Black Codes Became Convict Leasing Became Mass Incarceration — The Template Never Changed

There is a clause in the Thirteenth Amendment to the United States Constitution that most Americans have never read, or have read and not understood, or have understood and chosen to forget, because to remember it is to confront the possibility that slavery in America was not abolished but redesigned. The amendment, ratified in December 1865, reads: “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.” Except. That single word — eight letters inserted into the document that was supposed to end the most monstrous institution in American history — provided the legal architecture for everything that followed. Within twelve months of ratification, every former Confederate state had passed laws that made it a crime to be Black and free.

They were called Black Codes, and they were written with a precision that would be admirable if it were not so monstrous. Mississippi, which moved first because it always moved first when the project was the control of Black bodies, passed its Black Codes in November 1865, barely a month after the amendment was ratified. The vagrancy statute made it a criminal offense for any “freedman, free negro, or mulatto” to be found without lawful employment or business, or found unlawfully assembling, or guilty of “wanton conduct” — a term left deliberately undefined so that any white person could define it on the spot. The penalty was a fine the newly freed person could not pay, followed by arrest, followed by conviction, followed by the state leasing the convict to a private employer to work off the fine. The private employer was, in most cases, the same planter who had owned the person before the war.

The Architecture of Re-Enslavement

The Black Codes were not subtle. They were not disguised. They were published in newspapers and debated in legislatures and enforced by sheriffs and judges who understood exactly what they were doing and did not pretend otherwise. South Carolina’s code required Black workers to sign annual labor contracts with white employers by January 1 of each year. If a Black person was found without a contract, he was declared a vagrant and arrested. If he signed a contract and then left before its expiration — because the employer beat him, cheated him, or worked him to the point of collapse — he was arrested for breach of contract. If he was arrested for anything at all, he could be “apprenticed” to his former owner.

Louisiana’s code required every Black person to have a “comfortable home and visible means of support” — in a state that had just freed four hundred thousand people with nothing but the clothes they wore. Alabama prohibited Black people from owning firearms, from preaching without a license, from “insulting gestures,” from failing to yield the sidewalk to a white person. Each offense was a misdemeanor. Each misdemeanor produced a fine. Each unpaid fine produced a convict. And each convict produced a worker who could be leased to a planter, a mine operator, or a railroad company for the cost of his upkeep, which was less than the cost of feeding a slave, because a leased convict who died could be replaced at the next court session.

W.E.B. Du Bois saw all of it with the clarity that made him the most important American intellectual of the twentieth century and the most consistently ignored. In The Souls of Black Folk, published in 1903, he wrote about the convict lease system with a fury that was controlled by an intellect that insisted on precision even in outrage. The courts, he wrote, had become instruments “used deliberately as a means of re-enslaving the blacks.” The South had found the loophole in the Thirteenth Amendment and driven the entire plantation system through it.

Convict Leasing: Worse Than Slavery

David Oshinsky titled his Pulitzer Prize-winning history of Mississippi’s Parchman Farm Worse Than Slavery, and the title was not hyperbole. Under the chattel slavery system, an enslaved person represented a capital investment of, in 1860 dollars, between $800 and $2,000. The enslaver had a financial incentive, however perverse, to keep the enslaved person alive and functional. Under convict leasing, the state provided a steady supply of replacement labor at minimal cost. A leased convict who died of overwork, disease, or violence was not a capital loss. He was an administrative inconvenience that could be resolved by the next arrest.

The death rates were staggering. Douglas Blackmon, in Slavery by Another Name, documented mortality rates in convict leasing operations that exceeded those of antebellum slavery by factors of three and four. In the mines of Alabama, where companies like Tennessee Coal and Iron (later acquired by U.S. Steel) leased convicts to dig coal in conditions that no free laborer would accept, the annual death rate among leased convicts reached 45% in some years. In Mississippi, the state penitentiary at Parchman — which was a working cotton plantation in everything but name — convicts worked from dawn until dark under armed guards, slept in open-air cages, and were whipped with a leather strap called “Black Annie” for failing to pick their quota of cotton. The quota at Parchman was higher than the quota on most antebellum plantations.

