The History of Modern Mass Incarceration of African Americans Goes Deeper Than You May Think

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The United States contains less than five percent of the world’s population but incarcerates one-quarter of all prisoners across the globe. Statistics have long shown that persons of color make up a disproportionate share of the U.S. inmate population. African Americans are five times more likely than whites to serve time in prison. For drug offenses alone, they are imprisoned at rates ten times higher.

Recent scholarship has explored the roots of modern mass incarceration. Launched in the 1980s, the war on drugs and the emergence of private, for-profit prison systems led to the imprisonment of many minorities. Other scholarship has shown that the modern mass incarceration of black Americans was preceded by a 19th century surge in black imprisonment during the Reconstruction era. With the abolition of slavery in 1865, southern whites used the legal system and the carceral state to impose racial, social and economic control over the newly liberated black population. The consequences were stark. In Louisiana, for example, two-thirds of the inmates in the state penitentiary in 1860 were white; just eight years later, two-thirds were black.

The incarceration of African Americans did not begin suddenly with the end of the Civil War, however. Confinement functioned as a punishment during bondage as well. Masters were the law on their own plantations and routinely administered their own brand of justice. Although they usually relied on the whip, countless enslavers also chained their human property in plantation dungeons below the main dwelling house or in a barn. Some locked enslaved persons in a hot box under the scorching southern sun. The more formal legal system, too, sometimes deposited enslaved individuals in state or local incarceration facilities.

Charlotte, an enslaved woman from northern Virginia, experienced several of these institutions firsthand over a 17-year period. Using court records to trace her life illustrates the many official, lawful forms of imprisonment that the enslaved might encounter in the antebellum era.

In 1840, Charlotte was held in bondage in Clarke County, Virginia, west of Washington, D.C. She was only 16 or 18 years old, a dark-skinned, diminutive young woman, standing just four feet 11 inches tall. Legally, she was the property of Eliza Pine, a white woman whom Charlotte despised. Reportedly thinking that committing a crime would prompt Pine to sell her, on March 10, Charlotte set fire to a house in the town of Berryville. She was arrested for starting the blaze and placed in the local jail as she awaited trial.

Enslaved people were imprisoned briefly in local public jails or workhouses under a variety of circumstances. Masters sometimes made use of such facilities to punish bondpeople deemed troublesome or, if needed, to store them securely. Enslaved individuals apprehended as runaways or awaiting trial or sale at auction also saw the inside of city or county jail cells. In all of these instances, the enslaved usually measured their terms of incarceration in just days or weeks.

Even that was too long for most slave owners. Local jails were notoriously overcrowded, damp and disease-ridden. The deplorable conditions inside endangered inmates’ health and imperiled their lives. Consequently, most masters preferred to keep their valuable human property out of jail.

Charlotte was taken out of her cell for trial on Monday, March 23, 1840. Although she pleaded not guilty, the five Clarke County justices who heard her case convicted her of arson — a capital crime — and sentenced her to hang. They scheduled Charlotte’s date with the gallows for Friday, June 26, between the hours of 10 a.m. and 2 p.m. They valued her at $500, which represented the amount her owner would receive from the commonwealth of Virginia as compensation for the loss of the valuable young bondwoman. As customary, after the trial, authorities escorted Charlotte back to her cell in the Clarke County jail. There she would bide her remaining days until her planned execution.

Meanwhile, whites in Clarke County labored to prevent Charlotte’s impending doom. The five justices who had convicted her, in fact, recommended at the time of the verdict that Virginia governor David Campbell commute Charlotte’s punishment to sale and transportation outside the limits of the United States — a lawful alternative to hanging — due to her “Youth and evident Simplicity.” They sent the governor a separate petition as well, also signed by the prosecuting attorney at Charlotte’s trial. Two other petitions from dozens of citizens of Berryville and the surrounding area likewise reached the Virginia governor. Citing Charlotte’s youthful age and purported deficiency in intellect, they begged for executive mercy on her behalf.

