A Yankee Invention
What some historians call "the long Depression" of the nineteenth century, which lasted from the mid-1870s through the mid-1890s, was marked by frequent panics and slumps, mass bankruptcies, deflation, and self-destructive competition among businesses designed to depress costs, especially labor costs. So, too, we are living through a twenty-first century age of panics and austerity with similar pressures to shrink the social wage.
Convict labor has been and once again is an appealing way for business to address these dilemmas. Penal servitude now strikes us as a barbaric throwback to some long-lost moment that preceded the industrial revolution, but in that we're wrong. From its first appearance in this country, it has been associated with modern capitalist industry and large-scale agriculture.
And that is only the first of many misconceptions about this peculiar institution. Infamous for the brutality with which prison laborers were once treated, indelibly linked in popular memory (and popular culture) with images of the black chain gang in the American South, it is usually assumed to be a Southern invention. So apparently atavistic, it seems to fit naturally with the retrograde nature of Southern life and labor, its economic and cultural underdevelopment, its racial caste system, and its desperate attachment to the "lost cause."
As it happens, penal servitude—the leasing out of prisoners to private enterprise, either within prison walls or in outside workshops, factories, and fields—was originally known as a "Yankee invention."
First used at Auburn prison in New York State in the 1820s, the system spread widely and quickly throughout the North, the Midwest, and later the West. It developed alongside state-run prison workshops that produced goods for the public sector and sometimes the open market.
A few Southern states also used it. Prisoners there, as elsewhere, however, were mainly white men, since slave masters, with a free hand to deal with the "infractions" of their chattel, had little need for prison. The Thirteenth Amendment abolishing slavery would, in fact, make an exception for penal servitude precisely because it had become the dominant form of punishment throughout the free states.
Nor were those sentenced to "confinement at hard labor" restricted to digging ditches or other unskilled work; nor were they only men. Prisoners were employed at an enormous range of tasks from rope- and wagon-making to carpet, hat, and clothing manufacturing (where women prisoners were sometimes put to work), as well coal mining, carpentry, barrel-making, shoe production, house-building, and even the manufacture of rifles. The range of petty and larger workshops into which the felons were integrated made up the heart of the new American economy.
Observing a free-labor textile mill and a convict-labor one on a visit to the United States, novelist Charles Dickens couldn't tell the difference. State governments used the rental revenue garnered from their prisoners to meet budget needs, while entrepreneurs made outsized profits either by working the prisoners themselves or subleasing them to other businessmen.
Convict Labor in the ‘New South'
After the Civil War, the convict-lease system metamorphosed. In the South, it became ubiquitous, one of several grim methods—including the black codes, debt peonage, the crop-lien system, lifetime labor contracts, and vigilante terror—used to control and fix in place the newly emancipated slave. Those "freedmen" were eager to pursue their new liberty either by setting up as small farmers or by exercising the right to move out of the region at will or from job to job as "free wage labor" was supposed to be able to do.
If you assumed, however, that the convict-lease system was solely the brainchild of the apartheid all-white "Redeemer" governments that overthrew the Radical Republican regimes (which first ran the defeated Confederacy during Reconstruction) and used their power to introduce Jim Crow to Dixie, you would be wrong again. In Georgia, for instance, the Radical Republican state government took the initiative soon after the war ended. And this was because the convict-lease system was tied to the modernizing sectors of the post-war economy, no matter where in Dixie it was introduced or by whom.
So convicts were leased to coal-mining, iron-forging, steel-making, and railroad companies, including Tennessee Coal and Iron (TC&I), a major producer across the South, especially in the booming region around Birmingham, Alabama. More than a quarter of the coal coming out of Birmingham's pits was then mined by prisoners. By the turn of the century, TC&I had been folded into J.P. Morgan's United States Steel complex, which also relied heavily on prison laborers.
All the main extractive industries of the South were, in fact, wedded to the system. Turpentine and lumber camps deep in the fetid swamps and forest vastnesses of Georgia, Florida, and Louisiana commonly worked their convicts until they dropped dead from overwork or disease. The region's plantation monocultures in cotton and sugar made regular use of imprisoned former slaves, including women. Among the leading families of Atlanta, Birmingham, and other "New South" metropolises were businessmen whose fortunes originated in the dank coal pits, malarial marshes, isolated forests, and squalid barracks in which their unfree peons worked, lived, and died.
