“The slave went free; stood a brief moment in the sun, then moved back again towards slavery.” Web Du Bois about the failure of Reconstruction
MLK Explains What Black People Faced After Slavery
Table of Contents
40 Acres and a Mule
Black Codes, Vagrancy Laws, and Apprentice Laws
Sharecropping and Debt Peonage
Convict Leasing and the 13th Amendment
The Myth of Black Criminality and the Rise of a Racist Criminal Justice System
Failure of the Freedman Bank
White Terrorism and Lynching
History of Voter Suppression
Slavery by Another Name
Source: Josh Tucker – Medium: Black History: A History of Permanent White Oppression, from 1619 to 2016
Equal Justice Initiative: Reconstruction in America
Crash Course: Reconstruction and 1876
Failure of Reconstruction
- Radical Reconstruction (1865 to 1877)
- Attempt by Radical Republicans to create equally in the South after the Civil War
- Freedman’s Bureau, civil rights legislation, black political representation and military protection
- Attempt by Radical Republicans to create equally in the South after the Civil War
- Reconstruction Accomplishments
- Civil Rights Amendments (13th, 14th, 15th) and Acts
- Outlawing slavery (except in prison), citizenship and Bill of rights, right to vote
- Rise of public education for all children in South
- At height over 2000 African Americans held a political office
- Congress, local offices and first black governor (Second black governor was in 1989)
- 1867, no black people held office in South
- 1870, black people held over 15% of Southern offices
- 1980, black people hold less than 8% of Southern offices
- Congress, local offices and first black governor (Second black governor was in 1989)
- Civil Rights Amendments (13th, 14th, 15th) and Acts
- 40 acres and a mule (Worth $6.4 Trillion today),
- Sharing Cropping (debt peonage), youth apprenticeships, land theft
- Black codes, vagrancy laws, Jim Crow
- Convict leasing, rise of criminal justice system based on black criminality
- Rise of white terrorism, voter suppression and lynching
- Return of political, economic and social white supremacy in South
Reconstruction officially died in 1877
- From an economic depression, lack of funds, removal of federal troops, Northern apathy, return of white supremacy, decline of radical Republicans, the Compromise of 1877
“The slave went free; stood a brief moment in the sun, then moved back again towards slavery.” Web Du Bois
EJI: Lynching in America
“When eleven Southern states seceded from the Union to form the Confederate States of America, sparking the Civil War in 1861, they made no secret of their ultimate aim: to preserve the institution of slavery. As Confederate Vice President Alexander H. Stephens explained, the ideological “cornerstone” of the new nation they sought to form was that “the negro is not equal to the white man” and “slavery subordination to the superior race is his natural and moral condition.”
Slavery had been an increasingly divisive political issue for generations, and though United States President Abraham Lincoln personally opposed slavery, he had rejected abolitionists’ calls for immediate emancipation. Instead, Lincoln favored a gradual process of compensated emancipation and voluntary colonization, which would encourage freed black people to emigrate to Africa. Once the nation was in the throes of civil war, Lincoln feared any federal move toward emancipation would alienate border states that permitted slavery but had not seceded. Lincoln’s cabinet and other federal officials largely agreed, and shortly after the war’s start, the House of Representatives passed a resolution emphasizing that the purpose of the war was to preserve the Union, not to eliminate slavery.
As the Civil War dragged on, however, increasing numbers of enslaved African Americans fled slavery to relocate behind Union lines, and the cause of emancipation became more militarily and politically expedient. On January 1, 1863, President Lincoln issued the Emancipation Proclamation, which declared enslaved people residing in the rebelling Confederate states to be “then, thenceforward, and forever free.” The Emancipation Proclamation did not apply to the roughly 425,000 enslaved people living in Tennessee, Delaware, Kentucky, Missouri, and Maryland—states that had not seceded or were occupied by Union forces.
In most Confederate states where the proclamation did apply, resistance to emancipation was inevitable and there was almost no federal effort to enforce the grant of freedom. Southern planters attempted to hide news about Lincoln’s proclamation from enslaved people, and in many areas where federal troops were not present, slavery remained the status quo well after 1863. Even as the Confederacy faced increasingly certain defeat in the war, Southern whites insisted that Lincoln’s wartime executive order was illegal and that slavery could be formally banned only by a legislature or court. Many used deception and violence to keep enslaved people from leaving plantations.
Formal nationwide codification of emancipation came in December 1865 with ratification of the Thirteenth Amendment, which prohibited slavery throughout the United States, except as punsihment for a crime. Several states continued to symbolically resist into the twentieth century: Delaware did not ratify the Thirteenth Amendment until 1901; Kentucky ratified in 1976; and Mississippi ratified in 1995.
The legal instruments that led to the formal end of racialized chattel slavery in America did nothing to address the myth of racial hierarchy that sustained slavery, nor did they establish a national commitment to the alternative ideology of racial equality. Black people might be free from involuntary labor under the law, but that did not mean Southern whites recognized them as fully human. White Southern identity was grounded in a belief that whites are inherently superior to African Americans; following the war, whites reacted violently to the notion that they would now have to treat their former human property as equals and pay for their labor. In numerous recorded incidents, plantation owners attacked black people simply for claiming their freedom.
At the Civil War’s end, black autonomy expanded but white supremacy remained deeply rooted. The failure to unearth those roots would leave black Americans exposed to terrorism and racial subordination for more than a century.
The federal government’s lackluster commitment to black civil rights and security following the Civil War was a disappointing failure that undermined the promise of freedom. Congress established the Freedmen’s Bureau in March 1865 with a mandate to provide formerly enslaved people with basic necessities and to oversee their condition and treatment in the former Confederate states. But Congress appropriated no budget for the bureau, leaving it to be staffed and funded by President Andrew Johnson’s War Department.
President Johnson, a Unionist former slaveholder from Tennessee, served as vice president during the Civil War and assumed the presidency after Lincoln’s assassination in April 1865. Though he initially promised to punish Southern “traitors,” Johnson issued 7000 pardons to secessionists by 1866. He also rescinded orders granting black farmers tracts of land confiscated from Confederates. This greatly impeded formerly enslaved people’s ability to build their own farms because whites routinely refused to provide them credit, effectively barring black people from purchasing land without government assistance.
Instead of facilitating black land ownership, Johnson advocated a new practice that soon replaced slavery as a primary source of Southern agricultural labor: sharecropping. Under this system, black laborers worked white-owned land in exchange for a share of the crop at harvest minus costs for food and lodging, often in the same slave quarters they had previously inhabited. Because Johnson’s administration required that landowners pay off their debts to banks first, sharecroppers frequently received no pay and had no recourse.
President Johnson also opposed black voting rights. During Reconstruction, whites of diverse political affiliations declared voting a “privilege” rather than a universal right, and even some whites who had opposed slavery were wary of measures that would lead to black voting in the North. Johnson believed black people were inherently servile and unintelligent; he feared they would vote as instructed by their former masters, reestablishing the power of the planter class and relegating poor white farmers to virtual slavery. Johnson made little effort to disguise his racist views. In his 1867 annual message to Congress, President Johnson declared that black Americans had “less capacity for government than any other race of people,” that they would “relapse into barbarism” if left to their own devices, and that giving them the vote would result in “a tyranny such as this continent has never yet witnessed.” Not surprisingly, under President Johnson, federal Reconstruction efforts to support and enforce black Americans’ citizenship rights and social and economic freedom went largely unsupported and unrealized.
Meanwhile, the Johnson administration allowed Southern whites to reestablish white supremacy and dominate black people with impunity. Two incidents in 1866 foretold terrifying days to come for African Americans. On May 1, 1866, in Memphis, Tennessee, white police officers began firing into a crowd of African American men, women, and children that had gathered on South Street, and afterward white mobs rampaged through black neighborhoods with the intent to “kill every Negro and drive the last one from the city.” Over three days of violence, forty-six African Americans were killed (two whites were killed by friendly fire); ninety-one houses, four churches, and twelve schools were burned to the ground; at least five women were raped; and many black people fled the city permanently.
Less than three months later, in New Orleans, a group of African Americans—many of whom had been free before the Civil War—attempted to convene a state constitutional convention to extend voting rights to black men and repeal racially discriminatory laws known as Black Codes. When the delegates convened at the Mechanics’ Institute on July 30, 1866, groups of black supporters and white opponents clashed in the streets. The white mob began firing on black marchers, indiscriminately killing convention supporters and unaffiliated black bystanders. Rather than maintain order, white police officers attacked black residents with guns, axes, and clubs, arresting many and killing several. By the time federal troops arrived to suppress the white insurgency, as many as forty-eight black people were dead and two hundred had been wounded.
The Memphis and New Orleans attacks, which occurred just before the midterm elections of 1866, sparked national outrage outside the South and mobilized voters to support the Republican Party’s progressive platform advocating expansive rights and protections for African Americans. Republicans won a landslide victory in the 1866 congressional races, gaining a veto-proof majority and control of the legislative agenda. Senator Charles Sumner of Massachusetts and Representative Thaddeus Stevens of Pennsylvania then led the progressive caucus in devising an ambitious civil rights program broader than anything Congress would attempt for another century.
First, Congress passed the Civil Rights Act of 1866, which declared black Americans full citizens entitled to equal civil rights. President Johnson vetoed the bill, but Congress—for the first time in United States history—overrode the veto. Next, the progressive Republican supermajority quickly passed the Fourteenth Amendment. Intended to eliminate any doubt about the constitutionality of civil rights, the proposed amendment established that all persons born in the country, regardless of race, were full citizens of the United States and the states in which they resided, entitled to the “privileges and immunities” of citizenship, due process, and the equal protection of the law. If ratified, the amendment would supersede the United States Supreme Court’s 1857 decision in Dred Scott v Sanford, which held that African Americans were not citizens and had no standing to sue in federal court.
Twenty-eight of the thirty-seven states had to ratify the Fourteenth Amendment in order for it to be added to the Constitution, but when Southern legislatures first considered the amendment, ten of the eleven former Confederate states rejected it overwhelmingly—Louisiana unanimously. In response, again over President Johnson’s veto, Congress passed the Reconstruction Acts of 1867, which imposed military rule on the South and required that any states seeking readmission to the Union had to first ratify the Fourteenth Amendment. In July 1868, the Fourteenth Amendment was officially adopted.
The Reconstruction Acts of 1867 also granted voting rights to African American men while disenfranchising former Confederates, dramatically altering the political landscape of the South and ushering in a period of progress. In elections for new state governments, black voter turnout neared 90 percent in many jurisdictions, and black voters—who comprised a majority in many districts and a statewide majority in Louisiana—elected both white and black leaders to represent them. More than six hundred African Americans, most of them formerly enslaved, were elected as state legislators during this period. Another eighteen African Americans rose to serve in state executive positions, including lieutenant governor, secretary of state, superintendent of education, and treasurer. In Louisiana in 1872, P.B.S. Pinchback became the first black governor in America (and would be the last until 1990). The Reconstruction states sent sixteen black representatives to the United States Congress, and Mississippi voters elected the nation’s first black senators: Hiram Revels and Blanche Bruce.
The newly elected and racially integrated Reconstruction governments took bold action at the state level, repealing discriminatory laws, rewriting apprenticeship and vagrancy statutes, outlawing corporal punishment, and sharply reducing the number of capital offenses. African Americans also won election to law enforcement positions like sheriff and chief of police, and were empowered to serve on juries.
Despite their advances, the racially diverse Reconstruction governments faced significant challenges. For one, the issue of social equality continued to divide the Republican Party. Black members and progressive whites advocated the full eradication of white supremacy, while more conservative whites still supported some forms of racial hierarchy and separation. Because nearly all black voters supported the Republican ticket in every election, the party began to take freedmen’s votes for granted and shifted its attention toward courting more “moderate” white swing voters. In addition, the Reconstruction governments faced a “crisis of legitimacy” as their efforts to attract capital to war-torn Southern state economies raised accusations of corruption and graft.
In the midst of this growing instability, officials struggled to control increasingly violent and lawless groups of white supremacists in their states. Beginning as disparate “social clubs” of former Confederate soldiers, these groups morphed into large paramilitary organizations that drew thousands of members from all sectors of white society.31 Collectively, and with the tacit endorsement of the broader white community, their members launched a bloody reign of terror that would overthrow Reconstruction and sustain generations of white rule.”
Carol Anderson, White Rage
“James Madison called it America’s “original sin.” Chattel slavery. The horrors, Thomas Jefferson prophesied, would bring down a with of biblical proportions.? “Indeed,” Jefferson wrote, “I tremble for my country when I reflect that God is just: that his justice cannot sleep forever.”
In 1861, the day of reckoning came. The Southern states’ determination to establish “their independent slave republic” led to four years of war, 1.5 million casualties, including at least 620,000 deaths, and 20 percent of Southern white males wiped off the face of the earth.”
In his second inaugural address, in 1865, Abraham Lincoln agonized that the carnage of this war was God’s punishment for “all the wealth piled by the bondsman’s 250 years of unrequited toil.”5 Over time the road to atonement revealed itself: In addition to civil war, there would be the Emancipation Proclamation, three separate constitutional amendments–one that abolished slavery, another that defined citizenship, and the other that protected the right to vote-and, finally, the Freedmen’s Bureau, with its mandate to provide land and education. Redemption for the country’s “sin,” therefore, would require not just the end of slavery but also the recognition of full citizenship for African Americans, the right to vote, an economic basis to ensure freedom, and high-quality schools to break the generational chains of enforced ignorance and subjugation.
First within weeks after taking office, Johnson pardoned scores former Confederates, ignoring Congress’s 1862 Ironclad Test Oath that expressly forbade him to do so, and handed out full amnesty to thousands whom, just the year before, he had called “guerrillas and cut-throats” and “traitors … [who] ought to be hung” Beneficiaries of his largesse included the head of the Confederate Army, Robert E. Lee, and even CSA vice president Alexander Stephens. Even more shocking, given Johnson’s decades-long resentment against and vilification of the “damnable aristocracy,” his generosity and forgiveness extended to the plantation owners themselves.
Still, there was hope of progress. In March 1865, Congress created an organization, the Bureau of Refugees, Freedmen, and Abandoned Lands, commonly known as the Freedmen’s Bureau, which had a range of responsibilities including the reallocation of abandoned Southern land to the newly emancipated. The bureau’s charge was to lease forty-acre parcels that would provide economic self-sufficiency to a people who had endured hundreds of years of unpaid toil. Already, in January 1865, Union general William Tecumseh Sherman had issued Special Field Order No. 15, which, to take some of the pressure off his army as thousands of slaves eagerly fled their plantations and trailed behind his troops, reserved coastal land in Georgia and South Carolina for black settlement.” Less than a year after he issued the order, forty thousand former slaves had begun to work four hundred thousand acres of this land. Then, in July of the same year, the head of the Freedmen’s Bureau, General Oliver 0. Howard, issued Circular 13, fully authorizing the lease of forty-acre plots from abandoned plantations to the newly freed families… Johnson, however, immediately rescinded Howard commanding the army to throw tens of thousands of freedpeople off the land and reinstall the plantation owners…
…The reigning leaders of the Confederacy, who had rightfully expected to be tried and hung as traitors, now were not only poised to sail back into power in the federal government but also, given Johnson’s amnesty, allowed to regain control of their states and, as a consequence, of the millions of newly emancipated and landless black people there. As he welcomed one “niggers will catch hell” state after the next back into the Union with no mention whatsoever of black voting rights and, thus no political protection, he effectively laid the groundwork for mass murder…
…One of the president’s emissaries, Carl Schurz, recoiled as he traveled throughout the South and gathered reports of African American women who had been “scalped,” had their “ears cut off,” or had been thrown into a river and drowned amid chants for them to swim to the “damned Yankees.” Young black boys and men were routinely stabbed, clubbed, and shot. Some were even “chained to a tree and burned to death.” In what can only be described as a travelogue of death, as he went from county to county, state to state, he conveyed the sickening unbearable stench of decomposing black bodies hanging from limbs, rotting in ditches, and clogging the roadways.46 White Southerners, it was obvious, had unleashed a reign of terror and anti-black violence that had reached “staggering proportions.”…
…Mississippi showed the way. In the fall of 1865, the state passed a series of laws targeted and applicable only to African Americans (free and newly emancipated) that undercut any chance or hope for civil rights, economic independence, or even the reestablishment of families that had been ripped apart by slavery. As noted by Du Bois, the notorious Black Codes “were an astonishing affront to emancipation” and made “plain and indisputable” the “attempt on the part of the Southern states to make Negroes slaves in everything but name.956 The codes required that blacks sign annual labor contracts with plantation, mill, or mine owners. If African Americans refused or could show no proof of gainful employment, they would be charged with vagrancy and put on the auction block, with their labor sold to the highest bidder. The supposed contract was beyond binding; it was more like a shackle, for African Americans were forbidden to seek better wages and working conditions with another employer. No matter how intolerable the working conditions, if they left the plantation, lumber camp, or mine, they would be jailed and auctioned off. They were trapped. Self-sufficiency itself was illegal, as blacks couldn’t hold any other employment besides laborer or domestic (unless they had the written consent of the mayor or judge) and were also banned from hunting and fishing, and thus denied the means even to stave off hunger. More galling yet was a provision whereby black children who had been sold before the war and hadn’t yet reunited with their parents were to be apprenticed off, with the former masters having the first right to their labor. Finally, the penalty for defiance, insulting gestures, and inappropriate behavior, the Black Codes made clear, was a no-holds-barred whipping.
Mississippi’s success in reinscribing slavery by another name was undeniable. Nine of the other former Confederate States quickly copied the Black Codes, sometimes verbatim. The their draconian nature, were not the work of extreme secessionists. Some of the South’s most respected judges, attorneys, and planters crafted the Black Codes. From the cool marble halls houses, white opposition had done its job with the mere pen. “If you call this Freedom,” wrote one black veteran you call Slavery?”
