Monday
May212012

Our penal system

As we discussed in this blog post, the very high incarceration rates for African-Americans is a uniquely American failure.

There are fundamental problems with the US penal system in general, which locks up and puts under parole hundreds of thousands of young men (and women), mostly for non-violent offenses. But the comparison of the incarceration rates of whites and African-Americans, which is shown again in the next figure, is particularly jarring. Almost 5 out of every 100 male African-Americans are in jail, a rate more than five times that of white Americans.

Of course, this might all be because African-Americans commit more crime. But history suggests that there is more to it.

A recent book by Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness suggests that the treatment of African-Americans in our penal system is a continuation of Jim Crow politics of the South. She starts the book with the following story:

Jarvious Cotton cannot vote. Like his father, grandfather, great-grandfather and great-great-grandfather, he is being denied the right to participate in our electoral democracy. Cotton’s family tree tells the story of several generations of black men who were born in the United States but who were denied the most basic freedom that democracy promises — the freedom to vote for those who will make the rules and laws that govern one’s life. Cotton’s great-great-grandfather could not vote as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy tests. Today Jarvious Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole.

Alexander’s book is polemical and not heavy on the history or evidence. So if you are the skeptical type, you may not be convinced that there is something necessarily wrong with our prisons or that there is a systematic Jim Crow-like discrimination against African-Americans in our penal system.

But, David M. Oshinsky’s powerful (and disturbing) history of Mississippi prisons and convict leasing program during the Jim Crow era, Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice should probably convince even the skeptics that there is something quite suspicious in the history of US penal system that appears, at least on the surface, to have shaped our present.

Oshinsky tells the story of Parchman Farm, the Mississippi state penitentiary, which came to symbolize almost all of the injustices and brutality of Jim Crow rule.

Emancipation of blacks in the aftermath of the Civil War did not bring equality in the US South. As we also discuss in Chapter 12 of Why Nations Fail, especially after Union troops were withdrawn from the South and Reconstruction ended, Southern elites were able to re-create institutions of essentially the same degree of extractiveness as the antebellum ones — albeit under a different guise. Gone was slavery, but in came the Black Code of Alabama and vagrancy laws ensuring that black workers could still be coerced and could not leave their employers. Blacks were emancipated, but Ku Klux Klan intimidation and literacy requirements meant to disenfranchise them made sure that they couldn’t vote after the end of Reconstruction. Blacks were equal on paper, but this was “separate but equal,” where their schools and hospitals were far from equal. And in every sphere of life, they were repressed and made subservient to whites — at least until the Civil Rights movement started to change it all.

In Mississippi, the antebellum system started being re-created even before Union troops left. An important element of this was the subjugation of blacks by mob violence and by the local sheriff and the justice system. Part of this was beatings and lynchings of blacks (some Northern Senators claimed that during this period, “two or three black men” were being lynched in Mississippi every day). But an equally sinister and perhaps even more consequential part was the prison system that developed starting in 1868.

The impetus came from a practical problem: now that blacks were no longer slaves and could not be directly disciplined and punished by their masters, how should they be kept under control? Locking them up — when mob violence and lynchings didn’t do the job — seemed like a natural idea, but this would cost the state a lot of money, especially at a time when resources were scarce and the prison system was both underdeveloped and severely gutted by the Civil War.

An innovative solution to this problem came from a businessman named Edmund Richardson who made a deal with state authorities in 1868 to lease convicts to use as cheap labor on his Yazoo Delta plantation. He promised to feed them and guard them. In return, the state paid him money, transported them to his plantation, and allowed him to use the convicts in whichever way he wanted — for all practical purposes totally unmonitored.

What started with Richardson grew into a huge industry. The demand for cheap labor to work in cotton plantations was high and so was the pent-up anger in Mississippi against blacks who were freed by Northerners. So convict leasing programs multiplied and local authorities obliged by locking up scores of young black men on totally minor or trumped-up charges to provide the labor necessary for the program.

This part of Oshinsky’s book makes truly harrowing reading: children locked up for “illegal gambling” or “being a tramp” or for the most minor instances of theft, or sometimes children locked up just because of the deep racial prejudices of the local authorities and the good people of Mississippi. In all cases, they headed to the plantations as convict labor either directly or via the local court system which imposed on them costs and fines that they could not pay (and thus they would be sent to the state penitentiary because of these unpaid debts). The system only became worse with the arrival of railway companies and other industries hungry for cheap labor.