Newly inaugurated Virginia governor Thomas Walker Gilmer viewed Charlotte’s case sympathetically and issued the desired reprieve. Since Charlotte would now be sent outside of the United States, authorities transferred her to the Virginia State Penitentiary in Richmond, where she and other enslaved convicts awaited purchase by a slave trader willing to carry them out of the country for sale. She was admitted on April 15. In her new prison world, Charlotte listened for her name at roll call each morning, wore prison garb, swept her cell daily, ate carefully doled out rations and labored for the commonwealth, all the while struggling to avoid punishment and disease.

Enslaved people like Charlotte rarely saw the inside of a penitentiary in the pre-Civil War South. Maryland sentenced bondpeople to the penitentiary from its opening in 1812 until 1819, taking in some 60 slaves during those years. Arkansas permitted the imprisonment of enslaved convicts in the state penitentiary for certain, specified crimes only briefly, before changing the law in 1858. After 1819, only the state of Louisiana habitually punished enslaved criminals with prolonged sentences in the penitentiary, usually for life. Virginia courts did not sentence enslaved people directly to confinement in the penitentiary, although the commonwealth did house on a temporary basis those individuals such as Charlotte as the process of sale and transportation outside of the United States unfolded. Virginia bondpeople typically spent only months to a year or two in the penitentiary before being purchased by a slave trader.

Charlotte remained in the Virginia State Penitentiary for five months before she was bought by a slave trader willing to carry her out of the country. On September 16, Rudolph Littlejohn, an agent for Washington, D.C., slave dealer William H. Williams, took delivery of her and 26 other enslaved captives. Altogether, Williams and a partner paid the commonwealth $12,500 for the lot.

Charlotte and the other enslaved transports first made their way to Williams’ private slave jail in Washington, D.C., known as the Yellow House. This was the same establishment, just south of the National Mall and within easy sight of the U.S. Capitol, where the kidnapped free black man Solomon Northup would find himself enchained in a basement dungeon the following year. Williams and his agents purchased enslaved people from throughout the Chesapeake and stored them in the Yellow House until they had assembled and prepared a full shipment for sale in the Deep South, where enslaved people were in high demand and attracted high prices. New Orleans was the usual port of destination.

After less than a month, William H. Williams had gathered enough enslaved men and women to fill a ship. His slaving voyage set sail from Alexandria aboard the brig Uncas on Oct. 10, with 68 total captives on board, including the enslaved convicts purchased in Richmond. On Nov. 1, Williams and his human cargo arrived in New Orleans.

Authorities in New Orleans had been warned, however, that Williams may appear in their city with enslaved convicts in tow, a violation of a Louisiana state law passed in 1817 that prohibited the introduction of enslaved criminals. When officials spotted Williams, they confirmed the criminal pasts of the transports, some of whom had been convicted of violent offenses against whites. Concerned for the safety of Louisiana’s citizens, the New Orleans Day Police confiscated the convict bondpeople and carried them to the Watch House at city hall for safekeeping. Charlotte and the other convicts entered yet another jail.

Williams protested that he was merely passing through Louisiana en route to Texas, in 1840 a foreign country eligible to receive enslaved convicts. As Williams launched his defense in the Louisiana court system, Charlotte and the other transports were transferred from the Watch House to the recently completed Orleans Parish prison. Several of the convicted bondpeople from Virginia remained there for years as Williams pursued his case; others ended up in various other incarceration facilities within Louisiana. Litigation continued, and years elapsed before the Louisiana Supreme Court ultimately ruled against the slave trader.

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Soon thereafter, on March 13, 1845, Charlotte and nine of her fellow transports were transferred to the Louisiana State Penitentiary in Baton Rouge. Listed as “forfeited to the state,” their new master was the state of Louisiana. Some 200 enslaved people were held in the Louisiana State Penitentiary in the antebellum decades. While enslaved male inmates toiled in the brickyard or cotton factory for the penitentiary lessees, Charlotte and the other female convicts did the washing and mending in the prison laundry. Prisoners at the penitentiary donned the convict’s uniform, which included an iron ring around the leg, linked by an iron chain to a belt around the waist. The penitentiary itself consisted of a three-story brick structure. Prison guards deposited inmates in cramped, individual cells, three and one-half feet wide and seven feet deep, secured by a iron door, poorly ventilated and unheated in the winter. Prisoners slept on mattresses placed on the floor and, at mealtime, ate mush and molasses from a tin plate in their cell, in the dark and alone. Eventually, overcrowding at the institution forced inmates to share the space with another prisoner, although new accommodations were eventually built for female convicts in 1856.