Not even Union general (and future president) Ulysses S. saw anything wrong. Under Florida’s Black Codes, disobedience or impudence was a “form of vagrancy and a vagrant could whipped.” In Louisiana black adults had to sign labor contract within the first ten days of each year that committed them and their children to work on a plantation.” In North Carolina “orphans were sent to work for the former masters of their families rather than allowing them to live with grandparents or other relatives.” But Grant, despite all brutal evidence to the contrary, was convinced that white Southerners had adjusted well to losing the Civil War. If African Americans resisted and complained bitterly about the Black Codes, this meant only that the Freedmen’s Bureau was “encouraging unrealistic expectations among the former slaves.” Grant did not attribute the turmoil in the South to the incredible levels of violence unleashed on the newly freed or to the barbaric Black Codes to which they were now subject; General Howard’s staff, he felt, must be the source of the problem. Bureau and federal oversight were, in Grant’s mind, “unnecessary, even harmful.”59
One Philadelphia newspaper, a hair more realistic, acknowledged the odiousness of the Black Codes. Still, the article continued, the codes were necessary. Perhaps the form they took was a touch too severe, but the Black Codes, it argued, were not about trying to reestablish slavery. The Southern states “just wanted to stop vagrancy and put an end to the undeniable evils of idleness and pauperism arising from the sudden emancipation of so many slaves.” By compelling them to work, the argument went, this measure prevented the newly freed from becoming a “burden upon society.” What the paper failed to recognize was that black people’s willingness to work had never been the problem. Having to work for free, under backbreaking conditions and the threat of the lash, was the real issue.
Nor did Johnson’s policies or the Black Codes ensure that African Americans would not be a “burden upon society.” If anything, they guaranteed the opposite. Blacks were denied access to land, banned from hunting and fishing, and forbidden to work independently using skills honed and developed while enslaved, such as blacksmithing. Under such conditions, self-sufficiency could never have been achieved.
The bottom line was that black economic independence was anathema to a power structure that depended on cheap, exploitable, rightless labor and required black subordination. But instead of honing in on this fundamental reality, the Philadelphia newspaper simply bemoaned the unforeseen and unfortunate consequences of the Black Codes for whites, complaining that, since “planters refuse to pay wages at all” to blacks, due to the landowners’ claims that “negroes are so lazy as not to be worth paying,” there was a downward pressure on overall wages that left poor whites unable to find work that provided enough to keep soul and body together. And yet, even when the constituency for whom Andrew Johnson swore he served got caught in the blowback of these ruthless laws, he did not lift a finger to stop it…
…in the spring and summer of 1866, the South’s descent into an orgy of anti-black violence signaled the final break between Johnson and the Republicans. In New Orleans, nearly fifty African Americans were slaughtered and more than a hundred injured for meeting to discuss voting. When one of the killers, who had just bludgeoned a black man to death, was warned that “he might be punished,” he scoffed. “Oh, hell! Haven’t you seen the papers?” he said. “Johnson is with us!”92 In Memphis, there was another gory bloodbath, and another round of silence from the White House. 93 In Texas, from 1865 to 1868, nearly one thousand African Americans were lynched…
…As the black body count mounted, with justice nowhere to be found, least of all from the president of United States, the Reconstruction era descended into nothing less than an age of violence and terror.
Congress, therefore, moved to provide some level of protection, passing the Reconstruction Acts of 1867, which divided the South into five military districts and tried to put U.S. troops between a still-smoldering, vengeful rebel population and the freed people. Then, in response to the rise of the Ku Klux Klan and organized, terrorist violence, Congress issued the Enforcement Acts. It also passed and the states subsequently ratified the Fourteenth and Fifteenth Amendments, weaving citizenship for all those born in the United States, except Native Americans, as well as the right to vote, into the Constitution.
Johnson did everything in his power to stop constitutional recognition of black people’s citizenship and voting rights, including convincing most of the Southern states not to ratify the Fourteenth Amendment and launching a breathtaking and ultimately disastrous political campaign to unseat Radical Republicans in Congress. Nevertheless, despite Johnson’s wild fulminations about the “Africanization” of the South and the tyranny of “negro domination,” the Fourteenth Amendment was ratified on July 9, 1868, followed by the Fifteenth on February 3, 1870. Congress had just created a legal structure to begin to atone for America’s “original sin.”
The U.S. Supreme Court, however, stepped in and succeeded where Johnson had failed. Frederick Douglass lamented that by the time the justices had finished, “in most of the Southern States, the fourteenth and fifteenth amendments are virtually nullified. The rights which they were intended to guarantee are denied and held in contempt. The citizenship granted in the fourteenth amendment is practically a mockery, and the right to vote … is literally stamped out in face of government.”
The Supreme Court justices gave the aura of being “strict constitutionalists” whose job was not to interpret or create but merely to distinguish between the rights the federal government enforced and those controlled by the states. 9 But the supposedly legally neutral interpretations had profound effects. And the court, just like Johnson, demonstrated an uncanny ability to ignore inconsistencies and to twist rules, beliefs, and values to undermine the solid progress in black people’s rights that the Radical Republicans had finally managed to put in place. The court declared that the Reconstruction amendments had illegally placed the full scope of civil rights, which had once been the domain of states, under federal authority. That usurpation of power was unconstitutional because it put state governments under Washington’s control, disrupted the distribution of power in the federal system, and radically altered the framework of American government.100 The justices consistently held to this supposedly strict reading of the Constitution when it came to African Americans’ rights.
Yet, this same court threw tradition and strict reading out the window in the Santa Clara decision. California had changed its taxation laws to no longer allow corporations to deduct debt from the amount owed to the state or municipalities. The change applied only to businesses; people, under the new law, were not affected. The Southern Pacific Railroad refused to pay its new tax bill, arguing that its rights under the equal protection clause of the Fourteen Amendment had been violated.
In hearing the case, the court became inovative and creative as it transformed corporations into people” who could not have their Fourteenth Amendment rights led on by local communities. So, while businesses were shielded, black Americans were most emphatically not.
The ruling that began this long, disastrous legal retreat from a rights-based society was the 1873 Slaughterhouse Cases. New Orleans had passed a law not only to confine butcher shops, with their blood, entrails, and inevitable disease, to a discrete section of town but also to allow only city-authorized stores to operate. The butchers went to court, pleading that their right to due process under the Fourteenth Amendment had been violated. The justices ruled that that was impossible because the amendment covered only federal citizenship rights, such as habeas corpus and the right to peaceful assembly. Everything else came under the domain of the states.102 As a result, “citizens still had to seek protection for most of their civil rights from state governments and state courts.”
Even the right to vote, despite the Fifteenth Amendment, was not federally protected. In Minor v. Happersett (1874), Chief Justice Morrison R. Waite wrote, “The Constitution of the United States does not confer the right of suffrage upon anyone,” because the vote “was not coexistent with citizenship.” This was reaffirmed in United States v. Reese (1875). In Lexington, Kentucky, a black man, William Garner, had tried to vote. The registrars, Hiram Reese and Matthew Foushee, refused to hand Garner a ballot because he had not paid a poll tax. Yet, the black man had an affidavit that the tax collector had refused to accept his payment. The registrars scoffed. With one wing of local government demanding proof of payment and the other flat out refusing to accept the funds, Garner new his right to vote had been violated. The U.S. Supreme Court, in an 8-1 decision, disagreed. In another opinion, Waite wrote that the Fifteenth Amendment did not guarantee the right to vote but “had merely prevented the states from giving preference to one citizen over another on account of race, color, etc.” To emphasize the point Waite, the “right to vote…comes from the states.”
In quick succession, the court had undermined citizenship, due process, and the right to vote. Next was the basic right to life. In 1873, Southern Democrats, angered that African Americans had voted in a Republican government in Colfax, Louisiana to overturn the results of the recent election and install supremacist regime. Blacks were determined to defend the citizenship rights and occupied the symbol of democracy in Colfax, the courthouse, to ensure that the duly elected representatives, most of whom were white, could take office. That act of democratic courage resulted in an unprecedented bloodbath, even for Reconstruction. Depending on the casualty estimate, between 105 and 280 African Americans were slaughtered. Their killers were then charged with violating the Enforcement Act of 1870, which Congress had passed to stop the Klan’s terrorism. Chief Justice Waite, in United States v Cruikshank (1876), ruled that the Enforcement Act violated states’ rights. Moreover, the only recourse the federal government could take was the Fourteenth Amendment, but, he continued, that did not cover vigilantes or private acts of terror, but rather covered only those acts of violence carried out by the states. The ruling not only let mass murderers go free; it effectively removed the ability of the federal government to rein in anti-black domestic terrorism moving forward.
But the rollback of rights was not over yet; next on the list were dignity and equality. In the Civil Rights Cases (1883), the justices ruled that the 1875 Force Act that banned discrimination in public accommodations was also unconstitutional because the Fourteenth Amendment could be enforced only by the states, not the federal government. Moreover, in a wicked one-two punch, the justices added that the Thirteenth Amendment’s ban on “badges of servitude” did not extend to discrimination in public accommodations, such as in hotels, restaurant and railcars.
U.S. Supreme Court Justice Joseph Bradley was exasperated with African Americans consistently seeking legal redress and laws to fend off the violence, state-sponsored discrimination, legalized terror, and the reimposition of “crypto-slavery” and a “netherworld of rightlessness” that had come to define their lives after the Civil War. He barked that “there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws. ” Like Andrew Johnson, Bradley saw equal treatment for black people as favoritism.
Unequal treatment, however, became the law of the land. In Hall v DeCuir (1877), the justices ruled that a state could not prohibit racial segregation. Then, in a series of decisions, Strauder v. West Virginia (1880), Ex parte Virginia (1880), and Virginia v. Rives (1880), the U.S. Supreme Court provided clear guidelines to the states on how to systematically and constitutionally exclude African Americans from juries in favor of white jurors.’ll The crowning glory was Plessy v. Ferguson (1896). Homer Plessy, a black man who looked white, thought his challenge to a Louisiana law that forced him to ride in the Jim Crow railcar instead of the one designated for whites would put an end to this legal descent into black subjugation. He was wrong. The justices, in an 8-1 decision, dismissed the claims that Plessy’s Fourteenth Amendment rights to equal protection under the law were violated. Justice Henry Brown unequivocally stated, “If one race be inferior to the other socially, the constitution of the United States cannot put them on the same plane.” And when Plessy argued that segregation violated the Thirteenth Amendment’s ban against “badges of servitude,” the Supreme Court shot down that argument as well, noting: “We consider the underlying fallacy of Plessy’s) argument … to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that constructio
Despite more than a generation of irrefutable evidence of widespread racial discrimination in the aftermath of the Civil War, the court created the mythic, “separate but equal” doctrine to confirm racial segregation Cumming v Richmond County Board of Education (1899) that even ignored Plessy’s separate but equal doctrine by declaring that financial exigency made it perfectly acceptable to shut down black schools while continuing to operate educational facilities for white children.
Just prior to that, the court had sanctioned closing off the ballot box. In a unanimous 9-0 decision in Williams v. Mississippi (1898). the justices approved the use of the poll tax, which requires citizens to pay a fee- under a set of very arcane, complicated rules-to vote. Although the discriminatory intent of the requirement was well known prior to the justices’ ruling, the highest court in the land sanctioned this formidable barrier to the ballot box. In fact, Justice Joseph McKenna quoted extensively from the Mississippi Supreme Court’s candid admission that the state convention, “restrained by the federal Constitution from discriminating against the negro race,” opted instead to find a method that “discriminates against its [African Americans’] characteristics”-namely, poverty, illiteracy, and more poverty. 115
The repercussions were harrowing for American democracy; the poll tax not only ensnared black voters but also trapped poor whites. As late as 1942. for instance, only 3 percent of the voting-age population cast a ballot in seven poll tax states. 116 Just 3 percent of an electorate in these states decided who would sit in the U.S. Senate and House of Representatives to shape federal policy. This, in turn, strengthened the years of seniority and thus the stranglehold on federal law of these officials, who accordingly rose in the ranks to assume or hold on to key leadership positions, such as chairing the Foreign Relations Committee, judiciary committees, and others.
Senator Walter George (D-GA) was proud of how states like his beloved Georgia were able to legally disfranchise millions of voters. “Why apologize or evade?” he asked. “We have been very careful to obey the letter of the Federal Constitution-but we have been very diligent in violating the spirit of such amendments and such statutes we would have a Negro to believe himself the equal of a white man.”
From 1873, with the Slaughterhouse Cases, Cruikshank, Plessy, Williams, and others, the U.S. Supreme Court had systematically dismantled the Thirteenth, Fourteenth, and Fifteenth Amendments and rendered the Enforcement and Force Acts dead on arrival. For strict constructionists, the court willfully ignored congressional intent and the history behind the laws and amendments. At the onset of the twentieth century, in Giles v. Harris (1903), Justice Oliver Wendell Holmes wrote that “the federal courts had no power, either constitutional or practical, to remedy a statewide wrong, even if perpetrated by the state or its agents.”
The Supreme Court thus identified states as the ultimate defenders of rights, although Southern states had repeatedly proven themselves the ultimate violators of those rights. Through antiseptic, clinical, measured language, the learned jurists had entrusted the protection of life, liberty, and the pursuit of happiness for African Americans to the very same states that bragged “this is a white man’s government”; that yearned for the moment to regain control of the freedmen and then the niggers will catch hell”; whose citizens fretted, “We showed our hand too soon” with the Black Codes, which allowed Mississippi and its brethren to criminalize, auction off, and whip black people, and that were determined to get things back as close to slavery as possible.” The result was not lost on African Americans. One black man from Louisiana summed it up this way: “The whole South–every state in the South-had got into the hands of the very men that had held us as slaves.”‘
So while the United States may have won the Civil War, and blacks may have tasted freedom, the white opposition that ruled from the White House and the Supreme Court all the way down through every statehouse in the South meant that real change was infinitesimal at best. To quote one historian’s paraphrase of Frederick Maitland: “The slave law of the South may have been dead, but it ruled us from the grave.”
Equally vicious was the practice of “white capping which, since the horrors of Bosnia and Srebrenica, we now recognize as ethnic cleansing: In several Georgia and Mississippi counties where plantations did not dominate the economy, local whites maimed, murdered, and terrorized African Americans and, as the persecuted fled, seized all the land until one could “ride for miles and not see a black face.”
In other areas dependent on the sharecropping system, a different type of persecution prevailed: peonage. Fewer than 20 percent of all sharecroppers ever made a profit at the end of the year, with the rest consigned to an ever-widening cavern of debt slavery. The sharecropping system required those who worked a farm to purchase all their supplies and foodstuffs from the landowner, regardless of price or the staggering interest rates charged. At the end of the year, the accrued “debts” would be deducted from whatever amount the harvest had brought and the difference paid to the sharecropper. was a system designed for abuse. The landowner having, as often as not, rigged the accounting, charged inflated prices for goods that were commonly never received, and engaged in systematized fraud. Most sharecroppers, therefore, never saw a penny and instead owed the employer. Thus, they would start the next year in the hole paying off debts they had never actually incurred. Those who did make a profit earned only between nine and forty-eight cents a day for a year’s hard labor in the fields.22 To challenge the system, however, could easily result in another lynching, spectacle or otherwise. The point was to send a powerful signal to the larger African American community that speaking up for one’s rights and demanding appropriate compensation was a death sentence.
“Elected in 1868, Republican President Ulysses S. Grant supported Congressional Reconstruction and enforced the protection of African Americans in the South through the use of the Enforcement Acts passed by Congress. Grant used the Enforcement Acts to effectively combat the Ku Klux Klan, which was essentially wiped out, although a new incarnation of the Klan eventually would again come to national prominence in the 1920s. Nevertheless, President Grant was unable to resolve the escalating tensions inside the Republican Party between the northerners on the one hand, and those Republicans originally hailing from the South on the other (this latter group would be labelled “Scalawags” by those opposing Reconstruction). Meanwhile, “Redeemers“, self-styled Conservatives (in close cooperation with a faction of the Democratic Party) strongly opposed reconstruction. They alleged widespread corruption by the “Carpetbaggers”, excessive state spending and ruinous taxes. Meanwhile, public support for Reconstruction policies, requiring continued supervision of the South, faded in the North after the Democrats, who strongly opposed Reconstruction, regained control of the House of Representatives in 1874. In 1877, as part of a Congressional bargain to elect Republican Rutherford B. Hayes as president following the close 1876 presidential election, U.S. Army troops no longer supported Republican state governments. Reconstruction was a significant chapter in the history of American civil rights. Historian Eric Foner argues:
What remains certain is that Reconstruction failed, and that for blacks its failure was a disaster whose magnitude cannot be obscured by the genuine accomplishments that did endure
The Failure of Reconstruction
In 2019, Henry Louis Gates Jr. will present a vital new four-hour documentary series on Reconstruction: America After the Civil War. The series will explore the transformative years following the American Civil War, when the nation struggled to rebuild itself in the face of profound loss, massive destruction, and revolutionary social change. The twelve years that composed the post-war Reconstruction era (1865-77) witnessed a seismic shift in the meaning and makeup of our democracy, with millions of former slaves and free black people seeking out their rightful place as equal citizens under the law. Though tragically short-lived, this bold democratic experiment was, in the words of W. E. B. Du Bois, a ‘brief moment in the sun’ for African Americans, when they could advance, and achieve, education, exercise their right to vote, and run for and win public office. The first two hours of the series will center on this pivotal decade following the rebellion, charting black progress and highlighting the accomplishments of the many political leaders who emerged to usher their communities into this new era of freedom.
The series’ second half will look beyond that hopeful decade, when the arc of history bent backwards. It became increasingly clear that many former Confederates were never willingly going to accept this new social order and that the federal government was not prepared to provide African Americans with consistent or enduring protection of their new rights. While tracing the unraveling of Reconstruction and the rise of Jim Crow segregation in the closing years of the nineteenth century, we will look at the myriad ways in which black people continued to acquire land, build institutions, and strengthen communities amidst increasing racial violence and repression. Less than thirty years after black men filled state legislatures, one by one, like dominoes tumbling the Southern states began drastically restricting the vote while drawing a stark color line that divided white and black America. The series will conclude with a focus on both the flowering of African American art, music, literature, and culture as tools of resistance in the struggle against Jim Crow racism and the surge of political activism that marked the launch of such iconic civil rights organizations as the National Association of Colored Women, the Niagara Movement, and the NAACP, all at a time when black political power had been blunted and the dream of an interracial democracy seemed impossibly out of reach.
