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By this time, Congress had enacted, over Johnson’s veto, the Civil Rights Act of 1866, which mandated racial equality in judicial punishments, and had approved the 14th Amendment, requiring states to provide to all people the “equal protection of the laws.” These, senators thought, would prevent the use of the courts to victimize African-Americans, rendering Kasson’s resolution unnecessary. Time would prove them tragically wrong.
During Radical Reconstruction, when hundreds of thousands of African-Americans voted for the first time and large numbers held public office, racial bias in the criminal justice system and the forced labor of those convicted of crime remained minor problems. There were hardly any prisons or prisoners in the South. But with the overthrow of Reconstruction and the imposition of the comprehensive system of white supremacy known as Jim Crow, the prison population expanded rapidly.
Southern states filled their jails with African-Americans, often former slaves convicted of minor crimes. They then rented them out as labor for the owners of railroads, plantations and factories, or required them to work on chain gangs building roads and other public projects, or inside prison walls for private businesses.
The labor of prisoners became a significant source of revenue for Southern states. The system also took hold, but in a much smaller way, in the North.
Without violating the 13th Amendment, Republicans in post-Reconstruction Texas complained, “the courts of law are employed to re-enslave the colored race.” Plantations, they added, “are worked, as of old, by slaves, under the name of convicts.”
Conditions were barbarous and the supply of convicts seemingly endless. “One dies, get another,” became a popular refrain among those who profited from the labor of prisoners.
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