Friday, January 19, 2018

Slavery to Reparations

The Thirteenth Amendment and Interest Convergence

William M. Carter, Jr


Abstracted from: William M. Carter, Jr., The Thirteenth Amendment, Interest Convergence, and the Badges and Incidents of Slavery, 71 Maryland Law Review 21, 23-35, 39 (2011) (89 Footnotes Omitted).

Interest convergence theory reflects the legal realist perspective animating much of Critical Race Theory. Stated succinctly, interest  convergence theory posits that substantive legal gains for racial minorities seldom occur unless they converge or are perceived as converging with the interests of white elites. Professor Derrick Bell's formulation represents interest convergence theory in its strongest form:

The interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites. However, the fourteenth amendment, standing alone, will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle and upper class whites.

Interest convergence theory therefore rejects the notions of classical legal theory that idealism, abstract legal doctrine, or the deployment of novel legal strategies will bring about significant advances in civil rights.  While all of these may play a role, interest convergence theory holds that it is the actual or perceived alignment of the interests of the elite with those of the subordinated that is outcome determinative in achieving substantive justice.

Interest convergence theory has been controversial.  What has made it particularly controversial is the claim made by Professor Bell, and furthered by Professor Mary Dudziak, that Brown v. Board of Education  provides an example of interest convergence in action.  The  traditional narrative of Brown explains that equality and fairness finally triumphed in both law and public opinion over the forces of intolerance, leading to the Court's holding that “separate but equal” was inherently unconstitutional.  Both Bell and Dudziak argued, however, that global and national political considerations provide a more compelling explanation for the decision in Brown.  After all, as Professor Richard Delgado noted in advancing the interest convergence thesis, “‘[t]he NAACP had been litigating school desegregation cases for decades, losing each time, or winning, at best, very narrow victories. Then, in 1954, the skies opened. The Supreme Court of the United States held, for the first time in a school desegregation case, that separate is never equal.”’  Bell contended that the Brown decision came about because dismantling de jure segregation at that time was consistent with the interest of white elites. He asserted that the ideological struggle against communism and the potential for unrest among black servicemen returning from war counseled in favor of eliminating the glaring message of racial inequality sent by de jure segregation.  Dudziak expanded this thesis by uncovering historical documents showing that the United States government's intervention on the side of the plaintiffs in Brown was largely driven by geopolitical concerns:

[T]he international focus on U.S. racial problems [in the years following World War II] meant that the image of American democracy was tarnished. The apparent contradictions between American political ideology and practice led to particular foreign policy difficulties with countries in Asia, Africa and Latin America. U.S. government officials realized that their ability to sell democracy to the Third World was seriously hampered by continuing racial injustice  at home. 

Under this view, American apartheid ended only when it no longer served the material interests of white elites.

Because interest convergence theory is controversial, important nuances are often overlooked. Accordingly, three points will help to clarify interest convergence theory. First, interest convergence theory does not contend that individual whites perform a conscious calculus of whether certain advances in racial justice will work in their material self-interest. Rather, interest convergence theory suggests that whites are likely to react adversely to civil rights measures that they perceive as solely benefiting racial minorities.  Second, as to judges, interest convergence theory is not merely a variation on the theme that “all law is politics.” Rather, given the narrow segment of the mostly white elite from which federal judges (and especially Supreme Court Justices) are drawn,  interest convergence theory suggests their worldview and life experience will generally be such that remedies perceived as benefiting only people of color are unlikely to find their favor.  Third, interest convergence theory acknowledges that altruism can motivate some persons who have nothing directly at stake in a given controversy to nonetheless demand justice on behalf of others. As Professor Bell recognized, “there were whites for whom recognition of the racial equality principle was sufficient motivation [to work toward both school desegregation and the abolition of slavery]. But [in both situations], the number who would act on morality alone was insufficient to bring about the desired racial reform.”

* * *

Thirteenth Amendment jurisprudence can be analyzed through the prism of interest convergence. Doing so requires unpacking the various strains of Thirteenth Amendment doctrine because the appli  cability of interest convergence theory may be more or less persuasive depending on the context.

The most successful aspect of modern Thirteenth Amendment jurisprudence has been its extension to contemporary instances of coercion, such as human trafficking, involuntary confinement, and forced labor.  The operation of interest convergence theory in such cases is fairly straightforward. Prohibiting such practices aligns with the interests of white elites because any person of any race, given sufficient coercion, can (at least conceptually) be compelled to labor or confined against her will.

