To summarize the racist history of crime and punishment in the United States in one section of one chapter of one book is a daunting task. Consider this a summary of the key points with the disclaimer that this history deserves a far more in-depth conversation.

For the sake of our brief history discussion, let’s begin in 1865 at the end of the Civil War in the United States. The basis for this war was the battle over slavery, among other concerns about how much power the federal government should have over state governments (basically, if the federal government could force state governments to stop the act of slavery). At this time came the adoption of the Thirteenth Amendment to the U.S. Constitution, which prohibited slavery and involuntary servitude for everyone unless they were being punished for a crime. This exception, which will be discussed more later in this chapter, was a loophole taken advantage of by those wishing to continue profiting off the forced labor of the previously enslaved. While the country was being put back together after the Civil War (a period called Reconstruction), money was tight, and many white people in the South were angry about losing both the war and their free slave labor. It is largely for this reason that those in power created the “Black Codes.” These codes were a set of laws specifically designed to limit the freedom and upward potential of anyone who was previously enslaved. The Black Codes limited what jobs a previously enslaved person could have, denied them the right to quit a job, limited what kind of property they could own and where, and outlawed any behaviors that would result from not being able to get a job or find a place to live. For example, it became illegal for Black people to be found “walking without a purpose” or “walking at night” (Delaney et al., 2018).

With all the ensuing arrests of previously enslaved individuals, the country experienced its first prison boom in the late 1800s (Adamson, 1983; Delaney et al., 2018). Many prisons were built by those who were to be incarcerated there themselves and filled with 95 percent Black inmates (Adamson, 1983; Delaney et al., 2018). Prisons also practiced convict leasing, a practice where inmates were leased back to plantations and forced to work on rebuilding the South and in agricultural fields, again essentially enslaving them to white landowners and private companies (Terrell, 2021).

Convict leasing was technically stopped for private use in 1928, but such forced labor continued under other names. For example, governments were allowed to use chain gangs for public projects. Chain gangs were made up of incarcerated people, almost all of whom were Black, who worked in brutal and abusive conditions to build roads and other public projects. For example, figure 7.3 is a photo of a corrections officer overseeing a group of incarcerated men building what is believed to be a road (Terrell, 2021). The agriculture that previously benefited from forced free labor on private plantations was moved to prison farms across the South. The most notable example is Angola (Louisiana State Prison, as shown in Figure 7.4), which was a former plantation and continues to this day to operate as a prison farm benefiting from the labor of those incarcerated there. In this manner, convict leasing has been rebranded as prison labor even though slavery and involuntary servitude remain at its core.

In the Reconstruction era, 100 percent of the incarcerated people assigned to work on prison farms were Black. Anyone who was white and incarcerated was sent elsewhere for their punishment (Delaney et al., 2018). These different paths through the criminal legal system continue to this day and will be discussed more in the next section.

Great Migration and White Flight

Much of this convict leasing and prison farming activity was concentrated in the South until what has become known as the Great Migration, beginning around 1910 and lasting roughly 60 years. During this time, many Black people moved North to get away from the segregated and oppressive South. This time also coincided with massive waves of immigration from European countries, making resources limited among the new mix of Black, immigrant, and poor populations. The inevitable competition over scarce resources among these groups created a setting ripe for propaganda to promote white power and supremacy and spread negative stereotypes and images of people of color. Cultural and media messaging promoted the notion that Black, immigrant, and poor populations were “less than” and barbaric as they fought for their survival and that of their families. However, those in power recognized there was danger in these groups banding together and revolting against their oppressors. For this reason, the messaging was tailored to stoke in-fighting and maintain competition between the groups, thereby keeping their influence at a minimum. They went so far as to reframe European immigrants as “white” instead of Irish or Italian or any other predominantly light-skinned country of origin. In this manner, everyone else was treated as the unwanted other simply because they had a darker shade of skin. Even though these white immigrants still faced many economic challenges, they could now hold on to the low rung of the social racial ladder and benefit from at least not being considered a person of color (Delaney et al., 2018). In other words, the oppression was manipulated to benefit those in positions of power so they could minimize any threat to their authority and wealth.

Over time, as people of color moved into urban areas to find work, white people began to move out. This movement of white people from racially diverse areas to the suburbs is known as “white flight.” If you want to learn more about how white flight still enforces segregation, you can view the American Psychological Association article in the Chapter Resources. Around the 1950s, white people (who were the only ones who could get the jobs and pay that made them able to afford such changes) began to leave urban areas and move out to the suburbs. So, too, did many employers. This left urban areas packed full of mostly people of color, now with even fewer jobs and resources. Notice the pattern of white people continuing to hold on to their power and privilege at the expense of people of color. As a result, many were left behind in urban areas, living in tight quarters with lots of people, not enough resources to go around, and very few opportunities to make anything better. It is no surprise, then, that crime became common in these areas. Many scholars now refer to these and other offenses that resulted as “survival crimes” because those committing them had little or no other option.

When you understand the situations of poverty, segregation, discrimination, lack of resources, and widespread struggles, it becomes clearer that crime is not and never was an issue of race (despite the messaging). Rather, it is an issue of systemic racism, which will be explained throughout this chapter.

Slavery Exception Clause

Before we move on, let’s talk more about the slavery exception clause in the Thirteenth Amendment that allegedly abolished slavery in the United States. The wording of the Thirteenth Amendment is often overlooked. It states, “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.” Pay special attention to the italicized part. This is what is referred to as the “slavery exception clause” because it allows for people to still be subject to slavery and involuntary servitude in this country despite all our claims of abolishing slavery in the 1800s.

Each state also has its own constitution, and most include the same or similar language. However, a slow tide of change is beginning to take effect across the country in some states where voters have agreed that slavery should not be allowed in their state at all, no matter what. Colorado in 2018, Nebraska and Utah in 2020, and Oregon, Alabama, Tennessee, and Vermont in 2022 all voted to remove the slavery exception clauses from their state constitutions. In 2024, it is expected that Nevada, Louisiana, and California will also have a chance to cast the same vote. This effort has also been introduced at the federal level, time and again, always being shot down.

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Licenses and Attributions for The Racist History of Crime and Punishment

Open Content, Original

“The Racist History of Crime and Punishment” by Taryn VanderPyl, revised by Jessica René Peterson, is licensed under CC BY 4.0.

Open Content, Shared Previously

Figure 7.3. Convicts and guard, Oglethorpe County, Georgia, by Jack Delano, is in the Public Domain.

Figure 7.4. Picking cotton at Angola State Farm by Andrew David Lytle Sr. is in the Public Domain.