Jurisprudence

The 13th Amendment Could End Racist Policing

If it wants to, Congress could radically restructure modern policing.

Many Black Lives Matter protesters, with the Capitol in the background
Demonstrators peacefully march down Pennsylvania Avenue after leaving the U.S. Capitol on Wednesday. Drew Angerer/Getty Images

Racial terror committed against Black people by the police is nothing new in America. We live in fear. Our ancestors lived in fear. Policing today can be traced directly—a straight line in fact—to slavery and the racial regime it relies on and violently sustains. As James Baldwin remarked in 1966, “the police are simply the hired enemies of this population. They are present to keep the Negro in his place and to protect white business interests, and they have no other function.” We were stamped by police from the beginning as something less than human. We have been called the animal, the superpredator, or the monster.

The current Congress accomplishes little these days, and it has not yet shown much interest in confronting racial violence. But true change will be hard to achieve through a patchwork of local and state reforms. If it wanted to, Congress is empowered to take bold action to transform policing and promote racial justice. A string of Supreme Court rulings involving the 13th Amendment offers Congress a tool to target institutions that have preserved social, political, and official norms associated with slavery—the “badges and incidents” of slavery. Congress has invoked the 13th Amendment many times before, notably when criminalizing hate crimes and ending racial discrimination in property sales. If Black lives actually matter, then Congress must look to the 13th Amendment to implement radical changes to policing.

The 13th Amendment prohibits slavery and involuntary servitude, except as punishment for a crime, and provides Congress with the power to enforce this prohibition by appropriate legislation. The Supreme Court, in the Civil Rights Cases, interpreted the 13th Amendment to grant Congress broad authority to eliminate the “badges and incidents” of slavery. It was generally understood then by many prominent jurists that “badges and incidents” of slavery refer to racially discriminatory political, civil, and legal disadvantages arising out of slavery. Justice John Marshall Harlan, for example, believed that Congress could redress any race discrimination against Black people under the 13th Amendment. The Supreme Court would later adopt Harlan’s broad framework in Jones v. Alfred H. Mayer Co., which held that Congress’ power extends to outlawing modern-day practices that are a legacy or outgrowth of slavery, even if they are imposed by private actors. Established legislation under the 13th Amendment includes prohibitions against racially motivated violence, conspiracies to interfere with civil rights, and discrimination in the sale of property, education, employment, and contracts.

The racist roots of formal policing in America, in both the North and the South, make the case that the 13th Amendment applies. Through the institution of slavery, white supremacy birthed and nurtured modern-day policing. Police forces were created to perpetuate white supremacy. Formal policing in the South developed in the 1700s as slave patrols. The principal tasks of slave patrol policing were to terrorize slaves to deter revolts, capture and return runaway slaves, and discipline slaves who violated any plantation rules. Slave patrols had significant and unfettered power within their communities that derived from Slave Codes. Slave patrols would forcefully enter homes to look for criminal activity—harboring escaping slaves—or just because they could. This is all too familiar today. In Kentucky, Breonna Taylor was shot several times while asleep in her bed. In Texas, Atatiana Jefferson was shot and killed by a police officer while playing video games with her nephew in her living room. Botham Jean was shot and killed while eating ice cream in his living room by an off-duty police officer. Slave patrols had the authority to seize, punish, and return slaves who had left the plantation without written permission. This power to police Black movement persists today. Massive racial disparities exist in police traffic stops, stop and frisk, citations, and narcotic search warrants.

The same is true for the North. Modern policing in the North can be traced to the 1830s. During that time period, a formal police force was created to control low-wage workers, immigrants, and free Blacks who were labeled by police as dangerous—a false narrative of Black criminality that has remained to this day.

