Convict Leasing Through the Ages

History underscores the stubborn and often subtle persistence of enslavement. The Civil War was barely over before wealthy Southern planters, newly without a guaranteed workforce, began to transform bondage into a legally acceptable form. They established exploitative systems of sharecropping and tenant farming, but they also began “convict-leasing” — renting out the labor of imprisoned individuals. To ensure the availability of an adequate labor force, states passed astoundingly punitive laws, which they used to target former slaves. In Arkansas (the subject of my most recent book), state legislators swiftly established the penalty for the theft of just two dollars at one to five years.

Conditions for leased convicts were vicious, with whippings, overwork, and routine starvation. Decades of activism on the part of reformers led to the slow, state-by-state abolition of convict leasing in the late nineteenth and early twentieth centuries, but every state simply found new ways to legally exploit their (disproportionately poor, disproportionately black) inmates. Many established “chain gangs,” wherein prisoners were shackled together to do labor outside of prison walls. Chain gangs lasted into the 1970s (with a brief “tough on crime” revival in the 1990s).

Other states, mostly in the South, established penal plantations — massive farming operations to be staffed by prisoners. In Arkansas, authorities built two custodial complexes within massive cotton plantations, Cummins Farm and Tucker Farm. Both remain functioning prisons to this day.

The chain gang and the penal plantation each transformed convicts from the property of private lessees into the “property of the state.” Yet the example of Arkansas reveals that even after the supposed abolition of convict leasing, those in power continued to find ways to allow the wealthy to continue to benefit from those behind bars.

Although most histories suggest that convict leasing ended in Arkansas in the 1910s (and that the final state to abolish the practice, Alabama, did so in 1928), I found evidence in a state archive that a shadow system endured far longer. According to correspondence in the papers of former governor Harvey Parnell, a system continued at least into the 1930s whereby the governor often secured the conditional parole of certain black prisoners and then effectively gave them to wealthy white friends of his to do labor.

In 1929, for instance, the governor wrote to the superintendent of the state prison farm on behalf of a powerful acquaintance who “wants to get a negro woman,” while in another letter he mentioned “a very close personal and political friend of the Governor [who] is very anxious to secure a yard boy from the Farm.” Sometimes, prominent citizens even wrote to the governor asking for a “negro woman to stay around our home here in DeWitt and work for us and we will look after her, etc.” or complaining about a delay in receiving the black man they wanted.

At the same time, civil rights attorneys began hearing reports of a system in Arkansas “even worse than the usual case of leasing prisoners to private land owners,” a young Thurgood Marshall wrote to colleagues in 1937. “It seems that, in this case, the land owner actually ‘purchases’ the prisoners and works them involuntarily and under the constant threat of brutal punishment and death.” Such prisoners might endure up to three beatings a day if they failed to pick the massive quantities of cotton that their overseers required.

A well-known lawyer in Mississippi County, Arkansas — which produced more cotton than any other county in the United States — likewise recalled that around the same time the county had no jails to hold misdemeanants who owed fines. Instead, the local government would “sell” them to cotton planters, who in turn “would manacle the convicts to their beds; would take them out to work in the daytime; feed them and then back to the barracks at night.”

The state’s governor even had a personal stake in the perpetuation of this system. As one governor’s son recalled in an oral history interview some eight decades later, one of the “perks” of his father being the governor of Arkansas in the 1930s was that “you could have as many, as much household help as you wanted from the penitentiary.” His family “nearly always had either a man to work in the yard or a lady to work in the house.” Such a practice would continue at least into the 1980s, when Arkansas First Lady Hillary Clinton, acquiesced to continuing this “long-standing tradition, which kept down costs.” She and Bill, she wrote in her memoir, It Takes a Village, “became friendly with a few of them, African-American men in their thirties who had already served twelve to eighteen years of their sentences.”

The rosy tone of these recollections belies the violence undergirding forced prison labor. In Arkansas, the whipping of prisoners refusing to work continued well into the twentieth century, and literal torture — electrodes attached to genitals — remained routine into the 1960s. Such practices only ceased when, in the late 1960s, a group of Arkansas inmates filed a class action lawsuit against the state, resulting in a series of rulings demanding that the state modernize its prisons. Yet the court rejected their argument “that the forced, uncompensated labor of Arkansas convicts violates the Thirteenth Amendment.”

And, as ever, those seeking to profit from prisons learned to adapt their tactics. In the early 1980s, Terrell Don Hutto — the former head of Arkansas’s prisons and the man named in some of the Arkansas prison litigation — cofounded the first for-profit prison in the United States, now known as CoreCivic, which recently settled with inmates it had forced to work for as little as $1 per day. Private prisons currently incarcerate tens of thousands of people across the United States, including the vast majority of immigrant detainees. Yet even though immigrant detainees have not been convicted of crimes, they are nonetheless routinely forced to do labor.

A Grassroots Effort, State By State

In all these ways, sanctioned or sub rosa, forced labor survived in the United States. Today, Arkansas incarcerates nearly 1 percent of its residents and is one of the only states that still compels inmates to work for no pay. Thousands of incarcerated Arkansans labor in the fields of plantations under a blistering sun, with “no limit to their daily hours, and without scheduled, guaranteed breaks.” This labor is not optional. Kaleem Nazeem, incarcerated in Arkansas, was placed in solitary confinement for months for refusing to pick cotton, which he considered to be “one of the symbols of slavery.”

Yet activists are fighting back. Groups like decARcerate are organizing against that state’s exception clause, state legislators have introduced bills to eliminate it, and Arkansans have marched against abusive prison conditions.

Nationwide, incarcerated people themselves have engaged in organized work stoppages, demonstrating a remarkable level of coordination and fortitude in the face of overwhelming force. Prisoners organized mass strikes across multiple states in 2016 and 2018; in 2022, inmates in Alabama, home to many of the deadliest and most desolate prisons in the nation, struck to protest “a humanitarian crisis.” In all, more than fifty thousand incarcerated people engaged in work stoppages in the 2010s to protest forced labor, part of what some scholars have labeled “the new prisoner rights movement.”

History suggests that their opponents will be wily. For instance, in Colorado — the first state to strike its exception clause — journalists have documented hundreds of instances of incarcerated people still being disciplined for refusing to do labor, and incarcerated people have sued the state for violating the amended constitution.

What, then, is to be done? First and foremost, the exception clauses are a scourge and should be eradicated. I live in California, and I’ve already voted to eliminate my state’s exception clause. An “Abolition Amendment” to remove the federal counterpart from the Thirteenth Amendment would do a lot of good in one fell swoop.

But a clear-eyed view of the past shows that no matter the laws on the books, forced labor has endured; it is a defining feature of American incarceration. As long our laws allow the state to place its disfavored subjects in cages, exploitation will continue.