“The slave went free; stood a brief moment in the sun; then moved back again toward slavery.”
— W.E.B. Du Bois, Black Reconstruction in America, 1935

Convict leasing was not a regional embarrassment that respectable people ignored. It was the economic engine of the New South. The railroads that connected Southern cities, the coal that powered Southern industry, the turpentine that sealed Southern ships — all were produced in significant part by convict labor. The state governments that leased convicts collected revenue from the arrangement. The companies that used convict labor undercut the wages of free workers, both Black and white, creating a permanent downward pressure on wages that benefited the same planter and industrial class that had benefited from slavery. The system was profitable, self-reinforcing, and almost entirely invisible to the North, which had declared the slavery problem solved and moved on.

The Morphology of Control

Convict leasing was formally abolished in most states by the 1920s, not because of moral awakening but because free labor unions and Progressive Era reformers objected to the competition. What replaced it was the chain gang, which was convict leasing under state management rather than private contract. What replaced the chain gang was the prison farm, which was the plantation restored to its original form with convicts in the role of the enslaved. What replaced the prison farm was the modern prison-industrial complex, which is the convict leasing system scaled to an economy that requires not agricultural labor but the labor of consumption — the consumption of public funds by private prison companies, the consumption of Black bodies by a legal system that has never stopped producing them on demand.

The template is consistent across 160 years: first, criminalize behavior that is normal, necessary, or unavoidable for the targeted population; second, enforce the law selectively against that population; third, extract economic value from the resulting captive labor force. The Black Codes criminalized being unemployed in a society that would not employ you. Vagrancy laws criminalized being in public while Black. The War on Drugs criminalized substances that were prevalent in Black communities while treating chemically identical substances used by white communities as a lesser offense.

The crack-powder cocaine sentencing disparity, established by the Anti-Drug Abuse Act of 1986, is perhaps the most precise modern example of the template. Crack cocaine and powder cocaine are pharmacologically identical. The difference is the delivery mechanism and the demographics of use. Powder cocaine was associated with white, affluent users; crack with Black, urban users. Congress established a sentencing ratio of 100 to 1: possession of five grams of crack triggered a mandatory minimum of five years in federal prison. Possession of five grams of powder triggered no mandatory minimum at all. To receive the same mandatory minimum for powder cocaine, you needed 500 grams. The Fair Sentencing Act of 2010 reduced the ratio to 18 to 1, which was presented as reform. It was a reduction in the magnitude of the disparity, not its elimination.

The Numbers of the New System

Michelle Alexander’s The New Jim Crow provided the framework that should have ended the debate: mass incarceration is not a response to crime. It is a system of racial control that uses crime as its justification, just as the Black Codes used vagrancy as their justification and convict leasing used criminal conviction as its justification. The numbers are so extreme that they require repetition because the mind resists absorbing them. The United States has 5% of the world’s population and 25% of its prisoners. There are 2.3 million people in American prisons and jails. One in three Black men born in 2001 will be imprisoned at some point in his life, compared to one in seventeen white men. Black Americans are incarcerated at nearly five times the rate of whites.

But incarceration is only the beginning of the punishment. The system that begins with arrest does not end with release. A felony conviction in America triggers what Alexander calls “civil death”: the legal elimination of the rights and opportunities that make citizenship meaningful. In most states, a person with a felony conviction can be legally denied employment, housing, public benefits, student loans, and the right to vote. Approximately 600,000 people are released from prison each year into a society that has constructed a legal architecture of permanent exclusion — and then expresses surprise when recidivism rates exceed 60%.

