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Drexel University, Democracy and the Intersection of Prisons, Racism, and Capital, 1997

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Drexel University Thomas R. Kline School of Law
From the SelectedWorks of David S Cohen

January, 1997

Democracy and the Intersection of Prisons,
Racism, and Capital
David S Cohen

Available at:


Review Essay: "Worse Than Slavery": Parchman Farm and the Ordeal of
Jim Crow Justice. By David Oshinsky.* New York: The Free Press, 1996.
Pp. 306. $25.00.

by David Cohen**



As we approach the end of the millennium, this country is facing a
crisis of incarceration. With the prison population growing dramatically,
123 new state and federal prisons were scheduled to open in 1996.1 In 1994
and 1995, the demand for new prison beds averaged about 1400 per week. 2
At an average cost of $54,000 per cell,3 the construction costs for this increase are close to $2.75 billion a year. 4 Corporate mammoths from many
different industries are realizing the potential of prisons and pouring their
assets into gaining a share of this rapidly expanding $31 billion dollar per
year industry. 5 "From architectural firms and construction companies, to
drug treatment and food service contractors, to prison industries, to the
whole gamut of equipment and hardware suppliers-steel doors, razor
wire, communications systems, uniforms," 6 everyone from AT&T and
MCF to Westinghouse Electric Corp. and Merrill Lynch & Co. 8 is getting
into the act.
Of course, as the prison industry expands, jobs are created. Prison
guard numbers are increasing, and as they become one of the largest and
most feared labor unions in the country, they are having a drastic impact on
criminal justice policy. 9 In all, "[m]ore than 523,000 full-time employees


Professor of History, Rutgers University.
B.A., Dartmouth College (1994); J.D., Columbia University School of Law (1997). I
would like to thank Professors Kimberle Crenshaw, John Ehrenberg, Phillip Genty, and Mary
Marsh Zulack for assistance with this essay. Also, Randy Kim and Cassie Ehrenberg provided
thoughtful comments and support.
1. David Lamb, The Soft Cell: Small Towns Lock Up Construction Dollars; Rural America

Has Found the Perfect Way to Escape From the Economic Doldrums-Capture Prison Contracts,
TAMPA TRIBUNE, Oct. 10, 1996, at 8.
4. This estimate uses an average of 1.5 beds per cell.
5. Sam Vincent Meddis & Deborah Sharp, Prison Business is a Blockbuster: As Spending
Soars, So Do the Profits, USA TODAY, Dec. 13, 1994, at AlO.
6. Phil Smith, Private Prisons: Profits on Crime, CovERT AcnoN QUARTERLY, Fall 1993.
7. All Things Considered (NPR radio broadcast, Aug. 3, 1994).
8. See Paulette Thomas, Making Crime Pay: Triangle of Interests Creates Infrastructure to
Fight Lawlessness, WALL ST. J., May 12, 1994, at Al.
9. THE REAL WAR ON CRIME, supra note 5, at 96-97.



worked in corrections in 1992-more than all the people employed by any
Fortune 500 company except General Motors." 10 The industry as a whole
shows no signs of decline: with the passage of the Crime Control Act of
1994, the federal government has committed itself to spend over $10 billion
in the next five years on prison construction alone.11 One study has projected that the overall cost of the Crime Control Act in terms of paying for
the "influx of inmates attributable _to the provisions" of the bill will be $351
billion over the next ten years. 12
The rhetorical driving force behind this increase in incarceration is the
"war on crime," and in this so-called war, the enemy is the faceless, nameless, identity-less African-American13 man doing violence to white society.
From Willie Horton to the "Central Park Mugger," we are told again and
again that black is the color of crime. Taken at superficial value, statistics
bear this out: African Americans account for more than half of this country's incarcerated population as nearly 7% of the African-American male
population is in jail.1 4 But, scratching beneath the surface of these numbers shows the true story of criminal justice policies. African Americans
account for 13% of monthly drug users but 55% of all drug convictions and
74% of all drug-related prison sentencing. 15 Racist use of prosecutorial
discretion and police targeting is the norm. 16 Instead of being erased,
crime in this country has been raced, putting a seemingly factual predicate
behind modern-day racism. Driving this racialization of crime is not only
the state and its oppressive apparatus of police, prosecutors, and courts,
but also the interests of capital in increasing profit through the ever-expanding prison-industrial complex.
This "war on crime" is being waged in the name of domestic security
and effective democracy. The victims of this war are casually portrayed as
innocent families and children losing their security because of random acts
of violence carried out by criminals whom the state pampers. Only by
making these victims more secure in their daily lives can democracy truly
be realized. Crime is certainly a serious problem, especially for inner-city
and impoverished neighborhoods. However, the true victim of the war on
crime is democracy itself, as the profit-seeking prison-industrial complex
force feeds the notion that imprisonment for long periods of time is the
only method of dealing with the problem. Democracy is threatened further
when the processes by which these enforcers deliver the ultimate sanction
in this "war," incarceration, are hidden from the scrutinizing eye of the
10. Id. at 93.
11. 42 U.S.C. § 13708(a)(l) (1996).
12. Ilene M. Shinbein, Note, "Three-Strikes and You're Out": A Good Political Slogan to
Reduce Crime, But a Failure in Its Application, 22 NEW ENG. J. ON CRIM. & Civ. CONFINEMENT
175, 199 (1996) (citing a study by the National Council On Crime and Delinquency).
13. In this Essay, I will use the words "African-American" or "African American" in my
sections that include original analysis. In the sections of the Essay in which I recapitulate the
arguments of Oshinsky's book, I will use the word "black," as that is the word he uses.
16. See Keith W. Watters, Law Without Justice, NATIONAL BAR AssocIATION MAG., Mar./
Apr. 1996, at 1 (1996).



public. The profit-driven prison industry is left to direct public policy at
will, increasing the number of people from whom it profits without any
check by the public.
Important to an accurate and helpful understanding of this current system and its effects on -democracy is the backdrop against which these actions take place. Only a historical study of criminal justice and its
intersection with capital and racism can shed light on this modern threat to
democracy. Rutgers University History Professor David Oshinsky's recent
book entitled "Worse Than Slavery": Parchman Farm and the Ordeal of Jim
Crow Justice 17 provides this backdrop.
Oshinsky's book shows us that the intersection of penology, race, and
capital insulated from the public eye is a threat to democracy. The problem
of this intersection, however, is not merely part of Oshinsky's detailed account of the past; it is happening now and is the quintessential reason for
an increased form of democratic oversight of the state's power to incarcerate. Without popular vigilance when it comes to this intersection, the social
policy of the country as it relates to imprisonment is left to those with capital to reinforce the racism of the greater society. A monster is created that
grows without any true reference to crime or safety. Clearly, in times such
as these, we have a great deal to learn from this important book.
In this essay, I review Oshinsky's book as both a backdrop for the
current prison-industrial state's unprecedented growth and as a spring
board for an analysis of these grave issues facing the nationwide criminal
justice and penal system today. In Part II, I recount Oshinsky's depiction
of the convict leasing system in the Jim Crow South. I then show that this
institution's intersection of race, the criminal justice system, and capital
provides insight into the explosion of the modern day prison industry and
its effects in furthering racial supremacy. In Part III, I explore Oshinsky's
history of Mississippi's handling of prisoners while paying close attention to
the processes that brought about the reforms that have occurred. This history provides a jumping-off point for an examination of the current law as
it pertains to access to prisons by the public. This necessary right of access
is the only guarantor of democratic oversight in this particularly grave time
of profit-driven expansion of prisons and the increasing incarceration of
African Americans. Ultimately, "Worse Than Slavery" points us, in a way
that only history can, to the necessity of vigilant democratic oversight of
the state and its connection to capital and racism in the modern prisonindustrial complex.


