During slavery, when African slaves and their descendants were kept like cattle, and denied every and all rights of citizens, they were nonetheless counted as part of the population to enhance the electoral college votes of Southern states as well as to increase the number of representatives to which they were entitled in Congress. This was the infamous three-fifths rule, in which each slave was counted as three-fifths of a person in determining the amount of political representation Southern states enjoyed. This despite the fact that in 1857, in the Dred Scott case, the only case in which the U.S. Supreme Court ever considered the constitutionality of slavery, it upheld it, ruling that blacks had “no rights which the white man was bound to respect.” African-Americans as a matter of our highest law were in fact no more citizens than cattle. Yet they were counted as people, or at least as three-fifths of a person, in order to increase the population of the slave states and enhance those states’ political power in Congress and in presidential elections. That dreadful principle is still reflected today in felony disenfranchisement laws. More about that later. But first some contextual history.
A few years after the Dred Scott ruling, the Civil War began, and shortly after it was over, Congress passed, and the states ratified, the 13th, 14th and 15th Amendments to the U.S. Constitution. These Amendments were intended to herald a new dawn of equal citizenship for former slaves. It didn’t work out that way.
The 13th Amendment prohibited slavery and involuntary servitude except as punishment for crime. This exception turns out to be significant, because in the aftermath of the 13th Amendment abolishing slavery, the criminal law and race-targeted prosecutions became an instrument of racial subjugation and involuntary servitude, literally a replacement system for slavery. Vagrancy, domestic violence and vague offenses like “moral turpitude,” were, for example, widely used but selectively enforced against newly-freed slaves, and became the basis of imprisonment, chain gangs and a new regime of virtual slavery engulfing many so-called “freedmen.”
The 14th Amendment seemed to enforce the first 10 on state and local governments, thereby endowing citizens, including the newly-freed slaves, with all the rights guaranteed by the Bill of Rights, against state governments. But in 1873, the U.S. Supreme Court eviscerated those protections, leaving states free to violate the Bill of Rights at their discretion, which they did for many decades, deep into the 20th century, until the Supreme Court, slowly and incrementally, began to revitalize the 14th Amendment, utilizing it, as many believe it was originally intended, to apply the Bill of Rights to state and local governmental acts. But after 1873, and for nearly another century, the states of the old Confederacy were free to strip former slaves of nearly all of the rights most Americans consider as their birthright. The Black Codes during this era defined blacks as anyone having a single black ancestor, no matter how distant; employment was required in order to avoid a criminal charge of vagrancy but virtually all forms of employment except agricultural or domestic work at serf-like wages were legally barred to former slaves, in effect re-creating peonage as a replacement system for slavery, if not outright conscription into chain gangs of people convicted of vagrancy and other crimes. Former slaves were also prohibited from learning to read or write, and were barred from meeting or assembling outside of the presence of a white person’s supervision. Strict separation of all public facilities was required by law. These kind of laws became widespread, and violating them led to public whipping and other punishments reminiscent of slavery. The Black Codes were the predicate for what came to be known as Jim Crow laws, which lasted until the mid-1960s.
The 15th Amendment guaranteed the right to vote without regard to race, skin color or former condition of servitude. But as with the 13th and 14th Amendments, the South found a way around that, aided by a complicit Supreme Court. By the late 19th century, and into the early 20th, the Supreme Court interpreted the guarantee of the 15th Amendment very narrowly, and the South marched through the opening. They passed a range of restrictions on the right to vote, apparently race-neutral, but selectively enforced against blacks, and often, as a practical matter, applying differentially to blacks. These restrictions included poll taxes and bogus literacy tests (which whites were usually exempt from under so-called grandfather clauses, under which you weren’t subject to those restrictions if your grandfather wasn’t!). Literally, seven Southern states passed laws between 1895 and 1910 exempting anyone from these barriers, including many poor and illiterate whites, who had voted before 1866 or 1867. Since the 15th Amendment giving former slaves the right to vote didn’t become law until 1870, these barriers operated to exclude only blacks. Another exclusionary device was the “white primary,” a fiction that construed primary elections as private affairs, and barred blacks from voting in them. Since throughout the South, elections were effectively a one-party affair, the nominating primary was the only election that mattered, and blacks were excluded. These devices in effect nullified the apparent guarantees of the 15th Amendment, and were augmented by terrorism, including beatings and killings, against blacks who persisted in trying to vote. With one exception, these mechanisms were abolished, either by the Supreme Court (for example the white primaries, struck down in 1944) or more generally by the landmark civil rights legislation of the mid-1960s. That one exception, which persists to this day, and now bars millions of blacks from voting — one of every 13 black adults! — is felony disenfranchisement.
