Abstract
Excerpted From: Fareed Nassor Hayat, Abolish Gang Statutes with the Power of the Thirteenth Amendment: Reparations for the People, 70 UCLA Law Review 1120 (November, 2023) (414 Footnotes) (Full Document)
In June 2021, a meme depicting a white child stretching his legs to ascend a staircase while skipping multiple steps began trending on social media in reaction to the signing of legislation commemorating Juneteenth. With his left foot planted at the bottom of the staircase, the child bypasses steps labeled “talking about race in schools,” “voting rights,” “stop police violence,” and “reparations,” as his right foot reaches instead to a top step marked “making Juneteenth a national holiday.” Juneteenth is the celebration of the arrival of Union troops in Galveston, Texas in June 1865, notifying enslaved Africans of the Emancipation Proclamation. President Abraham Lincoln issued the proclamation two years prior in the midst of the American Civil War to provoke rebellion and chaos in the Confederate States of America. Many enslaved people were already aware of the proclamation but remained on Texas plantations due to the fictitious import of the declaration.
In one tweet, the meme is accompanied by a purported quote from Malcolm X that reads, “[t]he white man will try to satisfy us with symbolic victories rather than economic equality and real justice.”, In much the same vein, Robert A. Brown, professor of media and social justice at Morehouse College, writes that “[t]here is a growing discontent in the African American community with symbolic gestures that are presented as progress without any accompanying economic or structural change.” He goes on to state that “[l]awmakers have been more willing to engage in performative symbolism than passing laws to make substantive change.” Juneteenth becoming a national holiday is just the kind of symbolic gesture presumptively alluded to by Malcolm X and further critiqued by Professor Brown.
While Juneteenth focuses on the two-and-a-half-year delay before enslaved Africans in Texas acted on the Emancipation Proclamation, the Thirteenth Amendment, which was ratified in December 1865, has no commemorative holiday. Nor does the Juneteenth holiday acknowledge the Thirteenth Amendment's true economic intent and attempt at achieving real justice. The history of Juneteenth is well documented and, with this new national holiday, widely celebrated. But the Emancipation Proclamation on which it is based did little to provide true emancipation to Africans enslaved in this country. Contrary to revisionist histories, enslaved Africans were aware of the Emancipation Proclamation prior to Juneteenth and had already moved toward emancipating themselves throughout American history.
Unlike the Emancipation Proclamation, the Thirteenth Amendment envisioned accompanying economic and structural change to eradicate chattel slavery--its vestiges, badges, and incidents. So while Reconstruction, civil rights, and reparations have never been truly realized for formerly enslaved Africans and their descendants, the Thirteenth Amendment, unlike the Emancipation Proclamation and our newly-cemented Juneteenth national holiday, at least had the intent of true economic equality and justice. The enforcement power of the Emancipation Proclamation only became viable upon the arrival of the Union troops. Not until their presence in Texas and actual force was given to Emancipation, was there true basis to celebrate. In the end, it was not that enslaved Africans did not know about the Emancipation Proclamation, they simply understood that it did not change their position as enslaved.
Proponents of the Confederacy and white supremacy then and now, with help from the U.S. Supreme Court, have effectively reimagined the Thirteenth Amendment into an empty proclamation, limiting the scope of the Amendment to cover only modern-day examples of chattel slavery. They argue that “everything has some historic connection with slavery.” Thus, instead of undoing modern forms of oppression, they suggest accepting social ills as integral to American fabric. These scholars have artfully argued in support of the spirit of the Thirteenth Amendment, while declaring that it has no function in the modern American experiment.
Yet many structural and economic changes demanded by abolitionists today were originally envisioned by the largely antislavery U.S. Congress of 1865. Specifically, reparations, civil rights, and individual liberty were debated and advocated in the structuring and ratification of the Thirteenth Amendment. Abolitionists fought to include § 2 of the Thirteenth Amendment and provide Congress with the power to make such legislation in order to truly abolish slavery and all of its iterations. That sentiment, the nineteenth century spirit of abolition that envisioned a new framework of American governance--one truly capable of embodying the principles of life, liberty, property, and equality for all as promised in the U.S. Constitution--continues today.
The modern abolitionist movement embodies these nineteenth century principles and seeks to fundamentally dismantle the prison industrial complex. True freedom, safety, and justice cannot be realized by merely tinkering with the carceral system by investing in police training, mandating body cameras, and decriminalizing marijuana. Instead, abolition requires the complete elimination of laws that have disparate racial impacts, defunding of the police, and reparations for communities targeted by the carceral state. This Article offers a proposal for the reallocation of funds towards antiracist structural change and the centering of community justice based in the power of the Thirteenth Amendment.
