The U.S. 13th Amendment, rather than completely abolishing the value and practice of slavery and involuntary servitude (particularly servitude for debts), chose to permit it in the form of an “exception” for those convicted of a crime. Why did that happen in 1864-65 and why was it viewed as acceptable? What were its consequences?
According to Michael Vorenberg, in Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (2001), when the language of abolishing slavery and involuntary servitude “except as punishment for a crime” was first proposed by a Senator from Missouri (himself a former slaveowner), he was copying language to that effect in the 1787 Northwest Ordinance. The Northwest Ordinance, outlawed slavery in the newly-acquired territories north of the Ohio River “otherwise than in the punishment of crimes whereof the party shall have been duly convicted.” The Ordinance also accepted the fact of slavery or indentured servitude in all original states and permitted the capture and return of fugitive slaves who escaped into the territories.
It is crucial that during the subsequent debates over ratification of the 13th Amendment, its full meaning and intention was not in fact spelled out; legislators’ concerns at the time were primarily focused on whether or not to free enslaved persons in Confederate territory. Senators’ major focus and concern, in debating the Amendment, was not on the “exception” whose legal and moral values were seemingly taken for granted, but rather over the question whether or not the ex-slaves should be given full rights as citizens, such as the right to vote. Ultimately, even that issue was left undecided until the U.S. 14th Amendment (1868), giving all persons born or naturalized in the U.S. citizenship rights and equal protection under the law, and the U.S. 15th Amendment (1870), prohibiting the abridgement of voting rights on account of race, color, or previous condition of servitude. Nonetheless, the continuation of forms of slavery and involuntary servitude in Northern or Southern prisons via the 13th Amendment’s exception was simply accepted.
As a result, forms of harsh and demeaning punishments typically inflicted on prisoners in the U.S.—which included whipping, branding, and hard labor—still remained both widespread and taken for granted. Historians such as James Q. Whitman (Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe, 2003) argue that this in good measure derived from a general identification of prisoners with slaves: both had what was viewed as low social status and thus could be permitted to receive corporal punishment alongside things like the loss of voting rights and the right to serve on a jury. Along with harsh punishment and the loss of their freedom, prisoners were actively stigmatized with infamy, shame, and a loss of their human dignity, all for the intended purpose of deterring future crime.
Why has that portion of the Amendment remained unchanged since 1865?
With the continuous admission of new states into the Union after the Civil War, as well as the resistance to Reconstruction efforts in southern states, there ceased to be any uniform national approaches to prison practices or any impetus to revise the “exception” codified in the U.S. 13th Amendment. Instead, the advent of Jim Crow laws and practices in the South and the withdrawal of federal troops from there in 1877 led to continued harsh penal practices (chain gangs) and, especially in in many Northern and Midwestern states (but also the South), the leasing-out of convicted persons to private businesses. This shift to a system of penal servitude linked to contracts with private businesses was stimulated by the goal of managing the rising costs of states’ prison systems. Thus, even in the North, prisoners came to be disciplined in almost military style, in order to turn them into obedient and inexpensive labor that could be profitably contracted out to private manufacturers. Severe corporal punishments continued to be used for disciplinary purposes in this system. In the process, this “contract servitude” continued to possess many of the hallmarks of slavery: prisoners were turned into virtual “industrial slaves,” dependent upon external powers and authorities, deprived of any rights, and generally viewed as having a debased moral character. (See Rebecca McLennan, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1770-1941, 2008).
Nevertheless, in the years before the First World War this system—taking various forms in different states–was widely seen as failing because, despite all efforts, prisoners were not being turned into full-time, “productive employees.” This led to a short period (1913-17) of progressive prison reforms beginning in states like New York and Massachusetts. The goal briefly became that of restoring prisoners to being self-directed, functionally educated, and employable citizens upon their release. But a series of counter-developments after WWI—namely, the flood of discharged soldiers re-entering the workforce, sporadic outbursts of crime (some linked to the control of the black markets in alcohol arising during Prohibition), and finally an economic recession and Great Depression of 1929—led to actions and developments which undermined the reforms: (1) extreme anti-crime legislation (mandatory sentencing, imprisonment for life), (2) overcrowding of prisons, and (3) ultimately to a retreat from any effort to turn prisoners into productive workers. Public opinion was radically turned against efforts at “progressive” penal reforms.
In the meantime, state legislatures began banning prison industries from engaging in interstate sales, even as production simply for state-use itself also declined (or was challenged by private businesses). Remaining efforts at vocational training of prisoners became a low priority. The so-called progressive project of using prisons for rehabilitation shifted toward what Rebecca McLennan calls the purely managerial project of creating “obedient” prisoners within stable, secure prisons. This system was then reinforced by the advent of various new technologies which used physical force (tear gas, enhanced weaponry, higher walls, etc.) to ensure prisoners’ docility and obedience. This managerial system of the 1930s and 40s was then only accentuated and reinforced when federal and state leaders in the 1970s and 80s proclaimed a “war against drugs”, which led to enhanced prison sentences, an even larger overcrowding of prisons, and political campaigns selling to the public the simplistic message of the necessity of being “tough on crime” as the solution to stopping crime. No space was given for a public reflection or debate on the human and social injuries inflicted by the continued existence and use of the 13th Amendment’s “exception” for slavery and involuntary servitude.