I Cannot Tell A Lie-Honest Abe Enslaved The Free
The 13th amendment set the stage for bias-based policing, mass incarceration, and systemic racism in criminal justice.
President Lincoln’s signing of the 13th amendment in 1865 abolished slavery and involuntary servitude and African Americans are eternally grateful however, many are not familiar with the exception clause of that same amendment. That clause italicized below set the stage for the mass incarceration of African Americans, the unconscious biases that exist among police officers, and the systemic racism that permeates the U.S. criminal justice system today. In its entirety the 13th amendment reads:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.
During the first industrial revolution (1760–1840), slavery was fully institutionalized into the American economic system and cotton was its driving economic engine. In fact, cotton was the world’s largest commodity at the time. “More than half of the nation’s exports in the first six decades of the 19th century consisted of raw cotton, the cheapest and best cotton came from America’s southern states. Almost all of it grown and picked by slaves,” according to Slavery’s Capitalism: A New History of American Economic Development, edited by Sven Becker. The slave economy propelled the industrial revolution and provided untold riches and countless profits for plantation owners, and other industries dependent on slave labor.
After the 13th amendment, suddenly four million slaves were free. No longer forced to work as slaves at the beck and call of their former slave masters. This undoubtedly turned the profit model of slave owners on its head and assuredly drove several to the verge of economic collapse. Suddenly the livelihood, the way of life, and the estate of plantation owners were at risk of coming to an abrupt end.
Fearing financial ruin from the dearth of free labor, politicians in southern states leveraged the exception clause of the 13th amendment (except as a punishment for crime whereof the party shall have been duly convicted) to save slave owners from financial devastation. In 1865 and 1866 several southern states devised what was known as black codes sometimes called black laws. These laws were severely restrictive and designed to reenslave African Americans, keep white supremacy in place, and preserve the economic status quo by forcing former slaves to work again without pay.
Under this separate system of justice, black codes consisted of newly created nebulous offenses. Many were behavioral types of offense and were considered petty offenses if committed by a white person. They were vague in nature and open to interpretation by governing authorities. Under these new laws, a black person could be arrested for almost anything; vagrancy, obscene language, public drunkenness, loitering, being disrespectful of a white person, “reckless eyeballing”- looking at a white woman inappropriately, being out in public after sundown, being unemployed and on and on.
Most “black code” offenses were punished by fines, which ex-slaves could not afford to pay. Those who failed to pay were remanded to prison where they became part of the state’s convict lease system. Convict leasing was essentially a form of re-enslavement whereby, southern states leased prisoners to companies in need of hard workers and free labor. These companies included private railways, mines, large plantations, public works, and a host of other companies. Many of the newly freed slaves were leased back to the same slaveholder that they were freed from.
States profited immensely from convict leasing, and lessees profited from a consistent pool of slave labor to rebuild or expand their businesses. The prisoners earned no pay for their hard labor but instead were overworked, faced dangerously barbaric and deadly working conditions, and in many cases forced to work until the last breath of their life. States lined their coffers with a stream of consistent revenues they received from the convict leasing business. Private industry profited handsomely from the abundance of free laborers who perform back-breaking work in plantation fields, coal mines, turpentine factories, lumber camps, and numerous other industries.
The conflation of the two, state’s greed for leasing revenues and private industry’s demand for slave labor, created an incentive to aggressively imprison African Americans on trumped-up charges triggering the nation’s first prison boom. As a result of states conspiring with private industry and plantation owners to entrap, imprison, and lease blacks to private industry, the prison population in southern states exploded. “Georgia’s prison population grew tenfold between 1868 and 1908; Mississippi’s quadrupled between 1871 and 1879; North Carolina’s grew tenfold from 1870 to 1890; Florida’s increased 850 percent from 1881 to 1904; Alabama’s increased 650 percent between 1869 and 1919”, as stated in Randall G. Shelson article in The Black Commentator. In 1898, nearly 73 percent of Alabama’s total revenue came from convict leasing. As Douglas Blackmon wrote, in his book Slavery By Another Name. “Because of their reliance on convict leasing and its success, Southern states did not build any prisons until the late 19th century (emphasis added).” In other words, the turn around time from the arrest of the ex-slaves, to their being leased to work for private companies was so swift that states did not have to build prisons to house them.
By 1860, three years before the signing of the Emancipation Proclamation by President Lincoln, the slave population had increased to over four million. Slaves constituted about one-third of the population of the 15 southern states 12.3 million people. In South Carolina and Mississippi, more than half of the population were slaves. This according to the bicentennial edition of the Historical Statistics of the United States (1970), Franklin (1988). The American South relied almost exclusively on slave labor to drive their economy but lived in continual fear of slave rebellions upsetting their comfortable way of life.
