One of the trick questions American History teachers ask their classes is: “When did slavery end?”

The answer that is both obvious and wrong is: with President Lincoln’s Emancipation Proclamation, which you might count either as 1862 (when it was announced) or 1863 (when it went into effect).

It’s a trick question because the Emancipation Proclamation by itself freed almost nobody. It only applied to the Confederate states (not the slave-holding border states that stayed in the Union), and those were precisely the places where no one was paying attention to President Lincoln’s proclamations. Those states had their own president, and he thought slavery was just fine.

The answer the teacher is probably looking for is: with the 13th Amendment, which (as the Lincoln movie dramatized) passed Congress in early 1865. The amendment is short and gets right to the point:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

It became part of the Constitution that December, when newly reconstructed Georgia became the 27th state to ratify it.

But in his 2008 Pulitzer-Prize-winning book Slavery by Another Name, (which in 2012 PBS made into a documentary that you can watch free online) Wall Street Journal reporter Douglas Blackmon came a different conclusion:

Certainly, the great record of forced labor across the South demands that any consideration of the progress of civil rights remedy in the United States must acknowledge that slavery, real slavery, didn’t end until 1945 — well into the childhoods of the black Americans who are only now reaching retirement age.

The loophole. The reason slavery was able to last so long is that the 13th Amendment has a loophole. (Did you notice it? It went right past me.) The loophole is “except except as a punishment for crime whereof the party shall have been duly convicted”. So if you can rig the local laws and get the cooperation of the local law enforcement and court system, you can convict people of “crimes” pretty much whenever you want. Then they can be sentenced to hard labor, and the state or county can auction them off to the highest bidder until their sentence (or their useful working life) is up.

That’s what happened across the South when whites regained control of state governments after Reconstruction. Vaguely worded laws created crimes like “vagrancy”, enforced almost exclusively against blacks. For other crimes like petty larceny or disorderly conduct, the say-so of a law-enforcement officer or a white “victim” was sufficient to convict, particularly after blacks were disenfranchised and banned from juries. For minor crimes, justices of the peace were empowered to assess fines without a jury, and when inflated court costs were added to a misdemeanor fine, the total was often far beyond any amount that a black worker could raise. He could then be sentenced to forced labor until the state or county recouped the debt through the “rent” paid by an employer. In this way, even a minor offense could result in months or even years of forced labor without pay, under whatever conditions the employer chose.

Instead of true thieves and thugs drawn into the system over decades, the records demonstrate the capture and imprisonment of thousands of random indigent citizens, almost always under the thinnest chimera of probable cause or judicial process. The total number of workers caught in this net had to have totaled more than a hundred thousand and perhaps more than twice that figure.

In the PBS documentary, Blackmon says the convict market was driven by demand, not supply:

In the fall, when it was time to pick cotton, huge numbers of black people are arrested in all of the cotton-growing counties. There are surges in arrests in counties in Alabama in the days before, coincidentally, a labor agent from the coal mines in Birmingham is coming to town that day to pick up whichever county convicts are there.



Industrial slavery. One of the arguments made by apologists for slavery — it goes back at least to John Calhoun’s 1837 speech to the Senate, “Slavery a Positive Good“, and you can still hear it occasionally today — is that the black slaves on Southern plantations were in fact treated better than the immigrant industrial workers of the North, whose bosses did not live side-by-side with them or care about them in the personal way that, say, Scarlett O’Hara cared about Mammy.

Reading Blackmon’s book, in which slaves are used in the mines and furnaces of Birmingham’s growing steel industry, you see that (to the extent that there is anything to it at all) this observation tells you more about the difference between agrarian and industrial society than about slavery. When you compare apples to apples, the evil of slavery is undiminished: Hired field hands in the North were treated better than plantation slaves in the South, and industrial slaves in the South were treated worse than free industrial workers in the North.

That was true even under the Confederacy, but post-Reconstruction industrial slavery was far worse: The slave was rented rather than owned, and so was treated as renters typically treat property. As historian Adam Green says in the PBS documentary: a leased convict could be “worked literally to death. … when [one] worker died, one simply had to go and get another convict.”

Green Cottenham. To give his story a face, Blackmon focuses on Green Cottenham, a Alabaman arrested for vagrancy in 1908 and sentenced to work for a subsidiary of U. S. Steel in the Pratt mines outside of Birmingham.

