Have All the Wrongs Been Righted?

Recently the Supreme Court agreed to hear a case on affirmative action at the University of Texas. The legalistic argument usually made against affirmative action is that racial preferences are bad no matter what, even if they exist to right historical wrongs.

But when you dig a little deeper, the general sentiment of many who oppose affirmative action is actually, "Get over it! Slavery ended almost 150 years ago. How long are you going to make us feel guilty for what our great-great-grandfathers did?"

But the surprising fact is that slavery did not really end until 1941! The Thirteenth amendment abolished it, but left an exception for punishment, which was widely abused in the South until the Japanese attack on Pearl Harbor. At which point Roosevelt ordered a crackdown to avoid a propaganda attack by the Axis. The Thirteenth Amendment states:

Section 1. 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. 

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Everyone knows about chain gangs and share-croppers in the South, which were effectively slave labor. But after Reconstruction whites in the South used the Constitutional exception to falsely imprison millions of blacks and force them into slavery in industries such as logging, manufacturing, construction and mining.

This practice, known as convict leasing, is the subject of a PBS documentary called Slavery by Another Name. It's based on a book by The Wall Street Journal's Atlanta bureau chief Douglas Blackmon. Blackmon, a white southerner, wrote an article in 2001 about how many companies, including U.S. Steel, used convict leasing in the late 19th and early 20th centuries. He expanded his research into a book in 2008.

It worked like this: whites passed laws against vagrancy, loitering, gambling, spitting and so on. They also turned lesser crimes, such as stealing a pig worth one dollar, into felonies. Blacks were stopped on the street and if they couldn't prove they were employed, they were arrested on the spot. The state then sold the labor of prisoners, the vast majority of them black, to companies for a few dollars a month. The slave economy was back in full force, just in time to create an economic boom in the South as the industrial revolution hit.

Convict leasing was in some ways worse than slavery. It's in the best interests of slave owners to avoid abusing slaves because they have a lot of economic value: a slave can labor for decades. But convicts were leased by the month. If one died you just got another one. Many convicts were forced to work for 16 and 20 hours at a stretch at filthy, dark, cold, and wet jobs at coal mines, lumber camps and railroad lines. Overwork and mistreatment killed them by the thousands.

Another common practice in the South was peonage, or indentured servitude, where people were enslaved to work off debts. This practice was common in Mexico and supposed to be illegal in the United States. But in the South it was common for debtors to be forced to sign contracts to provide labor. Even worse, there were cases where law enforcement would round up blacks, claim they owed them money, get a justice of the peace to falsely "legalize" the claim, force them to sign a "contract," and then force them into slavery for money they never owed.

In one famous case in the early 1900s the U.S. government convicted the leader of one of these gangs, John W. Pace, of peonage. On appeal Pace claimed he was innocent because the people he enslaved didn't really owe him money, so he couldn't be guilty of peonage. And since there was no actual law against slavery—Congress didn't think to pass one since it was a Constitutional amendment—Pace's lawyers said he'd done nothing illegal. Teddy Roosevelt later pardoned Pace who went back to using peons.

Now, blacks weren't the only victims of these outrageous crimes, through they were in the vast majority. In 1923 a North Dakotan named Martin Tabert was arrested in Florida for vagrancy by Sheriff J.R. Jones. Jones had a contract with Putnam Lumber: he received $20 (plus expenses) for each prisoner he turned over to the company. Tabert had pleaded guilty to riding a freight train through Tallahassee, and was sentenced to pay $25 or serve three months of hard labor. He didn't have the money and was sent to the prison camp, where they worked him from 4 AM to 6 PM. One Friday Tabert was whipped 100 lashes for failing to keep up with the other prisoners as they marched back and forth to a swamp where they often worked in hip-deep water. He died four days later. Perhaps the worst thing is that Tabert's parents had wired their son some money but, as Sheriff Jones wrote in a letter, "it was sent in his name—I therefore returned it."

This sort of thing happened every day to blacks. But only when convict leasing killed a white man from North Dakota did it draw the attention of the New York Times (the full story is behind a paywall at the Times), and things start to change.

Perhaps the most vile aspect of this whole sorry episode in American history is the corrosive effect convict leasing had on the general impression of blacks. The PBS program points out that before the Civil War blacks were perceived as loyal and hard-working (as they are portrayed in movies about the era). Afterwards, subjected to massive unemployment and false arrest on trumped-up charges, they came to be viewed as lazy and criminal. Which makes me ask: was the pattern of absentee black fathers that society has decried for the past 50 years set in place when young black husbands were abducted off the streets by white sheriffs and sent off to slave labor camps?

There are Americans still alive today who were once enslaved by our justice system. There are Americans still alive today who were systematically prevented by their government from voting and using the same lunch counters, restrooms, buses, classrooms and drinking fountains as the rest of us. And there are Americans still alive today whose fathers and husbands were systematically murdered by their white neighbors while law enforcement participated or stood by and watched. Hell, these lynchings have occurred in my lifetime.

That means there are Americans still alive today who perpetrated those crimes. Can we really say all wrongs have been righted when there are still Americans alive today who feel those crimes were justified?