The ACLU has been a critic of the 13th amendment to the US constitution for some time, claiming that the clause that reads that slavery shall not exist "except as a punishment for crime whereof the party shall have been duly convicted" is a loophole and has been exploited as such.

After the Civil War, many states, mostly former slave states, immediately exploited the 13th Amendment loophole allowing slavery and involuntary servitude as a punishment for crime. Many former slaves were arrested and then put back into slave labor conditions through convict leasing, a lucrative practice that generated more than 70 percent of total state revenues for the state of Alabama in 1898. From the 1920s through 1941, convict leasing was gradually eliminated through state laws and by presidential executive order. The constitutional loophole, however, was never removed.
- Colorado Votes To Abolish Slavery, 2 Years After Similar Amendment Failed - NPR.org

In the bold portion above, the ACLU claims that "convict leasing" was done immediately after the civil war, was used to target and enslave black Americans, and was prevalent. Is this a fair assessment of the historical records?

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    It would be nice if ACLU provided a citation for their claim. The Alabama Department Corrections website (page provided by DavePhD in commebt to his answer) claims that an attempt was made to monetize the prisoners, which were 90% black at that time, but that it did not work well, and that there were only a few thousand of them. If a few thousand prisoners accounted for more of the state's revenue than the entire rest of the population, what does that say for the rest of them? Still, does anyone have a citation on the ACLU's 70% for 1898 claim? – Aaron Nov 8 at 20:35
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    @Aaron the 73% is in this book books.google.com/… citing to p. 112 of this book books.google.com/… – DavePhD Nov 8 at 21:19
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    Not saying you're incorrect, but I don't find that from the Google books tool. I entered "73%" as a term to search for in that book, and it showed the irrelevant hits that were related to page 73 or other numbers with 73 in them, and it did find 1 hit for an actual percentage (actually "73%") but that hit was unrelated: "By the end of the war, 73% of collective bargaining agreements had voluntary arbitration causes, similar in context to what GM and the UAW negotiated in 1940" – Aaron Nov 8 at 21:47
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    So ACLU got the 73% in 1898 figure either from DavePhD's first linked source above, or directly from the second one (which is the source used by the first). At least, those are sources for the figure, so we might assume so for the moment. However, the second one (the root source for the first) itself does not provide any source for where it gets that figure from. It just spews out those numbers along with a bunch of others. And it suggests a lot of the money in 1989 was from coal mining, but that there were free miners alongside them, though not how many. Still, there is no root in site. – Aaron Nov 8 at 22:59
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    @KDog "put into punitive slavery" or "put into punitive involuntary servitude" would match the constitutional language. – DavePhD Nov 9 at 21:04

According to The Iniquity of Leasing Convict Labor Engineering Magazine September 1891, pages 749-757:

The convict lease system exists in all the Southern States, with the exception of Maryland and Delaware. ... composed almost wholly of the freedmen fresh from slavery and the tremendous and, to them, wonderful results of the greatest civil war in history.

The reference says for example Tennessee has 1500 convicts, and that only Texas has more. This compares to a 1860 Tennessee enslaved population of 275,719.

See also Convict lease and Coal Creek War.

  • Comments are not for extended discussion; this conversation has been moved to chat. – Sklivvz Nov 10 at 14:12

The word "many" here, being part of the OP's question title, is important, and the relative numbers as reported by DavePHD in his answer already addresses this part of the question. As to the whole statement, I would argue that, with "many" being understood as a relative word, the ACLU's statement is "a fair assessment of the historical records."

The core of the ACLU's statement looks to come from One Dies, Get Another: Convict Leasing in the American South.

There are various claims made in the ACLU's statement.

The first claim:

After the Civil War, many states, mostly former slave states, immediately exploited the 13th Amendment loophole allowing slavery and involuntary servitude as a punishment for crime.

The convict leasing system was a lasting force in the southern states other than Virginia until the 20th century:

All these factors-declining profitability, the presence of a penitentiary, the development of alternative means of using convict labor, and significant political pressure against leasing, often connected with a willingness to undertake social expenditures-would be present in varying degrees in each of the Southern states, permitting public opposition to the practice, which was never far from the surface, to become effective. But only in Virginia were these forces in motion from the beginning of the post-Civil War period. Elsewhere in the South, they would not gather enough momentum until after the new century had dawned. Virginia's experience reveals what factors the post-Civil War Southern states would have to develop before their systems of convict leasing could be overcome. No other state had such a combination of elements (except, in radically different circumstances, Tennessee) before the twentieth century.

