Did you know that for-profit incarceration can be directly traced to African slavery?
This article is the first in a series documenting the moral problems of for-profit incarceration. It traces the direct line from chattel slavery in the colonial United States to private prisons – at each step, government policy has worked to keep black Americans marginalized, abused, and in many cases, an asset to enrich others.
Slavery to the War on Drugs – A History of State-Sponsored Subjugation
Chattel Slavery – Explicitly Condoned by State and Federal Laws and Constitutions
Slavery is rooted in the history of the United States, appearing soon after the first European settlers, as far North as the Puritans in New England and as far South as Florida. From the 18th century and through the first half of the 19th century, the importation of African slaves “defined people—slaves, slave-owners, non-slave holding whites, free blacks and native Americans. Politically, the slave society impacted everything from Henry Clay's push for the American System to the Nullification Crisis to the Mexican War."1
Black Codes – State Laws Authorizing Forced Labor: Convict Leasing
This foundational era of state-sanctioned chattel slavery2 characterized by total legal ownership of one person by another ended with the Civil War and passage of the Thirteenth Amendment. Shortly thereafter, however, there was a sinister movement in some states to use new criminal laws to re-enslave the former slaves, especially black men. These laws essentially criminalized black life and were known as “black codes,” which varied in details but shared two common features: a broad vagrancy law that allowed local officials to arrest people for minor infractions and aggressive enforcement against black men.
The success of the scheme to re-enslave had the cooperation of legislatures, mayors, police, prosecutors and wardens. Following the sentencing of many black men en masse, prison wardens then “leased” the manual labor of thousands of black men for little or no cost by allowing a third-party to pay the assessed fine. Then, the person who paid the fine (usually a white landowner) could force the person convicted of such crimes as not having a job (usually a black person) to labor for the benefit of the landowner. (Notably, white people arrested under the vagrancy laws could generally take an oath of poverty and avoid being hired out as a laborer.) So, despite being emancipated from slavery in a formal sense, black people, especially those in the south, faced slavery by a different name: convict-leasing.
Jim Crow – State Laws Keeping a Black American Underclass
As the convict-leasing system receded during the first half of the 20th century, black Americans in the United States faced a growing body of de jure segregation, known broadly as Jim Crow laws. This era was characterized by broad political disenfranchisement of black Americans through poll taxes, literacy tests, tightened residency and record-keeping requirements, and comprehension tests.3 Social segregation (separate “colored” facilities and redlined housing districts, for example) and systemic disparate access to government benefits (i.e., poorly funded schools) prevented black Americans from accessing the wealth and status accumulated by white counterparts throughout the 20th century. Finally, violence against black populations (spanning the spectrum from property damage and vandalism to lynching) was largely ignored by the judicial system. Notably, the segregation and disenfranchisement of this era was accomplished using the coercive power of the state against black Americans, and the same state power was withheld from black Americans when it could have been used to protect their property, life, and pursuit of happiness.
War on Drugs – State and Federal Governments Disproportionately Imprison People of Color
The mid-1960s marked the beginning of the end of the Jim Crow era, after the landmark Brown v. Board of Education ruling (1954), the passage of the Civil Rights Act of 1964, and the anti-miscegenation ruling in Loving v. Virginia (1965), which ended the prohibition on mixed-race marriage. But then, the next stage of government subjugation of black Americans began in 1970 with the War on Drugs, characterized by four decades of increasing punishment for drug-related activity, including simple possession. Unsurprisingly, this era saw drastic enforcement and sentencing disparities that disproportionately affected black men along with a shocking increase in the prison population.
Enter the Private For-Profit Prison Industry
The Creation and Growth of Private Prison Corporations
Recognizing the potential to profit from this explosive growth, several corporations partnered with various government agencies to incarcerate people in privately run, for-profit prisons, at once benefiting from harsh laws and influencing their creation. The number of people incarcerated in private facilities grew with the prison population generally – the latest numbers show that over 100,000 people are housed in private prisons – representing almost 10% of the total prison population – and over 25,000 people are housed in private immigration detention facilities – representing almost 75% of immigration detainees overall.
And perhaps more shocking than the number of people held in private prisons and detention centers is the meteoric rise. Between 2000 and 2016, the number of people in all prisons increased by 9%. In comparison, the number of people in state-contracted private prisons increased by 31%, in federally-contracted private prisons increased by 120%, and in private immigration detention centers increased by a whopping 442%.
