Slavery, Jim Crow, and Mass Incarceration: Could the Thirteenth Amendment Hold the Key to Racial Equity in Criminal Justice?

The United States incarcerates people at a higher rate than any other country on Earth. Within the U.S., Black people—particularly at the state level—are incarcerated at disproportionately high rates relative to the total population, the rate at which white people are incarcerated, and crime rates overall. Consequently, Black Americans also disproportionately suffer the disadvantages of collateral penalties accruing to conviction, such as felon disenfranchisement and housing ineligibility. This Note asserts that these inequities are incidental to slavery and its racist wake—from Black Codes to Jim Crow laws and the War on Drugs—and that Congress can therefore combat them in two steps.

First, Congress should invoke the Thirteenth Amendment by identifying the mass incarceration of Black Americans as a “badge or incident of slavery.” Doing so enables Congress to legislate on topics otherwise traditionally deep within state autonomy, such as the validity of criminal laws and policies. The history and interconnectedness of race, politics, and criminality in the U.S.—particularly at the state level—makes this identification reasonable. Congress should then use this power to enact a statute providing a way to challenge state criminal laws that result in grossly disproportionate rates of incarceration by race and lack compelling justification for their maintenance. This Note suggests one framework, the “Civil Justice Act,” which would allow the Department of Justice to bring disparate impact claims against states to invalidate discriminatory criminal practices and require “preclearance” before replacement by the state. Similar statutes exist to enforce civil rights in other contexts—housing, employment, and particularly, voting. The solution offered by this Note would bring criminal justice to par.