The Thirteenth Amendment's history demonstrates that, in addition to abolishing chattel slavery and compelled labor, the Reconstruction Amendments' framers intended to eliminate the lingering vestiges of the slave system.  However, there have been very few cases where courts have accepted the badges and incidents of slavery theory of the Thirteenth Amendment. The few cases that have done so can be viewed as instances of interest convergence.

The United States Court of Appeals for the Second Circuit's opinion in United States v. Nelson  provides a recent illustration of interest convergence with regard to the badges and incidents of slavery. Nelson arose out of the Crown Heights riots in New York City. According to the trial testimony, a car driven by a Jewish person struck two African-American children, one of whom died from his injuries.  After the accident, an angry crowd soon formed. One of the defendants made a speech urging the crowd to, among other things, “get the Jews.”  Members of the crowd subsequently spotted and targeted Yankel Rosenbaum, a Jewish man wearing orthodox Jewish clothing,  and some shouted “get the Jew, kill the Jew.”  Defendant Nelson stabbed Rosenbaum, who eventually died of his injuries.

The two defendants were convicted for violating 18 U.S.C. § 245(b)(2)(B), which makes it a federal crime to interfere with a person's enjoyment of public facilities on account of his race, color, religion, or national origin.  On appeal, the defendants argued that the statute exceeded Congress's power to enforce the Thirteenth Amendment insofar as it prohibited religious, rather than racial, hate crimes.

The Nelson court noted that the Thirteenth Amendment's prohibition of slavery and involuntary servitude is race-neutral and has been so interpreted by the Supreme Court.  As the court acknowledged, however, Jews are not thought to be a racial group in contemporary society.  Accordingly, even if the Thirteenth Amendment protects all racial groups, the court had to determine whether the Thirteenth Amendment protects non-racial classes.

The court reasoned that “race” is a “term of art” that is not necessarily limited to its contemporary meaning.  Thus, the court held the fact that Jews are not currently considered to be a distinct race “does not rule out Jews from the shelter of the Thirteenth Amendment.”  Indeed, as the Nelson court recognized, Supreme Court cases analyzing 42 U.S.C. §§ 1981 and 1982, statutes which are based on the Thirteenth Amendment, clearly hold that these statutes apply to Jewish persons.  Second, the court stated that Jews were in fact considered to be a distinct race at the time of the Amendment's ratification. Ac  cordingly, the court believed that the attack could be considered to have been motivated by the victim's “race” as that term would have been understood at the time the Amendment was adopted.  Finally, the Nelson court held that such hate crimes were badges and incidents of slavery, reasoning that “acts of violence or force committed against members of a hated class of people with the intent to exact retribution for and create dissuasion against their use of public facilities have a long and intimate historical association with slavery and its cognate institutions.”

Nelson can be seen as a case of interest convergence. The Nelson court itself alluded to this issue, noting with some apparent discomfort that it was “employ[ing] a constitutional provision enacted with the emancipation of black slaves in mind to uphold a criminal law as applied against black men who, the jury found, acted with racial motivations, but in circumstances in which they were, at least partly, responding to perceived discrimination against them.”  To be clear, I believe that Nelson was correctly decided and the attack at issue indeed imposed a badge or incident of slavery within the scope of Congress's enforcement power. I therefore do not, by suggesting that interest convergence theory may help explain Nelson, intend to imply that the result in Nelson was wrong. However, it seems plausible that the successful use of Thirteenth Amendment reasoning in Nelson was influenced by the fact that the court and Congress saw an instance where the Thirteenth Amendment would be as applicable to whites as to African-Americans in protecting them from racial violence.

Jones v. Alfred H. Mayer Co.  can also be analyzed through the prism of interest convergence. In Jones, an interracial couple alleged that the defendant's refusal to sell property to them because the husband was African-American violated 42 U.S.C. § 1982, which prohibits racial discrimination in the sale or rental of property.  After concluding that Section 1982 applies to discrimination by private individuals,  the Supreme Court further held that the Thirteenth Amendment provided Congress with the constitutional power to enact such a statute. The Amendment, the Court held, grants Congress the authority “to pass all laws necessary and proper for abolishing all badges  and incidents of slavery in the United States.”

To be sure, the Jones Court's reasoning was grounded in the unique harms segregation imposed on African-Americans. As the Court stated:

Just as the Black Codes, enacted after the Civil War to restrict the free exercise of [the freedmen's] rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.

