Black History Series: The 13th Amendment’s Restriction on African American Freedom

Study says black men serve longer sentences for same crime than white men. iStockphoto/Getty Images

This article was published in Democracy and Me March 7, 2019. In celebration of Black history month we would like to re-post it to begin our Black History Series for February 2020.

By Dr. David Childs, Ph.D.
Northern Kentucky University

The 13th Amendment 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.

One of the turning points of the Civil War was when Abraham Lincoln in 1863 after much consternation and deliberation passed the Emancipation Proclamation in 1863. The declaration did not “free the slaves” per say, as is commonly purported. In fact, it only freed the slaves of the states that were under rebellion during the Civil War. However, at the end of the Civil War a series of amendments were passed that aimed to give African Americans legal freedom, expand upon that freedom and grant equal protection under the law. That legislation consisted of the 13th, 14th and 15th Amendments. The 14th amendment granted Black people citizenship and the 15th amendment gave Black men voting rights. But the legislation that actually freed the slaves was the 13th amendment.

The 13th amendment stated that the only time American citizens could be enslaved was for punishment for a crime. This law had a particularly adverse effect on African Americans, as they were often wrongfully criminalized and incarcerated at a much higher rate. So in essence, they often remained slaves when they were incarcerated. Before the Civil War slave codes were implemented in the south to restrict the movement of slaves. These laws (for example) stopped slaves from gathering together in groups at churches, from bearing arms and from reading and writing. The idea was to perpetuate and maintain the system of slavery. After the war was over southerners passed Black Codes, which were laws that greatly restricted the lives of free Blacks. After slaves were free, southerners were upset and tried to put Black people back into a position that was as close to slavery as possible. The Black Codes would eventually evolve into Jim Crow laws, which was a system of laws that criminalized Blackness and insured they would be incarcerated and lose their freedom for the most minor of offenses. The primary thing Jim Crow laws did was enforce a system of legal segregation all throughout the south for many years. Its legacy still has a great impact on the US today.

Many scholars argue that the South’s idea of incarceration has its roots in slavery. In this way, Jim Crow laws directly targeted former slaves after the Civil War ended. In fact, the Ku Klux Klan was formed by disgruntled ex-confederate soldiers who felt an obligation to curb and frustrate the new found freedoms of free blacks. Even though Jim Crow laws were abolished one can still note the devastating effects of these laws that unfairly targeted African Americans.

Michelle Alexander in her groundbreaking text entitled The New Jim Crow: Mass Incarceration in the Age of Colorblindness stated that more African Americans are imprisoned today – that is, in prison or jail, on probation or parole – than the entire slave population in 1850. This fact is directly tied to the 13th amendment and its provision to enslave those being punished for criminal activity. Alexander argues that mass incarceration disproportionately affects African Americans. For example, in 2010 in the state of Mississippi 57% of those incarcerated were African American. She goes on to say that mass incarceration in contemporary times serves the same purpose as it did in pre-Civil War slavery and the post-Civil War Jim Crow laws, and that is to maintain a racial caste system. According to Alexander a “racial caste” system is a racial group being locked into an inferior position by law and custom. In this way, Jim Crow and slavery were caste systems, she maintains that our current system of mass incarceration is also a caste system; what she calls the new Jim Crow. After slavery was abolished, racial discrimination through Black codes and Jim Crow laws prohibited many African Americans from living in public housing, gaining employment, from voting, and receiving a good education. This happens often with many African Americans today after they are released from prison. Many are charged for crimes they did not commit or given felonies for minor offenses. Furthermore, many of the men that are behind bars are forced to produce various products for slave wages as low as $.86 to $4.00/Daily. Some items that are surprisingly made by prisoners include jeans, lingerie, park benches, canoes and baseball caps. Below are resources that can help students continue to explore the notion of the new Jim Crow and Modern Day Slavery.

The Shape of Slavery
How much do incarcerated people earn in each state?
11 Products Made by Prisoners
Summary of The New Jim Crow by Michelle Alexander
Black Codes: United States
Slavery By Another Name
The Vicious Circle: Race, Prison, Jobs and Community
The gap between the number of blacks and whites in prison is shrinking
Inmate Race
Luzerne “Kids for Cash” Scandal


  1.   The 13th Amendment outlawed non-penal slavery in America, however in this article Dr. Childs examines this clause and its relation Jim Crow laws in the post- Reconstruction South. Jim Crow laws sought to unfairly disenfranchise African Americans and often led to them being arrested, thus allowing the government to force them to work in a similar way that they were forced to work before the Civil War. As Dr. Childs points out, it is interesting to view the current prison population and its demographics in light of this historical perspective. 

  2. This is such an important topic that I wish more people were informed on. Mass incarceration is a huge issue in the United States which disproportionately ruins the lives of black Americans. It is completely unreasonable that a racial group which makes up such a small portion of the overall population of the country accounts for 2 out of 5 of all incarcerated people. I think it is barbaric that the current prison system has been left this way for so long without reform, when it is really a relic of slavery. The unfair sentences given to peoples of color compared to their white counterparts, and the inhumanely low wages that prisoners are forced to work for make it clear that our prisons are not about reforming those who break the law, but rather exploiting those who are not protected by the law.