Reconstruction is one of the most important and consequential chapters in American history. It is also among the most overlooked, misunderstood, and misrepresented. Some of our most famous narratives of the period include demeaning stereotypes of black people and skewed versions of events that have been immortalized in films from Birth of a Nation to Gone with the Wind. This series will tell the real story of Reconstruction, honoring the struggle of the African Americans who fought their way out of slavery and challenged the nation to live up to the founding ideals of democracy, freedom, and equality. Over a hundred and fifty years later, this struggle continues.
SEPARATE AND UNEQUAL: THE COURT’S ROLE
“For more than a century before its groundbreaking decision to desegregate public schools in 1954, the Supreme Court protected slavery, undermined equal rights, immunized lynch mobs from punishment, and embraced Jim Crow. Brown v. Board of Education was a striking departure from the Court’s longstanding role shielding the South from challenges to its racial caste system.
The Supreme Court vigorously defended the property rights of slave owners and enshrined the narrative of racial difference in its precedent by holding that black people “had no rights which the white man was bound to respect,” whether they were enslaved or not.58
The Court struck down state laws to prevent slave traders from kidnapping free black people and selling them into slavery59 and defended slave owners’ property rights by vacating the Missouri Compromise, which limited slavery in new United States territories.60
Infamously, the Court’s 1857 decision in Dred Scott v. Sandford established that no black person, free or enslaved, could be a citizen of the United States.61 The Court reasoned that black people “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations,” and therefore, it is “absolutely certain that the African race were not included under the name of citizens of a State” and not entitled to the “privileges and immunities” of citizenship.62
During Reconstruction — the period immediately following the Civil War when an effort was made to defend the rights of formerly enslaved black people — Congress passed three constitutional amendments: the Thirteenth Amendment abolished slavery and involuntary servitude; the Fourteenth Amendment overturned Dred Scott, declared all people born in the United States to be citizens, and guaranteed citizens due process and equal protection of the laws; and the Fifteenth Amendment prohibited denying a man the right to vote “on account of race, color, or previous condition of servitude.” The Supreme Court swiftly and systematically gutted all three.
The Fourteenth Amendment was designed to prevent states from violating the rights of formerly enslaved people. In 1872, in the Slaughterhouse Cases, the Court nullified the amendment by holding that it could not limit the power of states to deny basic rights to their own citizens.63
In 1875, in United States v. Reese, the Court held that the Fifteenth Amendment did not grant African Americans a federal right to vote, 64 struck down the statute Congress passed to protect African Americans’ voting rights, and overturned the convictions of two election officials who had refused to count a black man’s vote. 65
Complicity in Racial Terrorism
As racial terror lynching raged throughout the South following the abolition of slavery, the Supreme Court repeatedly rendered the federal government powerless to protect African Americans from racial violence.
After killing as many as 150 black people peacefully protesting at the courthouse in Colfax, Louisiana, in 1873, white defendants were convicted under a federal law designed to combat the Ku Klux Klan. 66 The Court overturned their convictions in United States v. Cruikshank and struck down the statute, holding that Congress was empowered to regulate only state action, not the acts of private citizens — even if they committed murder.67
The conceit of this private/state actor distinction was laid bare in Screws v. United States, when the Court overturned the conviction of a sheriff who, along with two other law enforcement officers, beat a handcuffed black man to death.68
The Court not only shut down federal attempts to protect black citizens, but also permitted state courts to deny justice to black victims. While the Court struck down a law that excluded black men from jury service solely based on race in 1879, it permitted states to create property and educational requirements for jury service and gave local officials nearly unfettered discretion to use those requirements to exclude African Americans. 69
The Court made it so difficult to prove racial discrimination in jury selection that between 1904 and 1935, not a single conviction of a black defendant was reversed because of racial discrimination in jury selection, even though African Americans were universally excluded from Southern juries.70 Meanwhile, all-white juries reliably acquitted white perpetrators of lynchings and other racial violence.”
EH.net: The Freedmen’s Bureau
The Bureau of Refugees, Freedmen, and Abandoned Lands, more commonly know as the Freedmen’s Bureau, was a federal agency established to help Southern blacks transition from their lives as slaves to free individuals. The challenges of this transformation were enormous as the Civil War devastated the region – leaving farmland dilapidated and massive amounts of capital destroyed. Additionally, the entire social order of the region was disturbed as slave owners and former slaves were forced to interact with one another in completely new ways. The Freedmen’s Bureau was an unprecedented foray by the federal government into the sphere of social welfare during a critical period of American history. This article briefly describes this unique agency, its colorful history, and many functions that the bureau performed during its brief existence.
The Beginning of the Bureau
In March 1863, the American Freedmen’s Inquiry Commission was set up to investigate “the measures which may best contribute to the protection and improvement of the recently emancipated freedmen of the United States, and to their self-defense and self-support.”1 The commission debated various methods and activities to alleviate the current condition of freedmen and aid their transition to free individuals. Basic aid activities to alleviate physical suffering and provide legal justice, education, and land redistribution were commonly mentioned in these meetings and hearings. This inquiry commission examined many issues and came up with some ideas that would eventually become the foundation for the eventual Freedmen’s Bureau Law. In 1864, the commission issued their final report which laid out the basic philosophy that would guide the actions of the Freedmen’s Bureau.
“The sum of our recommendations is this: Offer the freedmen temporary aid and counsel until they become a little accustomed to their new sphere of life; secure to them, by law, their just rights of person and property; relieve them, by a fair and equal administration of justice, from the depressing influence of disgraceful prejudice; above all, guard them against the virtual restoration of slavery in any form, and let them take care of themselves. If we do this, the future of the African race in this country will be conducive to its prosperity and associated with its well-being. There will be nothing connected with it to excite regret to inspire apprehension.”2
When the Congress finally got down to the business of writing a bill to aid the transition of the freedmen they tried to integrate many of the American Freedmen’s Inquiry Commission’s recommendations. Originally the agency set up to aid in this transition was to be named the Bureau of Emancipation. However, when the bill came up for a vote on March 1, 1864 the name was changed to the Bureau of Refugees, Freedmen, and Abandoned Lands. This change was due in large part to objections that the bill was exclusionary and aimed solely towards the aid of blacks. This name changed was aimed at enlarging support for the bill.
The House and the Senate argued about the powers and place that the bureau should reside within the government. Those in the House wanted the agency placed within the War Department, concluding that the power used to free the slaves would be best to aid them in their transition. Oppositely, in the Senate Charles Sumner’s Committee on Slavery and Freedom wanted the bureau placed within the Department of the Treasury – as it had the power to tax and had possession of confiscated lands. Sumner felt that they “should not be separated from their best source of livelihood.”3 After a year of debate, finally a compromise was agreed to that entrusted the Freedmen’s Bureau with the administration of confiscated lands while placing the bureau within the Department of War. Thus, On March 3, 1865, with the stroke of a pen, Abraham Lincoln signed into existence the Bureau of Refugees, Freedmen, and Abandoned Lands. Selected to head of the new bureau was General Otis Oliver Howard – commonly known as the Christian General. Howard had strong ties with the philanthropic community and forged strong ties with freedmen’s aid organizations.
The Freedmen’s Bureau was active in a variety of aid functions. Eric Foner writes it was “an experiment in social policy that did not belong to the America of its day”.4 The bureau did important work in many key areas and had many functions that even today are not considered the responsibility of the national government.
A key function of the bureau, especially in the beginning, was to provide temporary relief for the suffering of destitute freedmen. The bureau provided rations for those most in need due to the abandonment of plantations, poor crop yields, and unemployment. This aid was taken advantage of by a staggering number of both freedmen and refugees. A ration was defined as enough corn meal, flour, and sugar sufficient to feed a person for one week. In “the first 15 months following the war, the Bureau issued over 13 million rations, two thirds to blacks.”5 The size of this aid was staggering and while it was deemed a great necessity, it also fostered tremendous anxiety for both General Howard and the general population – mainly that it would cause idleness. Because of these worries, General Howard ordered that this form of relief be discontinued in the fall of 1866.
In a similar vein the bureau also provided medical care to the recently freed slaves. The health situation of freedmen at the conclusion of the Civil War was atrocious. Frequent pandemics of cholera, poor sanitation, and outbreaks of smallpox killed scores of freedmen. Because the freed population lacked the financial assets to purchase private healthcare and were denied care in many other cases, the bureau played a valuable role.
“Since hospitals and doctors could not be relied on to provide adequate health care for freedmen, individual bureau agents on occasion responded innovatively to black distress. During epidemics, Pine Bluff and Little Rock agents relocated freedpersons to less contagion-ridden places. When blacks could not be moved, agents imposed quarantines to prevent the spread of disease. General Order Number 8…prohibited new residents from congregating in towns. The order also mandated weekly inspections of freedmen’s homes to check for filth and overcrowding.”6
In addition to preventing and containing outbreaks, the bureau also engaged more directly in health care. Being placed in the War Department, the bureau was also able to assume operations of hospitals established by the Army during the war. After the war it expanded the system to areas previously not under military control. Observing that freedmen were not receiving an adequate quality of health services, the bureau established dispensaries providing basic medical care and drugs free of charge, or at a nominal cost. The Bureau “managed in the early years of Reconstruction to treat an estimated half million suffering freedmen, as well as a smaller but significant number of whites.”7
Perhaps the most well-known function of the bureau was one that never came to fruition. During the course of the Civil War, the U.S. Army took control of a good deal of land that had been confiscated or abandoned by the Confederacy. From the time of emancipation there were rumors that confiscated lands would be provided to the recently freed slaves. This land would enable the blacks to be economically self-sufficient and provide protection from their former owners. In January 1865, General Sherman issued Special Field Orders, No. 15, which set aside the Sea Islands and lands from South Carolina to Florida for blacks to settle. According to his order, each family would receive forty acres of land and the loan of horses and mules from the Army. Similar to General Sherman’s order, the promise of land was incorporated into the bureau bill. Quickly the bureau helped blacks settle some of the abandoned lands and “by June 1865, roughly 10,000 families of freed people, with the assistance of the Freedmen’s Bureau, had taken up more than 400,000 acres.”8
While the promise of “forty acres and a mule” excited the freedmen, the widespread implementation of this policy was quickly thwarted. In the summer of 1865, President Andrew Johnson issued special pardons restoring the property of many Confederates – throwing into question the status of abandoned lands. In response, General Howard, the Commissioner of the Freedmen’s Bureau, issued Circular 13 which told agents to conserve forty-acre tracts of land for the freedmen – as he claimed presidential pardons conflicted with the laws establishing the bureau. However, Johnson quickly instructed Howard to rescind his circular and send out a new circular ordering the restoration to pardoned owners of all land except those tracts already sold. These actions by the President were devastating, as freedmen were evicted from lands that they had long occupied and improved. Johnson’s actions took away what many felt was the freedmen’s best chance at economic protection and self-sufficiency.
While the land distribution of the new agency was thwarted, the bureau was able to perform many duties. Bureau agents had judicial authority in the South attempting to secure equal justice from the state and local governments for both blacks and white Unionists. Local agents individually adjudicated a wide variety of disputes. In some circumstances the bureau established courts where freedmen could bring forth their complaints. After the local courts regained their jurisdiction, bureau agents kept an eye on local courts retaining the authority to overturn decisions that were discriminatory towards blacks. In May 1865, the Commissioner of the bureau issued a circular “authorizing assistant commissioners to exercise jurisdiction in cases where blacks were not allowed to testify.”9
In addition to these judicial functions, the bureau also helped provide legal services in the domestic sphere. Agents helped legitimize slave marriages and presided over freedmen marriage ceremonies in areas where black marriages were obstructed. Beginning in 1866, the bureau became responsible for filing the claims of black soldiers for back pay, pensions, and bounties. The claims division remained in operation until the end of the bureau’s existence. During a time when many of the states tried to strip rights away from blacks, the bureau was essential in providing freedmen redress and access to more equitable judicial decisions and services.
Another important function of the bureau was to help draw up work contracts to help facilitate the hiring of freedmen. The abolition of slavery created economic confusion and stagnation as many planters had a difficult time finding labor to work their fields. Additionally, many blacks were anxious and unsure about working for former slave owners. “Into this chaos stepped the Freedmen’s Bureau as an intermediary.”10 The bureau helped planters and freedmen draft contracts on mutually agreeable terms – negotiating several hundred thousand contracts. Once agreed upon, the agency tried to make sure both planter and worker lived up to their part of the agreement. In essence, the bureau “would undertake the role of umpire.”11
Of the bureau’s many activities this was one of its most controversial. Both planters and freedmen complained about the insistence on labor contracts. Planters complained that labor contracts forbade the use of corporal punishment used in the past. They resented the limits on their activities and felt the restrictions of the contracts limited the productivity of their workers. On the other hand, freedmen complained that the contract structures were too restrictive and didn’t allow them to move freely. In essence, the bureau had an impossible task – trying to get the freedmen to return to work for former slave owners while preserving their rights and limiting abuse. The Freedmen’s Bureau’s judicial functions were of great help in enforcing these contracts in a fair manner making both parties live up to their end of the bargain. While historians have split over whether the bureau favored planters or the freedmen, Ralph Shlomowitz in his detailed analysis of bureau-assisted labor contracts found that contracts were determined by the free interplay of market forces.12 First, he finds contracts brokered by the bureau were extremely detailed to an extent that would not make sense in the absence of compliance. Second, contrary to popular belief he finds the share of crops received by labor was highly variable. In areas of higher quality land the share awarded to labor was less than in areas with lower land quality.
Prior to the Civil War it had been policy in the sixteen slave states to fine, whip, or imprison those who gave instruction to blacks or mulattos. In many states the punishments for teaching a person of color were quite severe. These laws severely restricted the educational opportunity of blacks – especially access to formal schooling. As a result, when given their freedom, many former slaves lacked the literacy skills necessary to protect themselves from discrimination and exploitation, and pursue many personal activities. This lack of literacy created great problems for blacks in a free labor system. Freedmen were repeatedly taken advantage of as they were often unable to read or draft contracts. Additionally, individuals lacked the ability to read newspapers and trade manuals, or worship by reading the Bible. Thus, when emancipated there was a great demand for freedmen schools.
General Howard quickly realized that education was perhaps the most important endeavor that the bureau could undertake. However, the financial resources and the few functions that the bureau was authorized to undertake limited the extent to which it was able to assist. Much of the early work in schooling was done by a number of benevolent and religious Northern societies. While initially the direct aid of the bureau was limited, it provided an essential role in organizing and coordinating these organizations in their efforts. The agency also allowed the use of many buildings in the Army’s possession and the bureau helped transport a trove of teachers from the North – commonly referred to as yankee school marms.
While the limits of the original Freedmen’s Bureau bill hamstrung the efforts of agents, subsequent bills changed the situation as the purse strings and functions of the bureau in the area of education were rapidly expanded. This shift in attention followed the lead of General Howard whose “stated goal was to close one after another of the original bureau divisions while the educational work was increased with all possible energy.”13 Among the provisions of the second bureau bill were: the appropriation of salaries for State Superintendents of Education, the repair and rental of school buildings, the ability to use military taxes to pay teachers’ salaries, and the establishment of the education division as a separate entity in the bureau.
These new resources were used to great success as enrollments at bureau-financed schools grew quickly, new schools were constructed in a variety of areas, and the quality and curriculum of the schools was significantly improved. The Freedmen’s Bureau was very successful in establishing a vast network of schools to help educate the freedmen. In retrospect this was a Herculean task for the federal government to accomplish. In a region where it was illegal to teach blacks how to read or write just a few years prior, the bureau was able to help establish nearly 1,600 day schools educating over 100,000 blacks at a time. The number of bureau-aided day and night schools in operation grew to a maximum of 1,737 in March 1870, employing 2,799 teachers, and instructing 103,396 pupils. In addition, 1,034 Sabbath schools were aided by the bureau that employed 4,988 teachers and instructed 85,557 pupils.
Matching the Integrated Public Use Sample of the 1870 Census and a constructed data set on bureau school location, one can examine the reach and prevalence of bureau-aided schools.14 Table 1 presents the summary statistics of various school concentration measures and educational outcomes for individual blacks 10-15 years old.
The variable “Freedmen’s Bureau School” equals one if there was at least one bureau-aided school in the individual’s county. The data reveals that 63.6 percent of blacks lived in counties with at least one bureau school. This shows the bureau was quite effective in reaching a large segment of the black population – as nearly two thirds of blacks living in the states of the ex-Confederacy had at least some minimal exposure to these schools. While the schools were widespread, it appears their concentration was somewhat low. For individuals living in a county with at least one bureau-aided school, the concentration of bureau-aided schools was 0.3165 per 30 square miles, or 0.4630 bureau aided-schools per 1,000 blacks.
Although the concentration of schools was somewhat low it appears they had a large impact on the educational outcomes of southern blacks. Ten to fifteen year olds living in a county with at least one bureau-aided school had literacy rates that were 6.1 percentage points higher. This appears to have been driven by the bureau increasing access to formal education for black children in these counties as school attendance rates were 7.5 percentage points higher than in counties without such schools.
Andrew Johnson and the Freedmen’s Bureau
Only eleven days after signing the bureau into existence, Abraham Lincoln was struck down by John Wilkes Booth. Taking his place in office was Andrew Johnson, a former Democratic Senator from Tennessee. Despite Johnson’s Southern roots, hopes were high that Congress and the new President could work closer together than the previous administration. President Lincoln and Congress had championed vastly different policies for Reconstruction. Lincoln preferred the term “Restoration” instead of “Reconstruction,” as he felt it was constitutionally impossible for a state to succeed.15 Lincoln championed the quick integration of the South into the Union and believed it could best be accomplished under the direction of the executive branch. Oppositely, Republicans in Congress led by Charles Sumner and Thaddeus Stevens felt the Confederate states had actually seceded and relinquished their constitutional rights. The Republicans in Congress advocated strict conditions for re-entry into the Union and programs aimed at reshaping society.
The ascension of Johnson to the presidency gave hope to Congress that they would have an ally in the White House in terms of Reconstruction philosophy. According to Howard Nash, the “Radicals were delighted….to have Vice President Andrew Johnson, who they had good reason to suppose was one of their number, elevated to the presidency.”16 In the months before and immediately after taking office, Johnson repeatedly talked about the need to punish rebels in the South. After Lincoln’s death Johnson became more impassioned in his speeches. In late April 1865 Johnson told an Indiana delegation “Treason must be made odious…traitors must be punished and impoverished…their social power must be destroyed.”17 If anything, many feared that Johnson may stray too far from the Presidential Reconstruction offered by Lincoln and be overly harsh in his treatment of the South.
