Monday, September 7, 2015
Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court in Bailey v. Alabama (1911) and U.S. v. Reynolds (1914) invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act. Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.
This Article, the Author’s third on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the phenomenon of what the Author calls “the new peonage.” It argues that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today.
This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: both function to maintain an economic caste system. The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece. The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment through the early twentieth century. It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay, including juveniles. It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact. The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings.