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The 13th Amendment—Prison Slavery and Mass Incarceration

December 10, 2013


The Thirteenth Amendment of the U.S. Constitution reads as follows:

Section 1. Slavery prohibited.

“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.”

The primary objective of the Thirteenth Amendment was to end a barbaric and vicious period in American history of chattel slavery, peonage, and involuntary servitude. The Thirteenth Amendment was the last Government effort to institute legislative and congressional policy to dispute with the slave trade and mode of slavery being practiced by Southern states. Prior to its enactment, the ordinance of 1787 embraced the concept for the abolition of chattel slavery, as the Supreme Court stated in Bailey v. Alabama, 219 U.S. 219 (1911):

“The language of the Thirteenth Amendment was not new. It reproduced the historic words of the ordinance of 1787 for the government of the Northwest Territory and gave them unrestricted application within the United States and all places subject to their jurisdiction.

The plain intent was to abolish slavery of whatever name or form, and all badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of man is disposed of or coerced for another’s benefit which is the essence of involuntary servitude.”

Here, emphasis is directed to the exception clause presently in the Thirteenth Amendment that virtually informs slavery in America was never abolished. Slavery and involuntary servitude were institutionalized in the prison system. As aptly stated by the U.S. Supreme Court in its long standing precedent in Ruffin v. Commonwealth, 62, Va (21 Gratt.) 790, 796 (1871):

“A convicted felon, whom the law in its humanity punishes by confinement in penitentiary(s) instead of death, is subject while undergoing punishment, to all the laws which the legislature in its wisdom may enact for the government of that institution and control of its inmates. For the time being, during his term of service in the penitentiary, he is in a state of penal servitude to the state. He has, as a consequence of his crime, not only forfeited his liberty, but all of his personal rights except those which the law in its humanity accords him. He is for the time being a slave of the State. … They are slaves of the State undergoing punishment for heinous crimes committed against the laws of the land. …”

Therefore, there is no adequate or substantial debate on mass incarceration that fails to begin with this understanding of the law. In essence, the U.S. Constitution sanctifies the very vestige and foundation of the inhumane treatment of U.S. prisoners. A conference, debate or meeting that does not begin with a clear understanding of the historic, legal determinant leading to the present reality of mass incarceration, misses the basis in which any discussion of abolition must begin.

In 1994, I wrote in response to a May 12, 1994, Wall Street Journal featured article entitled, “Making Crime Pay—Triangle of Interests Created Infrastructure to Fight Lawlessness—Cities See Jobs; Politicians Sense a Popular Issue and Businesses Cash In—The Cold War of the 90s”:

“If contemporary history is any indication, it is evident that government and business “Cold War of the 90s” is targeted at the New Afrikan (Black) and Latino community. In searching for people to pillage and conquer for profits, the collusion of government, military, and business interests has turned inward, and now the enemy is us, it is the poor, it is the new immigrants of color, and it is the disenfranchised. … To gain support for this new conquest of manifest destiny, this opening of the new domestic frontier, the general public, i.e., Euro-Americans, must be persuaded to support what ultimately is the resurrection of involuntary servitude and slavery in America. To ensure that this happens, the government’s nefarious alliance with the mass media has created an air of hysteria about crime. It has done so even though the Federal Bureau of Investigation recently reported that crime in America is decreasing—not increasing. The power of the media and government is extremely awesome. It is the power to shape our collective consciousness and attitudes. The politicians are then able to pass into law draconian sanctions—sanctions that appease the will of the people demanding a safe society, but ultimately serve the interest of restructuring the industrial-military-complex, by forging an infrastructure for the proliferation of prison building.”

The unholy “Triangle of Interest” of government, media and business, throughout the 90’s, shaped the public dialogue to grow the prison industrial complex, creating a profit-motive foundation for mass incarceration. Being cognizant of the method in which the U.S. has grown to the distinction of holding more citizens imprisoned than any other industrialized nation, serves to formulate a strategy to deconstruct the prison industrial complex. As such, it is easily discovered the present reality of mass incarceration was planned, it is a result of government public policy, as stated by W.E.B. Dubois, in Black Reconstruction in America: “It was the policy of the State to keep Negro laborer poor, to confine him as far as possible to menial occupations, to make him a surplus labor reservoir and to force him into peonage and unpaid toil.” (1935) (See, also, Report, Asst. Att. Gen. (Charles W. Russell) to Att. Gen. 1908, in Dubois, Occasional Papers, American Negro Academy, No. 15p). Hence, it was the State’s determination to maintain oppressive living conditions, such conditions that breed crime and eventual imprisonment and slave labor. How else can anyone come to terms with the fact that it costs more to house a prisoner per year than to send a student to college for four years?