The first of two sections of "Worse Than Slavery" is entitled "After
Slavery, Before Parchman." In this first section, Oshinsky's portrayal of
the system of convict leasing exposes the immense dangers to which our
criminal justice system is susceptible when the twin powers of capitalism
OF J1M CRow JusTICE (1996). All cites to the book in this Essay will appear in parentheses.



and racism collide and thrive off one another. The history provides a warning about the paths upon which the system is travelling today.


Nineteenth Century Convict Leasing

Convict leasing is a simple idea. In its original form, it entailed a farm
owner receiving convicts from the state to work on his farm. The owner
would also receive money from the state for the necessary upkeep of the
convicts. Profits derived from the labor of the inmates were kept by the
owner as well. (p.35) As it developed, convict leasing took on a new
method of operation, one that became a money-maker for the state as well
as the owner. Instead of the state paying the owner to take the inmates,
the owner would "buy" the inmates from the state in return for their labor.
Two of the three parties in this transaction were thus very happy: the state
profited from the money it received for the inmates and the owner profited
from the labor provided by these inmates. (p.43) Oshinsky traces the development of Mississippi's convict leasing in detail and then jumps from
this treatment to survey convict leasing in other states. The common denominator in each state was racial supremacy.


Antebellum Mississippi was a lawless state. Before 1835, criminal laws
weren't enforced because they were uniformly too severe. Recognizing the
need for some kind of order, the Mississippi legislature adopted a new code
of criminal law in 1835. These laws, however, applied only to whites, as
blacks, seen only as property, were subject to discipline only by their masters; the state had nothing to do with them. Consequently, Walls, the first
state prison in Mississippi, had a completely white population. (pp.5-7)
The Civil War changed this focus of the criminal justice system since the
whites sought a way to control the newly freed slaves and found the criminal law as the perfect method for that control.
With Emancipation, the freedmen began searching for their new identity. White society, though, barely allowed them to. Whites continued to
believe all of the assumptions upon which slavery was built: "In white eyes,
the Negro viewed his freedom in typically primitive terms-as a license to
roam the countryside in search of pleasure and trouble." (p.18) Combined
with this racial stereotyping by whites was a deep need to replace the labor
force that was lost through emancipation. (p.16) This combination produced a post-war Mississippi that, to a black person, seemed little different
than the regime of slavery that had just ended.
Not to lose the important source of labor and oppression necessary to
the economy, the state reacted to emancipation by passing the Black Codes
of 1865. "Their aim was to control the labor supply, to protect the freedman from his own 'vices,' and to ensure the superior position of whites in
southern life." (p.20) Particularly harsh penalties were levied for vagrancy,
defined as having "no lawful employment." (p.21) The catch to these
crimes was that the penalties were fines, which, of course, the poor freedmen could not pay. Slavery in the remolded name of "convict leasing" thus



If the vagrant did not have fifty dollars to pay his fine-a safe bet-he
could be hired out to any white man willing to pay it for him. Naturally, a
preference would be given to the vagrant's old master, who was allowed
"to deduct and retain the amount so paid from the wages of such freedman." (p.21)

A new method of profiting from exploitation and white supremacy was
born by utilizing the means of the criminal justice system to perform the
same function as slavery.
Convict leasing as a formal enterprise in Mississippi did not begin until
a few years after Emancipation. From the increased numbers of people
now subject to the criminal law, the prison system, with its physical structures decimated by the Northern troops during the War, was overflowing.
In 1868, Edmund Richardson began the era of convict leasing in Mississippi
with his contract to take the convicts out of the overcrowded prisons and
work convicts on his land in return for a promise to take care of the convicts. Along with the substantial fee the state paid him for the upkeep of
the convicts, Richardson was able to keep all the profits he received from
the free labor. (p.35) The beginning of formal convict leasing signaled a
return to the slavery that the freedmen had known their entire lives; this
time, however, white supremacy masqueraded as justice and order.
The institution of convict leasing didn't take root in the state though
until after the end of radical Reconstruction. In 1875, Mississippi suffered
through a violent upheaval removing blacks who had achieved political office and paving the way for further racial oppression. As the federal troops
left the state to its own devices, the departing governor remarked, "Yes, a
revolution has taken place-by force of arms-and a race are disenfranchised. They are to be returned to a condition of serfdom-an era of
second slavery." (p.40) The Mississippi legislature responded by passing "a
major crime bill aimed directly at the Negro." (p.40) This bill, known as
the Pig Law and applied only to blacks, made the theft of any farm animal
or property worth more than ten dollars punishable by up to five years in
prison. Complementing the Pig Law was the Leasing Act which allowed
for the leasing of the state's convict labor. Blacks were the target of these
laws; the few whites who were punished by the criminal laws were kept
locked up because they were seen as too dangerous to lease. (p.41)
The white land owners thus had a solution to the dearth of labor created after the Civil War. Convicts were leased to businessmen who would
then turn around and sublease the convicts to those who needed the labor.
Profits were enormous for everyone involved: the state would profit simply
from the prices paid for the convicts by the businessmen, the businessmen
would profit by charging more for the sublease than they paid for the lease,
and the sublessors would profit from the cheap labor they now had to work
jobs that free laborers would never do. (pp.43-44) The loser in this scheme,
of course, was the convict. "There was no one to protect him from savage
beatings, endless workdays, and murderous neglect." (p.44) In fact, the
conditions for these laborers, which Oshinsky describes in frightening detail, resulted in "[n]ot a single leased convict ever liv[ing] long enough to
serve a sentence of ten years or more." (p.46)
Convict leasing continued on the books in Mississippi until 1890. Facing pressure from humanitarians disgusted by the conditions under which



the convicts labored and poor whites angry with the· easy profits the upper
class received from the system, 18 the constitutional convention of 1890 formally ended the practice of convict leasing with a provision stating: "No
penitentiary shall ever be leased or hired to any person or corporation ...
after December the thirty-first, 1894." (p.52) However, formal abolition
did not completely eliminate the practice entirely as blacks continued to be
leased out for their labor until the opening of Parchman Farm in 1904.


Other Southern States

Leasing certainly was not a phenomenon limited only to Mississippi
after the Civil War. Leasing also appeared in other Southern states as an
easy method of replacing the lost labor of ·slavery and strengthening the
threatened institution of white supremacy.
The abusive system surfaced in slightly different forms in each state. 19
Leasing ranged from the informal, such as in Arkansas where leasing involved little record-keeping and convicts working in various industries,
(pp.67-68) to the formal, such as in Georgia where the highly political bidding system enabled state legislator Colonel James Monroe Smith to construct and operate a virtual plantation named Smithonia completely using
convicts. (pp.63-67) Racial supremacy played an important role in justifying this brutal practice as whites saw blacks as needing tough punishment
through hard labor in order to drive home the consequences of transgressing the boundaries that still existed even with their new found liberty.
(pp.82-83) Throughout the states that used convict leasing, "the larger
themes of racial caste and cheap, steady labor were everywhere the same."
Most striking within Oshinsky's account of this system is the influence
that the rich lessors had on the criminal justice system. As detailed above,
the Mississippi legislature enacted its post-Reconstruction Pig Laws with
the intent to fill the void in the labor force left after Emancipation. In
Georgia, the powerful Colonel Jim Smith would joke with county officials,
"'You had better send me some more niggers, ... or I will come down and
take the courthouse away from you.'" (p.67) In Arkansas, the Governor
acknowledged that "the local courts had become a conveyor belt for laborstarved employers throughout the state." (p.69) Florida employers
"worked hand-in-glove with local officials to keep their camps well stocked
with able-bodied blacks," even going so far as to draw up a list of specific
"'negroes known ... as good husky fellows, capable of a fair day's work'"
for the sheriff to round up. (p.71) Local Tallahassee officials, reacting to
the abolition of convict leasing on the state level in 1919, operated in such
close connection to the turpentine industry that when the industry lost its
contract to lease state prisoners, the county experienced a not-so-coincidental "crime wave" that conveniently ·filled the vacancies the industry
needed. (pp.73-74) Finally, in Alabama:
18. See infra pp. Part III.Al.
19. Oshinsky describes the leasing systems of eight different states: Alabama (pp. 76-81};
Arkansas (67-70); Florida (70-76); Georgia (pp. 63-67); North Carolina (p. 58); South Carolina
(60, 63); Tennessee (pp. 81-82); and Texas (pp. 60-62).