Institutional Similarities Between Private Prisons, Convict Leasing, and Chattel Slavery
Similarities abound between private incarceration and convict-leasing: both institutions rely on over-enforcement of laws that are easily violated, both disproportionately affect black Americans, and both use the labor of those subjugated to enrich owners. Importantly, for-profit incarceration and convict-leasing draw inspiration from and rely on the systemic disadvantages created by centuries of chattel slavery.
And all three institutions -- for-profit incarceration, convict-leasing, and chattel slavery -- operate under the principle that dominion over another person’s body directly contributes to the enrichment of the owner.4
Far from hiding from this conclusion, the responsible corporate entities share the sentiment publicly. CoreCivic (formerly Corrections Corporation of America), for example, told its shareholders that its business model “could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.”
Following in the history of subjugation of black Americans, private prisons disproportionately house people of color:5
It’s well known that people of color are vastly overrepresented in US prisons. African Americans and Latinos constitute 30 percent of the US population and 60 percent of its prisoners. But a new study by University of California-Berkeley researcher Christopher Petrella addresses a fact of equal concern. Once sentenced, people of color are more likely than their white counterparts to serve time in private prisons, which have higher levels of violence and recidivism (PDF) and provide less sufficient health care and educational programming than equivalent public facilities.6
The Theoretical Downsides Manifesting in Reality
At least two lawsuits in federal courts are revealing how private corporations are exploiting labor to enrich their shareholders. In Colorado, civil immigration detainees are participating in a certified class action suit, which alleges, among other things, that they were forced to perform menial labor including scrubbing toilets and waxing floors while being paid less than one dollar per day. Likewise, a lawsuit in Georgia alleges that CoreCivic forces detained immigrants to work for extremely limited wages (from a dollar per day up to 50 cents per hour) by serving limited amounts of nutritionally limited food and pushing detainees to purchase supplemental food at an overpriced commissary.
High recidivism rates cost communities and taxpayers dearly but they are signs of higher profits to prison corporations. Recent studies suggest that private prison facilities offer fewer education programs and work programs, both of which are proven to help people successfully reintegrate after release. These studies starkly recall the anti-literacy laws of the 19th century, which were likewise designed to keep black people “down”.
Over the course of three centuries, for “African Americans, unfreedom [has been] the historical norm.” Mass incarceration including private incarceration and immigration detention represent yet the latest iteration of slavery in the United States, through which powerful groups reap personal profit on the backs of marginalized groups, increasing the value of the corporation as soon as the prisoner becomes a number on the balance sheet. State sanctioned slavery, whether constituted by literal chattel slavery, convict-leasing, or coerced labor in privately owned facilities represents a moral failing of the United States and its legislators and other officials.
1 https://www.theatlantic.com/personal/archive/2011/09/the-slave-society-defined/244581/ The concept of a slave society discussed in this article is based on the understanding that when slavery reaches a certain level of pervasiveness, the owner-slave relationship affects all of society, even non-slave people, institutions, and relationships.
2 Chattel slavery is the classic form of slavery, in which a person is completely owned by another and can be sold in the same way as other types of property. Referring to the institution as “chattel slavery” recognizes that slavery is a broad concept that encompasses other practices such as sexual slavery, where a person might not be owned like property, but is nonetheless coerced into sexual activity for the benefit of another, or forced marriages, where a woman is not owned by her husband, but has a small subset of rights and minimal autonomy.
3 To more effectively target these disenfranchisement measures at the black population, many states simultaneously passed grandfather laws, which protected low-income and less educated white residents from the effects of the new laws.
4 Public prisons also use labor – images of men wearing orange jumpsuits while cleaning highways and performing back-breaking menial tasks abound in popular culture. There is a key moral difference between labor for the benefit of the public and for a private institution, because the former may find justification in the person who committed a crime against society repaying that action by doing tasks that benefit society at large. When the labor is aimed at enriching a private corporation, that justification disappears.
5 For-profit institutions disproportionately house people of color, including not only black Americans, but also those of Hispanic descent and Native Americans. This post focuses on the history of enslavement of black Americans and the link to for-profit incarceration; however, everyone is at risk when the profit motive influences justice, and the burden is borne most by vulnerable groups.