Felony disenfranchisement was an invention of the Southern states, designed to bar blacks from the right to vote, like the other mechanisms described above. No other Western democracy uses it (except in some cases for election fraud convictions) and it has its roots in this country in the post-Civil War period when the Black Codes, Jim Crow laws and enabling Supreme Court decisions combined to create a replacement system of separation and subjugation based on skin color once slavery had been abolished. The replacement system was explicitly designed to force blacks into penurious servitude, and deny them all basic rights of citizenship.
From the start, the criminal law was used to target blacks, get them into prisons, subject them there to involuntary servitude (which, remember, was permitted by the 13th Amendment), and when they got out, if they got out, deny them the right to vote. Eventually, such laws spread to all but a very few states, and remained intact even as Supreme Court decisions and the civil rights laws of the mid- to late sixties swept away the legal underpinnings of most of the other Jim Crow laws. But felony disenfranchisement laws remained.
For a long time, although these laws denied many individuals the right to vote, they didn’t have much large-scale effect because as late as 1968, there were fewer than 200,000 people in state and federal prisons for all crimes. Then, in 1968, something happened. 1968 marked the culmination of the civil rights movement. In 1964, the Civil Right Act was passed, outlawing skin-color discrimination in employment and public accommodations like hotels, restaurants, swimming pools, theaters, sports stadiums,water fountains, parks and toilets. A year later, the Voting Rights Act passed, outlawing racial discrimination in voting, and finally abolishing most of the exclusionary devices like literacy tests. (Poll taxes were abolished in 1964 by the 24th Amendment for federal elections and by the Supreme Court in 1966 for state elections.) And in 1968, the Fair Housing Act was passed, outlawing racial discrimination in the rental, sale and purchase of housing. Thus by 1968, the legal infrastructure of Jim Crow laws was destroyed and a new legal infrastructure of civil rights enforcement constructed. Those opposed to discrimination, separation and subjugation based on skin color celebrated, as their like had celebrated after the passage of the 13th, 14th and 15th Amendments approximately a century earlier. But just as the passage of those Amendments were quickly followed by a replacement system designed to maintain skin-color subjugation, so now, swiftly following the legal civil rights revolution of the 1960s, a new strategy of subjugation emerged. And once again, as was the case in the late 19th century, the criminal law was a key mechanism. Only this time, it wasn’t explicitly racial, or didn’t seem to be. And like water coming very slowly to a boil, for a long time few saw what was happening, or understood why. But consider:
1. 1968 marks the culmination of the civil rights movement; Jim Crow as a replacement system for slavery, by law in the South and by custom in the North, is destroyed legally, and a legal infrastructure of civil rights is established instead.
2. At that time, there are fewer than 200,000 people in federal and state prisons combined, for all crimes.
3. That number begins to grow, and keeps growing, first slowly, then more rapidly, then explosively, until by the end of the 20th century and the early years of this century, there are over 1.6 million people in state and federal prisons, and more than another 700,000 in local jails, making about 2.4 million people behind bars — one of the highest incarceration rates in the world. (In the past few years, that number decreased slightly, but not materially; however in the past year it began to creep up again.)
4. During this time of explosive growth in the prison population, the proportion of blacks in prison compared to whites doubles. Doubles!
5. What caused this explosive growth of incarceration, and the doubling of the proportion of blacks who were imprisoned?
During these years, the single most frequent reason for the explosion of incarceration was not rape, or assault, or homicide or kidnapping or robbery or burglary but rather non-violent drug offenses, mostly possession or small-time buying and selling. By the end of the 20th century, these constituted 39% of all the crimes for which people were imprisoned — close to two-fifths! Few big time drug marketers were among these numbers; modern-day Al Capones were rare among the exploding prison population. Rather, it was mostly small people, caught up in the government’s drug war and trapped by the epidemic of brutal mandatory sentences that began in 1973 with the Rockefeller drug law in New York, and quickly spread to many, perhaps most, other states. And although about 80% of those who used prohibited drugs were white, blacks and Latinos constituted about 80% of those incarcerated for non-violent drug offenses. According to government statistics, only about 13% of monthly drug users were black — just about their proportion of the population — but 35% of those arrested for it were black, 55% of those convicted for it were black, and between two-thirds and three-quarters of those imprisoned for it were black.