Their numbers ebbed and flowed according to the labor needs of the coal
companies and the revenue needs of the counties and the state. When
times · were tight, local police would sweep the streets for vagrants,
drunks, and thieves. Hundreds of blacks would be arrested, put on trial,
found guilty, sentenced to sixty or ninety days plus court costs, and then
delivered to a "hard labor agent," who leased them to the mines. (p.77)

As Oshinsky shows, it is easy and correct to point to the search for
labor and the racial oppression of the times as an explanation for the practice of convict leasing. It is not so easy to explain away today's prison explosion, an explosion that has definite parallels to the developments that
Oshinsky describes.


Twentieth Century Prison Industry

The facts surrounding the current expansion in prisons and prison
populations are astounding. Many of the numbers detailing this expansion
are presented in the introduction to this essay; here, a more in-depth argument based on these numbers and Oshinsky's history will be made. To
start with, the prison construction industry has grown in phenomenal leaps
recently as, in 1996 alone, 123 state and federal prisons are scheduled to
open their doors. 20 Prospects for prison construction are so good that a
generic construction trade magazine hailed a promising outlook for the
prison construction business, especially after the passage of the Crime Control Act of 1994 which earmarked over $10 billion for prison construction
between 1996 and 2000. 21 As a result, profits are soaring for the businesses
involved: Wackenhut and Corrections Corporation of America, the two
largest prison construction industries in the country, are reporting tremendous gains. 22 Also, private prison operators are profiting from the business
boom as the country experiments with privately-run prisons. 23
The prison industry does not consist of construction alone. Health
care and food service are rapidly-growing sectors of this huge industry. 24
Corporate mammoths such as AT&T and MCI have entered the arena to
get a part of the lucrative phone contracts that the prisons need. 25 Fire
services, consulting, advertising, and employee training are also among the
many businesses profiting from the increase in prisons. 26 Total yearly estimates for the entire industry are in the $31 billion dollar range. 27
The reason for this skyrocketing prison industry seems simple enough:
the huge increase in the number of people incarcerated. Nearly 1.6 million
20. Lamb, The Soft Cell, supra note 3.
21. Michael A. O'Brien & Thomas R. Loy, On the Upswing, DooRs & HARDWARE, Mar. 1,
1995, at 52. The magazine states the crime bill calls for $7.9 billion in construction for prisons, but
that number is actually over $10 billion. 42 U.S.C. § 13708(a)(l) (1996).
22. Bloomberg Business News, Wackenhut Plans to Tum More Prisons Into Profit, SUN-SENTINEL, Mar. 18, 1996, at A15.
23. Right now, just 2.5 percent of the country's prison population resides in privately run
prisons, but as the idea catches on, which it seems it is doing, that number wiil increase. Elizabeth
Payne, Prisons for Profit: Canadians Should Hesitate to Follow U.S. Lead, MoNT. GAZETI"E, July
22, 1996, at B3.
24. J. Robert Lilly & Richard A. Ball, Selling Justice: Will Electronic Monitoring Last?, 20 N.
KY. L. REV. 505, 509 (1993).
25. All Things Considered, supra note 9.
26. Meddis & Sharp, Prison Business is a Blockbuster, supra note 7.
27. Id.



people in this country are incarcerated, triple the population that was incarcerated in 1980.28 Of course, this is all excellent news for the prison industry as the increase in prisoners in 1995 alone created a demand for 1224
additional beds per week; in 1994, the demand was for over 1625 additional
beds per week. 29 These numbers speak only partly to the huge increase in
the criminal justice system as a whole; the total number of people under the
supervision of the criminal justice system (including parole, probation, and
other forms of supervision) is now over 5 million. 30
Stiffer criminal laws resulting from anti-crime hysteria provide the
easy explanation for the increased number of people under the control of
the criminal justice system. "Three strikes" laws, requiring life imprisonment for a third-time offender, have been enacted in several states31 and at
the federal level as well.3 2 Mandatory minimum sentences, as provided for
by many states33 and in the Federal Sentencing Guidelines,34 are also part
of the reason for the increase because judges no longer have the discretion
they traditionally had to impose lesser sentences. Furthermore, some jurisdictions have abolished parole for certain offenses,35 thus keeping prisoners
in jail longer for crimes for which they previously would have been released earlier. Finally, federal habeas corpus reform36 will certainly limit
the number of successful prisoner appeals of their state sentences. All of
these changes that have occurred in the past 10 years have helped fuel the
increase in the number of people incarcerated in this country. In fact, the
National Council of Crime and Delinquency has projected that the prison
population could rise to 7.5 million with the implementation of these new
"tough on crime" measures. 37
Hardest hit by these anti-crime measures have been African Americans. In 1994, the number of African-American inmates surpassed the
number of whites in state or federal prisons and local jails for the first time.
Nearly seven percent of all African-American male adults nationwide were
4, at 2.
29. lo. at 4.
30. Justice Department figures show the exact number to be more than 5.3 million for 1995,
or 2.8 percent of the adult population. U.S. DEP'T OF JusTICE, PRESS RELEASE: PROBATION AND
31. Worst among these is the California three-strikes law which doesn't even require the
third offense to be a violent offense. CAL. PENAL CooE § 667 (West 1988 & Supp. 1995); see also
ALA. CooE § 13A-5-9 (1995); ARIZ. REv. STAT. ANN. § 13-604(A)-(C) (1995); Cow. REv. STAT.
§ 16-13-101 (West 1990); ILL. ANN. STAT. ch. 730, 'II 5/5-5-3 (Smith-Hurd 1992 & Supp. 1995);
IowA CODE ANN. § 902.8 (West 1994); N.Y. PENAL LAW§§ 70.04-10 (McKinney 1987 & Supp.
1995); Omo REv. CooE ANN. § 2929.ll(B) (Anderson 1993); OKLA. STAT. ANN. tit. 21, § 51
(West 1983 & Supp. 1995); WYo. STAT. § 6-10-201 (1995).
32. 18 U.S.C. 3559(c) (1994).
33. See Karen Jutjen, Culpability and Sentencing Under Mandatory Minimums and the Federal Sentencing Guidelines: The Punishment No Longer Fits the Criminal, 10 NoTRE DAME J.L.
ETHICS & Pua. PoL'Y 389 (1996).
see Philip Oliss, Comment, Mandatory Minimum Sentencing: Discretion, the Safety Value, and the
Sentencing Guidelines, 63 U. CIN. L. REv. 1851 (1995).
35. See generally Robert P. Crouch, Jr., Uncertain Guideposts on the Road to Criminal Justice
Reform: Parole Abolition and Truth-in-Sentencing, 2 VA. J. Soc. PoL'Y & L. 419 (1995).
36. Antiterorrism & Effective Death Penalty Act of 1996, Pub. L. 104-132, § 106(b), 110 Stat.
1214, 1220-21 (1996) (modifying 28 U.S.C. § 2244(b)).
37. REAL WAR ON CRIME, supra note 5, at 36.