Because it tended to grant absolute authority to private commercial interests and because its racial make-up in the post-slavery era was overwhelmingly African-American, the South's convict-lease system was distinctive. Its caste nature is not only impossible to forget, but should remind us of the unbalanced racial profile of America's bloated prison population today.
Moreover, this totalitarian-style control invited appalling brutalities in response to any sign of resistance: whippings, water torture, isolation in "dark cells," dehydration, starvation, ice-baths, shackling with metal spurs riveted to the feet, and "tricing" (an excruciatingly painful process in which recalcitrant prisoners were strung up by the thumbs with fishing line attached to overhead pulleys). Even women in a hosiery mill in Tennessee were flogged, hung by the wrists, and placed in solitary confinement.
Living quarters for prisoner-workers were usually rat-infested and disease-ridden. Work lasted at least from sunup to sundown and well past the point of exhaustion. Death came often enough and bodies were cast off in unmarked graves by the side of the road or by incineration in coke ovens. Injury rates averaged one per worker per month, including respiratory failure, burnings, disfigurement, and the loss of limbs. Prison mines were called "nurseries of death." Among Southern convict laborers, the mortality rate (not even including high levels of suicides) was eight times that among similar workers in the North—and it was extraordinarily high there.
The Southern system also stood out for the intimate collusion among industrial, commercial, and agricultural enterprises and every level of Southern law enforcement as well as the judicial system. Sheriffs, local justices of the peace, state police, judges, and state governments conspired to keep the convict-lease business humming. Indeed, local law officers depended on the leasing system for a substantial part of their income. (They pocketed the fines and fees associated with the "convictions," a repayable sum that would be added on to the amount of time at "hard labor" demanded of the prisoner.)
The arrest cycle was synchronized with the business cycle, timed to the rise and fall of the demand for fresh labor. County and state treasuries similarly counted on such revenues, since the post-war South was so capital-starved that only renting out convicts assured that prisons could be built and maintained.
There was, then, every incentive to concoct charges or send people to jail for the most trivial offenses: vagrancy, gambling, drinking, partying, hopping a freight car, tarrying too long in town. A "pig law" in Mississippi assured you of five years as a prison laborer if you stole a farm animal worth more than $10. Theft of a fence rail could result in the same.
Penal Servitude in the Gilded Age North
All of this was only different in degree from prevailing practices everywhere else: the sale of prison labor power to private interests, corporal punishment, and the absence of all rights including civil liberties, the vote, and the right to protest or organize against terrible conditions.
In the North, where 80% of all U.S. prison labor was employed after the Civil War and which accounted for over $35 billion in output (in current dollars), the system was reconfigured to meet the needs of modern industry and the pressures of "the long Depression." Convict labor was increasingly leased out only to a handful of major manufacturers in each state. These textile mills, oven makers, mining operations, hat and shoe factories—one in Wisconsin leased that state's entire population of convicted felons—were then installing the kind of mass production methods becoming standard in much of American industry. As organized markets for prison labor grew increasingly oligopolistic (like the rest of the economy), the Depression of 1873 and subsequent depressions in the following decades wiped out many smaller businesses that had once gone trawling for convicts.
Today, we talk about a newly "flexible economy," often a euphemism for the geometric growth of a precariously positioned, insecure workforce. The convict labor system of the nineteenth century offered an original specimen of perfect flexibility.
Companies leasing convicts enjoyed authority to dispose of their rented labor power as they saw fit. Workers were compelled to labor in total silence. Even hand gestures and eye contact were prohibited for the purpose of creating "silent and insulated working machines."
Supervision of prison labor was ostensibly shared by employers and the prison authorities. In fact, many businesses did continue to conduct their operations within prison walls where they supplied the materials, power, and machinery, while the state provided guards, workshops, food, clothing, and what passed for medical care. As a matter of practice though, the foremen of the businesses called the shots. And there were certain states, including Nebraska, Washington, and New Mexico, that, like their Southern counterparts, ceded complete control to the lessee. As one observer put it, "Felons are mere machines held to labor by the dark cell and the scourge."
Free market industrial capitalism, then and now, invariably draws on the aid of the state. In that system's formative phases, the state has regularly used its coercive powers of taxation, expropriation, and in this case incarceration to free up natural and human resources lying outside the orbit of capitalism proper.
