Teaching Prisons and Slavery (Or, This is Not About Django)

This is not about Django. As much as I am dying to write a post about Tarantino's new film, my academic writing beckons. 

Thank you, Patrick O'Donnell, for your earlier post and bibliography on teaching prison law.  I'd like to add to Professor Dolovich's call for a curricular commitment to bringing prisons and prisoners into legal education:  We should not forget to include a consideration of how antebellum slavery shaped the development of America's early penal institutions.

I am hard at work on a project that looks at the administration of slavery in antebellum Virginia through the institutional prisms of the county jail and the state penitentiary. Many (many) years ago, while trying to nail down a dissertation topic, I became interested in the practice of confining alleged fugitive slaves in local, southern jails until they were "claimed" by their owners. (Many folks confined in antebellum Virginia’s local jails were never accused of any crimes, and were most often merely suspected of being runaways.) Hunted down on the roads and in the countrysides, people of discernible African ancestry were presumed to be fugitive slaves; no law prevented their seizure and confinement upon such suspicion.  

The project tells (what I hope to be) a new story about the history of incarceration in the early national/antebellum south and the emergence of Virginia’s administrative regime, while also offering fresh insight into how these institutions shaped – and were shaped by – the institution of slavery.  Antebellum Virginians relied upon jails to perform functions separate and apart from holding accused persons awaiting indictment or trial; such facilities became sites for the realization of the state’s interests in slave property security. Jails were frequently used throughout this period as holding pens for slave traders; as clearinghouses for putative owners’ property claims in suspected fugitives; and as marketplaces for violence, as slaveowners sought – and paid for – corporal and terroristic punishment to be inflicted upon their recalcitrant bondsmen. No similar security measures were implemented for other forms of antebellum property, reinforcing for us (as modern readers) that slave property was peculiar and that institutions of law helped to create and reinforce this peculiarity. 

Few have considered the experiences of blacks in what might be considered "civil" custody during this period; beyond those excellent monographs on slaves-as-criminal defendants (Schwarz, etc.), this other history has gone (somewhat) untold. Penal institutions in this country have troubled pasts; introducing them to our students will both spark their interests and motivate further scholarly excursions (and activism) into the field.

Comments

[Alfred Brophy]

This is a great topic.

[Bill Turnier]

I wonder if there is a difference in the use of jails between states that barred freedmen from remaining in the state (e.g. Virginia) and those that allowed freedmen to remain in the state (e.g. Louisiana and North Carolina). It would be somewhat understandable if the former was more rigorous in the use of jails to detain suspected escaped slaves whereas it may be less common in the latter group of states. You have a lot of interesting research before you.

[Alfred Brophy]

Thinking some more about this: I'm interested in the relationship between public jails and "private prisons" as it were -- like those run by slave traders. Do I recall that after Anthony Burns was sent back to Richmond he was kept confined in the house/jail of a slave trader? There's pretty harrowing story about the conditions of his confinement, some of which is discussed in this Smithsonian Magazine article:

http://www.smithsonianmag.com/history-archaeology/Digs-Devils-Half-Acre.html

[Taja-Nia Henderson]

I’ve attributed this development, in part, to the growth of slave hiring in Virginia between (roughly) 1840 and 1860. Hired slaves lived outside of direct, absolute white control; in Richmond, where hiring was prevalent, some hired slaves lived on their own in private quarters. Their value depended entirely upon their (implicit) agreement not to flee. This contributed to a perception of eroding white authority and anxiety over black insubordination and conspiratorial activity; Turner’s rebellion had made that perception real. The other issue contributing to these mass confinements of suspected fugitives to local jails is, I think, the nature of the slave market in Virginia (and Richmond, specifically). Fred Bancroft called Virginia “a nursery of slavery,” in part because Virginia was the center of the slave trade (both transatlantic/trans-Caribbean and overland). Securing fugitives thus had the potential to be immensely profitable for both “catchers” and jailors (who could demand maintenance fees from putative owners).

Yes, Burns was held in Lumpkin’s private jail; abolitionists broadly publicized the conditions of his confinement there (much of what we know for sure about Lumpkin’s jail is from Burns’ accounts). Not all traders could claim Lumpkin’s fortune, though, and many utilized the state’s local jails as they made their way south in the overland trade.

Bill raises an interesting point about the law barring freedman from remaining in the state. I haven't looked at manumission rates after the 1806 law, and can't be sure about this; will definitely give it some thought...