Immediately after taking office Johnson honored Lincoln’s choice to head the bureau by appointing General Oliver Otis Howard as commissioner of the bureau. While this action raised hopes in Congress they would be able to work with the new administration, Johnson quickly switched course. After his selection of Howard, President Johnson and the “Radical” Republicans would scarcely agree on anything during the remainder of his term. On May 29, 1865, Johnson issued a proclamation that conferred amnesty, pardon, and the restoration of property rights for almost all Confederate soldiers who took an oath pledging loyalty to the Union. Johnson later came out in support of the black codes of the South, which tried to bring blacks back to a position of near slavery and argued that the Confederate states should be accepted back into the Union without the condition of ratifying and adopting the Fourteenth Amendment in their state constitutions.
The original bill signed by Lincoln established the bureau during and for a period of one year after the Civil War. The language of the bill was somewhat ambiguous, and with the surrender of Confederate forces military conflict had ceased. This led people to debate when the bureau would be discontinued. Consensus seemed to imply that if another bill wasn’t brought forth that the bureau would be discontinued in early 1866. In response Congress quickly got to work on a new Freedmen’s Bureau bill.
While Congress started work on a new bill, President Johnson tried to gain support for the view that the need for the bureau had come to an end. Ulysses S. Grant was called upon by the President to make a whirlwind tour of the South, and report on the present situation. The route set up was exceptionally brief and skewed to those areas best under control. Accordingly, his report said that the Freedmen’s Bureau had done good work and it appeared as though the freedmen were now able to fend for themselves without the help of the federal government.
In contrast, Carl Schurz made a long tour of the South only a few months after Grant and found the freedmen in a much different situation. In many areas the bureau was viewed as the only restraint to the most insidious of treatment of blacks. As Q.A. Gilmore stated in the report,
“For reasons already suggested I believe that the restoration of civil power that would take the control of this question out of the hands of the United States authorities (whether exercised through the military authorities or through the Freedmen’s Bureau) would, instead of removing existing evils, be almost certain to augment them.”18
While the first bill was adequate in many ways, it was rather weak in a few areas. In particular, the bill didn’t have any appropriations for officers of the bureau or direct funds earmarked for the establishment of schools. General Howard and many of his officers reported on the great need for the bureau and pushed for its existence indefinitely or at least until the freedmen were in a less vulnerable position. After listening to the reports and the recommendations of General Howard, a new bill was crafted by Senator Lyman Trumbull, a moderate Republican. The new bill proposed the bureau should remain in existence until abolished by law, provide more explicit aid to education and land to the freedmen, and protect the civil rights of blacks. The bill passed in both the Senate and House and was sent to Andrew Johnson, who promptly vetoed the measure. In his response to the Senate, Johnson wrote “there can be no necessity for the enlargement of the powers of the bureau for which provision is made in the bill.”19
While the President’s message was definitive, the veto came as a shock to many in Congress. President Johnson had been consulted prior to its passage and assured General Howard and Senator Trumbull that he would support the bill. In response to the President’s opposition, the Senate and House passed a bill that addressed some of the complaints that Johnson had with the bill, including limiting the length of the bill to two more years. Even after this watering down of the bill, it was once again vetoed. However, the new bill garnered enough support to override President Johnson’s veto. The veto of the bill and the subsequent override officially established a policy of open hostility between the legislative and executive branch. Prior to the Johnson administration, overriding a veto was extremely rare – as it had only occurred six times up until this time.20 However, after the passage of this bill it became mere commonplace for the remainder of Johnson’s term, as Congress would overturn fifteen vetoes during the less than four years Johnson was in office.
End of the Bureau
While work in the educational division picked up after the passage of the second bill, many of the other activities of the bureau were winding down. On July 25, 1868 a bill was signed into law requiring the withdrawal of most bureau officers from the states, and to stop the functions of the bureau except those that were related to education and claims. Although the educational activities of the bureau were to continue for an indefinite period of time, most state superintendent of education offices had closed by the middle of 1870. On November 30, 1870 Rev. Alvord resigned his post as General Superintendent of Education.21 While some small activities of the bureau continued after his resignation, these activities were scaled back greatly and largely consisted of correspondence. Finally due to lack of appropriations the activities of the bureau ceased in March 1871.
The expiration of the bureau was somewhat anti-climatic. A number of representatives wanted to establish a permanent bureau or organization for blacks, so that they could regulate their relations with the national and state governments.22 However, this concept was too radical to get passed by enough of a margin to override a veto. There was also talk of moving many of its functions into other parts of the government. However, over time the appropriations began to dwindle and the urgency to work out a proposal for transfer withered away in a manner similar to the bureau.
James W. Loewen: Five Myths About Reconstruction
Reading list from CBS: Reconstruction, one of the most misunderstood chapters in American history
- “Reconstruction: American After the Civil War” (PBS), debuting April 9 (check local listings for date and time)
- “Reconstruction, White Supremacy, and the Rise of Jim Crow” by Henry Louis Gates Jr. (Penguin Press), in Hardcover, eBook and Audio formats, available via Amazon
- “Dark Sky Rising: Reconstruction and the Dawn of Jim Crow” by Henry Louis Gates Jr. with Tonya Bolden (Scholastic Focus), available via Amazon
- Houghton Library, Harvard University
- Eric Foner, Columbia University
- “The Second Founding: How the Civil War and Reconstruction Remade the Constitution” by Eric Foner (W.W. Norton), in Hardcover and eBook formats, available via Amazon
- “The Senator and the Socialite: The True Story of America’s First Black Dynasty” by Lawrence Otis Graham (HarperCollins), in Trade Paperback and eBook formats, available via Amazon
- Reconstruction Era National Monument, Beaufort, S.C.
- International African American History Museum, Charleston, S.C.
- Academy of American Studies High School, Long Island City, N.Y.
40 Acres and a Mule
- 1865 General Sherman Promise
- Based on meetings with black leaders
- Land was number 1 demand from freed black people
- Promised freed slaves 40 acres of confiscated confederate land
- And an army mule
- Divided 400,000 acres to 40,000 ex-slaves
- Part of a larger lard reform/reparations debate
- Based on meetings with black leaders
- Freedmen Bureau Created
- Continued this land reform for all free slaves
- Less than a year after
- President Johnson ordered majority of confiscated land be returned to former owners
- 38,000 black people had their land confiscated to confederate plantation owners
- 40 Acres and a Mule Today
- Worth $6.4 Trillion
“Millions of white settlers who had acquired western land, confiscated from rebel native communities over the years, had been freed…(Freed) blacks were only asking fro the same from rebel Confederate communities. But racist ideas traionalized the racist policy; White settlers on government-provided land were deemed receivers of American freedom. Black people, recievers of American handouts..Since the federal government had started selling confiscated and abandoned souther land to private owners in 1863, more than 90% had gone to northern Whites over the widespread protests of local blacks” Ibram Kendi, Stamped From the Beginning
Black Past: Forty Acres and a Mule
“The phrase “forty acres and a mule” evokes the Federal government’s failure to redistribute land after the Civil War and the economic hardship that African Americans suffered as a result. As Northern armies moved through the South at the end of the war, blacks began cultivating land abandoned by whites. Rumors developed that land would be seized from Confederates, and given or sold to freedmen. These rumors rested on solid foundations: abolitionists had discussed land redistribution at the beginning of the war, and in 1863 President Abraham Lincoln ordered 20,000 acres of land confiscated in South Carolina sold to freedmen in twenty-acre plots. Secretary of the Treasury Salmon Chase expanded the offering to forty acres per family.
In January 1865 General William T. Sherman met with twenty African American leaders who told him that land ownership was the best way for blacks to secure and enjoy their newfound freedom. On 16 January that year, Sherman issued Special Field Order No. 15. The order reserved coastal land in Georgia and South Carolina for black settlement. Each family would receive forty acres. Later Sherman agreed to loan the settlers army mules. Six months after Sherman issued the order, 40,000 former slaves lived on 400,000 acres of this coastal land. In March Congress seemed to indicate plans for widespread land reform when it authorized the Freedmen’s Bureau to divide confiscated land into small plots for sale to blacks and loyal Southern whites.
Less than a year after Sherman’s order, President Andrew Johnson intervened, and ordered that the vast majority of confiscated land be returned to its former owners. This included most of land that the freedmen had settled. The Federal government dispossessed tens of thousands of black landholders. In Georgia and South Carolina, some blacks fought back, driving away former owners with guns. Federal troops sometimes evicted blacks by force. In the end only some 2,000 blacks retained land they had won and worked after the war.”
On January 16, 1865, Union General William T. Sherman issued Special Field Order No. 15 which confiscated as Federal property a strip of coastal land extending about 30 miles inland from the Atlantic and stretching from Charleston, South Carolina 245 miles south to Jacksonville, Florida. The order gave most of the roughly 400,000 acres to newly emancipated slaves in forty-acre sections. Those lands became the basis for the slogan “forty acres and a mule” based on the belief that ex-slaves throughout the old Confederacy would be given the confiscated lands of former plantation owners. The order appears below.
I. The islands from Charleston, south, the abandoned rice fields along the rivers for thirty miles back from the sea, and the country bordering the St. Johns River, Florida, are reserved and set apart for the settlement of the negroes now made free by the acts of war and the proclamation of the President of the United States.
II. At Beaufort, Hilton Head, Savannah, Fernandina, St. Augustine and Jacksonville, the blacks may remain in their chosen or accustomed vocations—but on the islands, and in the settlements hereafter to be established, no white person whatever, unless military officers and soldiers detailed for duty, will be permitted to reside; and the sole and exclusive management of affairs will be left to the freed people themselves, subject only to the United States military authority and the acts of Congress. By the laws of war, and orders of the President of the United States, the negro is free and must be dealt with as such. He cannot be subjected to conscription or forced military service, save by the written orders of the highest military authority of the Department, under such regulations as the President or Congress may prescribe. Domestic servants, blacksmiths, carpenters and other mechanics, will be free to select their own work and residence, but the young and able-bodied negroes must be encouraged to enlist as soldiers in the service of the United States, to contribute their share towards maintaining their own freedom, and securing their rights as citizens of the United States.
Negroes so enlisted will be organized into companies, battalions and regiments, under the orders of the United States military authorities, and will be paid, fed and clothed according to law. The bounties paid on enlistment may, with the consent of the recruit, go to assist his family and settlement in procuring agricultural implements, seed, tools, boots, clothing, and other articles necessary for their livelihood.
III. Whenever three respectable negroes, heads of families, shall desire to settle on land, and shall have selected for that purpose an island or a locality clearly defined, within the limits above designated, the Inspector of Settlements and Plantations will himself, or by such subordinate officer as he may appoint, give them a license to settle such island or district, and afford them such assistance as he can to enable them to establish a peaceable agricultural settlement. The three parties named will subdivide the land, under the supervision of the Inspector, among themselves and such others as may choose to settle near them, so that each family shall have a plot of not more than (40) forty acres of tillable ground, and when it borders on some water channel, with not more than 800 feet water front, in the possession of which land the military authorities will afford them protection, until such time as they can protect themselves, or until Congress shall regulate their title. The Quartermaster may, on the requisition of the Inspector of Settlements and Plantations, place at the disposal of the Inspector, one or more of the captured steamers, to ply between the settlements and one or more of the commercial points heretofore named in orders, to afford the settlers the opportunity to supply their necessary wants, and to sell the products of their land and labor.
IV. Whenever a negro has enlisted in the military service of the United States, he may locate his family in any one of the settlements at pleasure, and acquire a homestead, and all other rights and privileges of a settler, as though present in person. In like manner, negroes may settle their families and engage on board the gunboats, or in fishing, or in the navigation of the inland waters, without losing any claim to land or other advantages derived from this system. But no one, unless an actual settler as above defined, or unless absent on Government service, will be entitled to claim any right to land or property in any settlement by virtue of these orders.
V. In order to carry out this system of settlement, a general officer will be detailed as Inspector of Settlements and Plantations, whose duty it shall be to visit the settlements, to regulate their police and general management, and who will furnish personally to each head of a family, subject to the approval of the President of the United States, a possessory title in writing, giving as near as possible the description of boundaries; and who shall adjust all claims or conflicts that may arise under the same, subject to the like approval, treating such titles altogether as possessory. The same general officer will also be charged with the enlistment and organization of the negro recruits, and protecting their interests while absent from their settlements; and will be governed by the rules and regulations prescribed by the War Department for such purposes.
VI. Brigadier General R. SAXTON is hereby appointed Inspector of Settlements and Plantations, and will at once enter on the performance of his duties. No change is intended or desired in the settlement now on Beaufort [Port Royal] Island, nor will any rights to property heretofore acquired be affected thereby.
BY ORDER OF MAJOR GENERAL W. T. SHERMAN:
Black Codes, Vagrancy Laws, and Apprentice Laws
- Black Codes (1865-66)
- Southern laws restricting newly freed black people’s freedom
- Restricted black person’s right to vote, serve on a jury, testify against a white person, work in any occupation other than farmer or servant, leave sharecropping, own a gun, gather in groups, worship, learn to read and write, etc
- Designed to essentially criminalize black life
- Forced many into share cropping or convict leasing
- Slavery by another name
- Black children were often forced into mandatory apprenticeships
- Often with their former slave masters
- Restricted black person’s right to vote, serve on a jury, testify against a white person, work in any occupation other than farmer or servant, leave sharecropping, own a gun, gather in groups, worship, learn to read and write, etc
- Southern laws restricting newly freed black people’s freedom
- Vagrancy Laws
- Black codes which allowed freed black people to be arrested local for minor infractions and committed to involuntary labor (slavery)
- For being unemployeed, homeless, loitering, etc
- Fueled rise of convict lease system and racist criminally justice system
- Black codes which allowed freed black people to be arrested local for minor infractions and committed to involuntary labor (slavery)
“Where most American laws required people to do something criminal before they could be arrested, vagrancy laws made it criminal simply to be a certain type of person.” Risa L. Goluboff. WP Journalist
Douglas A Blackmon: Slavery by Another Name
Splinter: The Racist History of Loitering Laws
Brennan Center for Justice: Racism & Felony Disenfranchisement: An Intertwined History
The End of the Civil War: An Increasingly Racist Criminal Justice System
By the end of the Civil War, states were already incarcerating African Americans at a higher rate than whites. This disparity significantly worsened in the ensuing years, a fact well-documented in the South.
Although outlawing slavery itself, the Thirteenth Amendment carved out an exception allowing states to impose involuntary servitude on those who were convicted of crimes. Seeing an opportunity to sustain their crumbling economy, numerous Southern politicians quickly implemented new criminal laws that were “essentially intended to criminalize black life,” wrote Pulitzer Prize-winning author Douglas Blackmon. These ostensibly race-neutral laws were selectively enforced by a nearly all-white criminal justice system. While white people accused of crimes often escaped punishment, black people were arrested and convicted “almost always under the thinnest chimera of probable cause or judicial process,” as Blackmon put it.
Identifying these new criminal laws as “Black Codes,” historian Eric Foner describes how they bolstered the South’s faltering economy by providing employers “with a supply of cheap labor” through convict leasing. This system was reserved nearly entirely for black prisoners — at least 90 percent of those forced into convict leasingarrangements were black. Because convict leasing generated significant profits for states, law enforcement officials, and companies alike, the practice incentivized baseless arrests and convictions of black citizens.
These factors and others spurred widening disparities in incarceration rates. In Alabama, for example, the percentage of nonwhite prisoners jumped from 2 percent in 1850, to 74 percent by 1870.
“These laws criminalized being idle, poor, immoral and dissolute, wandering about with no apparent purpose, being a habitual loafer or disorderly person and more. Where most American laws required people to do something criminal before they could be arrested, vagrancy laws made it criminal simply to be a certain type of person.
The breadth and vagueness of these laws allowed law enforcement officers to arrest anyone for any reason, especially if they seemed out of place in some way — like racial minorities, Communists and Vietnam War protesters, prostitutes, single women, sexual minorities and hippies. The police used these laws to keep a vast array of people in certain places and out of others, to deny their freedom, and to exclude them from political power, social life and cultural acceptance. A person could be arrested for sporting a beard, making a speech, working too little or simply being a black man in the wrong place. Vagrancy laws essentially provided a roving license to arrest, and that license was often used in discriminatory fashion.
Then came the Supreme Court’s pivotal 1972 case Papachristou v. City of Jacksonville, which showcased the racial discrimination that vagrancy laws licensed. It involved the arrest of two African American men and two white women for no reason other than that they were out together for a night on the town in Jacksonville, Fla. That the Florida vagrancy law could be used to arrest such people meant, as the court determined, that the law was impermissibly vague and that it failed to cabin police discretion.
After Papachristou, with vagrancy laws no longer available, law enforcement has turned to other laws, like disorderly conduct and trespassing, to similar ends. Police discretion that was lodged so firmly in vagrancy and loitering laws has continued in myriad policing practices, including most prominently stop and frisk. So long as discrimination exists in our society, it will find outlets in policing as elsewhere…
…Courts and legislatures, however, have been slow to address the full panoply of discriminatory policing practices. Vagrancy laws are gone, but treating African Americans like vagrants continues. A Washington Post report noted that blacks are stopped disproportionately in the Philadelphia neighborhood in which the Starbucks incident occurred: While they make up 3 percent of the area’s residents, they account for 67 percent of pedestrian police stops — delivering an implicit message that they are unwanted and unwelcome in the mostly white neighborhood.
It turns out that vagrancy laws are not the only thing that can keep people in the places others prescribe for them.
The dismantling of the vagrancy law system was necessary for ending Jim Crow and for advancing all the social movements for equality of the time. To be protected from arbitrary arrest was and is a precondition for full citizenship. In the 1960s, that meant the elimination of the most egregious, status-based laws. But that was always only a first step. The elimination of discriminatory police discretion, and the deeply entrenched racism that underlies it, was always going to be a lengthy and difficult process. That process began long before the incident at the Philadelphia Starbucks, but the goal of equal citizenship has yet to be achieved.”