in jail in 1994 as opposed to less than one percent of white male adults. 38
An October 1995 study by the Sentencing Project found that one in three
African-American men in their twenties is under the supervision of the
criminal justice system on any given day-in prison, on probation, or on
parole. The same figure was one in four only five years ago. 39 Keith Watters, the President of the National Bar Association, states that "African
American communities have been 'red-lined' for mass arrest and incarceration while white communities have been largely ignored .... Simply stated,
African Americans are targeted, selectively prosecuted, and imprisoned in
a vastly disproportionate ratio to whites." 40
What explains this dramatic increase in the prison population accompanied by the disproportionate representation of African Americans in the
system? The easy answer given by politicians is that the increase in crime
has caused the correlative increase in prisons and prisoners. This answer is
patently false. As criminologist Nils Christie has explained, crime rates
have actually gone down in the same time period in which the number of
prisons and prisoners have gone up. 41 There is now an unlimited supply of
crime because legislatures, acting within a culture marked by racism and
class divisions, are criminalizing acts previously not seen as punishable by
the law and catching more and more of the disempowered in their criminal
web. 42
To answer what is driving this increased criminalization, we must look
at the connection Oshinsky provides in "Worse Than Slavery." As detailed
above, Oshinsky's description of the convict leasing system in the post-Civil
War South showed a labor economy that used its vast influence to alter the
criminal justice system in a way that turned prisoners into profit. The resulting system reproduced the conditions and oppression of slavery by using the freed blacks to fill the missing labor after Emancipation. The
current situation sketched above finds an obvious, although not completely
identical, parallel here. The burgeoning prison industry is the new profit
maker for industries searching for recession-proof profits in an uncertain
economy. Huge prison industries are now the ones that exert pressure on
the criminal justice system to supply them with a steady flow of prisoners to
fill their beds. Within this racist society, the prison industry incarcerates
38. U.S. DEP'T OF JusTICE, PRESS RELEASE, supra note 32, at 4, 7; Nearly 7% of Adult Black
Men Were Inmates in '94, N.Y. TIMES, Dec. 4, 1995, at Al5.
39. MAUER & HULING, supra note 17, at 4 (1995); accord Fox Butterfield, Study Examines
Race and Justice in California, N.Y. TIMES, Feb. 13, 1996, at A12 (discussing a new study showing
the corresponding California figure to be 40% ). The statistics point to the fact that this difference
is not because African Americans commit more crime. A graph in the report shows that African
Americans make up 12% of the general population, 13% of the monthly drug users, 35% of the
drug arrests, 55% of the drug convictions, and 74% of the drug related prison sentences. MAUER
& HULING, supra note 17, at 12.
40. Waters, Law Without Justice, supra note 18, at 23. Statistics show the following:(ii) 52%
of crack users are white. (iii) 75% of cocaine powder users are white. (iv) Powder cocaine related convictions in 1993 were comprised of 32% white, 27% black, 39.3% Hispanic. (v) The
average sentence for drug offenders is 6.5 years as compared to 5 years for racketeering and
extortion convictions. (vi) Whites are more likely to be placed on probation than African Americans. (vii) Since 1988, the U.S. Attorney General has approved death penalty prosecutions
against 12 whites, 7 Hispanics, 2 Asians, and 40 African Americans.Id. at 23.
41. N1LS CHRISTIE, CRIME CoNTROL As INDUSTRY 92-94 (2d ed. 1994).
42. Id. at 23-24.



more and more African Americans, reproducing centuries old forms of racial supremacy and oppression. Thus, in the late 1800s, imprisoned blacks
were the source of profitable labor for large land owners; now, in the late
1900s, imprisoned African Americans are the commodity necessary for the
profits of the large prison industry. 43
This explanation answers the questions left by Christie's analysis of the
crime situation: more people are in jail because the prison industry needs
them in jail to make a profit. Simple contractual relations provide industry
with its desired commodity. For instance, Florida has contracted with a
prison management company that it will guarantee that the prison run by
that company will never be at less than ninety percent capacity. 44 Lobbying provides the obvious other alternative here. The National Law Journal
reports that legislators' tough on crime attitudes are augmented by "lobbyists now representing companies with fat prison contracts." 45 Exemplifying
this point, a prison industry representative at an industry convention told a
reporter that "if you come up with [a tough on crime] policy, well naturally,
it's going to translate into more sales." 46 Not only does the industry lobby
for tougher criminal laws, but the employees of the industry do as well. In
California, the correctional officers union spent "lavishly" lobbying on behalf of the "three-strikes" law. 47
In Illinois, . . . the union of prison guards pushed through legislation to
ban the privatization of prisons and to stiffen sanctions against inmates
found carrying weapons. The Michigan Corrections Organization has opposed proposals to lower the rate of incarceration by making prisoners
eligible for boot camps. "It's becoming a dollar-driven corrections policy
in the state," says Mel Grieshaber, the legislative coordinator for the
union. 48

While lobbying efforts at the turn of this century are not as invidious as the
blatant cooperation between business and the criminal justice system
"Worse Than Slavery" portrayed at the turn of the eighteenth century,
Oshinsky's history gives us reason to fear that this trend is once again taking place in this country.
One missing connection between Oshinsky's past and the modern system is the change that produced this explosion in incarceration. In Oshinsky's account of convict leasing, the end of slavery brought about by the
Civil War was the change that produced the dearth of labor for the land
owners. Thus, convict leasing filled the void. Now, the parallel is less obvious and the answer is not definite, but Oshinsky's book points us in a plau43. The difference is that in the late 1800s, the land owners were actively pursuing racist
policies. Now, the prison industries care only about the bottom line, a bottom line that looks
equally strong regardless of the color of the skin of the people imprisoned. However, this difference is one of intent, not of effect. The imprisonment of large numbers of African Americans
because of racism exogenous to the prison-industrial complex creates the same effect of enshrining racial supremacy as did the racist labor exploitation of the late 1800s. There is, without a
doubt, racism within the confines of the prison-industrial complex as well; however, identifying
the racist actors without a Texaco-style revelation is nearly impossible. Yet, I would argue, finding this intent is irrelevant when, as stated above, the effect is the same.
44. Thomas, Making Crime Pay, supra note 10.
45. Marcia Chambers, Sua Sponte, NAT. L.J., Oct. 25, 1993, at 17.
46. All Things Considered, supra note 9.
47. THE REAL WAR ON CRIME, supra note 5, at 97.
48. Id. at 96 (internal citations omitted) (emphasis added).



sible direction. Some of the companies that currently need their prison
beds filled and their prison technology consumed in order to justify their
industry are part of the same network of capital that benefitted from the
Cold War military build-up. Now that the Cold War is over, these industries need to convert to a different form of revenue and a different invisible
enemy to make their profit. 49 The Cold War military-industrial complex
has now become the post-Cold War prison-industrial complex. 50 This time,
however, it is the African-American criminal that is industry's coveted
Of course, the final element of this system is racism and racial
supremacy. Racism continues to plague this country, and it is racism as an
institution and its connection to capital and profits that ultimately explains
this placing of the burden of the prison industry on African Americans.
The victims of this system are many. The actual communities of those suffering at the hands of the criminal justice system are greatly affected. 51
Less specific though is the entire African-American community in this
country that has had to endure the racism that accompanies this criminalization of its youth. Furthermore, the entire democratic process is compromised as state resources are committed to punishing and incarcerating its
citizens at the request of the collective corporate will. The effect of this
twentieth century prison explosion is thus the same as the effect Oshinsky
described regarding convict leasing at the turn of the nineteenth century:
law and capital combining to entrench racial stereotypes and white


"Worse Than Slavery" is not solely about the evils that the prison system levied against blacks in the Jim Crow South. Oshinsky's account of the
criminal justice system includes ample insight into the processes of reform
that brought about positive changes in systems of imprisonment. This pattern that emerges highlights the importance of public knowledge about the
conditions that convicts face.