There he was chained inside a long wooden barrack at night and required to spend nearly every working hour digging and loading coal. His required daily “task” was to remove eight tons of coal from the mine. Cottenham was subject to the whip for failure to dig the requisite amount, at risk of physical torture for disobedience, and vulnerable to the sexual predations of other miners — many of whom already had passed years or decades in their own chthonian confinement. … Forty-five years after President Abraham Lincoln’s Emancipation Proclamation freeing American slaves, Green Cottenham and more than a thousand other black men toiled under the lash at Slope 12. Imprisoned in what was then the most advanced city of the South, guarded by whipping bosses employed by the most iconic example of the modern corporation emerging in the gilded North, they were slaves in all but name.

Cottenham died of disease before his sentence was up and was buried in an unmarked grave near the mine.

Tip of the iceberg. It’s tempting to compare Blackmon’s 100,000-200,000 estimate to the four million slaves held at the start of the Civil War and see at least some progress. But leased convicts were just the extreme edge of a more general slavery.

Another common practice was for wealthy whites to pay the misdemeanor fines of able-bodied blacks, in exchange for a “contract” pledging to work for a specified period of time. Once “employed”, they were chained and subject to the whip. Often they were kept beyond their contract period, because they had no way to claim their freedom.

One level removed from this were the sharecroppers, who by contract could only sell their crop to their landlord, for whatever price he named. Typically they borrowed from the landlord to buy seed, and never got out of debt. Bankruptcy laws did not apply to them, and running out on a debt was illegal — and could result in being sold to work the mines in Birmingham. Similarly, if you worked as a house servant or in a shop, the name of your white employer was your only defense should the sheriff come looking for “vagrants” he could sell to U.S. Steel.

Freedom was largely an illusion, not just for the leased convicts, but for all blacks.

False dawn. All this was clearly against the federal Civil Rights Act of 1875, but the Supreme Court held in the Civil Rights Cases of 1883 that Congress had no authority to overrule state laws in this way. Effectively, the states could do as they liked, as long as they didn’t call it slavery.

In 1903, President Theodore Roosevelt appointed a U. S. attorney in Alabama who naively decided to enforce federal laws against “peonage” — slavery for debt. A federal judge took his indictments seriously, and a handful of whites were put on trial. But as it became clear that these were not isolated cases, and that truly enforcing the law would disrupt the entire economy of the South, the Justice Department lost its nerve. The attorney was re-assigned, the attorney general got another job, and the main defendant was pardoned without ever spending time in prison.

Pearl Harbor. When the U.S. entered World War II, the Franklin Roosevelt administration realized that the continued existence of involuntary servitude in the South undermined the propaganda war against the Axis. Less than a week after Pearl Harbor, Attorney General Francis Biddle issued a directive to all federal prosecutors instructing them to prosecute cases of “involuntary servitude and slavery”. Finally, the law would be enforced.

It was a strange irony that after seventy-four years of hollow emancipation, the final delivery of African Americans from overt slavery and from the quiet complicity of the federal government in their servitude was precipitated only in response to the horrors perpetrated by an enemy country against its own despised minorities.

Significance today. Taking this story seriously reframes the Civil Rights movement and the entire history of race in America. Those who marched with Martin Luther King were not just the grandchildren of slaves; some had probably been slaves themselves. Likewise, when the Supreme Court demanded the desegregation of schools in 1954 or President Johnson signed the Civil Rights Act of 1965, the South was not a century past slavery, but only a few years.

In my previous posts about race, I have often run into comments about the long history of black crime, or comparisons to the Chinese, many of whom were also brought to America under forced-labor conditions in the 1800s. But that “long history” evaporates if the original post-slavery “crime wave” was actually instigated by whites seeking to re-enslave African Americans.

And no American race or ethnic group faced anything remotely resembling the black experience. Whatever hardships the Chinese or the Irish or any other immigrant group faced, once things turned around, they turned around. Only blacks experienced multiple false dawns, where rights were granted only to be later taken back or ignored. When today’s blacks look skeptically at authority or seem paranoid about the hidden intentions of whites, they are not reacting to the slavery experiences of great-great-grandparents they never met, but possibly of the parents who raised them.

In short: Slavery is a much fresher wound than most of us have been led to believe.