconstruction and accelerating after Reconstruction ended, Southern jurisdictions arrested Black Americans in large numbers for minor crimes codified in new “Black Codes,” like loitering or vagrancy. Then sheriffs would exploit the Punishment Clause to lease out the imprisoned individuals to work landowners’ fields—in some cases on the very plantations where they had previously been enslaved. This re-enslavement was so prevalent that by 1898, 73% of Alabama’s state revenue came from renting out the forced labor of Black Americans.
Engine of Modern Mass Incarceration: By facilitating and incentivizing the conviction of Black Americans for minor crimes, the 13th Amendment’s loophole drove the over-incarceration of Black Americans, and especially Black men. This pattern has continued unbroken through the Jim Crow era, the “war on drugs,” and the proliferation of “three strikes” laws, more severe plea deals, and harsh mandatory minimums—all of which disproportionately impact communities of color.
Profiting From Forced Labor: To this day, many states and the federal government mandate that all able-bodied incarcerated people work. Incarcerated people are not protected by workplace safety laws that help keep other Americans safe on the job. Even today, 155 years after slavery was supposedly abolished in the United States, private prison corporations profit from forced labor, as do companies that sell their goods—which are made by forced labor from un- or under-compensated people—to unsuspecting consumers.
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