As the slave population continued to increase in southern states so did paranoia of a possible slave uprising. This paranoia led to the formation of slave patrols. According to historian Gary Potter, slave patrols served three main functions:
“(1) to chase down, apprehend, and return to their owners, runaway slaves;
(2) to provide a form of organized terror to deter slave revolts; and,
(3) to maintain a form of discipline for slave-workers who were subject to summary justice, outside the law.”
Fundamentally slave patrols were the first state-sponsored police forces. (Ritchie & Mogul, 2008) These patrols consisted of organized groups of white men, who policed slaves by wielding an increasing reign of terror and intimidation to discourage slave uprisings, suppress defiance, capture runaways, and keep slaves in their place. Their tactics were physically brutal, violent, and included severely beating, whipping, and flogging slaves. They inflicted psychological and emotional distress by intentionally breaking up families and depriving them of food, medicine, and other necessities. These tactics were employed by slave patrols to maintain control and reinforce the social order of white supremacy. Slave patrols were the soil that our current day police system grew in.
After the Civil War, states replaced slave patrols with police officers who enforced “Black codes;” in 1865, Mississippi and South Carolina became the first states to establish these codes. (Bass, 2001; Brown, 2005). As mentioned previously, “black codes were designed to re-enslave freedmen and freedwoman by making many activities that had previously been classified as petty offenses (and that remained petty offenses when committed by Whites) into serious crimes when committed by black adults and children (e.g., loitering, breaking curfew)”. (Bass, 2001; Brown, 2005)
After the Civil War, Southern police departments often carried over aspects of the slave patrols. In fact, our current day police systems in existence throughout the United States is a direct descendant of slave patrol policing. Sally E. Hayden writes in her book Slave Patrols: Law and Violence in Virginia and the Carolina. “First formed in 1704 in South Carolina, patrols lasted over 150 years, only technically ending with the abolition of slavery during the Civil War. However, just because the patrols lost their lawful status did not mean that their influence died out in 1865. Hadden argues there are distinct parallels between the legal slave patrols before the war and extralegal terrorization tactics used by vigilante groups during Reconstruction, most notoriously, the Ku Klux Klan.”
She continues, “The history of police work in the South grows out of this early fascination, by white patrollers, with what African American slaves were doing. Most law enforcement was, by definition, white patrolmen watching, catching, or beating black slaves.” Seems like nothing much has changed in today’s world of policing African Americans. Today’s police tactics are largely rooted in the tactics of the original slave patrol which in effect was America’s first police force.
Underscoring this point is Turner, K. B., Giacopassi, D., & Vandiver in their 2006 book “the literature clearly establishes that a legally sanctioned law enforcement system existed in America before the Civil War for the express purpose of controlling the slave population and protecting the interests of slave owners. The similarities between the slave patrols and modern American policing are too salient to dismiss or ignore. Hence, the slave patrol should be considered a forerunner of modern American law enforcement.”
MODERN DAY POLICING
Inherent bias toward African Americans passed down from years of punitive policing by slave patrols are intrinsic in the DNA of America’s law enforcement system. The tactical and functional similarities between slave patrols and modern-day police forces are strikingly similar. Slave patrols were organizations of white men who patrolled plantations wielding terror and force to discourage slave uprisings, revolts, and to keep slaves in check. They could forcefully enter any slave’s home at will on the mere suspicion of possessing contraband of any type or making plans to escape. They used harassment, violence, intimidation, and corporal punishment sometimes resulting in death to control the behavior of slaves, repress dissent, and protect the interests of the slaveholders.
For the most part, slave patrols disbanded after the Civil War ended in 1865, however, some continued on through bands of white citizens or through official policing organizations throughout the south. The period following the Civil War is known as the Reconstruction era (1865–1877). The 13th amendment abolishing slavery was the first of the reconstruction amendments designed to reintegrate Southern states from the Confederacy and 4 million newly-freed slaves into the United States in a non-slave society. The South, however, saw Reconstruction as humiliating and despised the idea.
After the passage of the Thirteenth Amendment, slaves learned that their newly found freedom enraged white southerners and left them to the tender mercies of their adversaries. They were often attacked by white mobs and constantly targeted by police simply for claiming their freedom. Organized and violent white resistance to Reconstruction was born in Pulaski, Tennessee, on December 24, 1865, when six Confederate veterans formed the first chapter of the Ku Klux Klan (KKK), writes Allen W. Trelease, in his book White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction.
Functioning from its inception as a policing organization a paramilitary arm of white supremacist interests, the Klan engaged in a campaign of terror, violence, and murder targeting African Americans and white people who supported Black civil rights. The Klan and similar organizations, including former slave patrollers, were largely independent but shared the oath of local police to defend the powerful, protect their interest, uphold white supremacy and recapture the pre-civil war status quo.
