An archaeologist friend of mine claims that through a simple piece of ancient pottery, much can be known about a culture’s past, and even traced through to current practices. I claim the same for our laws. We carry the burden of the broken shards of our historic past in every law that is still valid and enforceable. As laws are eventually discarded, remade and transformed, we carry the possibility of creating something both useful and beautiful. Yet the current legal system allows overwhelmingly huge corporations to lobby corrupt politicians for laws that add to their profits, no matter the consequences to the soul of any society: basic human rights. And this is not new. This is fully traceable through our legislation.
Many of us are having hard conversations with ourselves and with others, trying to make sense of this historic moment in the battle for human rights that in some ways is so exciting and hopeful, yet still so heavily weighted by the burdens of our collective, and especially our not so collective, past. And in having these discussions, reading, and learning, I am bewildered at my own ignorance, at how much I have not known about the very government under which I live. I am not alone in this, as our general education system easily leaves us complacent and biased about what is happening at our very doorsteps, in our own communities, unless and until we feel the actual brunt of it. Some of us, myself included, know so little. It is imperative to task ourselves with learning more.
I spent the 4th of July, safely socially distancing, as we now call it, with two friends from a small town across my home state. One of them shared that when she wished a black coworker in her town a “Happy 4th of July” he told her that it was for her, a white person, to celebrate the freedoms and civil rights that she and her family can enjoy, but not for him, as long as black people are still systematically oppressed. She expressed some surprise along with discomfort at this.
We fell into discussion about slavery and incarceration. She was not aware of any connection. So I dug up and read aloud a portion of the 13th Amendment to the United States Constitution, passed in 1865, just after the US Civil War: “Neither slavery nor involuntary servitude, […] shall exist within the United States, or any place subject to their jurisdiction.” I asked each of my friends if they could tell me what was missing. They could not. It seemed complete enough to stand alone. Slavery is outlawed. Right? Well, not quite. Here is the broken shard, that telltale bit of our culture that cuts us even today:
“…except as a punishment for crime whereof the party shall have been duly convicted,..”
This “exception” to the slavery ban in the United States meant that even as slavery was supposedly ending, the law allowed for the wholesale hiring of slave labor from the prison system. With traditional slavery outlawed in a system so reliant upon it, a long list of invented crimes were conveniently passed by slave states. These new “black codes” which only applied to people of African descent, were specifically created to imprison newly freed blacks and channel their work into a profit system that excluded them. Sources indicate that under these laws, as many as 200,000 blacks were arrested, convicted and hired out for profit. In short and extremely simplified fact, people with money and power had a direct and ongoing benefit off the enslavement of their fellow humans, well after 1865. And now we have privatized for-profit prisons across the country that we fill to overflowing. The exception written into the 13th Amendment to the US Constitution still cuts deep.
It is necessary to understand this buried piece of US history before even beginning to contemplate how black men, who make up about 6% of the US population, today constitute close to 40% of national prison population. To understand how police brutality is a symptom of a much deeper, historically rooted problem. I am not the appropriate person to give that history, but the information is out there for anyone interested. Documentaries such as “13th” about the current mass incarceration of blacks and how it relates to slavery and the black laws. Books such as One Dies, Get Another: Convict Leasing in the American South 1865-1928 by Matthew Mancini. Websites such as the Equal Justice Initiative, Prison Policy Initiative, and the National Center for Civil and Human Rights. All at our fingertips. Perhaps the very isolation necessitated by the COVID-19 pandemic will allow us the time to learn, connect, and eventually work together in new ways to help create healthier communities.
A country claiming to be founded on freedom, with 4.4% of the world’s population, and yet over 20% of the world’s incarcerated, is a problematic country. A torn and wounded country. It is a country in dire need of repair, restitution, and healing. Here we are, rolling into another year of US history, close to 250 years since the US Constitution was written. Over 150 years since the US Constitution was amended to (almost) outlaw slavery. Over 50 years since the Civil Rights Act was passed. What are we, the generation alive today, embedding into our legal system, to be uncovered and analyzed by our descendants a century or two from now?