6. The electoral consequences of this explosion of race-targeted felony convictions and imprisonment has been startling. Before 1968, when fewer than 200,000 people were in state and federal prisons for all crimes, the number of people barred from voting by felony disenfranchisement laws was modest. But by the end of the 20th century, skyrocketing felony convictions, driven primarily by non-violent drug offenses disproportionately targeting blacks and Latinos, led directly to similarly skyrocketing numbers of people barred from voting. Today, the number of people barred from voting by felony disenfranchisement laws is 5.85 million. And the proportion of African-Americans among those millions barred from voting has similarly skyrocketed, because they have been the ones targeted, arrested, convicted and imprisoned for non-violent drug offenses. Today, one of every 13 black Americans is barred from voting as a result of felony disenfranchisement laws. This has been especially, although not uniquely, true in the states of the old Confederacy, where felony disenfranchisement laws were born and nurtured after the Civil War as one way among many to avoid the commands of the then-new 15th Amendment that guaranteed the right to vote regardless of race or color. And it is the only one of those 19th-century inventions that survived the civil rights movement and its transformative laws in the mid-1960s. To this day, the highest proportions of African-American citizens so barred from voting are in Southern states — 23.3% in Florida, 22.3% in Kentucky, 20.4% in Virginia, 18.9% in Tennessee, 15% in Alabama, and 13.9% in Mississippi. When you consider that blacks who vote vote overwhelmingly for Democrats, and when you consider how close recent elections for the Senate and for Governor have been in these states, it is no wonder that these states have remained solidly in the column that the media have dubbed “red states.”
7. The final outrage about all this is that such people, though barred from voting, are counted for the purpose of determining the state’s electoral votes and numbers of representatives in Congress and state legislatures. Thus, like the infamous three-fifths compromise during the days of slavery, which counted slaves for the purposes of representation while denying them citizenship, voters not allowed to vote by felony disenfranchisement laws enhance the political representation of the states banning them. How this can be tolerated by anyone claiming we are a representative democracy has always escaped me.
So why did this happen, and what does it mean? The origins of drug prohibition have long been known to have been racially inspired. Laudanum was a wildly popular pain medication containing 10% opium dissolved in alcohol at the turn of the 20th century, and heroin, another opiate derivative was originally marketed, like its cousin aspirin, by the Bayer company. Most users were white. But when Chinese immigrants grew in number, helping to build the railroads that opened up the west, lurid tales of opium dens where Chinese men used opium to prey sexually on helpless white women, led to the first bans on opiates. And although the active ingredient in Coca-Cola was cocaine, lurid tales of cocaine-crazed Negroes sexually exploiting white women and being rendered invulnerable to bullets by the drug led to bans and to the cocaine in Coca-Cola being replaced by caffeine. And the first bans of marijuana were driven by prejudicial fears of Mexicans. But despite these origins, and drug prohibition existing since 1915, as late as 1968 relatively few people were imprisoned for possessing such drugs. But something happened in 1968. What happened was the culmination of the civil rights movement, as reflected in the civil rights legislation of the mid-60s, and especially the Voting Rights Act of 1965. This was very similar to the era after the passage of the 13th, 14th and 15th Amendments, when it appeared as if a new dawn of equal citizenship rights for African-Americans had arisen. But just as the Black Codes and Jim Crow laws arose shortly after the post-Civil War Amendments as a replacement system after slavery for the continued separation and subjugation of African-Americans, so the War on Drugs, initially announced by President Nixon shortly after his election in 1968, and kick-started again in 1980 by President Reagan, and tolerated and continued by a succession of Democratic presidents, became, and was perhaps intended, as a replacement system of separation and subjugation of African-Americans in the wake of the destruction of the legal infrastructure of Jim Crow by the civil rights laws of 1964, 1965 and 1968.
Certainly that has been the effect of the War on Drugs. But something revealed in 1994 suggests it may have been intended, just as felon disenfranchisement laws were intended in the late 19th and early 20th centuries to subjugate blacks and frustrate new civil rights laws. In 1994, the diaries and tapes of H.R. Haldeman, Nixon’s chief of staff, were published. In them, there appears the following entry:
Referring to the president as “P,” Haldeman writes:
“P emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this without appearing to.”
Shortly thereafter, Nixon declared the War on Drugs.
For anyone who doubts that the War on Drugs is and has always been a civil rights issue, one need look no further than the explosion of arrests and incarceration it spawned; the doubling of the proportion of blacks among those arrested and incarcerated (despite blacks using drugs no more frequently per capita than whites); and the vast numbers of blacks excluded from the right to vote by felony disenfranchisement laws, originally invented to circumvent the 15th Amendment and hibernating like a dormant virus in our body politic until the War on Drugs provided fertile ground for it to become a way around the Voting Rights Act of 1965.
Slavery was America’s original sin; it poisoned the blood and infected the bones of our polity, and that poison remains, still doing its sinful work. If we believe what we were taught in school about America as the land of freedom and equal opportunity, about all of us — all of us — being equally endowed with inalienable rights, about the purpose of government, as declared in the Declaration of Independence, being to secure those rights, then we have a lot of work still to do. We remain very far from a post-racial country.
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