In both the North and the South, the contracting out of convict labor was one way in which that state-assisted mechanism of capital accumulation arose. Contracts with the government assured employers that their labor force would be replenished anytime a worker got sick, was disabled, died, or simply became too worn out to continue.
The Kansas Wagon Company, for example, signed a five-year contract in 1877 that prevented the state from raising the rental price of labor or renting to other employers. The company also got an option to renew the lease for 10 more years, while the government was obliged to pay for new machinery, larger workshops, a power supply, and even the building of a switching track that connected to the trunk line of the Pacific Railway and so ensured that the product could be moved effectively to market.
Penal institutions all over the country became auxiliary arms of capitalist industry and commerce. Two-thirds of all prisoners worked for private enterprise.
Today, strikingly enough, government is again providing subsidies and tax incentives as well as facilities, utilities, and free space for corporations making use of this same category of abjectly dependent labor.
The New Abolitionism
Dependency and flexibility naturally assumed no resistance, but there was plenty of that all through the nineteenth century from workers, farmers, and even prisoners. Indeed, a principal objective in using prison labor was to undermine efforts to unionize, but from the standpoint of mobilized working people far more was at stake.
Opposition to convict labor arose from workingmen's associations, labor-oriented political parties, journeymen unions, and other groups which considered the system an insult to the moral codes of egalitarian republicanism nurtured by the American Revolution. The specter of proletarian dependency haunted the lives of the country's self-reliant handicraftsmen who watched apprehensively as shops employing wage labor began popping up across the country. Much of the earliest of this agitation was aimed at the use of prisoners to replace skilled workers (while unskilled prison labor was initially largely ignored).
It was bad enough for craftsmen to see their own livelihoods and standards of living put in jeopardy by "free" wage labor. Worse still was to watch unfree labor do the same thing. At the time, employers were turning to that captive prison population to combat attempts by aggrieved workers to organize and defend themselves. On the eve of the Civil War, for example, an iron-molding contractor in Spuyten Duyvil, north of Manhattan in the Bronx, locked out his unionized workers and then moved his operation to Sing Sing penitentiary, where a laborer cost 40 cents, $2.60 less than the going day rate. It worked, and Local 11 of the Union of Iron Workers quickly died away.
Worst of all was to imagine this debased form of work as a model for the proletarian future to come. The workingman's movement of the Jacksonian era was deeply alarmed by the prospect of "wage slavery," a condition inimical to their sense of themselves as citizens of a republic of independent producers. Prison labor was a sub-species of that dreaded "slavery," a caricature of it perhaps, and intolerable to a movement often as much about emancipation as unionization.
All the way through the Gilded Age of the 1890s, convict labor continued to serve as a magnet for emancipatory desires. In addition, prisoners' rebellions became ever more common—in the North particularly, where many prisoners turned out to be Civil War veterans and dispossessed working people who already knew something about fighting for freedom and fighting back. Major penitentiaries like Sing Sing became sites of repeated strikes and riots; a strike in 1877 even took on the transplanted Spuyten Duyvil iron-molding company.
Above and below the Mason Dixon line, political platforms, protest rallies, petition campaigns, legislative investigations, union strikes, and boycotts by farm organizations like the Farmers Alliance and Grange cried out for the abolition of the convict-lease system, or at least for its rigorous regulation. Over the century's last two decades, more than 20 coal-mine strikes broke out because of the use of convict miners.
The Knights of Labor, that era's most audacious labor movement, was particularly exercised. During the Coal Creek Wars in eastern Tennessee in the early 1890s, for instance, TC&I tried to use prisoners to break a miners' strike. The company's vice president noted that it was "an effective club to hold over the heads of free laborers."
Strikers and their allies affiliated with the Knights, the United Mine Workers, and the Farmers Alliance launched guerilla attacks on the prisoner stockade, sending the convicts they freed to Knoxville. When the governor insisted on shipping them back, the workers released them into the surrounding hills and countryside. Gun battles followed.
The Death of Convict Leasing
In the North, the prison abolition movement went viral, embracing not only workers' organizations, sympathetic rural insurgents, and prisoners, but also widening circles of middle-class reformers. The newly created American Federation of Labor denounced the system as "contract slavery." It also demanded the banning of any imports from abroad made with convict labor and the exclusion from the open market of goods produced domestically by prisoners, whether in state-run or private workshops. In Chicago, the construction unions refused to work with materials made by prisoners.