While over time some of the legal weapons used to further white supremacy pursuant to the Thirteenth Amendment loophole which slavery continued to exist for those duly convicted of a crime through Slave Codes and Black Codes--have been found unconstitutional, most either persist to this day or have simply mutated into more insidious forms. Highly militarized police forces found in today's cities were nonexistent until the mid-twentieth century, yet they are derivative of nineteenth century slave patrols. Today's gang cops and gang prosecutors are the present-day slave catchers. So too, a particular species of criminal laws--antigang statutes--have a clearly traceable genealogy from Slave Codes to the post-Civil War Black Codes, Jim Crow-era vagrancy laws, and gang injunctions, and ultimately to the California Street Terrorism Enforcement and Prevention (STEP) Act and the myriad of laws that has followed in its footsteps. The pedigree of today's antigang statutes demonstrates that they are badges and incidents of slavery repugnant to the intent of the Thirteenth, Fourteenth, and Fifteenth Amendments, also known as the Reconstruction Amendments.
Gang membership othering, policing, prosecuting, and imprisoning outspends and defunds education resources, poverty eradication programs, drug abuse treatment centers and job development spending. Nationwide, state agencies spend billions of dollars annually prosecuting, caging, and monitoring accused gang members using a peculiar set of legal standards, authorized through gang statutes, that violate the plain language of the Constitution. In addition to the economic cost of gang enforcement regimes--which are almost impossible to fully calculate--the state of California's longterm project of policing and criminalizing gangs is punitive, ineffective, costly, an incident of slavery, and a violation of the Thirteenth Amendment of the U.S. Constitution.
This is the first Article to challenge the constitutionality of antigang statutes under the Thirteenth Amendment. Within this Article, I posit that modern-day abolitionist further their objective by using this constitutional amendment as a tool of liberation. Because of growing up during the 1980s in South Los Angeles, fantasizing about gang involvement, being a public defender, and representing accused gang members, I have seen how labeling and criminalizing Black and Brown youth furthers white supremacy and mass incarceration--and is a form of modern-day slavery. I have documented the many ways that gang prosecutions violate constitutional rights, almost exclusively Black and Brown youth, and have argued that they must be tinkered with by legislatures or reinterpreted by courts to restore due process protections guaranteed by the Constitution. But in this Article, like Justice Harry Blackmun in his dissenting opinion in Callins v. Collins, I “no longer shall tinker with the machinery of death” and oppression. I now argue from an abolitionist framework that these gang statutes cannot be fixed and simply need to be abolished entirely. No amount of tinkering can correct a fundamentally flawed system.
The U.S. Supreme Court has held that § 2 of the Thirteenth Amendment grants Congress the power to pass legislation to eradicate “badges and incidents” of slavery. Legal scholars have argued, supported by the historical record, that while Congress is empowered to enforce the Thirteenth Amendment and may “be the better branch of government to define what conditions amount to badges of slavery, it is not the only branch practically equipped or constitutionally empowered to do so.” Enforcement of the Thirteenth Amendment extends beyond Congress and includes the primary enforcer of the Constitution, the Supreme Court of the United States.
Yet, when Congress passes antigang legislation or fails to outlaw similar state statutes, the legislative histories of which evince an intent to impose badges and incidents of slavery, Congress abdicates its duty to enforce the Thirteenth Amendment. If Congress abandons its enforcement power, federal courts are the last resort for striking down statutes that effectively perpetuate the institution of slavery through white supremacy. Thus, this Article calls for the abolitionist movement and the U.S. Supreme Court, as the enforcer of the Constitution, to target antigang statutes as but one pillar of the prison industrial complex--a modern day badge of slavery--that must be toppled.
In Part I of this Article, I explore scholarly writing on the Thirteenth Amendment and particularly highlight § 2 and its import in modern times. Additionally, I summarize what many abolitionist legal scholars have explained--first, that the origin of the modern prison industrial complex emerged from chattel slavery and second, that seventeenth-century slave patrols are the prototype for twenty-first century police forces. What this Part adds to this history is an account of how Jim Crow-era vagrancy laws evolved specifically into the sophisticated antigang statutes of today. I discuss the ways in which gang statutes have been repeatedly subjected to flimsy legal challenges and how legislatures have consistently found new ways to morph them around constitutional strictures. This tinkering of gang statutes is representative of the ways in which white supremacy mutates into insidious new variants as harmful, or even more harmful, as their past iterations on communities of color.
Part II offers a case study of the California STEP Act--the first modern antigang statute, which provides the boilerplate for most gang statutes that have since followed in this country. This Part explores the history of criminal street gangs in California, with a focus on Los Angeles, the law enforcement officials and politicians behind the effort to enact the STEP Act, and the furtherance of white supremacy couched in tough on crime rhetoric.
Behind the veil of the facially neutral rhetoric of the STEP Act lies a carefully constructed Thirteenth Amendment violation. Three elected officials, Kenneth Hahn, Ira Reiner, Alan Robbins, and the appointed chief of the Los Angeles Police Department (LAPD), Daryl Gates, orchestrated a quintessential incident of slavery. Together these men advocated for and knowingly implemented a series of legal weapons built on Slave Codes, post-Civil War Black Codes, Jim Crow-era vagrancy laws, and gang injunctions, in order to control and subjugate Black and Brown people back to the condition of slave. Like its precursors, their weapon--the gang statute--gave “law enforcement” the ability to monitor and occupy Black communities, arbitrarily criminalize Blackness, evade constitutional protection, monetize Black bodies, and punish beyond the strictures of law.