Oshinsky describes, for example, the arrangement between the local sheriff and a turpentine operator in need of men in the words of a journalist (p. 71):

“Together they made up a list of some eighty negroes known to both as good husky fellows, capable of a fair day’s work.” The sheriff was promised five dollars plus expenses for each negro he “landed”. Within three weeks, he had arrested all eighty of them “on various petty charges — gambling, disorderly conduct, assault, and the like.”

From the get go, there was no room for confusion. The convict leasing program was designed for blacks, not for whites. Fittingly, the conditions for convict laborers were awful. Physical abuse, malnourishment and death from overwork were commonplace.

When convict leasing programs spread to other parts of the South, the outcomes were similar — even if few could match the brutality of the Mississippi system. In other parts of the South too, the convict leasing was associated with trumped-up charges against blacks, and inhumane work conditions. For example, the Greenville and Augusta Railroad Company started demanding convicts faster than South Carolina authorities could supply them, despite their efforts to lock up as many people as possible as potential convicts. Between 1877 and 1879, out of the 285 convicts working for the company, 128 died from gunshots, accidents and disease. And this huge death rate was not a surprise given their living conditions, described by the captain of the convict camp as (p. 60):

The English language does not possess words sufficiently strong to express the stench that rose from [this] place.

The situation was similar in other parts of the South. Many argued that 10 years was the “utmost length of a time that a convict can be expected to remain alive in a Georgia penitentiary”.

What the convict leasing program came to mean is well summarized by a list of quotations that Oshinsky provides at the beginning of the book:

The abuses of [our criminal justice] system have often been dwelt upon. It had the worst aspects of slavery without any of its redeeming features. The innocent, the guilty, and the depraved were herded together, children and adults, men and women, given into complete control of practically irresponsible men, whose sole object was to make the most money possible (Frank Sonborn, keynote address, in Ninth Atlanta Conference on Negro Crime, 1904).

And:

The convict’s condition [following the Civil War] was much worse than slavery. The life of a slave was valuable to his master, but there was no financial loss… if a convict died. (L. G. Shivers A History of the Mississippi Penitentiary, 1930).

In Mississippi, the system reached its end in one sense and its apogee in another with the opening of the Mississippi State penitentiary at Parchman Farm. Starting in 1894, there were restrictions on the leasing of convicts. Now instead, they would work as coerced laborers, under no better circumstances, at the cotton plantations of the state at Parchment Farm

Oshinsky describes this in the words of Hastings Hart:

I have visited Parchman repeatedly and I have found that their cotton was very profitable but that profit was secured by reducing the men to a condition of abject slavery.

And Parchman Farm is described in the 1919 Proceedings of the Annual Congress of the American Prison Association as:

The most profitable prison farming on record thus far in the State of Mississippi.

Brutality and exploitation at Parchman Farm continued well into the 1960s, and was only stopped by the Civil Rights movement. In 1970, a New York attorney, Roy Haber, started collecting information about abuses at Parchment Farm (which was not easy given the intimidation from the authorities against him and violence against inmates who cooperated with him). Finally he was able to compile a list of murders, rapes, beatings and tortures at Parchman Farm between 1969 and 71, which ran into 50 single spaced pages, and the snippets that Oshinsky recounts are truly disturbing (pp. 241-245).

Convict leasing and hard labor at Parchman plantation are gone. But with this history of a penal system designed to lock up and repress blacks, it is natural to wonder — or even hypothesize — that what we are seeing today is a nationwide continuation of both that system and its long-run consequences. After all, as journalist Ray Stannard Baker noted, the distinctive logic of the Jim Crow penal system required a particular type of justice (p. 63):

One thing impressed me especially… A [black man] brought in… was punished much more severely than a white man arrested for the same offense.

Against this background, Michelle Alexander’s claims about the origins of mass incarceration do not seem as incredulous, for example when she writes (p.225):

Mass incarceration as we know it would not exist today but for the racialization of crime in the media and political discourse. The War on Drugs was declared as part of a political ploy to capitalize on white racial resentment against African Americans…

Could this be the basis of the new Jim Crow? Could the incarceration of so many black men be a continuation under a different guise of the penal system that developed in the South after Reconstruction? Could this be, paraphrasing Robert Michels and our own use of his Iron Law of Oligarchy, “the Iron Law of Discrimination”?

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