Historical Patterns of Prison Reform
Convict Leasing

Convict leasing in both Mississippi and the rest of the South did not
last forever. In Mississippi, the brutality of the system slowly became apparent to the citizens of the state. Oshinsky attests that the turning point in
Mississippi was the Vicksburg Incident:
49. Thomas, Making Crime Pay, supra note 10 ("Though it is produced by some of the same
companies that built up the military arsenal 30 years ago, this high-tech weaponry is designed to
combat crime in the U.S.").
50. Id.
51. MAUER & HULING, supra note 17, at 17. Identifiable negative effects include the loss of
male role-models, the reduction of marriage partners, the deepening of poverty, and the martyring of criminals. Id. Another obvious and direct effect on democracy is that the communities
lose a large part of their electoral power with so many convicted felons not being able to vote.



· In the winter of 1884, a squad of battered convicts arrived in Vicksburg
by steamer from a nearby Delta farm. The men were chained together,
frostbitten, and barely alive. Their filthy, half-naked bodies were covered
with blisters and scars. "They presented such a shocking spectacle,"
wrote one official, "that the city authorities of Vicksburg refused to permit them to march through the streets, and had them conveyed in covered wagons to the railway stop." Their final destination was the prison
hospital in Jackson, forty miles to the east, where worn-out convicts were
routinely sent to die. (p.48)

Thus began the battle against convict leasing in Mississippi as the public got
its first visual taste of the realities of the system.
Opposition to the practice of convict leasing began on humanitarian
grounds. The press became involved in the public outrage that ensued.
Editors of major newspapers even went so far as dueling an important businessman whose honor had been threatened by reports they had published
about brutality under his convict leasing regime. (pp.49-50) Courts also
"took a peek of their own. What they found, in the words of one observer,
was a system of 'fiendish cruelty,' which 'could only [flourish] in an ex-slave
state where ex-slaves made up the majority of convicts.'" .(p.49) The public's outrage reached a peak in 1887 when reports were released that "15
percent of Mississippi's convicts had died [that year] (as opposed to less
than 1 percent in states like Ohio and Illinois, which kept their prisoners in
penitentiaries, under careful state control)." (p.50)
Of course, humanitarian outrage about the system was not the only
reason that Mississippi moved away from convict leasing. Two other factors played a major role as well. First, amid reports of high escape rates of
leased convicts, whites in Mississippi feared the roaming black criminal, an
icon of post-Emancipation white racism. (pp.50-51) But even this fear focused people's attention to humanitarian concerns as "the publicity surrounding these escapes served to focus attention on the system's brutality
in an unintended way. Time and again, these fugitives were described in
newspaper reports as emaciated, frostbitten, and badly scarred by the
lash." (p.51) Second, poor whites and small farmers in the state began to
feel class-based anger as they were "squeezed and cheated" by a system
that allowed the rich landowners to profit easily without having to employ
white labor. (p.52) Ultimately, "[t]his combination of class anger and
moral outrage carried the day," and the Mississippi constitutional convention of 1890 formally ended the practice of convict leasing. (p.52)
Reform in other states followed this same general pattern. In Arkansas, for example, it took the Governor publicizing the abuses of the convict
leasing system there for people to become outraged enough to abolish the
system. "[F]ollowing months of protest by reformers, church groups, newspapers, and 'hundreds' of letter-writing folk[,]" the state legislature abolished convict leasing in 1913. (p.69) Florida took the same route, although
through a slower process. The state legislature had outlawed leasing of
state convicts in 1919, but the practice continued to thrive through the leasing out of county convicts. (pp.73-74) This practice continued until a white
convict named Martin Tabert, who had been sentenced to 90 days of labor
for vagrancy, died from being "overworked, underfed, beaten senseless,
and left to die. Before long, Tabert's killing became front-page news across



the country. His story riveted national attention upon a system that had
been slaughtering Southern blacks for decades with scandalous ease."
(pp.74-75) Responding to the humanitarian concerns of the newly-informed public, the state legislature voted to abolish the practice of leasing
country prisoners in 1923. (p.75) 52

Parchman Farm

After discussing the history of convict leasing and the reform movements that ended it, Oshinsky turns to the history of Parchman Farm. The
evolutionary process was a slow one, but as with the reform that brought
about the end of convict leasing, Parchman's change from a farm with
slaves to a modern penal institution occurred only after the public became
informed of its conditions and demanded change.
Parchman Farm opened in 1904 as a state penal institution in the Delta
part of Mississippi, a part of the state thriving from cotton farming. (p.109)
The Delta was a violent area of the state, where the cheapness of human
life was often recalled by those who damned the rivers, drained the swamplands, and chopped down the trees. If a worker happened to stumble and
fall into a pit along the levees, an old-timer remembered, "why, they just
dump the next dirt on him and leave him there-cover him up and forget
him-I've seen that happen." (p.113)
Racism was also a part of the Delta lifestyle as the thriving cotton economy
required huge numbers of slaves before the Civil War and oppressed black
laborers after emancipation. (pp.111-14) This combination of racism and
violence carried itself over to the administration of justice for criminals at
Parchman Farm.
Parchman Farm was structured to derive the maximum labor output
from its inmates with as little concern for their well-being, beyond keeping
them working, as possible; thus, abusive treatment was the norm. Inmates
were called gunmen because they worked in the field all day long ("We
worked from before you could see until you couldn't see," said one inmate
(p.143)) under the supervision of the gun-toting inmate-guards, called
"trusties." (p.140) Drivers rode mules around the fields enforcing the work
quotas for the gunmen. (p.144) The most brutal part of the farm was the
trusty system. "Comprising about 20 percent of the [inmate] population,
the trusty-shooters lived apart from the gunmen, wore vertical stripes instead of horizontal ones, and carried .30-.30 Winchesters on the job."
(p.140) Allowing convicted criminals to carry guns while imprisoned resulted in immense brutality and countless slaughter of gunmen.
(pp.141,148) There was even an incentive system set up that pardoned
trusties for shooting an escaping prisoner. (pp.193-96) All-in-all, one penologist wrote, the penitentiary succeeded in "reducing the men to a condition of abject slavery." (p.147)
Throughout the history of Parchman, Oshinsky points out that the
punishment of black Mississippians was its main concern. Punishment in
52. As in Mississippi, economic concerns were a factor as well. The state's spoiled image
soured the tourist industry that it relied upon, and Northern boycotts put further pressure on the
state. However, it was humanitarian opposition to the brutality the laborers experienced that
spurred the boycotts. (p.75)



Mississippi criminal law remained mostly for blacks as "[w]hites did not
usually send fellow whites to prison without a good reason, and when they
did, it was not for very long." (p.159) Whites who did go to Parchman had
to perform the same work as the black prisoners, although in segregated
fields. The Depression brought about an increase in the number of imprisoned whites, but Parchman remained a predominantly black prison. (p.164)
Punishment within the institution of Parchman was also meted out on
a racist basis. "The true symbol of authority and discipline at Parchman
was a leather strap, three feet long and six inches wide, known as 'Black
Annie,' which hung from the driver's belt." (p.149) Whipping as a primary
form of punishment brought back the tradition of slave oppression still
deeply rooted in the culture. (p.149) The most severe punishment issued
by the state legislature went beyond Parchman-capital punishment.
As expected, the process was deeply rooted in race. According to a comprehensive report of legal executions in Mississippi, blacks accounted for
87 percent of the 443 people put to death there since the Civil War, a
figure slightly above the Southern average of 80 percent. The report
listed the crimes for which blacks had been executed (331 males and 4
females for murder, 33 males for rape, 8 males for armed robbery), as
well as the race of their victims (41 percent of the murders, 85 percent of
the rapes, and all of the armed robberies were committed against whites).
Not surprisingly, black-on-white crime-a marginal phenomenon in comparison to black-on-black crime-accounted for more than half of the
legal executions in Mississippi. (p.208)