By the latter part of the century, in state after state penal servitude was on its way to extinction. New York, where the "industry" was born and was largest, killed it by the late 1880s. The tariff of 1890 prohibited the sale of convict-made wares from abroad. Private leasing continued in the North, but under increasingly restrictive conditions, including Federal legislation passed during the New Deal. By World War II, it was virtually extinct (although government-run prison workshops continued as they always had).
At least officially, even in the South it was at an end by the turn of the century in Tennessee, Louisiana, Georgia, and Mississippi. Higher political calculations were at work in these states. Established elites were eager to break the inter-racial alliances that had formed over abolishing convict leasing by abolishing the hated system itself. Often enough, however, it ended in name only.
What replaced it was the state-run chain gang (although some Southern states like Alabama and Florida continued private leasing well into the 1920s). Inmates were set to work building roads and other infrastructure projects vital to the flourishing of a mature market economy and so to the continuing process of capital accumulation. In the North, the system of "hard labor" was replaced by a system of "hard time," that numbing, brutalizing idleness where masses of people extruded from the mainstream economy are pooled into mass penal colonies. The historic link between labor, punishment, and economic development was severed, and remained so... until now.
Convict Leasing Rises Again
"Now," means our second Gilded Age and its aftermath. In these years, the system of leasing out convicts to private enterprise was reborn. This was a perverse triumph for the law of supply and demand in an era infatuated with the charms of the free market. On the supply side, the U.S. holds captive 25% of all the prisoners on the planet: 2.3 million people. It has the highest incarceration rate in the world as well, a figure that began skyrocketing in 1980 as Ronald Reagan became president. As for the demand for labor, since the 1970s American industrial corporations have found it increasingly unprofitable to invest in domestic production. Instead, they have sought out the hundreds of millions of people abroad who are willing to, or can be pressed into, working for far less than American workers.
As a consequence, those back home—disproportionately African-American workers—who found themselves living in economic exile, scrabbling to get by, began showing up in similarly disproportionate numbers in the country's rapidly expanding prison archipelago. It didn't take long for corporate America to come to view this as another potential foreign country, full of cheap and subservient labor—and better yet, close by.
What began in the 1970s as an end run around the laws prohibiting convict leasing by private interests has now become an industrial sector in its own right, employing more people than any Fortune 500 corporation and operating in 37 states. And here's the ultimate irony: our ancestors found convict labor obnoxious in part because it seemed to prefigure a new and more universal form of enslavement. Could its rebirth foreshadow a future ever more unnervingly like those past nightmares?
Today, we are being reassured by the president, the mainstream media, and economic experts that the Great Recession is over, that we are in "recovery" even though most of the recovering patients haven't actually noticed significant improvement in their condition. For those announcing its arrival, "recovery" means that the mega-banks are no longer on the brink of bankruptcy, the stock market has made up lost ground, corporate profits are improving, and notoriously unreliable employment numbers have improved by several tenths of a percent.
What accounts for that peculiarly narrow view of recovery, however, is that the general costs of doing business are falling off a cliff as the economy eats itself alive. The recovery being celebrated owes thanks to local, state, and Federal austerity budgets, the starving of the social welfare system and public services, rampant anti-union campaigns in the public and private sector, the spread of sweatshop labor, the coercion of desperate unemployed or underemployed workers to accept lower wages, part-time work, and temporary work, as well as the relinquishing of healthcare benefits and a financially secure retirement—in short, to surrender the hope that is supposed to come with the American franchise.
Such a recovery, resting on the stripping away of the hard won material and cultural achievements of the past century, suggests a new world in which the prison-labor archipelago could indeed become a vast gulag of the downwardly mobile.
Steve Fraser is Editor-at-Large of New Labor Forum, co-founder of the American Empire Project (Metropolitan Books), and a TomDispatch regular. He is, most recently, the author of Wall Street: America's Dream Palace. He teaches history at Columbia University. Joshua B. Freeman, a TomDispatch regular, teaches history at Queens College and at the Graduate Center of the City University of New York and is affiliated with its Joseph S. Murphy Labor Institute. His forthcoming book, American Empire, will be the final volume of the Penguin History of the United States. This piece is an adaptation of an "In the Rearview Mirror" column that will be published in a forthcoming issue of the magazine New Labor Forum. Follow TomDispatch on Twitter @TomDispatch and join us on Facebook. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.