Southern Black Codes provided another source of labor for white employers—black orphans and the children of vagrants or other destitute parents. The South Carolina code authorized courts to apprentice such black children, even against their will, to an employer until age 21 for males and 18 for females. Masters had the right to inflict moderate punishment on their apprentices and to recapture runaways. But the code also required masters to provide food and clothing to their apprentices, teach them a trade, and send them to school.
The History Engine: Mother Files Complaint with Freedman’s Bureau about Apprentice Law
When former slave Laura Taylor attempted to leave the plantation of her former owner, Mr. Allen, at Christmas in 1865 she was allowed to go, but her two children remained bound, legally, to Mr. Allen and his property. Mr. Allen was the children’s legal guardian under Mississippi’s apprentice law of November 22, 1865. This law operated under the illusion that it was protecting young black orphans and potential delinquents. It said that young black people, orphaned or not, may be bound into an apprenticeship. The former owner of any young black person was given the first opportunity to claim them as an apprentice, thus legally binding them to the plantation and its owner. When Ms. Taylor appealed to a local Freedman’s Bureau agent about her situation, there was little that the organization could do. After removing her children from Mr. Allen’s plantation Taylor was brought to court where a judge told her that she must leave her children. The Mississippi apprentice law that plagued Ms. Taylor may have been conceived at an 1865 Mississippi convention, as a bill proposed to the state legislature. Bill No. 6 was published for the readers of the Hinds County Gazette to consider. The text of this proposed legislation directly discussed the apprentice system, and the ways in which a young black person could be legally bound to a plantation owner or other sort of employer. Article No. 7 of this bill stated that: All persons holding or taking an apprentice under this act, shall have the right to control, manage and correct such apprentice, and to require such reasonable labor, service, obedience and duty, as humanity and a prudent governor may require, not inconsistent with the relation of master and servant. Other articles proposed to Mississippi legislature in 1865 included a restriction on intermarriage between races, and disenfranchisement of black voters. The apprentice laws and other legal measures enacted shortly after the end of the Civil War were part of a larger Southern effort to reestablish a social hierarchy with slavery-like constraints upon black people.
Sharecropping and Debt Peonage
- Sharing Cropping
- Landowner allows a tenant to use the land and tools in return for a share of the crops produced
- Due to the inability to create profit this system created an economic slavery
- Many black share croppers were treated worst than former slaves
- White landowners evicted thousands of black sharecroppers for activism/ Civil Rights efforts
- Landowner allows a tenant to use the land and tools in return for a share of the crops produced
“Tools and necessities were advanced against the return on the crop, which was determined by the employer. When farmers were deemed to be in debt—and they often were—the negative balance was then carried over to the next season. A man or woman who protested this arrangement did so at the risk of grave injury or death. Refusing to work meant arrest under vagrancy laws and forced labor under the state’s penal system.” Ta-Nehisi Coates – The Atlantic
History Channel: Sharecropping
Sharecropping is a type of farming in which families rent small plots of land from a landowner in return for a portion of their crop, to be given to the landowner at the end of each year. Different types of sharecropping have been practiced worldwide for centuries, but in the rural South, it was typically practiced by former slaves. With the southern economy in disarray after the abolition of slavery and the devastation of the Civil War, conflict arose during the Reconstruction era between many white landowners attempting to reestablish a labor force and freed blacks seeking economic independence and autonomy.
Forty Acres and a Mule
During the final months of the Civil War, tens of thousands of freed slaves left their plantations to follow General William T. Sherman‘s victorious Union Army troops across Georgia and the Carolinas.
In January 1865, in an effort to address the issues caused by this growing number of refugees, Sherman issued Special Field Order Number 15, a temporary plan granting each freed family 40 acres of land on the islands and coastal region of Georgia. The Union Army also donated some of its mules, unneeded for battle purposes, to the former slaves.
When the war ended three months later, many freed African Americans saw the “40 acres and a mule” policy as proof that they would finally be able to work their own land after years of servitude. Owning land was the key to economic independence and autonomy
The Freedmen’s Bureau, created to aid millions of former slaves in the postwar era, had to inform the freedmen and women that they could either sign labor contracts with planters or be evicted from the land they had occupied. Those who refused or resisted were eventually forced out by army troops.
In the early years of Reconstruction, most blacks in rural areas of the South were left without land and forced to work as laborers on large white-owned farms and plantations in order to earn a living. Many clashed with former slave masters bent on reestablishing a gang-labor system similar to the one that prevailed under slavery.
In an effort to regulate the labor force and reassert white supremacy in the postwar South, former Confederate state legislatures soon passed restrictive laws denying blacks legal equality or political rights, and created “black codes” that forced former slaves to sign yearly labor contracts or be arrested and jailed for vagrancy.
These black codes provoked a fierce resistance among the freedmen and undermined support in the North for President Johnson’s Reconstruction policies. A Republican victory in the Congressional elections of 1866 led to the passage of the Reconstruction Acts in 1867, beginning a new phase of Reconstruction.
Rise of the Sharecropping System
Despite giving African Americans the rights of citizens, the federal government (and the Republican-controlled state governments formed during this phase of Reconstruction) took little concrete action to help freed blacks in the quest to own their own land.
Instead of receiving wages for working an owner’s land—and having to submit to supervision and harsh discipline—most freedmen preferred to rent land for a fixed payment rather than receive wages.
By the early 1870s, the system known as sharecropping had come to dominate agriculture across the cotton-planting South. Under this system, black families would rent small plots of land, or shares, to work themselves; in return, they would give a portion of their crop to the landowner at the end of the year.
‘King Cotton’ Dethroned
The sharecropping system also locked much of the South into a reliance on cotton—just at the time when the price for cotton was plunging.
In addition, while sharecropping gave African Americans autonomy in their daily work and social lives, and freed them from the gang-labor system that had dominated during the slavery era, it often resulted in sharecroppers owing more to the landowner (for the use of tools and other supplies, for example) than they were able to repay.
Some blacks managed to acquire enough money to move from sharecropping to renting or owning land by the end of the 1860s, but many more went into debt or were forced by poverty or the threat of violence to sign unfair and exploitative sharecropping or labor contracts that left them little hope of improving their situation.
Ta-Nehisi Coates: The Case for Reparations
Well into the 20th century, black people spoke of their flight from Mississippi in much the same manner as their runagate ancestors had. In her 2010 book, The Warmth of Other Suns, Isabel Wilkerson tells the story of Eddie Earvin, a spinach picker who fled Mississippi in 1963, after being made to work at gunpoint. “You didn’t talk about it or tell nobody,” Earvin said. “You had to sneak away.”..
Ta-Nehisi Coates: The Case for Reparations
“White landowners in the South evicted thousands of African American sharecroppers who engaged in activism during the Civil Rights Movement. Most sharecroppers lived and farmed on white-owned land. Dependent on high-interest loans to buy seed and equipment at the season’s start, they lived in a cycle of debt that eliminated their profit and prevented them from saving to buy land of their own. 94
Sharecropping dates back to the late 1860s, when newly-emancipated black people were coerced through violence, deception, and desperation to farm under terms that resembled enslavement.
Generations later, sharecropping largely defined agricultural labor in the Deep South, where many black people remained trapped in poverty. 95 An evicted sharecropper typically had nowhere to go, and white landowners knew their black tenants were especially vulnerable to economic retaliation for supporting civil rights. 96
“I been living on this farm [in Lowndes County, Alabama] since January 2, 1931,” Mrs. Armanda Glover said in 1966. “And then two days before Christmas the landlord . . . said we [my husband and five children] had to move.” 97 That same year, in nearby Dallas County, 57-year-old Arthur Brown received notice that he and his nine children were being evicted from the Minter plantation, where he had lived since he was two years old. 98
In 1960, 1400 African Americans registered to vote in Fayette County, Tennessee, and about 700 were evicted. 99 Throughout the 1950s and 1960s, scores of families were evicted from plantations throughout Mississippi. 100 White landowners in Greene County, Alabama, evicted at least 75 black families in 1960, 101 and more than 40 black families were evicted in Lowndes County, Alabama, in December 1965 alone. 102
Evictions were part of a systematic plan to thwart civil rights activism and prevent black people from voting. Black men and women who registered to vote were required to provide the names of their employers, who could then be notified. 103 Newspapers printed the names of black people who attempted to register, 104 and White Citizens’ Councils distributed voter lists to white merchants, who denied basic necessities and employment to African Americans who registered — or tried to register — to vote. 105
On August 31, 1962, Fannie Lou Hamer and other black residents of the Mississippi Delta traveled to Indianola to register to vote. Soon after, she and her husband were evicted from the Marlowe plantation where they had been sharecroppers for 18 years. Homeless and denied work, the Hamers moved into temporary housing in nearby Ruleville, where white shooters targeted their home less than two weeks later. Undeterred, Mrs. Hamer returned to register to vote that December, and told the circuit clerk: “You can’t have me fired anymore ‘cause I’m already fired, [and] I won’t have to move now, because I’m not living in a white man’s house.” 106 In 1963, Mrs. Hamer was brutally beaten by police for her continued activism, but went on to lead a movement demanding political representation for black people in the South. 107
Many evicted families were forced to live in tent cities that sprang up throughout the South. 108 In communities that most closely resembled refugee camps, entire families sheltered in fabric tents that froze in the winter, 109 with no running water 110 and one outhouse for dozens of people. 111
Mary Williams, a black woman evicted from her home in Tennessee, remembered that “the ground was frozen real hard, and you could not get rest. We got cardboard boxes, split those boxes open, spread them on the grass. . . . But after we closed up for the night . . . the ground began to thaw and that made water come through the cardboard.” 112
White segregationist “night riders” terrorized the camps, firing guns into the tent cities in the middle of the night. “Tent City was like a shooting gallery,” recalled SNCC field secretary C.J. Jones. “They used to come by there three or four times a week and shoot into Tent City, and you have to remember there were women and children [there].” 113 Law enforcement did nothing to protect black people from this terrorism. 114
During this era, many African Americans were made to choose between exercising their rights and protecting their families from homelessness and violence. The threat of eviction and other forms of economic retaliation forced countless black men and women to stay on the sidelines in the struggle for equality. “It’s a very frightening thing to have to accept the cold reality,” observed SNCC field secretary George Green, “that in order to exercise their rights, to get what they could get in this great Democracy in America, here in 1966, people were living in tents.” “115
Convict Leasing and the 13th Amendment
“The Convict Lease System and Lynch Law are twin infamies which flourish hand in hand in many of the United States. They are the two great outgrowths and results of the class legislation under which our people suffer today”
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.
Slavery By Another Name – Excerpts/Trailer
- Leasing prisoners to private interests for public/private profit
- Created a criminal justice system that:
- Criminalize, exploit, enslave and disenfranchise black people
- Slavery by another name
- 13th amendment prohibits slavery except as punishment for crime
- Increased in the South after Civil War to early 20th century
- Many impoverished state govs could not afford penitentiaries
- So they leased out prisoners to work at private firms
- Because of large profits received by local govs/private corporations
- Created incentives to arrest blacks using Vagrancy Laws and Black Codes
- Tens of thousands of black people were arbitrarily arrested and leased out:
- To coal mines, lumber camps, brickyards, railroads, quarries, farm plantations
- Reformers abolished convict leasing in 20th-century Progressive Era
- The last state to abolish was Alabama in 1927
“Convict leasing demonstrated the way in which the criminal justice system would become the central institution for sustaining racial domination and hierarchy in America. It legitimized excessive punishment and abuse of African Americans and terrorized people of color.” Equal Justice Initiative
Inhumanity of Convict Leasing
- State govs maximized profits by giving Lessees
- Responsibility to provide food, clothing, shelter, medical
- with little oversight
- Resulted in extremely poor conditions, numerous deaths, inhumane systems
- “This system was actually more deadly than slavery. Every year, between 16 and 25 percent of prisoners would die. It was on par with the death rate of the Soviet Gulags.” Shane Bauer, American Prison
- Responsibility to provide food, clothing, shelter, medical
- AL state inspectors reported horrendous mortality rates in mines
- 1/3 of the 684 forced laborers imprisoned at one mine in 1888-89 died
- In a 2-week period 137 floggings were administered to 165 forced laborers
- Wide spread torture, whippings, amputation, etc.
- High rates of self mutilations to lower prisoners’ value to not be leased
“In Slavery’s antebellum form, humans as property were at least minimally protected because of their long-term financial value. But under convict leasing, a man’s value did not exceed what his employer paid the state monthly. If the labor died in custody, the employer suffered only trivial financial inconvenience, as another convict could be readily procured at the same tariff. One dies, get another one…became the working motto of the system’s architects” Ian Haney Lopez, Dog Whistle Politics
Slavery By Another Name: Convict Leasing
EQI: Convict Leasing
Convict leasing, the practice of selling the labor of state and local prisoners to private interests for state profit, utilized the criminal justice system to effectuate the economic exploitation and political disempowerment of black people. State legislatures passed discriminatory criminal laws or “black codes,” which created new criminal offenses such as “vagrancy” and “loitering.” This led to the mass arrest and incarceration of black people. Relying on language in the Thirteenth Amendment that prohibits slavery and involuntary servitude “except as punishment for crime,” lawmakers empowered white-controlled governments to extract black labor in private lease contracts or on state-owned farms.95 “While a Black prisoner was a rarity during the slavery era (when slave masters were individually empowered to administer ‘discipline’ to their human property) the solution to the free black population had become criminalization. In turn, the most common fate facing black convicts was to be sold into forced labor for the profit of the state.”96
Beginning as early as 1866 in states like Texas, Mississippi, and Georgia, convict leasing spread throughout the Southern states and continued through the late nineteenth and early twentieth centuries.97 In contrast to white prisoners who were routinely sentenced to the penitentiary, leased black convicts faced deplorable, unsafe working conditions and brutal violence when they attempted to resist or escape bondage.98
An 1887 report by the Hinds County, Mississippi grand jury recorded that, six months after 204 convicts were leased to a man named McDonald, twenty were dead, nineteen had escaped, and twenty-three had been returned to the penitentiary disabled, ill, and near death.99 The penitentiary hospital was filled with sick and dying black men whose bodies bore “marks of the most inhuman and brutal treatment . . . so poor and emaciated that their bones almost come through the skin.”100 Under this grotesquely cruel system that lasted decades, countless black men, women, and children lost their freedom—and often their lives. “Before convict leasing officially ended,” writes historian David Oshinsky, “a generation of black prisoners would suffer and die under conditions far worse than anything they had ever experienced as slaves.”101 Convict leasing demonstrated the way in which the criminal justice system would become the central institution for sustaining racial domination and hierarchy in America. It legitimized excessive punishment and abuse of African Americans and terrorized people of color.”
In 1850, non-whites comprised just 2% of Alabama’s prison population. By 1870, a mere five years after the end of the Civil War, that same Alabama prison population was 74% non-white. The cause of this was the advent of convict leasing. The Southern economy was so thoroughly based on slavery that the Civil War and the end of slavery threatened to destroy it.
On March 30, 1908, a black man named Green Cottenham was arrested and charged with “vagrancy” in Shelby County, Alabama. An offense created at the end of the Reconstruction Period and disproportionately enforced against black citizens, vagrancy was defined as an inability to prove employment when demanded by a white person.
Just twenty-two years old, Green Cottenham was quickly found guilty in a brief appearance before the county judge without a lawyer, and received a sentence of thirty days of hard labor. He was also assessed a variety of fees payable to nearly everyone involved in the process, from the sheriff to the deputy to the court clerk to the witnesses. Due to his inability to pay these fees, Mr. Cottenham’s sentence would actually last nearly a year.
Because the Thirteenth Amendment’s ban on slavery and involuntary servitude explicitly excepted people convicted of crime from its protections, the predominately black populations ensnared by discriminatory criminal laws passed after the Civil War had no way to avoid being thrust back into the conditions of forced labor they had only recently escaped. Soon after the Civil War’s end, Alabama was one of many states to take advantage of this loophole.
The day after his court appearance, Mr. Cottenham was turned over to the Tennessee Coal, Iron & Railroad Company. The company leased him from Shelby County for $12 per month, which was to go toward paying off the owed fees and fines. Mr. Cottenham was sent to work in the Pratt Mines outside Birmingham, in Slope No. 12 mine where conditions were brutal. By the time Green Cottenham was released nearly a year later, more than sixty of his fellow prisoners had died of disease, accidents, or homicide. Most of their corpses were burned in the mine’s incinerators or buried in shallow graves surrounding the mine.
The story of Green Cottenham and the convict leasing system that re-enslaved countless black people for generations after Emancipation is told in Douglas Blackmon’s 2008 book, Slavery by Another Name.
The constitutional amendment that banned slavery provided that “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.” Right there in the middle of the Thirteenth Amendment was a gaping hole — one big enough to allow the reestablishment of slavery by another name. Through innumerable stratagems, the South rapidly built a criminal justice system around imprisoning blacks. Fines for minor infractions suddenly morphed into jail time. Selective prosecution of blacks surged. New crimes made their way onto the books. But of course the point was not to fill jail cells; rather, it was to fuel a new form of involuntary servitude.
The heart of the system lay in leasing out convicts as laborers. As an economic matter, governments and private capital profited handsomely.
[In Alabama in the early 1900s] “First-class” prisoners were leased out for $18.50 a month, with the understanding that they would cut and load four tons of coal a day, or be subject to whipping. The weakest inmates, rated as “dead hands,” were leased out for just $9 a month, and lashed if their subterranean struggle failed to produce a ton of coal — 2,000 pounds — each day. The term “dead hands” was tragically apt, as the prisoners’ new masters faced a different economic calculus than under formal slavery. In slavery’s antebellum form, humans as property were at least minimally protected because of their long-term financial value. But under convict leasing, a man’s value did not exceed what his employer paid the state monthly. If the laborer died in custody, the employer suffered only trivial financial inconvenience, as another convict could be readily procured at the same tariff. One former slave owner, lamenting slavery’s demise as a more humane relationship, bemoaned convict leasing’s brutal math: “Before the war, we owned the negroes … If a man had a good negro, he could afford to keep him…. But these convicts, we don’t own ’em. One dies, get another.” “One dies, get another,” reports historian Eric Foner, became the working motto of the system’s architects.
