Inmate fire crew from South Fork Forest Camp. Photograph Source: Oregon Department of Forestry – CC BY 2.0

Why does American society remain so deeply implicated in the enslavement of Black Americans? Slavery was never abolished in the United States, and today it enjoys widespread support among both Republicans and Democrats. Almost 800,000 people are subject to the conditions of prison slavery, but this estimate is almost certainly low, as the lack of reliable data means that it “excludes people confined in local jails or detention centers, juvenile correctional facilities, and immigration detention facilities.” This system, supported and perpetuated by both halves of the ruling class, is an extension of the country’s history of racism and chattel slavery, a way to reinstitute slavery within a legal framework that loudly insists it has been abolished.

The new slavery is a shameful mark on our country’s pretenses to respect for human rights and the dignity of every human being, the latest chapter in a story of race-based hierarchy and domination. When slavery was formally abolished, a major loophole was left in place, one that would help race-based slavery survive to the present day. The Thirteenth Amendment, ratified in December 1865, inscribes the Emancipation Proclamation’s abolition of slavery into the country’s supreme source of law, but it does not contemplate a total end to slavery within the nation’s borders. Rather the amendment carves out a fateful exception to the prohibition of slavery:

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 [emphasis added].

Slavery is perfectly legal and permissible as long as the enslaved are deemed criminals, which allows prisons to completely dispense with any protections for prison workers. It goes without saying that this exception to the general rule against slavery creates a major incentive to criminalize the mere existence of Black Americans, to use the criminal justice system to create a permanent pool of free labor. If prison slavery is not, on its own, the primary cause of the mass incarceration crisis besieging Black bodies, then billions of dollars’ worth of free labor every year nonetheless remains a powerful force in the service of a racist, two-tier system of “justice.” And indeed this incentive problem has done its work within the American social system, propelling and insulating a system of mass incarceration that recalls and recreates the race-based slavery that so deeply defines the country’s history.

All available evidence shows that the longer one spends in prison, the more likely they are to end up back in the system after they’re back in society. But here is “the great irony of our American criminal justice system.” Today, we imprison huge numbers of people and the prison sentences have grown longer—“thus our system of mass incarceration all but assures high rates of recidivism.” The scale of mass incarceration in the United States is “unparalleled historically” and the shame of the country on the global stage as an egregious violation of accepted human rights. Today, some 2 million people are held in America’s prisons and jails (the majority, about 1.2 million of them, in the prisons), and they live in some of the harshest conditions of abuse and neglect. The data on the country’s sadistic penchant for mass incarceration are startling: in 1972, the rate of imprisonment was about 93 people per 100,000, but by 2009, it was seven times that number, and in the decade between 1985 and 1995, the prison population grew by an average of 8 percentage points every year. Black Americans are highly over-represented in the contemporary prison system; last spring, the Prison Policy Initiative found that “the national incarceration rate of Black people is six times the rate of white people” (emphasis in original). As we shall see, once they are locked up, Black people are far more likely to be subjected to inhumane treatment and even to conditions regarded as torture under international human rights law.

The criminalization of Black existence........

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