Thus, the system of brutality toward blacks that was so much a part of the
tradition of Mississippi slavery and convict leasing continued even with the
emergence of the state penitentiary.
Conditions for prisoners did not improve until the 1970s. Major reform, as during the end of the leasing system, did not occur until the public
became mobilized to do something about the conditions from learning
about them in detail. Until the 1960s, there was no such concerted effort
by the public to focus attention on the treatment of prisoners at Parchman.
This all changed, however, with three highly publicized events.
As with most of the country's changes during that era, the civil rights
movement provided the spark that brought Parchman's harsh conditions
into question. The first major blow to Parchman's old regime was the imprisonment of Clyde Kennard, a young NAACP member who sought admission to Mississippi State College. For his attempt at admission, he was
framed and arrested for stealing chicken feed. His stay at Parchman was
brutal, and he did not get the medical attention he needed for his developing colon cancer. Kennard died, "a victim of Mississippi justice," a few
months after his release in 1963. (pp.231-33) This was the first incident that
focused national attention on Parchman Farm. While Kennard was in
prison, the Freedom Riders passed through Mississippi and were taken to
Parchman Farm after being arrested for "breach of the peace." Although
the state governor told the prison official to keep the Freedom Riders safe,
they still were treated poorly (although not as poorly as other prisoners).
After their release, "[t]hey became national heroes, bold survivors of the
toughest prison in America's most repressive state." (p.236) People were
finally beginning to discover what Parchman was really all about.



The final straw signalling an end to Parchman's regime occurred soon
after the Freedom Riders incident. In Natchez, a court order had been
issued prohibiting any marching to protest segregation. Hundreds of civil
rights activists demonstrated against this court order and were arrested.
They were sent to Parchman Farm. (p.237)
This time, the treatment was rough. These prisoners were local people, with no friends in Washington or the national press. Lacking both
the moral fervor and celebrity status of the Freedom Riders, they faced a
far more dangerous fate. When their buses arrived at Parchman, the
demonstrators were stripped naked, beaten, marched to the maximum
security unit, and packed eight to a cell. "The first night we were quiet as
lambs," said one, "but after we were made to feel freezing we shouted
that we wanted our clothes.... My jaw was so cold I couldn't eat hard
food." (p.237)

Even though they weren't national figures when they went into Parchman,
the protestors emerged focusing more national attention on the institution.
This time, though, the attention was so strong and outraged that lawyers
became involved for the first time.
In the late 60s, the seeds were sown for an all out constitutional challenge to the conditions at Parchman. With the nation's focus now on the
prison, a lawyer from the local chapter of the Lawyers' Committee for Civil
Rights Under the Law brought a federal suit after collecting the stories of
hundreds of inmates suffering at Parchman. (pp.241-45) The case, Gates v.
Collier, 53 was decided in 1972 in favor of the prisoners, and the judge issued
an order for the prison to meet constitutional standards of prison operation. (pp.246-48) Compliance with the order has taken a long time, but
Oshinsky claims that Parchman has become a less violent place and is now
integrated as a result of the order. (pp.249-50)

Today's Mississippi Jail Hangings
Parchman and the Mississippi jail system still have their problems.
The one major shortcoming of "Worse Than Slavery" is that it doesn't follow up on the major problems existing within Parchman today. In the six
years between 1987 and 1993, at least 49 inmates in the Mississippi prison
and jail system died as a result of hangings; the official reason listed for
each was suicide. 54 Of these 49 inmates, 26 were African-American. 55
Among the more notable incidents were: David Scott Campbell, found
hanging in his jail cell hours after being arrested while on a date with a
white woman who was related to the local sheriff;56 Andre Jones, the son of
the local NAACP president, reportedly found hanging from his shoelaces

53. 349 F. Supp. 881 (D. Miss. 1972).
54. Eric Harrison, Jail Cell Hangings Revive Old Ghosts in Mississippi Civil Rights: Unanswered Questions in 48 Deaths Since 1987 Rekindle Charges of Racism and Police Misconduct,
L.A. TIMES, May 30, 1993, at Al. The number is now at least 49 with the July 17, 1993 suicide of
Cedric Walker. U.S. Presses Probe in Jail Hanging, NEW ORLEANS T1MEs-P1cA YUNE, July 24,
1993, at B4 [hereinafter U.S. Presses Probe].
55. Harrison, supra note 53. Adding Cedric Walker to the 25 stated in the article accounts
for the 26. This number is particularly shocking because "in the national jail population, blacks
account for only 16% of suicides while making up 41 % of inmates, according to a 1988 study by
the National Center on Institutions and Alternatives." Id.
56. Elijah Gosier, Something Sinister in Suicide Numbers, ST. PETERSBURG TIMES, March 20,
1993, at Bl.



which somehow left no marks on his neck; 57 and Cedric Walker, a young
man who was two-months away from parole at which time he was looking
forward to marrying his girlfriend. 58 Each of these incidents was investigated by the local authorities; each was determined to be a suicide. Yet,
most people do not agree.
Local civil rights leaders in Mississippi see the prison "suicides" as a
modern-day version of the lynching prevalent in Mississippi's history. 59
The United States Justice Department was even called in to investigate the
suspicious jail hangings. 6° Four of the local jails involved were ordered to
rebuild as a result of the investigation, and fourteen were found to have
"unconstitutional violations";61 however, nothing was found that lead to
any conclusions of malicious action on the part of the prison officials. 62
Nonetheless, these findings did not quell the fears of the African-American
communities nor thwart the attempts by the families of the inmates to seek
redress from the courts. 63
These prison hangings present shocking questions about the modern
system of criminal justice and prison life for African Americans in Mississippi. Were it not for the reporting of a small Mississippi African-American newspaper named the Jackson Advocate, the little that has been done
about the hangings may never have happened. 64 Still, public scrutiny has
yet to focus its full weight on this situation, a situation that is as much a
part of the Jim Crow administration of justice that Oshinsky portrays in his
book as is the brutality of the past.

Public Access to Prisons

In August of 1996, I had the privilege of travelling through the South
with a group of civil rights lawyers and activists. Part of our trip was a tour
of Parchman Farm. After our tour guide took us through the reception
57. Id.; Christina Cheakalos, Around the South One Death that Started an Uproar: Blacks
Claim Cover-Up in Mississippi, ATLANTA J. & CoNST., Feb. 7, 1993, at A3.
58. U.S. Presses Probe, supra note 56; Lost in Mississippi (Fieldhand Productions 1996) (a
documentary detailing the conditions surrounding Cedric Walker's death). I also know some of
the information about the details of Cedric Walker's death from working on his family's lawsuit
against the prison guards. See Legal Updates: Police Brutality and Prisoner's Rights, CCR's Development Update (Center for Constitutional Rights, New York, N.Y.), Fall 1996, at 4 [hereinafter CCR Update].
59. Ben Chaney, brother of one of the three civil rights workers murdered in Philadelphia,
Mississippi in 1964, said, "Mississippi is still Mississippi." Gosier, supra note 55. Others called
the suicides disguised lynchings in a "state where the terror of Jim Crow and the civil rights eras
lives on in new forms." Peter Applebome, Many Fear Jailhouse "Suicides" are Mask for Mississippi Lynchings, PORTLAND OREGONIAN, Feb. 21, 1993, at CS.
60. How Could That Many People Die? Justice Department Begins a Welcome Inquiry into
Mississippi Jail Deaths, DES MOINES REGISTER, Apr. 19, 1993, at 12.
61. Jim Yardley, After Mississippi Hangings, Feds Order Jails to Shape Up, ATLANTA CoNST.,
Dec. 31, 1993, at Al.
62. The FBI concluded the investigation two years after the Department of Justice commenced it. FBI Director Louis Freeh announced there was "no evidence of wrongdoing." Jim
Yardley, Around the South: Mississippi Jail Deaths Probe Ends; FBI Finds No Evidence Civil
Rights Violated, ATLANTA CONST., Jan. 26, 1995, at A3.
63. Parents of Hanged Miss. Inmate File Lawsuit, NEW ORLEANS TIMES-PICAYUNE, Aug. 26,
1993, at B4 (Andre Jones' family filing suit); CCR Update, supra note 60 (Cedric Walker's family
filing suit).
64. Cheakalos, supra note 59.