In addition to the whip, various apparatuses and techniques of torture helped to manufacture hell on earth. Included among these were “come-a-longs,” steel bracelets attached to a prisoner’s wrists and fastened to a cross bar such that a twisting of the bar drove the victim to his knees in excruciating pain; and the “pick shackle,” a heavy, sharpened pick-head riveted upside down to an inmate’s ankle, making it impossible to run or even walk normally, and often affixed for the duration of a prisoner’s sentence. [Douglas] Blackmon reports that convict camp records are littered with notations regarding “amputations of feet and lower legs as a result of blood poisoning from the injuries caused by iron shackles abrading bare skin into raw, infected lesions.” In addition, Blackmon documents the prevalence of sundry forms of water torture, from pinning a man down and pouring water on his face so as to stop his breathing, to repeatedly plunging laborers head first into water barrels and holding them there until their spasms subsided, then reviving them and repeating, forcing them to endure the terror of drowning over and over again. Destroyed by the hopelessness and pain of their Sisyphean situation, many men begged their wardens to kill them, while others, to reduce their economic value and so possibly gain their freedom, mutilated themselves by “slicing their heel strings, hacking off their hands, or gouging out their eyes.”
Convict leasing recreated a facsimile of slavery directly, with convict laborers held and exploited under the terror of the lash in fields, factories, and mines. But it also reconstituted pre-Civil War racial stratification by undergirding the rise of debt peonage and sharecropping across the rural South. … The system’s ubiquity and caprice assured that virtually no African American man was safe unless under the protection and control of a white landowner or employer. If you wanted to be sure you would make it home from town — rather than being swept up, imprisoned under spurious charges, and sold into the convict lease system — you needed the surety provided by a powerful white man. Blacks went into sharecropping, a relationship itself akin to slavery, partly because they needed white bosses to protect them from the lethal convict labor system. The mortal threat of convict leasing and the chain gang subjugated African Americans to an agricultural peonage system at least until the mid-1940s.
Wikipedia: “Penal labor in the United States“
The “convict lease” system became popular throughout the American South following the American Civil War and into the 20th century. Since the impoverished state governments could not afford penitentiaries, they leased out prisoners to work at private firms. According to Douglas A. Blackmon, because of the revenue received by local governments, they had incentives to arrest blacks; tens of thousands of African Americans were arbitrarily arrested and leased to coal mines, lumber camps, brickyards, railroads, quarries, and farm plantations. In Florida, convicts were often sent to work in lumber camps and turpentine factories. The state governments maximized profits by putting the responsibility on the lessee to provide food, clothing, shelter, and medical care for the prisoners, with little oversight. This resulted in extremely poor conditions, numerous deaths, and perhaps the most inhumane system of labor in the United States. Reformers abolished convict leasing in the 20th-century Progressive Era, stopping the system in Florida in 1919. The last state to abolish the practice was Alabama in 1927.
Convict leasing was one of the major contributors to the disenfranchisement of blacks across the South through the 20th century and worked to exclude African-Americans from the political system alongside a rising wave of lynching of blacks by white mobs. American criminologist Thorsten Sellin asserts that the sole aim of convict leasing “was financial profit to the lessees who exploited the labor of the prisoners to the fullest, and to the government which sold the convicts to the lessees.” Although the leasing system came to a close, convict labor never ceased and continues today in various forms.
Prison inmates are picking fruits and vegetables at a rate not seen since Jim Crow.
Convict leasing for agriculture—a system that allows states to sell prison labor to private farms—became infamous in the late 1800s for the brutal conditions it imposed on captive, mostly black workers.
Federal and state laws prohibited convict leasing for most of the 20th century, but the once-notorious practice is making a comeback.
Under lucrative arrangements, states are increasingly leasing prisoners to private corporations to harvest food for American consumers.
The American food system relies on cheap labor. Today, median income for farm workers is $10.66 an hour, with 33 percent of farm-worker households living below the poverty line.
Historically, agriculture has suppressed wages—and eschewed worker protections—by hiring from vulnerable groups, notably, undocumented migrants. By some estimates, 70 percent of agriculture’s 1.2 million workers are undocumented.
As current anti-immigrant policies diminish the supply of migrant workers (both documented and undocumented), farmers are not able to find the labor they need. So, in states such as Arizona, Idaho, and Washington that grow labor-intensive crops like onions, apples, and tomatoes, prison systems have responded by leasing convicts to growers desperate for workers.
The Racist Roots of Convict Leasing
Since Reconstruction, states have used prisoners to solve labor supply problems in industries such as road and rail construction, mining, and agriculture. But convict leasing has also been a powerful weapon of white supremacy, and, now, anti-immigrant sentiment.
After Emancipation, southern economies faced a crisis: how to maintain a racial caste system and a supply of surplus labor now that blacks were free.
Southern states passed vagrancy laws, Black Codes, and other legislation to selectively incarcerate freed slaves. For example, under Mississippi’s vagrancy law, all black men had to provide written proof of a job or face a $50 fine. Those who could not pay were forced to work for any white man willing to pay the fine—an amount that was deducted from the black man’s wage.
During the late 1800s, mass incarceration created an army of cheap labor that could be leased to private businesses for substantial profit. In 1886, state revenues from leasing exceeded the cost of running prisons by nearly 400 percent. Between 1870 and 1910, 88 percent of convicts leased in Georgia were black.
But cheap convict labor also suppressed wages for free whites, and, by 1900, poor whites began pushing back.
In 1904, James Vardaman was elected governor of Mississippi on a platform of returning whites to work and blacks to confinement. These populist white supremacist sentiments dovetailed with national economic concerns during the Great Depression, when agricultural failures led to widespread unemployment.
In the 1930s, the Ashurst-Sumners Act and accompanying state laws prohibited convict leasing and the sale of prisoner-made goods on the open market. Inmates still worked in agriculture, but the food they produced had to be consumed by other prisoners or state workers.
By the late 1970s, with growing competition from foreign manufacturing, American companies sought out domestic sources of cheap labor.
Under pressure from corporate lobbies like the American Legislative Exchange Council, Congress relaxed restrictions on convict leasing with the Justice System Improvement Act. As the manufacturing and service sectors began hiring prisoners, agriculture expanded its use of migrant workers.
Profit and Exploitation
Today, convict leasing offers significant revenues for prisons.
Most wages paid to inmates are garnished by prisons to cover incarceration costs and pay victim restitution programs. In some cases, prisoners see no monetary compensation whatsoever. In 2015 and 2016, the California Prison Industry Authority made over $2 million from its food and agriculture sector.
Growers can reap significant revenues too. Inmates are excluded from federal minimum wage protections, allowing prison systems to lease convicts at a rate below the going labor rate. In Arizona, inmates leased through Arizona Correctional Industries receive a wage of $3 to $4 per hour before deductions. Meanwhile, the state’s minimum wage for most non-incarcerated farm workers is $11.00/hour.
Beyond the unfairness of low wages, inadequate state and federal regulations ensure that agricultural work continues to be onerous. Laborers endure long hours, repetitive motion injuries, temperature and humidity extremes, and exposure to caustic and carcinogenic chemicals.
For inmates, these circumstances are unlikely to change. United States courts have ruled that prisoners are prohibited from organizing for higher wages and working conditions—though strikes have occurred in recent years.
Furthermore, inmates are not legally considered employees, which means they are excluded from protection under parts of the 1964 Civil Rights Act, the Equal Pay Act, the Fair Labor Standards Act, the National Labor Relations Act, and the Federal Tort Claims Act.
Whose Labor Is Being Sold?
The total number—and racial make-up—of leased inmates is difficult to calculate. Not all prison systems report on farming operations or leased labor arrangements. According to one advocacy group, at least 30,000 inmates work within the food system. But to the extent that convict leasing reflects overall inmate demographics, prison agriculture is distinctly racial.
Blacks make up 39 percent of inmates, but only 12 percent of the general population, making blacks six times more likely than whites to be incarcerated. Over the last 50 years—the same period that saw the return of convict leasing—the black incarceration rate quadrupled.
Proponents of “prison industries” argue that leasing provides rehabilitative benefits like on-the-job training for re-entry. But research shows that, within the prison system, whites receive better jobs than blacks, with better pay and more beneficial skills.
Whereas migrant workers often benefit home communities by returning a portion of their wages as remittances, the garnishing or non-payment of convict wages prevents inmates from contributing to their families and home economies.
Since Emancipation, agriculture has moved its focus from one labor source to another in response to shifting currents of populism, nativism, and racism. All three benefit from the exploitation of minority populations, and all three justify policies of exploitation in economic terms.
Convict leasing is the first—and now the latest—strategy.
The Myth of Black Criminality and the Rise of a Racist Criminal Justice System
The Enduring Myth of Black Criminality
“the idea that black neighborhoods are more dangerous than white neighborhoods…is a very popular idea. The highest instances of violent crime correspond with high unemployment and poverty, and that holds true across racial lines. Most white poverty, unemployment and thus violent crimes occur in rural areas, while for blacks those ills are more concentrated in densely populated urban neighborhoods. If impoverished white communities “had five times more people, then that community would have five times, presumably, more violent crime.” Ibram X. Kendi, Stamped from the Beginning, The Definitive History of Racist Ideas in America
Know Your Rights Camp: A Brief History Of The Idea Of The Black Male Criminal
Why are Black men, for instance, often thought to be dangerous criminals by mainstream white America despite evidence to the contrary?
To begin, Black men are not “naturally” more or less dangerous than non-Black men. The fact that Black men are criminalized at higher rates than non-Black men does not reflect differences in “innate criminality” but rather slanted applications of justice. The U.S. Department of Justice proves this claim when it finds that whereas Black drivers are three times more likely than white drivers to have their cars searched, white drivers are considerably more likely in the same scenario to turn up with guns or drugs. Often, the reflex to criminalize certain bodies over others hinges on perceived—not actual— danger. And perceptions of danger are inherited through historical narratives aimed at producing and sustaining a white-dominant racial order.
So where and how did the manufactured linkage of Blackness, maleness, and criminality emerge? And further, how is it sustained?
Black people—and especially Black men— have been cast as the preeminent outlaws of the American imagination. Even before the U.S. Constitution’s Fugitive Slave Clause was ratified in 1788 (Article IV, Section II, Clause III), Virginia already had 73 laws on the books that would result in the death penalty for enslaved Black men, women, and children —and only one for white people. In fact, in 1657—fifty years after Africans were enslaved and transported to the territory that would become the United States—Virginia became the first colony to pass a fugitive slave law, a statute which effectively criminalized runaway slaves in pursuit of freedom from bondage.
Two decades after the enactment of the U.S. Constitution, Samuel Cartwright, a New Orleans physician and Confederate loyalist, argued that high rates of physical and mental illnesses afflicting enslaved Black persons were the products of the alleged cognitive inferiority of the “Black race.” In his 1815 “Report on the Disease and the Physical Peculiarities of the Negro Race,” Cartwright introduced what he called “Drapetomania,” known as the “Disease Causing Slaves to Run Away.” Unconvinced that enslaved Blackchildren, women, and men might naturally seek freedom, Cartwright instead claimed that Drapetomania could be cured by “kindness.” Cartwright’s new diagnostic category, in effect, pathologized the pursuit of Black emancipation.
In the immediate aftermath of slavery, mainstream white America strategically began to link ideas of violence and danger with Black maleness. As slaves, Black men were narrated as docile and generally subservient. As free people, however, the ideology of docility was replaced with the mystique of danger. During Reconstruction, white mainstream voices argued that Black men, whose predatory proclivities had allegedly been benevolently suppressed under slavery, would revert to their natural state of violence and criminality. Thus, the ideology of the Black brute was birthed.
From the 1890s-1940s, writes Khalil Gibran Muhammad in The Condemnation of Blackness, “black criminality would become one of the most commonly cited and longest-lasting justifications for black inequality and mortality in the modern urban world.” Moreover, according to one physician cited in the New York Medical Journal in 1886, Black people were “naturally intemperate” and prone to indulging “every appetite too freely, whether for food, drink, tobacco, or sensual pleasures, and sometimes to such an extent as to appear more of a brute than human.”
In conjunction with the ubiquity of scientific racism, the Black brute was depicted in popular culture and in politics as a congenital rapist of white women bent on undermining white racial purity through Black contamination. This interpretation quickly ascended as the prominent public rationalization for lynching Black men. At the turn of the 20th century popular Mississippi Representative Percy Quin claimed that there is “an element of barbarism in the black man.” In conjunction, Representative Thomas Sisson, also of Mississippi, argued that he and his white compatriots must “protect our girls and womenfolk from these black brutes. When these black fiends keep their hands off the throats of women of the South then the lynching will stop.” White politicians of the era constructed the image of the Black brute as an inherently violent super predator with an insatiable lust for white women and a conjoint wish to kill white men. The brute served as a two-pronged receptacle of white fear.
Despite these claims, however, there is no evidence to suggest that Black men in the postbellum south systematically enacted sexual violence upon white women or tried to murder white men en masse. In fact, such narrations say less about Black men and more about white men who created them. It was white men, not Black men, who engaged in the widespread rape of Black women during the eras of slavery and Reconstruction.
Historical efforts to make this history plain and to decenter the myth of the Black brute have themselves been met with visceral instances of violence and brutality. When Black anti-lynching activist Ida B. Wells-Barnett argued in the 1890s that most associations between white women and Black men were, in fact, consensual, a white mob destroyed the offices where her newspaper company was located.
The myth of the Black brute gained even further popularity in 1915 with the release of the (first) Hollywood Blockbuster, The Birth of a Nation. The three-hour film centers on the Ku Klux Klan’s Reconstruction-era “protection” of white women from the uncontrolled sexual aggressions of free Black men through the preferred intervention of the lynch mob. After the movie was screened at the White House President Woodrow Wilson reportedly said the film was “like writing history with lightning” and that his only regret was that its depictions were “all so terribly true.” The historical record, however, has long since shown its plot to be both unapologetically white supremacist and grossly unrepresentative of Reconstruction.
The myth of the Black brute is alive still today. According to the Justice Department, a whopping 45 percent of rape exoneration cases involve the misidentification of Black men by white women despite the fact that less than 10 percent of reported rapes of white women are committed by black men. In fact, according to a 2004 meta-analysis in the Journal of Personality and Social Psychology the concepts of “black” and “crime” were generally interchangeable with one another in terms of how subjects in the study visually perceived black people.
Mainstream white America continues to embrace the manufactured linkage of Blackness, maleness, and brutality. Many of these ideas have been taken up and repackaged in the more recent past under the policies of the so-called “War on Drugs,” “Stop and Frisk,” and the conservative dog-whistle politics of “law and order.”
During the institution of slavery, the image of Black people, specifically Black males, was of a docile character. The images of buffoonery, blissful ignorance, and juvenile angst were seen as the primary traits of enslaved Blacks. This is characterized in several portrayals of Black males of this time. The use of Blackface – a type of performance that generally used White actors wearing black make-up to portray Black people in stereotypes – became popular in the 19th century. White actors popularized minstrel shows, depicting stereotypes of Black life as foolish, messy, and overall comedic at the expense of Black culture (Lhamon Jr., 2000; Strausbaugh, 2006). In addition, other popular literature and media characterized antebellum enslaved Blacks as content with their place in society. In literature, the character of Uncle Tom in Uncle Tom’s Cabin is portrayed as an older Black slave who is faithful and dutiful to his White master. The film Gone with the Wind depicts content slaves, specifically the role of Mammy who even fends off freedmen. Finally, the Disney film Song of the South depicts Uncle Remus as an elderly Black freedman who was satisfied with his place in society, singing the famous happy song, “Zip-a-Dee-Doo-Dah.”
These depictions of Blackness as docile and manageable reflected the ability to control the Black body and mind, creating the idea that slavery was the best position for Black people. This status of inferiority is echoed in W.E.B. DuBois’ writing of how Whites viewed freedom as a way to “spoil” and “ruin” Black people (DuBois, 1903). Additionally, according to David Pilgrim:
These portrayals were pragmatic and instrumental. Proponents of slavery created and promoted images of blacks that justified slavery and soothed white consciences. If slaves were childlike, for example, then a paternalistic institution where masters acted as quasi-parents to their slaves was [sic] humane, even morally right. More importantly, slaves were rarely depicted as brutes because that portrayal might have become a self-fulfilling prophecy. (2012)
However, this image of Blackness ended after the American Civil War. During the period of Reconstruction (1865-1877), newly freed Blacks began to obtain social, economic, and political rights with the passage of the 13th, 14th, and 15th Amendments to the Constitution. This growth was seen in the building of Black communities such as Greenwood in Tulsa, Oklahoma, which was referred to as “Black Wall Street” (Pickens, 2013), the building of schools now known as Historically Black College and Universities (HBCUs), and the election of the first two Black U.S. Senators in Hiram Revels and Blanche Bruce.
This growth in power challenged White supremacy and created White fear of Black mobility. Particularly, wealthy Whites were fearful of political power newly freed Black people could acquire via voting, whereas poor Whites saw Blacks as competition in the labor force. Thus the rise of the Jim Crow era began, which was solidified by the Supreme Court ruling of Plessy v. Ferguson which stated, “separate but equal is constitutional.” This fear was met with a shift from Black people being viewed as compliant and submissive servants to savages and brute monsters.
Media portrayals of this mythical Black brute began to grow using the same initial science Jefferson and other Enlightenment-era theorists proclaimed, which was based on inaccurate anthropological and biological factors. This time, the argument was that Blacks were naturally more prone to violence and other aggressive behaviors. Charles H. Smith wrote in 1893, “A bad Negro is the most horrible creature upon the earth, the most brutal and merciless” (p. 181). This myth of cruelty and vicious disposition was directed towards White women. As the myth grew and stories spread about the savage Black brute, so did the occurrences of lynching. Lynching – the extrajudicial punishment – was ritualistic and struck fear into Black residents throughout the United States (Litwack, 2004). The most prevalent accusation was the rape or sexual assault of a White woman by a Black male. This allegation would have reverberating effects throughout entire communities. In Tulsa, Oklahoma, a young White woman accused a Black male of sexual assault and roughly 300 Black people were killed and more than 9,000 people were left homeless after White mobs destroyed the Greenwood community (Pickens, 2013). Regardless of producing evidence or facts, White mobs would seize Black defendants or attack Black neighborhoods to seek out revenge for this crime.