Additionally, Part II reveals how the STEP Act spread beyond California in the 1990s and sparked a pandemic of antigang legislation. The STEP Act effectively erased the racist history of such forms of prosecution and rationalized punishment in violation of the Constitution based on a “super predator” myth. The narrative of Black dangerousness and criminality resurfaced repeatedly, finally culminating in the nation's capital with the signing of the 1994 Violent Crime Control and Law Enforcement Act (Crime Bill), which included the first federal antigang statute.
Part III attempts to give some sense to the economic cost and human toll of it all. Nationwide, state agencies spend billions of dollars annually prosecuting, caging, and conducting surveillance on alleged gang members using a peculiar set of legal standards, authorized through antigang statutes, that violate the plain language of the Constitution. In addition to the economic cost of gang enforcement regimes--which are almost impossible to fully calculate--I share statistics on how these statutes disparately impact communities of color and drain state resources. To shed light on this, I highlight how gang prosecutions do not address the public safety concerns of largely Black and Brown communities.
Part IV applies an abolitionist framework to gang statutes and explores solutions that make better use of economic resources through reparations and restore integrity to constitutional due process by actively working towards an abolitionist horizon. This Part proposes the reallocation of funds toward antiracist structural change and a centering of community justice based in the power of the Thirteenth Amendment.
By revisiting the legislative history of the Reconstruction Amendments, specifically the Thirteenth Amendment, the abolitionist intent behind it, and the way in which white supremacists--from Chief Justices John Rutledge to John Roberts--have thwarted such intentions, I argue that it is essential to redress Thirteenth Amendment jurisprudence, beginning with the total eradication of antigang statutes and the reallocation of carceral funding. Since Congress has the will to pass a national holiday in commemoration of the liberation of African people in America, notwithstanding the unprecedented times of an international pandemic and racial unrest where real demands of structural change have been made, I suggest that now is the time to pass legislation designed to eradicate a chief vestige, badge, and incident of slavery--antigang statutes.
[. . .]
The Thirteenth Amendment provides the constitutional authority for states to accomplish the modern abolitionist's vision. States can constitutionally divest from the police, redistribute their wealth, and still carry out their governmental functions. Power coming from within communities will make those communities safer than police and prisons can. Prioritizing economic justice by investing in Black and Brown communities, rather than the criminal legal system, will free the country of modern-day incidents and badges of slavery. Abolishing gang statutes and the prosecutions, caging, and punishment associated with these modern-day badges and incidents is fundamental to today's abolitionist efforts to make Black and Brown communities safe, just, and prosperous, rather than maintaining a system of oppression that forces the descendants of the formerly enslaved back into a condition of servitude that an entire Civil War was fought to eradicate.
Section 2 of the Thirteenth Amendment granted Congress the power to pass legislation to eradicate any badges and incidents of slavery. Enforcement of the Thirteenth Amendment extends beyond Congress and includes the primary enforcer of the Constitution, the Supreme Court. When antigang legislation passes on a state or federal level, the Supreme Court has a duty to enforce the Thirteenth Amendment by finding those statutes unconstitutional and, as a pillar of the prison industrial complex, finding them to be a modern-day badge and incident of slavery.
Despite facially neutral rhetoric, gang statutes are carefully constructed Thirteenth Amendment violations. They are legal weapons built on Slave Codes, Black Codes, Jim Crow-era vagrancy laws, and gang injunctions are designed to control and subjugate Black and Brown people. The STEP Act effectively erased the racist history of these prior badges and incidents of slavery and rationalized punishment in violation of the Constitution based on a narrative of Black dangerousness and criminality tied directly to the institution of slavery.
The economic cost of gang enforcement regimes disparately impacts Black and Brown communities. Thus, the most effective way to right the wrongs of hundreds of years of oppression is to follow the lead of Black and Brown community organizations that work through an abolitionist framework. Their vision, where economic resources are delivered to Black and Brown communities through the power of the Thirteenth Amendment, restore integrity to constitutional due process by actively eradicating modern day vestiges of slavery in all its forms, including gang statutes. The United States was founded on genocide and white supremacy, but the Thirteenth Amendment and its true purpose possesses the power to make America live up to its promise of justice and equality--even to inner-city gang members.
Since Congress has the will to pass a national holiday in commemoration of the liberation of African people in America, notwithstanding the unprecedented times of an international pandemic and racial unrest where real demands of structural change have been made, Congress should also pass legislation design to eradicate a chief vestige, badge, and incident of slavery--gang statutes.
Fareed Nassor Hayat is a Professor of Law at Seton Hall University School of Law.
