The history of “court costs” and legitimizing ongoing slavery

Extra Newsfeed, Sep 2017

A few days ago, Lamont Lilly tweeted this story from the Triangle Tribune about how “court costs” — in this case, nearly $1,000 in mandatory fees which even judges have no power to waive — can ruin someone, pulling them into a spiral of debt that can cost them everything. The money ends up in a wide range of pockets, from “law enforcement officer training and retirement” to a complicated profit-sharing split with prosecutors. 

In the post-Civil War South, a system came up when plantations, factories, or mines needed workers. It was based on that clever little exception in the 13th Amendment:

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.

Note that it doesn’t say what kind of crime you have to be convicted of.

So localities passed laws against “vagrancy” — defined as “being unemployed” — or “carrying a concealed weapon” like a pocketknife. When there was a need for people, local police would sweep up Black men and charge them with something. Sometimes it was one of these laws, sometimes it was another; in the early 1900’s they often didn’t even bother filing a formal charge.

The men would be held in jail, and a Justice of the Peace would hear the case. They would be convicted, fined $5 plus “court costs.” That typically meant a total of around $120 in 1880 money — about $2,700 in today’s money. If your family could come up with that money within a few minutes, you were set free.

Of course, that wasn’t common. Fortunately, there would be a kindly white gentleman there who would offer to pay the prisoners’ fees… and they would pay him back in labor. The Justice of the Peace would get paid the fine, the court costs, as well as a kickback for running the operation, which he would split with the cops. (This came to 50–75% of the income for most JP’s, and was the main reason most people took that job.)

The prisoners, in the meantime, would be loaded onto trucks and taken off to the labor camp. They would be housed in barracks, given rags to wear and slops for food, disobedience was punished with whips, and escapees chased by dogs. Prisoners were, of course, charged for their food and housing, so it was quite possible to never be able to get out. If a good worker ever did get out, a special request would typically be made to the local JP so they could be brought back within days.

Punishment in a forced labor camp, Georgia, 1930’s. From D. Blackmon, Slavery By Another Name, and the archive he maintains at his site.

Conditions were almost indistinguishable from pre-War slavery — with one significant exception.

In 1860, a slave typically cost around $800 (about $22,000 in 2017 money), making them capital investments. Under the new system, slaves cost about $120 every 3–5 years, making them a flexible operating expense. (And as there was no refund for returning them intact, there was no reason to take particular care that they even survived their imprisonment. The adage that “nobody ever washed a rented car” takes on a much more sinister connotation when talking about human lives.)

This opex-based slavery was extremely profitable not just for plantations, but mines and factories — which meant it worked in the North. As a result, post-war slavery was intensely profitable not just for Southern crop growers, but for Northern factory operators.

This business had several other important consequences.

(1) “Farming” local Black populations for “court costs” was an intensely profitable local business, and remains so to this day.

(2) The structure of this pipeline was that Black men, as soon as they were big enough to work, were off to prison. This was literally the main thing to prepare them for in childhood. The segregated school system had that in mind.

(3) Another consequence is that Black women were there to raise children, and generally had to do so without men present. The culture of strength and fierce independence which so defines Black women today has many of its roots in this period, perhaps even more than in the pre-War slavery period, where men and women were allowed slightly more family life.

(4) When deployed in Northern factories, the “new Slavery” had the effect of depressing wages for white factory workers. Starting in the late 19th century, those white workers started to organize — like workers were starting to do around the world. The fear of Communism became a huge matter in the US, especially after 1917. Employers used tremendous violence to quash strikes. This continued to escalate into the 1930’s, when pretending that labor issues could be ignored really fell apart.

The white workers of 1870–1930 didn’t generally see black workers as having common cause with them; instead, they saw them as competitors. The fact that they were often involuntary competitors didn’t really enter into it.

But the type of racism which arose in the North during this time period was therefore different from Southern racism. The themes of “they’re naturally criminals,” for example, or outright eliminationism — “send them back” — were much more prevalent. So while Southern racism was about “knowing one’s place,” Northern racism was about “the insidious other.”

From the 1930’s to the early 1960’s, a new social system was built in America, including things like Social Security, Medicare, and so on. From the very beginning, there was deep resistance to the idea that these things might benefit Black Americans. FDR backed away from initial plans and built racial qualifications explicitly into a wide range of New Deal programs. The set of programs built after World War II — things like the G.I. Bill, Fannie Mae, and the system of health insurance provided through employers and subsidized by the government — created the modern middle class, but had even more barriers.

With the direct government programs like Fannie Mae, the racial qualifications were explicit. The indirect programs, like health care and pensions, were more subtle. Making them available through employers, rather than directly, achieved a few goals. First, the employers’ own racial qualifications filtered them to only apply to white men. Second, these benefits only applied to people who worked for these employers, and were generally not transferable to a new job (The modern “movable” retirement plan, for example, was created in the 1980’s; until then, if you left an employer, you lost your pension).

That meant that there was a huge range of social benefits available to the white American worker — if he (not she) stayed with his employer. This was the system of “White Socialism,” which effectively quashed broad support for (Red) Socialism in the 1950’s-60’s. Built into it was the set of racial ideas inherited from Northern racism resulting from the post-Civil War slavery system.

(5) This slavery system was largely disassembled in the 1930’s — just as the original “war on drugs” began. The demon marijuana was one of the first drugs targeted. Modern pot advocates talk about hemp’s competition with synthetic fibers as a reason for its banning, but even more important was its association with Black and Mexican people in the 1930’s, and theircompetition with white laborers. That competition involved orders of magnitude more money than the synthetic fiber and wood pulp industries ever did; the criminalization of Blackness was racism deliberately created to back an economic program of slave labor.

This is a crucial thing to remember when you hear arguments that economics are real, but racism isn’t: they’re both real. Racism was created to further economic ends; and once created, it continued to exist, independent of those original plans.

This is not a good system that was turned bad: it’s a system that was rotten to the core from its very first day.

(6) One of the subjects I find very interesting, but which to my knowledge is only beginning to be researched is the later influence of the system of slave labor camps. When I first read about conditions in these camps, it was strikingly familiar to me — they sounded exactly like the conditions in Nazi concentration (not extermination) camps.

In the 1920’s and 1930’s, there were close ties between German and American industrialists. Henry Ford, a dedicated anti-Semite, was even awarded the Grand Cross of the German Eagle by the Nazis in 1938. This brings up the question: To what extent were American slave practices from 1870–1930 the direct basis for Nazi slave practices 1933–1945? Not merely in the sense of inspiration, but in the sense of direct instruction, collaboration, and involvement? I suspect there’s a really good research problem in here for some enterprising historians.

If, after reading this, you want to learn more, there are two crucial books to start with: Douglas Blackmon’s Slavery By Another Namewhich covers roughly the period from 1870 to 1930, and Michelle Alexander’s The New Jim Crow, which covers roughly from 1930 to the present.

The core of all of this story is that “court costs,” and other semi-official aspects of the legal system, do not plunge people into life-altering cycles of debt by accident. These have always been the design purpose of the systems. While facially nondiscriminatory, they were always built for the specific purpose of ruining and enslaving people. This is not a good system that was turned bad: it’s a system that was rotten to the core from its very first day.

This story originally appeared as a Twitter thread. Many thanks to A. V. Floxfor helping me convert those into an organized essay.