For over a century after slavery was formally abolished by the 13th Amendment, police were the master of ceremonies of Jim Crow. The Black Codes—criminal laws that applied only to Black people and were intended to control the Black body—allowed police to terrorize Blacks to enforce racial subjugation. These laws were deliberately crafted to return Blacks to slavery by a different name: convict leasing, in which the state imprisoned Black people and leased them to work for private companies without pay. Police developed coercive techniques to get innocent Blacks to confess to crimes they did not commit. One such technique was torture. Specifically, public lynchings emerged in the 1890s to “extract a confession by whipping or burning” the Black body. Police not only sanctioned this practice, but often participated in the mutilation of Black flesh. In Brown v. Mississippi, where admitting coerced confessions as evidence at trial was finally ruled unconstitutional, three Black tenant farmers were convicted for murdering a white planter. The only evidence of this crime was their confessions, which had been obtained through police torture that included repeated hanging and whipping of one of the defendants until he confessed. Police continue to use similar coercive techniques today to get Black people to confess to crimes they did not commit—and police rarely face consequences.

The passage of the Civil Rights Act of 1964, which formally ended Jim Crow, ushered in a war that targeted Black people with surgical precision: the war on drugs. Richard Nixon wanted to create a strong carceral state to control Black people—“the Angela Davis crowd,” as he put it. When you have a war that targets Black people, you need soldiers who are trained in anti-blackness: police. This war armed the police with the most sophisticated, and largely constitutional, arsenal to enforce racial subjugation: racial profiling, stop and frisk, pretextual stops, excessive force, and qualified immunity. Paul Butler refers to these as police superpowers. These superpowers perpetuate Blue-on-Black violence.

Some may look at this history and say it is evidence that we’ve come a long way. But the reality shows Blacks are disproportionately stopped by the police, searched by the police, and assaulted by the police and are much more likely to be killed by police during a routine stop. The fact that George Floyd’s murder inspired mass protests in dozens of cities across America underscores how police violence cannot simply be chalked up to one rogue officer, an isolated incident, or a few bad apples. Millions are recognizing the patterns. To date, reform measures have simply not worked. One frequently suggested remedy is reform in police hiring to focus on local citizens and accurately reflect the city’s population. Yet even in cities with police forces more representative of their populations’ racial diversity, the problem of police violence continues, in part due to fundamental failings of even “community policingreforms.

Police violence is systemic and can only be stopped by a systemic racial justice intervention. The 13th Amendment is built for this moment; it is a “tool for progressive political mobilization.” Congress can enforce the 13th Amendment by effectively abolishing racially discriminatory policing that exists today. What might this look like in practice? Many people feel nervous when they hear the word abolition, believing it demands the disbandment of all police forces overnight. But there are a number of common-sense legislative measures Congress has the authority to take that would transform policing. They could ban discriminatory policing practices such as stop and frisk, end qualified immunity, and disarm police of military weapons. To go further, legislators could approve reparations for victims of past police terror. They can withhold federal funds from all state and local law enforcement until these mandatory actions are taken: the creation of civilian commissions, which would transfer “power from the police to the communities most affected by mass incarceration,” as K. Sabeel Rahman and Jocelyn Simonson have written, giving communities “the ability to set policies, discipline officers, and control police budgets”; the implementation of implicit bias, sensitivity, and de-escalation trainings; and the development of a data system that accurately tracks race in police contacts, including traffic stops, citations, searches, warrants, use of force and killings, and arrests, as well as the officers involved. It could also decriminalize federal drug possession offenses and incentivize states to decriminalize minor offenses, including drug possession and traffic and quality-of-life violations; this step would help end the “broken windows” policing that has led to mass criminalization. Lastly, Congress could create a new division of the Department of Justice to investigate and prosecute civil rights violations by the police. This is important to avoid different branches in the DOJ reaching opposing conclusions on the same case, as we have recently seen with the police killing of Eric Garner. As it did with the Voting Rights Act, which targeted jurisdictions with historically racist election laws, Congress could also develop a preclearance formula that takes account of all these data points and directs this division to review before federal funding is released.

All of these steps would move us closer to a world where all communities have the resources they need to be safe—a world where police are simply not needed. This is something we all should embrace; it is a “world worth imagining.”