The Thirteenth Amendment states that "Neither slavery nor involuntary servitude, except as a punishment for crime…shall exist within the United States.” Though it initially benefited African Americans, the key phrase in this amendment that allows slavery as a punishment for crime was quickly exploited by the increasingly vindictive Southern society. The Birth of a Nation, an "American classic" film using blackface to depict black people as criminals, became a national sensation in 1915, bolstered anti-blackness among white people, and rapidly expanded and reinvigorated the KKK (Rosenwald). Additionally, during the Reconstruction Era, Southern legislators passed a set of laws known as the Black Codes, making actions such as vagrancy and unemployment illegal (Louisiana, Law Library of). These laws explicitly targeted African Americans and subsequently raised incarceration rates of black people in the South to a highly disproportionate level (Gilmore). The rising prison populations allowed prisons to participate in convict leasing, a system that provided penal labor at a profit to plantations lacking slaves and to the rapidly expanding private sector in the late 19th century. From the Reconstruction Era to today, this basic system has expanded on an institutional level, replacing pre-abolition slavery with de facto, modern slavery. Since slavery was abolished, various legislation including those associated with the War on Drugs led to the systematic exploitation of prisoners for profit called the prison industrial complex. Today, this system of mass incarceration is perpetuated by factors such as corporate lobbying and private prison investing. It can be argued that the prison-industrial complex is unconstitutional because it disproportionately targets minorities, violating the 14th Amendment, and exploits prisoners for profit, a notion uncomfortably resembling slavery.
Some people may say that the prison-industrial complex is racially neutral and that its magnitude is exaggerated; their reasoning may include that minorities commit crime at a higher rate than whites, or that the prison-industrial complex does not cause as much harm as some progressives believe (O'Connor). However, these reasonings are highly flawed because whites and people of color commit crimes at rates that do not justify their different rates of incarceration; additionally, incarceration is detrimental to immediate family members along with those who are jailed, showing the harms of mass incarceration. For example, black people are arrested for drug offenses at a rate 13 times higher than white people, despite the fact both groups do drugs at approximately the same rate, as seen in a study by Sandro Galea, MD, DrPH at Boston University (Galea). Factors such as racial profiling may account for this; police officers tend to stop and question minorities at higher rates, increasing the chances for these groups to be arrested (Sanchez). Immediate family members of those incarcerated are adversely affected; many of those who are imprisoned are the primary earners of their families, leaving the burden of supporting children to the other parent when imprisoned (Galea). The study also found that those living in neighborhoods with higher incarceration rates are more likely to experience depression or anxiety (Galea). These pieces of evidence indicate that the scope of the prison-industrial complex (PIC) even affects those who are not incarcerated and helps illustrate its harms on American society.
By examining the the policies and agendas of the Nixon and Reagan Administrations, and various statistics regarding the criminal justice system, it can be argued that the prison-industrial complex disproportionately targets minorities. In 1971, President Richard Nixon declared the War on Drugs, the US government's effort to stop drug use among the general population. With the War on Drugs, several federal agencies such as the Drug Enforcement Agency were created and expanded. The Anti-Drug Abuse Act passed by the President Reagan created mandatory minimum sentences for drug violations, preventing judges from using their own discretion in ruling punishments (Tonry). One such sentence was a five year sentence for possession of five grams of crack cocaine. Another was the same five year sentence for possession of five hundred grams of powder cocaine. Although crack cocaine is more addictive, it is much cheaper and was used much more by African American and minority populations; powder cocaine was used in the near equal rates among white people (Tonry). The racial targeting of the War on Drugs is further shown in an interview with John Ehrlichman, one of Nixon's bureaucrats, where he remarks that the Nixon administration "couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily," these communities could be disrupted. With the War on Drugs still in affect today, around 31 percent of inmates are convicted of drug offences, a drastic increase from 13% in the 1980s. In a wider scope, African American men make up a third of the US prison population while making up 7.5% of the general population; Latino men make up one sixth of the prison population while making up 8.3% of the population ("Trends In U.S. Corrections"). Additionally, minorities are disadvantaged at almost every level of the criminal justice system (Small). Taking account the counterarguments addressed earlier, along with the war on drugs, this evidence strongly suggests that the prison-industrial complex disproportionately targets minorities, violating the Equal Protection Clause granted by the 14th Amendment.
The private sector participates in the prison-industrial complex, with companies selling supplies necessary for prisons and other corporations leasing contracts for prison services; these groups provide these at a profit, suggesting that the PIC is also unconstitutional because individuals are not being compensated for their work. In the 1980s, the federal government began contracting companies to provide services to efficiently accommodate the rapidly expanding prison population (Geiger). Private prison companies such as the Corrections Corporation of America and the GEO group offer their services to the government, claiming that they will save money. However, according to a study by the Brookings Institute, an expert-led organization based in D.C., private prisons provide no clear advantages over public prisons (Mumford). The use of private prisons as seen within the prison-industrial complex is unconstitutional because they perpetuate mass incarceration through financial bias, and carry out government functions without needing to heed the guarantees mandated by the Constitution. The private prison industry is worth $70 billion, and its profits are ensured by a maximum amount of prisoners in each facility (Black). As a result, private prison groups such as the CCA have spent $17.4 million on lobbying to maintain and possibly expand laws that increase prison population (Black). The financial interests of these groups have corrupted politics in this manner, and private prisons must be abolished before the status quo can be changed. Additionally, private parties are not necessarily bound to the Constitution (Featherstun). Yet, these private prison groups are implementing government functions by holding prisoners; the very existence of private prisons are unconstitutional because they do not guarantee the constitutional protections afforded to individuals. As a prominent actor in the prison-industrial complex, the removal of private prisons will not only eliminate possible violations of the Constitution but also reduce the incentives for various interest groups to lobby in favor of legislation that perpetuates mass incarceration.
The prison-industrial complex (PIC) is unconstitutional because it violates the Equal Protection Clause in the 14th Amendment by disproportionately targeting minorities and exploits the private sector to circumvent constitutional guarantees. The War on Drugs vastly increased the prison population since the 1980s, and the private prisons that were contracted to accommodate this massive increase created a systematic tool of oppression for U.S. criminals. Legislators and interest groups should learn from the failed policy that led to the creation of the PIC and look for alternative ways for solving crime. If America opens its mind and considers rehabilitation rather than outright retribution, it still has a chance to truly call itself the pioneer of freedom.