The next claim:

Many former slaves were arrested and then put back into slave labor conditions through convict leasing

Note that the statement does not specifically make the claim that many former slaves were arrested in order to put them back into slave labor conditions. It simply claims that they were arrested and then put back into slave labor conditions. This is true in the sense that after the civil war the prison population's racial makeup changed rapidly:

(In 1866 Alabama) The convict population had also changed from the previous 99% white to the postwar 90% black.

History of the Alabama Department of Corrections (Thanks to DavePHD for the link from his comment to his answer, and to Aaron for pointing it out)

As to the phrase many former slaves, note that it would not have been at all profitable to have the number of convict laborers rise near to the level of the former slave population:

Slave exploitation has to be looked at in the aggregate because the slaveowners’ maintenance costs must provide for the subsistence and reproduction of the entire slave community, including the aged, the infirm, and children; subsistence means more than simply the cost of maintaining the individual productive slave. Lessees of convicts, by contrast, were concerned in the main only with productive laborers. The sick were refused or, in cases where it was possible, remanded to jails. In January 1888, at the outset of the TCI lease in Alabama, the company declined anyone ”who, though able to work, can do no more than enough to pay for their maintenance,” as the exasperated convict inspector explained to the governor. Later, in March 1893, the Sloss Iron and Steel Company, a division of TCI, refused to accept Melissa Stewart, who was nursing her infant, protesting that ”they had hired no babies" and dispatching her to the Jefferson County jail.”

The final claim:

(Convict leasing was) a lucrative practice that generated more than 70 percent of total state revenues for the state of Alabama in 1898.

This number was apparently somewhat cherry-picked, given that over the next 8 years the state's budget surplus grew by a factor of 10, reducing the overall percent of state's revenues generated by convict leasing, but the number does appear to be factual:

In 1898 Alabama obtained 73 percent of its total revenue of $378,120.48 from the hire of its convicts. The state spent $45 on bedding that year. In 1901-1906 the state's total budget surplus increased by a factor of ten over that of the previous five-year period. Of course, the surplus represented more than the hiring of convicts, but the governor reported that ”about as many [convicts] as are physically able to be put in the mines are getting out coal by the ton." Colonies of former convicts had begun to grow up around the mines. One-third of the free miners at Coalburg were former prisoners as early as 1889. The convict lease seemed insuperable.

From 1906 to 1910 revenues rose still more, from $1.2 to $1.7 million. In 1915 receipts of the Convict Department constituted one-sixth of the state's total income (although some of that revenue came from the cotton mill at Speigner and from the prison farms, not from leasing entirely).

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    For the 73% part, the "One Dies, Get Another" source does indeed say that, but I noticed that it itself does not seem to provide a source for where its 73% claim comes from. And, based on the title, that source may have a bias to make the situation look worse (as if it wasn't already bad enough... it is awful even without making it look worse). So how do we know that claim is credible? – Aaron Nov 8 at 23:05
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    @Aaron The book has an extensive list of references/notes, including a wide variety of statistics, etc. from state records. Unfortunately the only notes to page 112 in the google book search begin at note 43 (page 265) and I cannot access several pages before that list the section of notes I've taken from (notes to pages 112 etc., 1-42). If you can access page 265 you can see a sample of the variety of state statistics that the book references in its Alabama section. – JackArbiter Nov 8 at 23:13
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    "I would argue that, with "many" being understood as a relative word, the ACLU's statement is "a fair assessment of the historical records."" I wouldn't call a few percent many of anything. Are you saying you would? I understand the subjective nature of the word, but I think we would be pretty hard pressed to find anybody calling 2% "many". – fredsbend Nov 9 at 18:51
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    This is true in the sense that after the civil war the prison population's racial makeup changed rapidly: Well, sure. Before the Civil War black people were considered property, so I assume it unlikely there would be many long-term prisoners; they'd normally be sent back to their owners. Holding them would be "depriving a gentleman of his property", presumably. So the racial attitudes didn't really change, now the state had to act as the jailer instead of the owner. It's completely possible that there was no change in the number of crimes/arrests (discriminatory or not). – Clockwork-Muse Nov 9 at 19:13
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    "I would argue that, with "many" being understood as a relative word, the ACLU's statement is "a fair assessment of the historical records."" - and that would be factually wrong. Less than 1% of the previously enslaved population ending up in prison, and arguing that the end of slavery practically didn't change anything, cannot be used as a "fair assessment". – vsz Nov 10 at 8:08

In the bold portion above, the ACLU claims that "convict leasing" was done immediately after the civil war, was used to target and enslave black Americans, and was prevalent. Is this a fair assessment of the historical records?

