Conscious of the grossly disproportionate rate at which Black people are incarcerated today, many scholars, documentarians, and civil rights activists draw a direct line of descent between the convict lease, chain gang, and criminal surety systems of the post-Civil War South and our own mass carceral state. Key to this origin story is the idea that the Thirteenth Amendment, ratified in 1865, serves as the legal foundation of today’s penal system. That amendment made the abolition of slavery and involuntary servitude the law of the land—except for those convicted of crimes. It implicitly authorized former slaveholders to create a penal system that could re-enslave freedpeople as punishment for any number of newly concocted crimes. As the story goes, the same amendment that fostered “slavery by another name” still grants counties, states, and the federal government the right to strip convicted offenders of their freedoms and put them to forced labor.
Like all powerful origin stories, this one is both morally resonant and analytically insightful: In certain key respects, today’s carceral state operates much as the South’s convict lease camps and chain gangs operated—that is, as variants of slavery (if not of the chattel variety) and as constitutionally sanctioned instruments of racist social control. In neither era are prisoners meaningfully compensated for their work; in neither is the work voluntary. Just as the convict lease and chain gang systems were part of a larger apparatus of power that expropriated and subjugated Black people in enormous disproportion to white people, our carceral state operates within an expansive web of racist disempowerment. And both systems teach incarcerated and free Black people a chilling lesson about their precarious place in the social order.
As insightful, morally clarifying, and politically useful as this narrative may be, it illuminates some truths while obscuring others. It overlooks some of the other deeply buried roots of our system of mass incarceration and forced labor, while also neglecting more recent political-economic forces that, as Ruth Wilson Gilmore and others have shown, reshaped and exponentially expanded our own carceral state. Although the Thirteenth Amendment underwrote the drive to push convicted freed people back into bondage and hard labor, it also constitutionalized a brutal system of penal involuntary servitude that had been operating in the United States for more than four decades before the Civil War. Indeed, the amendment was as much a capstone as a foundation.
In what follows I offer a supplement to the dominant historical narrative of the southern origins of forced prison labor (and mass incarceration) while bringing questions of class, wage-labor capitalism, and the shifting relationship between expropriation and exploitation to bear on our understanding of the current carceral regime.