Segregation by sex or race was never perfect during the antebellum decades. Imprisoned bondwomen routinely bore offspring more than nine months after they entered the penitentiary. Charlotte gave birth while in prison to three children — John, Mary Ann and Harriet — before January 1855. The identity and race of the father or fathers are unknown, the circumstances surrounding conception uncertain. With both black and white men among the prison population, enslaved women may have willingly participated, in spite of vigilant officials, in loving relationships or clandestine affairs with fellow prisoners. At least as likely, female convicts proved captive, convenient and vulnerable targets for the unwanted advances of inmates, coercive white guards or other penitentiary authorities who wielded power over them. The prospect of rape was ever-present. At the same time, it is possible that the relatively few enslaved women in the Louisiana State Penitentiary were able to leverage their sexuality to extract various favors from those in charge or from inmates able to smuggle in goods from the outside. Given the range of possible encounters, Charlotte’s son and daughters may have been the products of consensual acts, forced sex, coercion or some combination thereof.

A Louisiana law of 1848, unique among the slaveholding states, declared that children born to enslaved female prisoners confined in the penitentiary belonged to the state. An act of 1829 forbade the sale of enslaved children under the age of 10 away from their mothers, however, so the state was legally obligated to keep them together until the child’s 10th birthday. At that time, the state could seize the youngster as state property and auction him or her off to the highest bidder. The proceeds of such sales went to the free school fund, to finance the education of Louisiana’s white schoolchildren.

Charlotte and her children met a different fate. Slave trader William H. Williams spent years lobbying the Louisiana state legislature for the return of the enslaved convicts confiscated from him in November 1840. Finally, in 1855 and 1856, lawmakers passed a pair of individual acts for his relief. By the terms of these agreements, Williams regained possession of the surviving enslaved transports from Virginia as well as the “issue” — the children — born to the enslaved women of that shipment. On Feb. 7, 1857, the Louisiana governor discharged Charlotte, her son and two daughters, and the other Virginia convicts from the penitentiary and restored them to Williams for sale to new owners. At that point, Charlotte can no longer be tracked in the historical record. Presumably, the only lingering form of imprisonment she suffered prior to emancipation was the institution of slavery itself.

Over the course of her lifetime, Charlotte was incarcerated, sequentially, in at least six different facilities: a local Clarke County jail, the Virginia State Penitentiary, the Yellow House slave pen, the New Orleans Watch House, the Orleans Parish prison and a second state penitentiary, in Louisiana. Although a few bondwomen in Louisiana served prison terms in excess of two decades prior to abolition, Charlotte’s 17 years in confinement ranked her among the longest-serving felons, black or white, in antebellum U.S. prison history.

Individually, Charlotte’s experience was unusual among the enslaved. Masters wanted their human property working profitably, not imprisoned, except perhaps briefly as a punishment that owners themselves determined. Charlotte’s story is nevertheless significant in demonstrating the range of carceral institutions to which black people were subjected even during slavery. With the exception of William H. Williams’ private slave jail, designed specifically to accommodate enslaved captives bound for sale, whites outnumbered blacks detained in all of these facilities in the antebellum decades. But African Americans were nevertheless present in these institutions even during slavery. By the outbreak of the Civil War, the seeds for the later mass incarceration of black people were already planted, the institutional structures already in place, and the precedents for black imprisonment already set. With the end of slavery, prisons were well positioned to transition from a secondary to a primary form of black oppression.

Jeff Forret is professor and Distinguished Faculty Research Fellow at Lamar University. His latest book is Williams’ Gang: A Notorious Slave Trader and His Cargo of Black Convicts (Cambridge University Press).