area, the prison church, the prison firehouse, the prison band's rehearsal
area, and the visitors' dining hall, we were left with a sense that, having
seen only the "nice" parts of the prison, we had missed a major part of the
institution: inmates and the conditions in which they live. We asked to see
some of the inmate units, but the tour guide told us prison tours did not
visit these locations for the safety of the tour members. 65 The inmates we
were able to see (those with the highest clearance levels) told us another
story: we were not allowed to visit the cell units because the prison officials
did not want outsiders to see the horrendous conditions there. Just like in
The Wizard of Oz when Dorothy is told by the Wizard to "pay no attention
to the man behind the screen," we were being told to pay no attention to
the prison behind the facade.
Oshinsky's "Worse Than Slavery" points us to the question of what
kind of reform could possibly come about at Parchman if no one is allowed
to see the conditions in which inmates live. Generally, with the growing
modern prison-industrial state driven by the twin powers of racism and
capitalism, can the public, especially those communities decimated by the
prison explosion, adequately check this increase in the instances of complete deprivation of liberty? True democratic oversight of this growing
prison-industrial complex necessitates a public right of access to prisons.
Without this right and the information that flows from it, as Oshinsky
shows us, meaningful reform of prison conditions and a way for the public
to stop this explosion in the criminal commodification of African Americans are very unlikely.
The most promising source of any such right is the United States Constitution. No clause of the constitution expressly delineates any public
right to access to information, but commentators have discussed the "right
to know" as a right arising from the First Amendment generally and the
fifth amendment specifically for criminal trials. Part of this "right to know"
comes from what Justice Brennan refers to as the "structural" theory of the
First Amendment: "The Amendment ... forbids the government from interfering with the communicative processes through which we citizens exercise and prepare to exercise our rights of self-government." 66 The
communicative process Justice Brennan is referring to is the "press' role in
providing and circulating the information necessary for informed public
discussion. " 67 Thus, in the interest of democratic self-government, the First
Amendment guarantees the public's right to know what the government is
The Supreme Court has had three occasions to apply this right to
know to access to prisons, and in all three cases, the press was denied the
expansive right of access to the prison that it sought. The first two cases
dealing with this issue were the companion cases of Pell v. Procunier68 and
65. In response to an inquiry I made after the tour, the prison Superintendent wrote: "Due
to liabilities we face each day certain areas are restricted to tours .... " Letter from James V.
Anderson, Superintendent, Parchman Penitentiary, to David S. Cohen (Aug. 26, 1996).
66. William J. Brennan, Jr., Address, 32 RUTGERS L. REv. 173,176 (1979). The other model
of the first amendment identified by Brennan is the "speech" model which absolutely prohibits
"any interference with freedom of expression." Id.
67. Id. at 177.
68. 417 U.S. 817 (1974).



Saxbe v. Washingston Post Co. 69 In both cases, journalists70 challenged a
prison regulation prohibiting members of the press from interviewing "specific individual inmates. " 71 Their challenge rested on their claim that the
restriction amounted to an "unconstitutional state interference with a free
press." 72 Relying heavily on the facts that alternative means of communicating with the outside world were available to the inmates and that the
press already had some access to inmates and the prison, the Court held
that "newsmen have no constitutional right of access to prisons or their
inmates beyond that afforded the general public." 73
Four Justices dissented vigorously in these two cases. Justice Powell,
with Justices Marshall and Brennan joining, stressed that a face-to-face interview provides valuable information that other forms of communication
cannot capture. 74 Drawing on the political science works of Zechariah
Chafee and Alexander Meiklejohn, Powell then commented on the structural theory of the First Amendment: "No individual can obtain for himself the information needed for the intelligent discharge of political
responsibilities. . . . By enabling the public to assert meaningful control
over the political process, the press performs a crucial function in effecting
the societal purpose of the First Amendment." 75 Justice Douglas' dissent,
also joined by Justices Marshall and Brennan, stressed the application of
this structural principle to the context of prisons: "Prisons, like all other
institutions, are ultimately the responsibility of the populace .... [P]eople
have the right and the necessity to know not only of the incidence of crime
but of the effectiveness of the system designed to control it." 76
In 1978, the Court was called upon to re-examine the doctrine flowing
from Pell and Saxbe. In Houchins v. KQED, lnc.,77 a television and radio
broadcasting station challenged the denial of permission to inspect a California jail which was the site of an inmate's suicide. 78 The trial court had
granted an injunction requiring the "reporters be given access to [the jail]
'at reasonable times and hours,' and that they be allowed to use photographic and sound equipment and to interview inmates. " 79 In reversing
this injunction, the Court was split in a rare three-one-three vote. 8° Chief
Justice Burger's plurality opinion explicitly rejected the application of the
structural theory in the context of the plaintiffs' request: "The public importance of conditions in penal facilities and the media's role of providing
information afford no basis for reading into the Constitution a right of the
public or the media to enter these institutions, with camera equipment, and
69. 417 U.S. 843 (1974).
70. In Pell, along with the three journalist plaintiffs, four prisoners challenged the regulation
as well. Pell, 417 U.S. at 819.
71. Id. (challenging a California Department of Corrections regulation); Saxbe, 417 U.S. at
844 (challenging a policy statement of the Federal Bureau of Prisons).
72. Pell, 417 at 833.
73. Id. at 834.
74. Saxbe, 417 U.S. at 854 (Powell, J., dissenting).
75. Id. at 863.
76. Pell, 417 U.S. at 840 (Douglas, J., dissenting).
77. 438 U.S. 1 (1978).
78. Id. at 3.
79. KQED, Inc. v. Houchins, 546 F.2d 284, 285 (9th Cir. 1976).
80. Justices Marshall and Blackmun took no part in the consideration of the case.



