This article appeared in the 19 December 1997 issue of New Law Journal, published by Butterworths in London. It may be cited as M. R. Franks, Slavery Returns, 147 New Law Journal 1842 (Dec. 19, 1997).

This article also appeared in the February 1998 issue of The Public Defender, the voice of the Southern University Law Center. It may be cited as M. R. Franks, Slavery Returns, Public Defender, February 1998, at 4.

*M R Franks is Associate Professor of Law at Southern University, Baton Rouge, Louisiana; formerly Professeur Associé on the Faculty of Law of l'Université de Cergy-Pontoise, Paris. The author holds his Bachelor of Science and Juris Doctor degrees from Memphis State University. Professor Franks is presently in Europe on a leave of absence from Southern University.

The United States fought a war in Vietnam in which 211,471 Americans died -- more than in the American Revolutionary War, the War of 1812, the Spanish-American War, and the Korean Conflict combined. Those of us alive at the time wondered why all the carnage. Why didn't we just bomb Haiphong harbour, sever the Viet Cong's supply lines, end the war with a victory, and bring our troops home?

Little did we know at the time that America's military-industrial complex was prolonging the war to maximize the sale of aircraft and munitions, never mind the horrendous cost in human lives. Those who have seen Oliver Stone's excellent cinema JFK know the story well.

The collapse of the Soviet Union in the late 1980s, with the concomitant downsizing of the American military, must have left many an industrialist wondering from whence his next meal would come. Is it any coincidence that massive prison construction began in the United States at about the same time as military spending was being reduced?

The use of criminal charges to recruit slaves has a long and distinguished history in America. Before the American Civil War, Massachusetts was home to a significant number of free persons of colour working as seamen on the coastwise trade. South Carolina and eight other southern states would imprison these free seamen of colour as soon as they would disembark even briefly on local docks, often charging them with a criminal offence. Fined but usually unable to pay, the seamen were then sold into slavery to pay their fines.¹

In 1844, the governor of Massachusetts sent a distinguished judge, Samuel Hoar, to Charleston to attempt to negotiate a compromise with the South Carolina authorities. The judge was given such a hostile reception that he had to flee South Carolina in fear of his life. Another Massachusetts emissary, Samuel Hubbard, sent to New Orleans on a similar mission, "faced the very real prospect of being lynched".²

It took the American Civil War to end slavery, but it's back now. Use of the criminal law to recruit slave workers has returned to the United States. The steel shackles and iron bars of bondage are every bit as real to the neoslaves of the twentieth century as they were to their earlier counterparts of the nineteenth.

Nationwide today, the United States as 565 prisoners per 100,000 population.³ In Texas, the figure is 659 prisoners per 100,000 population.⁴ Expressed as a percentage of the adult population (as opposed to the total population), this works out to about two per cent of adults over the age of eighteen.

America's per capita incarceration rates run six to ten times higher than most countries. France, typical of developed countries, imprisons only 95 persons per 100,000.⁵

China, not known for respecting human rights, imprisons only 107 per 100,000.⁶ America leads the world with 1.6 million persons in prison.⁷ This is up from 316,000 in 1980.⁸ Charles Murray writes: "The United States has a higher proportion of its citizens locked up than almost any other country in the world. America still has one of the world's highest crime rates."⁹

According to another author,

For black Americans, the picture is even bleaker. Blacks are incarcerated at eight times the rate of the general American population -- a population already highly oveincarcerated by world standards. "Twenty-five per cent of black males between the ages of 16 and 26 have either been in prison, [on] parole, [on] probation or charged with felonious actions."¹¹

The two per cent of adults behind bars obviously must be fed, housed and clothed by the remaining 98 per cent of adults, reducing national productivity on just this one account by nearly four per cent.¹²

Slavery supposedly was abolished with ratification of the thirteenth amendment in 1865. Alas, that amendment contains one gaping loophole: "Neither slavery nor involuntary servitude, except as punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."¹³

The Samuel Hoar incident was discussed during the reconstruction debates in Congress, but not to any degree until consideration of the fourteenth amendment -- ratified in 1868, three years after ratification of the thirteenth amendment.

Recall the privileges and immunities clause of Article IV, § 2, of the original, 1789 Constitution. That clause provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." That clause should have protected the free Massachusetts seamen (and also Judge Hoar himself) when travelling in South Carolina.

During the debates on the fourteenth amendment, Representative John Bingham of Ohio and others felt that the failure of Article IV privileges and immunities in 1844 was because that constitutional provision contained no "enabling clause" permitting Congress to enforce the provision by suitable legislation. Thus, it was felt Article IV privileges and immunities were left to the mercy of the states for enforcement.

Representative Bingham proposed a fourteenth amendment, to contain three clauses: privileges and immunities, due process, and equal protection. The privileges and immunities clause of the fourteenth amendment differs from that of Article IV in that the fourteenth amendment refers to privileges and immunities of United States citizenship, whereas Article IV refers to privileges and immunities of state citizenship.

The equal protection clause of the fourteenth amendment, however, was intended as a re-enactment of Article IV privileges and immunities with one difference: the fourteenth amendment contains an enabling clause. Following ratification, Congress quickly exercised its powers under that enabling clause by enacting the Ku Klux Klan Act of 1871, better known today as 42 US Code § 1983.

By 1868, Congress was distrustful of the good faith of southern states and wished to create federal rights of interstate travel enforceable in the federal courts. And the Samuel Hoar incident figured large in the discussion of the need for such legislation.

Had the Samuel Hoar incident been equally on the mind of Congress several years earlier, the drafters of the thirteenth amendment might have been aware of the potential abuse of the criminal law to recruit slaves. But alas the Samuel Hoar incident was hardly mentioned in the congressional debates until after the thirteenth amendment had been ratified in 1865.

What is alarming in America today is the proliferation of privately operated prisons, operated for profit by private companies that contract with the state to warehouse prisoners. Under the guise of "job training", the services of these prisoners are then sold (by state-operated prisons as well as private prisons) to private companies in the manufacturing or service sector. The inmates work, sometimes up to sixteen hours a day, in fields as diverse as manufacturing, telemarketing, customer service operations, airline reservations and the like.

The inmates rarely see their paycheque. "Inmates pay most of their wages -- about 80 per cent -- for room and board, for child support payments, for victims restitution, and for taxes. The rest they keep to buy items prisons do not provide, like deodorant."¹⁴ One employer, using prison labour to take airline reservations, told a reporter that the prisoners are paid fifty cents an hour, "and you don't have to pay them benefits . . . Fifty-cent-an-hour labour is just good business."¹⁵

As legislators dump as many ghetto dwellers as possible out of sight and behind barbed wire, this system of neo-slavery also takes its toll on the law abiding citizenry as well. An article in U.S. News & World Report stated:

Prison labour is a multi-billion-dollar industry. But a country whose economy depends on producing as many criminals as possible to feed an avaricious system of neo-slavery disguised as "rehabilitative job training" is no pleasant place in which to live. Having to contend daily with a surfeit of ill-educated people, in a country with murder and rape rates running eight to ten times higher than those of Europe, the United States has now become a positively dangerous place to live. The gnashing of teeth we hear is the sound of our own intolerance as we discover that dodging bullets while living under constant fear of violent crime in our paradisiacal cesspit of apartheid is the natural consequence of centuries of racist iniquities that have culminated in this, our perfectly polarised paradise.

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