The case of Sam Hose is an example of how different and various versions of the truth were reported. Hose killed his employer in self-defense after being threatened with a pistol. However newspapers wrote “a monster in human form” emerged, which detailed Hose as cold-blooded, killing his employer, and savagely raping his employer’s wife. The report drove White fear to lynch Hose (Litwack, 2004). In reality, these charges were mere excuses to exercise exorbitant amounts of violence on Black people. The lynching of a Black body became a form of ritualistic violence where limbs and other body parts were taken as souvenirs. Litwack wrote:
After stripping Hose of his clothes and chaining him to a tree, the self-appointed executioners stacked kerosene-soaked wood high around him…they cut off his ears, fingers, and genitals, and skinned his face…the contortions of Sam Hose’s body as the flames rose, distorting his features, causing his eyes to bulge out their sockets…Before Hose’s body had even cooled, his heart and liver were removed and cut into several pieces and his bones were crushed into small particles. The crowd fought over these souvenirs. (p. 123, 2004)
This overkill of the Black body became part of the racist ideology that was used to justify these acts of violence. This mythical act of Black savagery was situated in this idea of Black brutality and criminality that had no other recourse but death. A prominent Georgia woman wrote about the Sam Hose lynching, “The premeditated outrage on Mrs. Cranford was infinitely more intolerable than the murder of her husband” (Litwack, 2004). Hence, uncontrollable desires of Black males were illegal, criminal, and needed to be stopped through the use of physical force. Therefore, this justified vigilante justice in the name of keeping White womanhood pure.
The brute image of Black men became significant moving into the early 20th century, when fear was reinforced with depictions of Black men as harmful. The film Birth of a Nation, made in 1915, shows Black men as savages trying to attack White women. Their brutality is met with propaganda depicting the Ku Klux Klan as heroic and honorable. The result was Blackness becoming closely associated with criminalization. The criminalization of Blackness (Davis, 1998; Alexander, 2010; Muhammad, 2010) allowed for White supremacy to use Black bodies as their scapegoat for all problems, real or fictional. The driving forces behind Black criminality as savage and unmanageable were structurally reinforced by passage of stricter sentencing guidelines in prison and the expansion of the War on Drugs in the second half of the 20th century (Mauer, 2002). These programs and stricter prison guidelines exponentially grew the American prison system by 700% (Pew States, 2007). During this time campaigns for “tough on crime” policy emerged as the soundboard for elected officials. For example, George H.W. Bush’s presidential run used a smear campaign tactic, famously known as the “Willie Horton” ad, where a Black prisoner’s face was used to talk about his heinous crimes and Bush’s opponents’ soft-on-crime policy. While the ad overtly discusses a single Black man, the subliminal and larger take away is Willie Horton’s face became synonymous with all Blackness. In short, the mythical brute became the realistic thug via the process of criminalization.
The image of Black men as brutes in society has a long legacy that begins with the social construction of race and brings us to the current period of mass incarceration. In the United States, Black men are six times as likely to go to jail or prison as White men (Gao, 2013). This disproportionate and unequal number indicates the skewed representation of Black men in U.S. prisons. However, the argument is shifted to no longer being about race but about crime and community safety. This negation of understanding the historical link between “brute” and “thug” marginalizes the significant role race plays.
Lastly, a prime example of how the brute image still thrives in society is the April 2008 Vogue magazine cover of professional basketball player LeBron James holding super model Gisele Bündchen. The image of LeBron giving a menacing look while Gisele is in his arms shares a strikingly eerily similarity to a World War I poster that depicts a gorilla holding a White woman with the title “Destroy this Mad Brute” (Shea, 2008). These types of images that draw on past racial stereotypes and myths reinforce this criminalization, and are now coded with terms such as “thug” today. While historically in America overt racist language was socially acceptable, there has been a cultural shift of social intolerance to this blatant racist behavior. This does not mean that racism or discriminatory actions have been eradicated but rather driven beneath the surface and reemerged as coded language, gestures, signs, and symbols to indicate difference. Terms such as “thug,” “ghetto,” “hood,” “sketchy,” and “shady” are all examples of coded language that are used to refer to or speak of Blackness without overtly sounding racially prejudiced. Fraternities on college campuses throw “Pimps and Hos” parties where stereotypes of Black people as pimps or prostitutes, exemplifying characters from the film Superfly (1972), also lack the language of race but show in physical gesture and imagery the racism encoded in the details.
Over the last several years with the proliferation of social media, many more events are documented and shared via social networking sites (Yar, 2012; Smiley, 2015). Some of these events captured on video are cases involving unarmed Black males being killed by law enforcement agents. While some videos show the disturbing death, such as Eric Garner, others show the aftermath like that of Michael Brown’s body in the street. These deaths and others have sparked outrage across communities looking for justice and accountability of law enforcement’s excessive force when dealing with Black people.
Wikipedia: Criminal stereotype of African Americans
According to some scholars, the stereotype of African Americans males as criminals was first constructed as a tool to “discipline” and control slaves during the time of slavery in the United States. For instance, Amii Barnard alleges that out of fear of the fugitive slaves staging a rebellion, slaveholders sought to spread the stereotype that African American males were dangerous criminals who would rape the “innocent” and “pure” white women if they had the opportunity to. A law introduced in Pennsylvania in 1700 illustrates the fear of a dangerous African American man within the slaveholding society- it mandated that should a black man attempt to rape a White woman, the perpetrator will be castrated or punished to death.
Carter et al. argues that this criminal stereotype contributed to lynching in the United States that mostly targeted African American males in the south. Ida B. Wells, the well-known anti-lynching activist published the pamphlet entitled the “Southern Horrors: Lynch Law in All Its Phases” from 1892-1920 reporting that contrary to the notion that lynchings occurred because African American males had sexually abused or attacked white women, fewer than 30% of reported lynchings even involved the charge of rape. She also followed up with an editorial that suggested that, most sexual liaisons between black men and white women were consensual and illicit. The criminal stereotype of African Americans as potential rapists at that time is also illustrated in the controversial media portrayal of African American men in the 1915 American epic film, The Birth of a Nation.
According to Marc Mauer however, although African Americans have been consistently stereotyped as “biologically flawed” individuals who have a general tendency towards crime, the depiction of African Americans as criminals became more threatening only in the 1970s and early 1980s- with the evolution of the stereotype of African American males as “petty thieves” to “ominous criminal predators”. In the late 1990s, Melissa Hickman Barlow argued that the perception of African American males as criminals was so entrenched in society that she said “talking about crime is talking about race”. Between 2005 and 2015, the gap in the incarceration rate between blacks and whites declined while still remaining high. The rate of incarceration for blacks declined -2.0% per year, for Hispanics it declined -2.3% per year while for whites it declined only -0.1% per year. Blacks today continue to be incarcerated at a rate over 2.1 times Hispanics and 5.6 times whites. The disparity varies widely by state and region.
Vera Institute Report: An Unjust Burden The Disparate Treatment of Black Americans in the Criminal Justice System
Black people have historically been targeted by intentionally discriminatory criminal laws
Racial disparities in the criminal justice system have deep roots in American history and penal policy. In the South, following Emancipation, black Americans were specific targets of unique forms of policing, sentencing, and confinement. Laws that capitalized on a loophole in the 13th Amendment that states citizens cannot be enslaved unless convicted of a crime intentionally targeted newly emancipated black people as a means of surveilling them and exploiting their labor. In 1865 and 1866, the former Confederate legislatures quickly enacted a new set of laws known as the Black Codes to force former slaves back into an exploitative labor system that resembled the plantation regime in all but name. Although these codes did recognize the new legal status of black Americans, in most states newly-freed people could not vote, serve on juries, or testify in court. Vagrancy laws at the center of the Black Codes meant that any black person who could not prove he or she worked for a white employer could be arrested. These “vagrants” most often entered a system of incarceration administered by private industry. Known as convict leasing, this system allowed for the virtual enslavement of people who had been convicted of a crime, even if those “crimes” were for things like “walking without a purpose” or “walking at night,” for which law enforcement officials in the South aggressively targeted black people.
Northern states also turned to the criminal justice system to exert social control over free black Americans. Policymakers in the North did not legally target black Americans as explicitly as did their southern counterparts, but disparate enforcement of various laws against “suspicious characters,” disorderly conduct, keeping and visiting disorderly houses, drunkenness, and violations of city ordinances made possible new forms of everyday surveillance and punishment in the lives of black people in the Northeast, Midwest, and West. Though such criminal justice involvement was based on racist policies, the results were nevertheless used as evidence to link black people and crime.
After Reconstruction, scholars, policymakers, and reformers analyzed the disparate rates of black incarceration in the North as empirical “proof” of the “criminal nature” of black Americans. Higher rates of imprisonment of black people in both the North and South deeply informed ongoing national debates about racial differences. The publication of the 1890 census and the prison statistics it included laid the groundwork for discussions about black Americans as a distinctly dangerous population. Coming 25 years after the Civil War and measuring the first generation removed from slavery, the census figures indicated that black people represented 12 percent of the nation’s population, but 30 percent of those incarcerated. The high arrest and incarceration rates of black Americans—though based on the racist policies discussed above—served to create what historian Khalil Gibran Muhammad has called a “statistical discourse” about black crime in the popular and political imagination, and this data deeply informed national discussions about racial differences that continue to this day.
Indeed, a 2010 study found that white Americans overestimate the share of burglaries, illegal drug sales, and juvenile crime committed by black people by approximately 20 to 30 percent. (See “The myth of black-on-black crime,” on page 4.)These distorted notions of criminality continued to shape political discourse and policy decisions throughout the 20th century. In 1965, President Lyndon Johnson declared the “War on Crime” and began the process of expanding and modernizing American law enforcement. Johnson made his declaration despite stable or decreasing crime levels. Perceived increases in crime in urban centers at the time may be tied in part to changes in law enforcement practices and crime reporting as jurisdictions vied for newly-available federal funding for law enforcement under his initiatives. Nevertheless, a discourse about high crime in urban areas—areas largely populated by black people—had taken hold in the national consciousness.20Statistics linking black people and crime have historically overstated the problem of crime in black communities and produced a skewed depiction of American crime as a whole.
The FBI’s Uniform Crime Report—one commonly cited source for U.S. crime statistics—fails to measure criminal justice outcomes beyond the point of arrest, and thus does not account for whether or not suspects are convicted. In the 1970s, black people had the highest rate of arrest for the crimes of murder, robbery, and rape—crimes that also had the lowest percentage of arrestees who were eventually convicted. Yet statistical data on crime based on arrest rates deepened federal policymakers’ racialized perception of the problem, informing crime control strategies that intensified law enforcement in low-income communities of color from the 1960s onwards. For instance, in trying to understand where and when certain crimes occur, researchers from the National Commission on Law Enforcement and Administration of Justice spoke only with law enforcement agencies and officers stationed in low-income black communities. This skewed the data—which intentionally ignored the disproportionate police presence in these neighborhoods as well as delinquency among middle class, white, young men—yet was used to craft strategies for the War on Crime, such as increased patrol and surveillance in low-income communities of color.
Birth of a Nation
- 1915 D. W. Griffith silent film that portrayed:
- Black reconstruction politicians as incompetent
- Black men (played by black face white actors) as criminals and rapist after white women
- KKK as the savior for white women
- Glorifies lynching and black voter suppression
- Credited as inspiring reformation of KKK in 1915
- First movie screened at white house for Wilson
- Supposedly he said, “It is like writing history with lightning. And my only regret is that it is all so terribly true”
- All 9 Supreme Court justices and many members of Congress attended additional showings
- Land Theft
- 45 years after Civil War
- Freed slaves & descendants accumulated 15 million acres of land
- Mostly in south and generally used for farming
- 925,000 black-owned farms
- 14% of all farms in the US
- 600,000 black farmers were pushed off there land
- USDA lending discrimination, white supremacy, terrorism, theft, economic marginalization, etc.
- 45,000 black-owned farms remained
- Less than 2% of farmers are black
- 1% of rural landowners are black
- Of the 1 billion acres of arable US land, Black people today own a little more than 1 million acres
- Less than 2% of farmers are black
- 45 years after Civil War
“When Clyde Ross was still a child, Mississippi authorities claimed his father owed $3,000 in back taxes. The elder Ross could not read. He did not have a lawyer. He did not know anyone at the local courthouse. He could not expect the police to be impartial. Effectively, the Ross family had no way to contest the claim and no protection under the law. The authorities seized the land. They seized the buggy. They took the cows, hogs, and mules. And so for the upkeep of separate but equal, the entire Ross family was reduced to sharecropping. This was hardly unusual. In 2001, the Associated Press published a three-part investigation into the theft of black-owned land stretching back to the antebellum period. The series documented some 406 victims and 24,000 acres of land valued at tens of millions of dollars.” Ta-Nehisi Coates – The Atlantic
The Nation: The Real Story of Racism at the USDA
The USDA’s real race problem is its history of discrimination against African-American, Native American and other minority farmers who were pushed off their land.
Right now, if you do a web search of the words “racism” and “USDA,” the majority of links will steer you to coverage of this week’s Shirley Sherrod affair, in which the African-American US Department of Agriculture staffer based in Georgia resigned after a conservative website reversed the meaning of a speech she gave last year to imply she would deny farm loans to whites.
It’s an astonishing development given the history of race relations at the USDA, an agency whose own Commission on Small Farms admitted in 1998 that “the history of discrimination at the US Department of Agriculture…is well-documented”—not against white farmers but African-American, Native American and other minorities who were pushed off their land by decades of racially biased laws and practices.
It’s also a black eye for President Obama and Secretary of Agriculture Tom Vilsack, who signaled a desire to atone for the USDA’s checkered past, including pushing for funding of a historic $1.15 billion settlement that would help thousands of African-American farmers but now faces bitter resistance from Senate Republicans.
Forced Off the Land
Any discussion about race and the USDA has to start with the crisis of black land loss. Although the US government never followed through on its promise to freed slaves of “forty acres and a mule,” African-Americans were able to establish a foothold in Southern agriculture. Black land ownership peaked in 1910, when 218,000 African-American farmers had an ownership stake in 15 million acres of land.
By 1992, those numbers had dwindled to 2.3 million acres held by 18,000 black farmers. And that wasn’t just because farming was declining as a way of life: blacks were being pushed off the land in vastly disproportionate numbers. In 1920, one of out seven US farms were black-run; by 1992, African-Americans operated one out of 100 farms.
The USDA isn’t to blame for all of that decline, but the agency created by President Lincoln in 1862 as the “people’s department” did little to stem the tide—and in many cases, made the situation worse.
After decades of criticism and an upsurge in activism by African-American farmers, the USDA hosted a series of “listening sessions” in the 1990s, which added to a growing body of evidence of systematic discrimination:
Black farmers tell stories of USDA officials—especially local loan authorities in all-white county committees in the South—spitting on them, throwing their loan applications in the trash and illegally denying them loans. This happened for decades, through at least the 1990s. When the USDA’s local offices did approve loans to Black farmers, they were often supervised (farmers couldn’t spend the borrowed money without receiving item-by-item authorization from the USDA) or late (and in farming, timing is everything). Meanwhile, white farmers were receiving unsupervised, on-time loans. Many say egregious discrimination by local loan officials persists today.
Among those concluding that such racial bias persisted were the USDA’s own researchers: In the mid-1990s, they released a report [pdf] which, analyzing data from 1990 to 1995, found “minorities received less than their fair share of USDA money for crop payments, disaster payments, and loans.”
Adding insult to injury, when African-American and other minority farmers filed complaints, the USDA did little to address them. In 1983, President Reagan pushed through budget cuts that eliminated the USDA Office of Civil Rights—and officials admitted they “simply threw discrimination complaints in the trash without ever responding to or investigating them” until 1996, when the office re-opened. Even when there were findings of discrimination, they often went unpaid—and those that did often came too late, since the farm had already been foreclosed.
In 1997, a USDA Civil Rights Team found the agency’s system for handling civil rights complaints was still in shambles [pdf]: the agency was disorganized, the process for handling complaints about program benefits was “a failure,” and the process for handling employment discrimination claims was “untimely and unresponsive.”
A follow-up report [pdf] by the GAO in 1999 found 44 percent of program discrimination cases, and 64 percent of employment discrimination cases, had been backclogged for over a year.
Taking USDA Discrimination to Court
It was against this backdrop that in 1997, a group of black farmers led by Tim Pigford of North Carolina filed a class action lawsuit against the USDA. In all 22,000 farmers were granted access to the lawsuit, and in 1999 the government admitted wrongdoing and agreed to a $2.3 billion settlement—the largest civil rights settlement in history.
But African-American farmers had misgivings with the Pigford settlement. For one, only farmers discriminated against between 1981 and 1996 could join the lawsuit. Second, the settlement forced farmers to take one of two options: Track A, to receive an immediate $50,000 cash payout, or Track B, the promise of a larger amount if more extensive documentation was provided—a challenge given that many farmers didn’t keep records.
Many farmers who joined the lawsuit were also denied payment: By one estimate, nine out of ten farmers who sought restitution under Pigford were denied. The Bush Department of Justice spent 56,000 office hours and $12 million contesting farmers’ claims; many farmers feel their cases were dismissed on technicalities.
…In the 45 years following the Civil War, freed slaves and their descendants accumulated roughly 15 million acres of land across the United States, most of it in the South. Land ownership meant stability and opportunity for black families, a shot at upward mobility and economic security for future generations. The hard-won property was generally used for farming, the primary occupation of most Southern blacks in the early 20th century. By 1920, there were 925,000 black-owned farms, representing about 14 percent of all farms in the United States.
Over the course of the 20th century, however, that number dropped precipitously. Millions of farmers of all races were pushed off their land in the early part of the century, including around 600,000 black farmers. By 1975, just 45,000 black-owned farms remained. “It was almost as if the earth was opening up and swallowing black farmers,” writes scholar Pete Daniel in his book Dispossession: Discrimination Against African American Farmers in the Age of Civil Rights. Implicit in the decline of black farming was the loss of the land those farmers once tilled. Today, African Americans compose less than 2 percent of the nation’s farmers and 1 percent of its rural landowners.
Many factors contributed to the loss of black-owned land during the 20th century, including systemic discrimination in lending by the US Department of Agriculture, the industrialization that lured workers into factories, and the Great Migration. But the lesser-known issue of heirs’ property also played a role, allowing untold thousands of acres to be forcibly bought out from under black rural families—often second-, third-, or fourth-generation landowners whose ancestors were enslaved—by real-estate developers and speculators.