take moving and still pictures of inmates for broadcast purposes." 81 He
then concluded that the media was given a special right of access in this
injunction, and that is not required by the Constitution. 82
However, Justice Stewart's opinion, the controlling one, did not go
that far. Stewart wrote that in certain circumstances, the media can have a
right of access in form above and beyond the right of the public when reasonable public restrictions "impede effective reporting without sufficient
justification." 83 In this particular case, though, Stewart felt that the injunction granted by the trial court was too broad and went beyond this special
form of access and created a special type of access. 84 Dissenting, Justice
Stevens agreed with the principle that Stewart announced, but he found
that in this case, the restriction was unreasonable. 85 Once again relying on
the structural theory of the First Amendment, the dissent wrote that
"prison officials have an interest in the time and manner of public acquisition of information about the institutions they administer, [but] there is no
legitimate penological justification for concealing from citizens the conditions in which their fellow citizens are being confined." 86
Thus, the resulting general doctrine from these three cases is that the
press has a right of access to prisons that is only as extensive as the access
the prison gives the general public, but the officials must pay special attention to the particular needs of the press in granting this access. 87 What
good does this doctrine do in the modern prison-industrial state in which
we now live? Not much, but there is some helpful language in the cases
that might point to a right of access to prisons with a bit more bite than the
proposition stated above.
First, the Court has indicated that it might, in certain situations, look
to the reasons for any restriction on the public or the press. This indication
came in Pell when the majority specifically mentioned that the intent behind the enactment of the regulation is relevant. Discussing the regulation,
the majority wrote that it "is not part of an attempt by the State to conceal
the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions." 88 Thus, the Court hinted that it would entertain a claim of a right to access when the regulation was enacted to conceal
prison conditions from the public. Applying this to a specific regulation
would be difficult because finding the intent of the drafters of a regulation
is difficult, but extreme cases that limit access for this illegitimate purpose
could be challenged, albeit this is unlikely. For instance, if the Parchman
Superintendent were to have specifically stated that the policy was not to
allow people to visit the prison because he didn't want anyone to see the
81. Houchins, 438 U.S. at 9 (Burger, C.J., plurality opinion).
82. Id. at 15-16.
83. Id. at 17 (Stewart, J., concurring in judgment).
84. Id. at 18-19.
85. Id. at 30 (Stevens, J., dissenting).
86. Id. at 36.
87. The Supreme Court's subsequent landmark decision in Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980) (granting a right of access to· the press for criminal proceedings), has
not been extended beyond the courthouse and thus does not alter the Court"s holdings in the
three prison access cases. See Eugene Cerruti, "Dancing in the Courthouse": The First Amendment Right of Access Opens a New Round, 29 U. RICH. L. REV. 237, 266-69 (1995).
88. Pell, 417 U.S. at 830.



conditions in which the hanged inmates had lived, the First Amendment's
right of access would presumably strike down such a restriction.
The second expansion of the simple proposition that the right of access
to prisons for the press and the public must be the same can be found by
looking at the specific holding of all three of these cases. In Pell, the Court
laid particular emphasis on the various alternative methods of visitation of
the prison granted to both the press and the public:
The Department of Corrections regularly conducts public tours through
the prisons for the benefit of interested citizens. In addition, newsmen
are permitted to visit both the maximum security and minimum security
sections of the institutions and to stop and speak about any subject to any
inmates whom they might encounter. If security considerations permit,
corrections personnel will step aside to permit such interviews to be confidential. Apart from general access to all parts of the institutions, newsmen are also permitted to enter the prisons to interview inmates selected
at random by the corrections officials. By the same token, if a newsman
wishes to write a story on a particular prison program, he is permitted to
sit in on the group meetings and to interview the inmate participants. 89

The federal regulation challenged in Saxbe was similar to the California
regulation in Pell. 90 And, in Houchins, the jail's regulation allowed public
visitors in most parts of the facility and required the sheriff to give the press
"effective access" to these areas. 91
The holdings in these cases are thus necessarily limited to requests by
the press that it be given more access when it already has considerable
access to the prisons and the prisoners. Commentators have noted that if
the prison regulations were completely to close off access to prisons, the
opinions here would not apply to the situation. 92 However, I would read
this limitation on the holding more broadly, including regulations that provide only minimal access to prisons in the category of regulations to which
Pell, Saxbe, and Houchins would not apply. This reading is justified because the Court's opinions all dealt with regulations providing substantial
access to prisons. Thus, any prison that tried to completely or close-tocompletely prohibit access to prisons and prisoners would run up against a
First Amendment problem. A close case would be presented if a prison
were to allow access to only a few "presentable" parts of the prison, as in
the situation with which our tour group was faced. Thus, it is possible that
the Constitution provides a limited right of access to prisons for the public
and the press.
Alternatively, statutory authority does exist that could help to give
some access to prison information. Freedom of information acts have been
enacted by all fifty states93 and the federal government. 94 Under these stat89. Id. at 830-31.
90. Saxbe, 417 U.S. at 846-48 (permitting the press to "tour the prisons and photograph any
prison facilities," "conduct brief interviews with any inmates [encountered on the tour]," and
receive and send uncensored and unlimited correspondence from and to inmates).
91. Houchins, 438 U.S. at 17.
92. Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 STAN. L.
REv. 927, 942 (1992); Neil E. Nussbaum, "Film at Eleven . .. "-Does the Press Have the Right to
Attend and Videotape Executions?, 20 N.C. CENT. L.J. 121, 126-27 (1992).
93. See A JAILHouse LAWYER'S MANUAL 124-26 (Stephanie I.R. Fidler ed., 4th ed. 1996)
[hereinafter JLM) (listing the freedom of information acts for all fifty states).
94. 5 u.s.c. § 552 (1988).



utes, the public is entitled to obtain the records of government agencies
that are not exempt. 95 Prison records, excepting those that are specified in
the statute, are thus open for the public and the press to retrieve and scrutinize. Such scrutiny can provide a meaningful method for the public to ferret out information about the contracts that go into prison construction and
the companies who benefit. This information is essential to understanding
the link between the prisons, racism, and capital described above in Part II.
But, while this access to files and records is an essential part of an open
government, for the purposes of keeping prison conditions in check for the
increasing number of people who occupy them, mere access to files is not
enough as in-person observation, as opposed to mere passive analysis of
records, is essential to truly understanding what goes on in a prison. As
Chief Justice Burger observed, "A visit to most prisons will make you a
zealot for prison reform. " 96
If Chief Justice Burger is right, and I think he is, the law must do
everything it can to protect the right of the public and the press to have full
access to prisons. As the colloquialism goes, knowledge is power, and a
populace armed with the knowledge of what is going on within its own
prisons has the power to change those prisons and the policies that are
filling them. Anything less than a constitutional right of full access to prisons would thus amount to law's sanctioning of inhumane prison conditions
within the unchecked prison-industrial state. Oshinsky describes the important transformation that can occur when citizens are fully informed
about convicts' conditions, and the modern situation involving the prison
hangings in Mississippi provides a current example of this basis for reform;
it is important for law to absorb this message and provide accordinglyespecially in a time when the prison population is expanding quickly with
African Americans targeted for this growth.

"Worse than Slavery" is a work of history, not law. Nonetheless, the
book's relevance to law cannot be denied. Parallels with history are important ways for us to learn about the present, and the parallel that I have
drawn here between Oshinsky's description of the convict leasing system in
the late nineteenth century South and the profit-driven modern day criminal justice system has striking importance for any comprehensive understanding of how the criminal law is continuing to oppress those convicted
of crimes, in particular, African Americans. With the understanding that
the prison-industrial complex is being driven by profit and racism, people
can better analyze and attack the draconian criminal justice policies that
legislatures are trying to spoonfeed the public everyday in this country.
Complete knowledge is one of the pre-conditions for true democracy
rather than the anti-democratic system in effect right now.
Complementing this need for an understanding of the nature of prisons and racism is the need for knowledge about the conditions within the
prisons themselves. Oshinsky shows that democratic reform is possible
95. JLM, supra note 95, at 123.
96. Pell v. Procunier, 417 U.S. 817,830 n.7 (1974) (quoting Warren Burger, For Whom the
Bell Tolls, reprinted in 25 Record of N.Y.C.B.A. (Supp.) 14, 20-21 (1970)).



when people are aware of what is going on behind bars. That the public
can have no complete constitutional right or effective statutory guarantee
of access to observe prison conditions, however, further demonstrates the
anti-democratic nature of the prison industry.
The lesson the law can draw from "Worse than Slavery" is a frightening
but eerily familiar one: criminal law, corrupted by private interest in profit
and left unchecked from public scrutiny, oppresses those it can. As Oshinsky's history, the prison suicides in Mississippi, and an analysis of the current prison industry show, this oppression often amounts to legally
sanctioned and institutionalized racial oppression at the expense of knowledge and democracy.

HeinOnline -- 15 Nat’l Black L.J. 108 1997-1998