The Private Prison Economy

The privatization of prisons in the 1980s completed the circle back to convict leasing. CoreCivic (formerly Corrections Corporation of America) and the GEO Group, the two largest private prison companies, operate approximately 130 facilities housing over 120,000 inmates and generate combined annual revenues exceeding $3.5 billion. Their business model depends on incarceration rates remaining high. Their lobbyists have spent tens of millions of dollars supporting mandatory minimum sentencing, three-strikes laws, and immigration enforcement — the policies that produce their customers. Their contracts with state governments often include “lockup quotas” guaranteeing 80-90% occupancy, which means the state is contractually obligated to keep the prisons full or pay for empty beds.

Inside these facilities, inmates work for wages that range from $0.23 to $1.15 per hour, producing goods and providing services for companies that include AT&T, Victoria’s Secret, Whole Foods, and the U.S. military. This is not convict leasing in name, but it is convict leasing in function: the state arrests people, convicts them through a legal system that is structurally biased against poor and Black defendants, and then their labor is extracted at rates that would violate minimum wage laws for any non-incarcerated worker. The Thirteenth Amendment permits this explicitly. It was designed to permit it. That is what the exception clause was for.

Breaking the Template

If the template has been consistent for 160 years — criminalize, incarcerate, extract — then breaking it requires more than reform. It requires dismantling the economic incentive that drives each iteration. Ending mandatory minimums is necessary but insufficient if prosecutors retain the discretion to overcharge Black defendants. Abolishing private prisons is necessary but insufficient if state-run prisons continue to use captive labor at sub-minimum wages. Decriminalizing marijuana is necessary but insufficient if possession of other substances continues to be enforced selectively by race.

What would actually break the template is the elimination of the exception clause in the Thirteenth Amendment. Senator Jeff Merkley of Oregon and Representative Nikema Williams of Georgia have introduced the Abolition Amendment, which would strike the words “except as a punishment for crime whereof the party shall have been duly convicted” from the Constitution. It has not received a floor vote. It has not received significant media coverage. The clause that has been used to re-enslave Black Americans for 160 years remains in the foundational document of American law, and the effort to remove it is treated as a curiosity rather than an emergency.

Beyond constitutional change, the path forward requires investment in the communities that the carceral system has hollowed out. Every dollar spent on incarceration is a dollar not spent on education, mental health services, substance abuse treatment, and employment programs that actually reduce crime. The Vera Institute of Justice has documented that the average cost of incarcerating one person for one year exceeds $35,000 nationally and exceeds $60,000 in states like New York and California. Redirecting even a fraction of those resources toward community-based alternatives — restorative justice programs, violence interruption initiatives, re-entry support — produces better outcomes at lower cost. The data is unambiguous. The political will is absent.

The story of the Black Codes is not a story about the past. It is a story about a design principle — the principle that Black people in America exist as a resource to be managed for the economic benefit of others — that has survived every legal, political, and moral challenge thrown at it for a century and a half. It survived abolition by inventing the Black Codes. It survived Reconstruction by inventing convict leasing. It survived the civil rights movement by inventing the War on Drugs. It survived each wave of reform by adapting its mechanism while preserving its function. The template never changed because the incentive never changed: there is money to be made from the control of Black bodies, and as long as that is true, the system will find a way to make it.

Understanding this history is not an exercise in despair. It is an exercise in precision. You cannot dismantle what you cannot name. The system has survived because each generation was taught that the previous iteration was an aberration — that slavery was the anomaly, that convict leasing was a regional embarrassment, that the War on Drugs was a policy mistake. None of them were anomalies, or embarrassments, or mistakes. They were the same system, adapted to the legal constraints and economic opportunities of their era. And the system operating today — the one that has produced 2.3 million prisoners, a permanent underclass of 19 million Americans with felony records, and a private prison industry that trades on the New York Stock Exchange — is not a policy failure. It is a policy success. It is doing exactly what it was designed to do, the same thing it has been doing since 1865: converting Black freedom into Black labor through the machinery of the criminal law.