By one estimate, 81 percent of these early black landowners didn’t make wills, largely due to a lack of access to legal resources. Their descendants then inherited the land without a clear title, and it thereby became designated as heirs’ property. Although heirs’ property exists in many regions of the country, it’s most prevalent in low-income communities. In the South, according to one estimate, more than 50 percent of heirs’-property owners are African-American, many of them the descendants of slaves and sharecroppers. The Center for Heirs’ Property Preservation, based in Charleston County, South Carolina, estimates that there are 105,000 acres of heirs’ property in its 15-county service area alone.
Without a clear title, heirs’-property owners are limited in what they can do with their land. They can’t get mortgages or do extensive repairs on their homes; as a consequence, some live in trailers. They aren’t eligible to apply for state or federal housing aid (such as funds provided by the Federal Emergency Management Agency) or for nearly any of the programs administered by the Department of Agriculture, including the crucial loans and conservation funding that keep many rural landowners afloat. “So [they’re] already hampered because [they] have heirs’ property,” explains Jennie L. Stephens, the executive director of the center, “but now [they’re] sitting here with these hundreds of acres, and [they] can’t do anything with it.”
As with the Allen family, heirs’ property is often jointly owned by many descendants, some of whom are scattered across the country and may never have met one another. Each has a claim to the land, but this type of joint ownership makes them vulnerable to a peculiar legal challenge: Any one of these co-owners has the legal right to sell their share of the property—or even to bring the whole parcel of land to court-ordered auction—without the consent of the others.
These “partition sales” are one cause of the dispossession crisis, according to the Heirs’ Property Retention Coalition. Property developers entice faraway relatives who may never have visited their family’s land to sell their share for a fraction of its market value. Once they buy a share, these developers can then sell all of the land at auction for a large profit. A 2001 report from the US Agricultural Census estimated that about 80 percent of black-owned farmland had disappeared in the South since 1969. Approximately half of that land was lost through partition sales.
Thomas W. Mitchell, an expert in heirs’ property at the Texas A&M University School of Law, says families will often try to fend off partition sales by arguing that their land is historically significant, or of cultural importance to the African-American community. But until recently, the courts weren’t legally required to take into account the historical or cultural value of the land, and so they generally don’t.
Mitchell attributes the persistent and ongoing issue of partition sales in the African-American community to a question of power, at least in part. “If the Kennedys, the Bushes, or the Clintons had their property sold under these circumstances,” he says, “the law would have been reformed” by now.
Hilton Head, on the southeastern coast of South Carolina, is one of more than 100 coastal islands that form the Sea Islands. Though it is now primarily known as a golfing and resort destination, Hilton Head was once almost entirely inhabited by the Gullah people. The Gullah are descendants of enslaved West Africans who, like Dennis Allen, moved to the Sea Island region at the end of the Civil War, or who had previously been enslaved on area plantations. Gullah communities thrived for decades on the isolated islands, largely free of the restrictions of the Jim Crow South. For generations, they maintained an agricultural, barter-based economy.
Then, in the mid-1950s, development came to Hilton Head. Wealthy industrialists bought up hundreds of acres for recreational sites as highway and bridge construction made it easier for mainland residents to reach the islands. By the 1990s, the waterfront properties on Hilton Head had become highly desirable among wealthy whites seeking a vacation home.
The development displaced many Gullah people. Some families lost their land to rising property taxes, which they could no longer afford to pay, but others lost their land in partition sales, their property brought to auction by developers in forced sales or by partial owners convinced to sell it for a fraction of its value. In areas where the Gullah once made up 90 percent or more of the population, they account for as little as 10 percent today, according to Willie Heyward, managing attorney at the Heirs’ Property Law Firm. Somewhere between 200 and 700 acres of the land on Hilton Head—no one knows the exact number— remain in Gullah hands.
“The property that we owned was prime property,” says Alex Brown, a Gullah native and chair of the island’s planning commission. “Over time, it’s been sold and traded and stolen.” And because of the Gullah’s unique history of agricultural production, the loss of land amounts to a loss of culture.
“If we don’t have our land, we don’t have our family,” says Queen Quet, chieftess of the Gullah/Geechee Nation. “This is the battle we’re in now.”
Beyond Hilton Head, all of South Carolina has experienced enormous demographic shifts in the past 50 years. African Americans comprised nearly half of the state’s farmers in 1950, but by 2012 represented just 7 percent. In Beaufort County, which includes Hilton Head and other coastal islands, the population is now 77 percent white, compared with 57 percent black in 1950. This shift has created tension between “native islanders” and the newcomers, many of them white retirees from the North. And it was facilitated by the forced sale of thousands of acres of black-owned land. To this day, Mitchell says, South Carolina is the “ground zero” of African-American partition sales.
On September 22, 2016, Nikki Haley, then governor of South Carolina, signed the Clementa C. Pinckney Uniform Partition of Heirs’ Property Act. The law, named for the revered state senator and pastor who was killed in the 2015 massacre at the Emanuel African Methodist Episcopal Church in Charleston, provides several protections for heirs’- property owners. If one co-tenant initiates a sale, for instance, the other co-tenants must be given an opportunity to buy that tenant’s share before the land can be sold. The act also requires judges to consider things like the sentimental, cultural, or historical significance of the land as well as its market value (previously the only consideration in most cases) before ruling to sell it. And if the land is sold, it must be sold on the open market instead of at auction, so that families receive a fair price. Josh Walden, the supervising attorney at the Center for Heirs’ Property Preservation, calls the act a “great tool” with the potential to preserve the land of many heirs’-property owners. Queen Quet calls it “a blessing.”
The law has its origins in model legislation that was written in 2010 by the Uniform Law Commission, which drafts bills for states to consider. Thomas W. Mitchell was its lead author—only the second African American in the history of the commission to serve as the lead author of a uniform law. He calls the act the “most significant reform to property law in the history of this country.” It has already been passed by 10 states, including Alabama, Connecticut, Montana, Nevada, New Mexico, and Texas, and was introduced in the District of Columbia earlier this year.
“In his 2007 documentary Banished, filmmaker Marco Williams examined four examples of primarily white communities violently rising up to force their African-American neighbors to flee town. This became one of the techniques used to sabotage Black land ownership, a devastating trend in the 19th and 20th centuries that robbed Blacks of millions in generational wealth.
In 2001, results from an 18-month investigation of Black land loss in America were published by The Associated Press. It turned up 107 of these land takings, 57 of which were violent, the other cases involved trickery and legal manipulations. Here are eight of these heartbreaking stories…”
Any discussion of reparations must include how this happened, who did it, and the laws, policies and practices that allowed it.
A House Judiciary subcommittee on Wednesday held the first hearing in over a decade on the issue of reparations for black Americans. The hearing took place, fittingly, on the Juneteenth holiday, commemorating the announcement of the end of slavery in the United States, and five years after the writer Ta-Nehisi Coates, who testified, reignited the debate with his 2014 essay “The Case for Reparations.” Once a fringe topic, reparations has emerged as an issue in the 2020 presidential campaign, with several leading candidates for the Democratic nomination expressing support for various measures to atone for America’s racist past.
Thanks to Mr. Coates and others, today’s movement for reparations places as much emphasis on the racist public policies of the 20th century, which denied black Americans opportunities to build wealth and left them vulnerable to all manner of economic exploitation, as it does on the crimes of slavery. Many leading proponents of reparations point to the federal government’s failure to provide land and resources (40 acres and a mule) to former slaves following emancipation, as promised, as laying the course for today’s inequities. “Had such a racial land reform taken place,” the Duke University economist William Darity Jr. argues, “it is easy to envision that the vast current differences in wealth between black and nonblacks would not exist.” Mr. Darity has gone so far as to use the ungranted 40 acres of land that was due former slaves as the basis for calculating the amount of reparations due to their descendants today.
But in addition to invoking the 40 acres black people never got, the reparations movement today should be talking about the approximately 11 million acres black people had but lost, in many cases through fraud, deception and outright theft, much of it taken in the past 50 years.
These property holdings could have provided a foundation for black wealth-building in post-Jim Crow America. Instead, they became a source of riches for others. Rather than helping to close the racial wealth gap, blacks’ landholdings became a key force in widening it. Black land-taking has been as instrumental as the denial of opportunities to acquire property in creating today’s racial wealth inequality and offers a more telling indicator of the barriers to upward mobility black people faced — and continue to face — in America.
Understanding how this happened, identifying who did it and addressing the laws, policies and practices that allowed — and continue to allow — it to happen must be at the center of any discussion of reparations.
In the decades after the end of Reconstruction, as the nation abandoned its black citizens and the South descended into the age of Jim Crow, African-Americans succeeded, against all odds, in acquiring a remarkable amount of land. By 1910, black people claimed ownership of nearly 16 million acres in America. They did so in spite of the constant threat of forced dispossession at the hands of white mobs and officials. Sometimes, black property owners faced sudden and violent attacks, such as the racial cleansing of Forsyth County, Ga., in 1912 and the destruction of “Black Wall Street” in Tulsa, Okla., in 1921.
As often, though, whites undermined black property ownership by more subtle means. White tax assessors routinely overvalued black-owned land, forcing black property owners to bear a heavier tax burden than whites (to pay for services they didn’t receive) and slowly draining families of earnings. If black-owned property became valuable or a black property owner challenged white supremacy, local officials could simply declare the property tax-delinquent and sell it at a tax sale. Writing in 1940, the N.A.A.C.P. special counsel Thurgood Marshall described the manipulation of tax-delinquency laws by white officials in the South as a practice and custom of “depriving Negroes of their property through subterfuge.”
Despite this, at the dawn of the civil rights era, African-Americans still held substantial amounts of land, mostly in the South, a major portion of which was in some of the region’s fastest-growing areas and hottest real estate markets. Thanks to huge federal investments during the New Deal, the South in the mid-20th century went from being what President Franklin Roosevelt described as the “nation’s No. 1 economic problem” in the 1930s to the booming Sun Belt by the 1960s. The region’s rapid growth, along with the emergence of new industries like vacationing and tourism in rural and coastal areas, created an insatiable demand for land and made black property owners targets for removal by white officials and plunder by profit-seeking speculators. Both exploited the byproducts of blacks’ history of oppression to achieve their objectives.
The story of Evelina Jenkins, a black South Carolina Sea Islands native, offers a case in point. She owned dozens of acres of property — including an entire island — at a time in the early 1970s when land values along the state’s coastline were skyrocketing. As a result of the state’s pitiful expenditures on “colored” schools, Ms. Jenkins had received only minimal education and never learned to read. Decades of disfranchisement and white control of local government and the courts had taught her that whatever rights and protections it afforded did not apply to her. Even venturing inside the local government offices where people registered for licenses or paid their taxes was an invitation to be mistreated and humiliated, and was something to avoid.
So Ms. Jenkins entrusted a white neighbor who had befriended her to take her annual property tax payments to town for her. But rather than submitting Ms. Jenkins’s payments, he pocketed them, then waited for her taxes to fall delinquent, whereupon he bought the lien to her property at the county’s annual tax auction. Then, after the statutory redemption window closed, he gained title to her landholdings, island and all, which he subsequently resold to a developer. In the decades since, the land Jenkins once owned has generated untold amounts of wealth. Houses on the island she once owned today sell for upward of $400,000. Ms. Jenkins, though, never saw a dime of it. Rather than leave her children an ample inheritance, she died penniless, forced to live out her last days in her daughter’s mobile home.
While Ms. Jenkins’s case was particularly egregious, the legal theft of black land in similar ways was not uncommon. In booming real estate markets like Hilton Head and surrounding Sea Islands, tax sales afforded investors a lucrative opportunity to acquire valuable property for pennies on the dollar. Here and elsewhere, local tax assessors served as accessories before the fact, deliberately overvaluing black-owned land or enacting sharp, capricious assessment spikes as development crept near, all aimed at forcing poor black farming families to sell under duress or steering them into tax delinquency.
Tax sales were just one of several ways speculators and developers manipulated property and tax laws, and exploited historic inequities, to expropriate black people’s land. Another was the forced partition sale. Because whites controlled the courts, blacks who acquired property during Jim Crow often opted to handle matters of inheritance informally, outside of the legal system. Instead of probating their wills, black property owners tended to bequeath their property to descendants in the form of undivided shares — an arrangement under which heirs become co-owners of a property, each with the right to sell his or her own interest. Predatory land speculators would search for a person who had recently inherited land this way and was willing to sell his or her share. Once the sale went through, the speculator — now a co-owner of the property — would have the right to petition the courts to order a sale of the entire tract of land (against the wishes of those family members who lived on it) and would then buy it.
These partition sales invariably resulted in the land being sold at well below its market value, enriching the buyer while leaving the displaced and dispossessed family members with nothing. Speculators have used this legal trick to force the sale of millions of acres of black-owned land over the past several decades. Only in the past couple of years have some states begun to adopt a uniform law designed to curb the most predatory abuses of heirs property laws. Much of the damage, though, has been done.
Indeed, many of the techniques used to take black-owned land remain legal today. The tax-sale law that allowed someone to steal Ms. Jenkins’s land remains on the books in South Carolina and many other states, and continues to be used to extract wealth from poor and vulnerable communities across America. Tax buying thrived in the wake of the 2008 housing foreclosure crisis, as the number of tax-delinquent homes mushroomed, and today in gentrifying cities, where rising property assessments function as a self-fulfilling prophecy, predicting the changes local officials hope to bring and forcing low-income people out.
Many local governments have resisted calls to protect homeowners from predatory tax buying and have instead sought to increase profitability for investors; other cities have taken aggressive steps to foreclose on tax-delinquent properties. Between 2011 and 2015, Detroit initiated tax foreclosures on one out of every four properties in the city, an epidemic of tax delinquency caused, in large measure, by the illegal over-assessment of lower-valued properties. Then and now, the victims of discriminatory overtaxation and predatory tax buying are disproportionately black.
These continuing practices, more than the government’s broken promise of 40 acres and a mule 150 years ago, explain why black families today have 10 cents to every dollar held by white households and why that gap continues to widen. It’s why the history of black land-taking should be at the center of the reparations debate, not only because the scale of the loss was so great but also because it forces us to confront the uncomfortable truth that American prosperity has not bypassed black Americans so much as it has come directly at their expense. It’s no coincidence that African-American communities on the Sea Islands suffered their heaviest land losses in the 1970s and 1980s, the same decades when the area experienced its most rapid economic growth.
Indeed, slavery and Jim Crow not only excluded generations of black Americans from benefits and opportunities enjoyed by white Americans; it also exposed them to the most predatory features of our capitalist system. It turned black people’s earnest attempts to build wealth the American way — through property ownership — into an opportunity for others to profit at their expense.
If we ever hope to repair the damage racism has done to America, and address the dividends it continues to pay to white Americans, we cannot simply open to black Americans previously closed doors of opportunity or merely provide some form of compensation for past injustices. We must also work to dismantle the laws and policies that sanction the continued extraction of property and resources from black communities.
Failure of the Freedman Bank
- Freedmen’s Savings and Trust (1865-1874)
- Helped newly free black people invest
- By 1866 19 branches in 12 states
- mainly in the South
- 1874 bank closes
- Due to massive fraud among the white management and white board of directors
- The bank loses $3 million
- $63 million in today’s standard
- From 61,144 newly free black depositors
Black Past: Freedmen’s Savings and Trust Company (1865-1874)
By late 1861, many black Americans along the border-states experienced a de facto freedom in the presence of occupying Union troops. Some found employment in Union garrisons where they were monetarily compensated for their work. At this time, northern abolitionists called for the creation of a freedmen’s bank to assist the ex-slaves in developing habits of financial responsibility.
During the Civil War, small banks were established across the South to receive deposits from black soldiers and runaway slaves working at Union garrisons. Many of the records of these deposits were lost, however, and many of the freedmen were prevented from recovering their deposits. Also, when black troops were killed in combat and did not list next-of-kin, their deposits often went unclaimed. Even when relatives were listed, locating them proved difficult since the Civil War disrupted black residential patterns.
John W. Alvord, a Congregational Minister and A. M. Sperry, an abolitionist, launched the Freedmen’s Savings and Trust Company in 1864 to eliminate individual bank mismanagement and bring all of the black deposits under central control in a single large institution. After Congress passed legislation incorporating the bank on March 3, 1865, President Lincoln immediately signed the bill into law. Deposits were received only “by or on behalf of persons heretofore held in slavery in the United States, or their descendants.” Up to 7% interest was allowed for deposits, and any unclaimed accounts were to be pooled into a charitable fund that was used to educate the children of ex-slaves.
In 1868 the bank headquarters was moved to Washington, District of Columbia (D.C.), where black staffers were trained to take over its operations. At its peak, the bank operated 37 branches in seventeen states and the District of Columbia making it one of the first multi-state banks in the nation. By 1870 nearly all the local branches were run by African Americans.
By 1874, massive fraud among upper management and among the board of directors had taken its toll on the bank. Moreover, economic instability brought upon by the Panic of 1873 coupled with the bank’s rapid expansion proved disastrous. Hoping to revive the bank, Frederick Douglass, who was elected president in 1874, donated tens of thousands of dollars of his own money to shore up the declining institution.
Although Douglass pleaded for Congress to intervene, on June 29, 1874, the bank was officially closed. At the date of closing $2,993,790.68 was due to 61,144 depositors. Mistakenly believing that the deposits were insured by the federal government, the bank’s collapse left many African Americans cynical about the banking industry.
Slavery by Another Name
Slavery by Another Name is a 90-minute documentary that challenges one of Americans’ most cherished assumptions: the belief that slavery in this country ended with the Emancipation Proclamation. The film tells how even as chattel slavery came to an end in the South in 1865, thousands of African Americans were pulled back into forced labor with shocking force and brutality. It was a system in which men, often guilty of no crime at all, were arrested, compelled to work without pay, repeatedly bought and sold, and coerced to do the bidding of masters. Tolerated by both the North and South, forced labor lasted well into the 20th century. For most Americans this is entirely new history. Slavery by Another Name gives voice to the largely forgotten victims and perpetrators of forced labor and features their descendants living today.
Slavery by Another Name: Trailer
Slavery by Another Name: Full 90 minute documentary