Variations of their tactics continue to be used today by police departments throughout the country; criminalization of African Americans and people of color, profiling, stop and frisk, no-knock warrants, chokeholds/lynchings, etc. These methods of policing accentuate the underlying problem of policing today. The original blueprint for today’s police organizations was drawn from slave patrols, and built into its design is the belief that African Americans are second class citizens, prone to violence, criminalistics, and can only be kept in check by force. These predispositions are at the heart of police violence toward African Americans.
ORIGIN OF POLICE VIOLENCE
You can’t answer the question of persistent police violence toward African Americans without understanding the history of policing in America. The wealth of slave-driving plantation owners was intrinsically tied to slave labor. As the slave population continued to increase, so did the paranoia of possible slave uprisings putting an end to wealth. Their anxiety led to the formation of slave patrols to police slaves and suppress uprisings, protect slaveholders’ property, uphold the social order, and enforce white supremacy. Their policing methods employed violent aggression, brutal techniques of discipline, and severe beatings to instill terror and control the behavior of slaves. The brutality we witness today against people of color at the hands of the police is not a new occurrence. Cell phone videos and police body cams lay bare for the world to see what African Americans and people of color have known all along. Such brutality is deeply rooted in the ferociously savage policing of African Americans by slave patrols first formed in South Carolina in 1704.
Even in the face of large protests, public outcry, and the proliferation of cell phone cameras, I’ve asked myself, why does police brutality continue to happen? The answer is quite simple. Police brutality continues because officers have no fear of criminal or financial consequences. Qualified immunity shield police from civil lawsuits and rogue cops are rarely charged or convicted for unreasonable force despite convincing video evidence. When we fail to hold police officers accountable, they quickly learn that they can use unreasonable force against victims with impunity. This in effect legitimizes their actions and leaves black and brown people at risk of violence and even death at the hands of those called to protect and serve.
It’s the opinion of many that escalated use of unreasonable force is the consequence of prosecutors choosing not to indict officers, and civil and criminal trial court decisions repeatedly favoring police. When prosecutors, judges, and juries excuse police misconduct, it sends the wrong message. Leaving police to believe that such misconduct is now acceptable and that they are free to unleash whatever force they desire without fear of retribution in their interactions with the public.
Recently publicized instances of police brutality against African Americans and people of color have strongly suggested that we have a problem of systemic racism in our criminal justice system. The murder of George Floyd is a tragic reminder of the persistent racial bias that continues to plague many of America’s police organizations today. The problem is rooted in two factors; slave patrols and the exception clause of the 13th amendment. As mentioned earlier slave patrols formed the blueprint for today’s police organizations, police terms like “patrol” and “beat” and “stake out” all derive from the slave patrol regime according to Peter Laarman published article: A Locked And Loaded Covenant: The Religious Roots Of America’s Gun Culture.
Slave patrols despised African American’s and were rife with predispositions that blacks were nothing more than chattel property used for the exclusive benefit of superior white slave owners. Although the labor of African Americans immensely benefited plantation owners financially, African Americans were never valued as human beings and were always perceived to be up to no good, and more often than not were treated worse than animals. Their lives simply did not matter. These sentiments were passed down to succeeding policing organizations generation after generation and so here we are today.
When police organizations are indoctrinated with policing policies that were built, honed, and firmly established back in the days of Black Codes and further refined during the Jim Crow era to keep black people in their place. It should be no surprise that some of those same proclivities would be in effect today. Those biases lead to over-policing and over-profiling of black communities resulting in more arrest. “Once arrested, African Americans are more likely to be convicted; and once convicted, more likely to face stiff sentences. Black men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men”, according to Sentencing Projects Criminal Justice Facts.
WHERE DO WE GO FROM HERE?
African Americans and people of color, or any American for that matter, should not have to live with the question of whether an interaction with the police will result in an outcome resulting in physical harm or unequal treatment by the criminal justice system. The public outcry of thousands of protestors seems to indicate that America has had enough. People across the globe are demanding the types of changes that will eradicate the systemic injustice in today’s criminal justice system that adversely affects minorities. Reform is long overdue and the time has come for America to address the oppression and fundamental injustices, stemming from centuries of inequitable treatment of minorities by its law enforcement apparatus.
It’s been stated that America’s original sin was slavery. That may be true, but I argue that it’s greatest sin was the creation of a criminal justice system that guaranteed slavery. A system rooted in Black Codes and Jim Crow laws that result in brutal and inhumane treatment by the police, mass incarceration, and systemic inequities in the criminal justice system towards African Americans. The labor of slaves, whose lives didn’t matter, built this country. A country that affords it’s privileged citizens the benefits of the greatest standard of living the world has ever known and a legal system that protects their basic rights to enjoy it. But yet it largely deprives black people of those same benefits and equal justice under the law. The day of reckoning has come, the time for change is now Because Black Lives Matter.