Since the growing national debate on mass incarceration has raised the moral bankruptcy of America’s prison policy, the religious community has sought to enjoin a challenge to the prison industrial complex. In “Religion and Revolution,” an essay I wrote in 1999 on the Progressive National Baptist Convention call for the end to jailing and killing of Black youth, I stated: “… For the Progressive National Baptist Convention to require its 2.5 million members and 2,000 churches to take a forward political position on this issue, should serve notice on all religious denominations of the need to aggressively challenge and politically counter state governments and private business prison-building.” However, since 1994, it is believed and alleged the Progressive National Baptist Convention of 1999 dropped the ball, failing to forge a national determination prohibiting the mass incarceration of millions of young people of color.
Ergo, the principle lesson that needs to be confronted to deconstruct the prison industrial complex by the religious community in alliance with legal and progressive organizations is to borne an approach consistent with “liberation theology.” In the above mentioned essay, I expounded that: “With this understanding, we note that liberation theology is to create a fresh theological approach to reflection and praxis, or committed involvement in struggle. Yet, as here argued, the genesis of liberation theology has evolved from the efforts of people wanting to be free of oppression and appealing to God or the divine for intervention of their oppression. Thus Prophet Moses applied liberation theology when he freed the Hebrews from Egyptian domination. The same can be said of Prophet Mohammad (PBUH) when he liberated Mecca from the idolatry of the Arabian clans. Therefore, it is not farfetched to rediscover and qualify theology as a potential liberation force. This is particularly significant, given that Prophet Jesus sought to restore moral and religious principles at a time when Roman oppression prevailed in his land, castigating the money lenders, prostitutes, fraudulent rabbis and avaricious land owners.

Hence, worship in this context is based on the premise there is a need for liberation—to be liberated from conditions that hinder spiritual growth and evolvement, conditions that deny basic human quality of life that allows for the spirit of God to reign. Thus, God becomes the liberator, the spirit of God as the liberator is evoked and religion develops the means and method by which the spirit of a liberating God is manifested. There is no one set pattern in which to evoke or manifest the spirit of a liberating God. Rather, peoples struggling to be liberated must call upon their God in accord to given conditions of their exploitation, and oppression and the form of worship they practice. … The hearing the word of God anew must turn revelation into revolution; in a sense, liberation theology is the spiritual revelation of revolution.” This is what Dr. Martin L. King, Jr., understood when he wrote his “Letter from a Birmingham Jail” challenging the religious community to evoke a liberating God in enjoining the civil rights movement to bring an end to Jim Crow segregation.

Given the task of challenging the multi-layered reality of the New Jim Crow, the prison industrial complex, it behooves the religious community to come to terms with liberation theology praxis. “Liberation theology,” Paulo Freire explains in The Politics of Education, “demands of its followers a knowledge of socio-political science … (and) since science cannot be neutral this demands an ideological choice.” He further explains that the church must be prophetic in its approach, applying the Exodus story to incarnate the spirit of liberation or the God of liberation. Ideological choice in respects to socio-political science definitely puts theopraxis to task, causing its practitioners to consider how best to manifest materially their spiritual faith and inclinations. As stated in the Holy Qur’an, “oppression and tumult is worse than slaughter … fight oppression where you may find it.”

Hence, any theopraxis must, according to the New Afrikan theologian James H. Cones, have the following components: “(1) be a transformation of the self-identity of the communities that have been crushed by oppression and an affirmation of those communities; (2) be a vision of solidarity among the particular communities; (3) and the empowerment coming from an enhanced self-image and commitment to solidarity must be translated into goals for political, socio-economic, and united actions.”

Thereby, it is established that to build a national determination to end mass incarceration and deconstruct the prison industrial complex demands a broad-based uniform and united campaign. The bankrupt moral posture of the U.S. criminal justice system requires a bottom-up restructuring of public policy pertaining to crime and punishment, beginning with a public discussion and policy of redistribution of wealth to end poverty, homelessness, and forge a right to work with living wages program. To ensure money appropriated for prison building or maintenance is not greater than the cost to send a student to 4 years of college. To further raise the moral determinant to abolish prison slavery, by demanding that the exception clause of the 13th Amendment of the U.S. Constitution be excised, removing the profit-motive base from the prison industrial complex. It is this kind of socio-political science that Paulo Freire, Dr. James H. Cones, and Dr. Martin L. King, Jr. forward as the means and method of evolving revelation into revolution.

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