First off, I'm not sure how to quantify "prevalent." Did it happen? Yes.

Here are some details for two states, Mississippi and Texas.

First, Texas. Moore is the person most actively working to preserve the legacy and history of the people used in convict leasing by Imperial Sugar Company.

In the years before the Civil War, Texas’s state prisons had held around two hundred inmates, all kept at a single facility, in Huntsville. After abolition, the prison population exploded, disproportionately with black men. Unable to house and feed all the new prisoners, the state began renting them out to private companies, who were grateful for the supply of cheap labor.

... He visited library archives in Houston and Galveston to look at so-called travel cards, which prisons used to keep track of inmates after the Civil War. "I would read those travel cards, and a big proportion of the blacks were in there on cases where they should have been doing probation or paying a fine," Moore said.

I wanted to provide those quotes first, then backup to a few paragraphs earlier in the article for a little bit more context:

Then came the Civil War. The South’s defeat and the abolition of slavery plunged the Texas economy into a depression. Deprived of their labor force, most of the sugar plantations on the Lower Brazos went bankrupt. One of the few that survived was the Williams plantation, which was purchased after the war by Edward H. Cunningham and Littleberry A. Ellis, business partners and Confederate veterans.

Cunningham and Ellis survived the abolition of slavery by finding a new source of cheap labor: the Texas prison system. Although they weren't the first growers to use convict labor, they were the biggest: in 1878 they signed a contract with the state to lease Texas's entire prison population.

I included this second set of paragraphs to point out this is "prevalent" in the sense that it's leasing all of Texas's prison population.

(I recommend reading the whole article, as it has other related details)

(Note: Texas stopped convict leasing around 1914)

https://www.texasmonthly.com/articles/sugar-land-slave-convict-labor-history/


PBS cites a book Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice by author David M. Oshinsky about Parchman farm:

In the Reconstructionist south, states’ coffers were empty, prisons destroyed, and their former free labor supply was emancipated. Many southern states, including Mississippi, began arresting almost exclusively young, black men on charges ranging from laundering to larceny to murder. Some were legitimate, but many more were fabricated or embellished. The state began leasing the prisoners to wealthy contractors, who would further sublease them to companies.

"The convicts, under convict leasing, would do the kind of work that free labor would not want to do. In other words, the work a white worker might not want to do," Oshinsky said.

Under convict leasing, the inmates were essentially slaves again, Oshinsky said. They worked long hours for no pay, were poorly fed, and slept in tents at work sites doing dangerous jobs like dynamiting tunnels for railroad companies and clearing malarial-filled swamps for construction. Convicts, sometimes including children under age 10, were whipped and beaten, underfed, and rarely given medical treatment. Oshinksy writes that between 9 and 16 percent of convicts died yearly in the 1880s.

Then in the first decade of the 1900's Parchman farm opened, and convict leasing largely stopped in Mississippi.

https://www.pbs.org/newshour/arts/inside-mississippis-notorious-parchman-prison

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    Great answer. Adds some needed context. By "prevalent" I mostly had in mind prisoner numbers relative to former slave numbers (i.e. percentage of virtually all southern blacks). The ACLU quote in the question led me to believe it was a very high number, but DavePhD's answer indicates it probably didn't break a few percentage points at any one time. – fredsbend Nov 9 at 18:36
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    Out of curiosity, I'm now wondering how many white prisoners were leased out. The entirety of a state's prisoner population surely includes non-blacks. – fredsbend Nov 9 at 18:39
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    @fredsbend at least one lease specified that all the convicts be Negro: "able bodied and healthy Negro convicts" page 865 here books.google.com/… – DavePhD Nov 10 at 0:28

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