  3. I knew that amendments were made in favor of slave freedom but that this was not executed for a long time. I did not know that the 13th amendment said that citizens could be enslaved as punishment for crime. While this sounds perfectly fair on paper, I’m sure it wasn’t fair in practice even a little. Racist citizens in the law enforcement, I’m sure, were happy to catch former slaves committing any sort of crime and any white citizen was willing to testify against the former slave regardless of the truth of the story. This amendment sounds great on paper but was likely the opposite of helpful. Prior to this, there were rare opportunities for slaves to buy their freedom. Now, even free, they could be roped back into free labor.

    And I believe that our nation is still carrying a prejudice against African Americans. It’s only been two generations since this was happening. My mom was born around this time and my grandparents were alive for it. Despite the massive progress, very little time has passed from then and now to change the mentality entirely.

    As for The New Jim Crow, I’m sure there’s truth to it. I also feel like immense progress has been made in the last two generations and will continue to be made and, hopefully, in two more generations (ideally faster though), this racial caste system will no longer exist.

  4. After reading this article, I realized that slavery is still very much alive in America. I just finished a podcast episode of Ologies today that talked about this very epidemic. It is, I’d like to say unconstitutional, but that would be contradictory. This may be an unpopular opinion, but the constitution is made for manipulation since a lot of it is up for interpretation. So, when someone was in office that didn’t care for black people’s freedom, they decided to bend it for their own benefit. The most shocking part is that the amount of incarcerations today are as high as they are. I’d like to think that times have changed, but the Civil Rights Movement wasn’t that long ago; and there are people in power that continue to use the constitution as their playdoh, rather than a resource.

  5. I have always been intrigued to learn about slavery because it is unbelievable to see the horrific actions that took place in history. The 13th amendment was a turning point for America as it stated that slaves would be freed unless it was for punishment of a crime. As a future educator, I think it is vital that young students learn about the cruelty of African Americans in the past and today. Students should not be sheltered from color conflictions, but rather build knowledge on how they can make changes in attempt to reach racial equality. Slavery can be a sensitive topic, but I think it helps children realize that Civil Rights in modern times is still a work in progress. Even though slavery has been abolished, racial discrimination is still evident in many ways. Children can ask themselves, “How can I avoid having biases or prejudices towards other people?” Through devastating topics like slavery and Jim Crow laws, teachers can help students change their mindset to know that diversity should be celebrated. I want to push my future students to break down the walls of structural racism and march towards liberty.

  6. Recalling the persistent and disproportionate incarceration of men of color, particularly black men, makes me think of the so-called “war on drugs” and mandatory minimums. The “war on drugs” started in the 1970’s and was particularly pushed by president Nixon, who has been caught on tape admitting that some legislation was made with the intent to punish/incarcerate those who he perceived to be political opponents- “hippies,” black people, hispanic people, etc. Looking at some drug laws, you’ll notice that some drugs which are nearly chemically identical, such as crack and cocaine, have a significant difference in the severity of their punishments (crack holds a more severe sentence, generally, and it is usually consumed more by those in lower socioeconomic levels). Even looking at marijuana, there are people, particularly black people serving 20 years-life terms (mandatory minimums) for possession when in their state, when their state may have just recently legalized marijuana and are allowed dispensaries to open up everywhere (which are generally owned by white people).

    These types of laws, though many may not see them as racist, result in the disproportionate incarceration of black men. And this, though it may be a controversial opinion, has basically created a modern-day form of enslavement off the backs of those serving prison sentences. Though I’m not sure how developmentally appropriate a conversation about race and imprisonment would be with some elementary students, I think that having lessons about slavery and relating it to modern day would be helpful for students. They can make connections between the cause and maybe accidental effects of some amendments and legislation.

  7. While reading this article I learned and gained more interest in learning about the “ New Jim Crow” law. I did not know anything about the black code laws and didn’t realize how it still enslaved African Americans. I have more questions about the new Jim Crow law and if those African Americans are not guilty why are they still in Prison??? I have a lot of questions I would like to find answers to using the resources. I enjoyed reading this article and hope to further my knowledge on this topic!

  8. Thinking about how today’s world and how it compares to a world from 130 years previously is just astonishing. It is my personal belief, that we have improved ourselves greatly. Some may argue that we have not come far enough though. While we still have a ways to go as far as abolishing segregation, I refer to the statement, “Rome wasn’t built in a day.” Violence in general is nearly impossible to abolish, but then again, the word violence means many different things.

  9. One of the most important aspects of teaching US history at the high school level is having kids become aware of and confront issues like this. The high school I observe at is virtually entirely white, and many students still see the US as a post-racial society whose problems were largely ended by MLK Jr. in the 1960s. Of course, that is far from the truth and resources like the ones cited in this piece are critical in opening eyes and getting students to challenge their previously held notions.

    The 13th amendment has actually been referenced in a number of popular rap songs – I first learned about its slavery loophole 8 years ago listening to the song “Reagan” by Killer Mike, and artists like Kanye West, Common, and Childish Gambino have also brought light to the issue. I feel that exploring these songs – with parent permission due to some explicit lyrics – could be a powerful way to help students connect with the material in an interdisciplinary fashion.

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