Jones nonetheless also had a strong interest convergence component. By the time Jones was decided in 1968, widespread housing discrimination worked against both the national economic interest and the social interest of individual whites in public order and stability.  As to the national economic interest, racial discrimination against qualified black buyers had the effect of artificially limiting the demand for housing stock. The housing sector, of course, was and is an important component of the national economy, with many subsidiary businesses dependent upon it.  Moreover, by the time of Jones, widespread racial segregation was arguably no longer in the interest of  white elites due to the civil unrest it caused. As one of the briefs in Jones argued:

The riots and civil disturbances which plague our urban areas; the growing number of militant separatist movements; and the increasing alienation from the main stream of American life of many Negro Americans--all these have resulted in large part from segregated housing.

Jones, therefore, had a substantial interest convergence component. Unlike other circumstances where only the civil rights of a subordinated group are at issue (for example, the consequences of mass incarceration of the mostly black and brown poor),  widespread housing discrimination perceptibly posed substantial threats to the economic and material conditions of the country and individual whites.

By contrast, such strong interest convergence was lacking in cases where the badges and incidents of slavery theory has been unsuccessful. Consider two older cases, Palmer v. Thompson  and Memphis v. Greene.  In Palmer, the plaintiffs sued the city of Jackson, Mississippi, for maintaining segregated public facilities.  After a ruling that such facilities violated the Equal Protection Clause, the city desegregated its public parks, auditoriums, zoo, and golf courses.  The city refused, however, to desegregate its public swimming pools, choosing instead to close them all rather than integrate them.

Plaintiffs alleged that the city's action violated, inter alia, the Thirteenth Amendment as a badge or incident of slavery because it amounted to an official expression of the message that blacks were “so inferior that they [were] unfit to share with whites this particular type of public facility.”  The Supreme Court rejected the plaintiffs'  Thirteenth Amendment argument, stating that accepting their claim would require the Court to “severely stretch [the Amendment's] short simple words and do violence to its history.”

The Court also rejected a Thirteenth Amendment claim in Greene.  In Greene, the city of Memphis, at the request of residents of a predominantly white neighborhood, closed a street running through their neighborhood. The street closing separated the white area from the African-American area bordering it.  Residents of the African-American neighborhood sued, alleging, inter alia, that the city's actions imposed a badge or incident of slavery upon residents of the black neighborhood.  The plaintiffs' Thirteenth Amendment claim was grounded in the fact that the separation of the neighborhoods conveyed a stigmatizing message of blacks as “undesirable”  persons whose presence would disrupt and devalue the “tranquil []”  white neighborhood. The plaintiffs also submitted expert testimony regarding the negative psychological effects that the resultant segregation had on black residents, who would likely see the street closing as a “monument to racial hostility.”  The Court, while accepting that the Thirteenth Amendment reaches the badges and incidents of slavery, dismissed the Thirteenth Amendment argument in Greene in a single sentence: “To regard [the street closing] as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom.”

In neither Palmer nor Greene is interest convergence readily apparent. Palmer concerned the city's operation of a discretionary public entertainment facility with limited fiscal impact and benefits. Jones, by contrast, involved private discrimination that distorted a large and important sector of the national economy. Moreover, at an individual level, the harm of closing the pools in Palmer would be felt most strongly not by white elites, but by lower income (disproportionately minority) individuals who could not afford private swimming clubs or personal pools.  Similarly, in Greene, the de facto segregation caused  by the street closing worked in the interests of white elites, who would receive the financial and psychological benefits of living in an area designed and maintained “as an exclusive residential neighborhood for white citizens.”  Furthermore, the countervailing social forces providing interest convergence in cases like Brown or Jones were not nearly as strong in Greene or Palmer. By the 1970s and 1980s, the specter of the substantial urban unrest present at the time of Jones had receded. And while Cold War concerns of projecting an image of racial egalitarianism abroad were still present at that time, the passions of the moment were very different at the time of Brown in the early Cold War era during the open hostilities abroad and the Red Scare at home, than during the détente period of the 1970s and 1980s.

Similarly, interest convergence is lacking in many of the lower court cases rejecting badges and incidents of slavery claims.  In Rog  ers v. American Airlines,  for example, an African-American woman sued her employer, challenging a grooming policy that prohibited the wearing of braided hairstyles. She claimed that the policy imposed a badge or incident of slavery in violation of the Thirteenth Amendment. She argued that prohibiting a black woman from wearing an Afrocentric hairstyle reflected “a [slave] master mandate that one wear hair [in a manner] divorced from one['s] historical and cultural perspective [but that is instead] consistent with the ‘white master’ dominated society and [beauty] preference thereof.”  The court dismissed her claim, holding that the Thirteenth Amendment “prohibits [only] practices that constitute a badge of slavery and, unless a plaintiff alleges she does not have the option of leaving her job, does not support claims of racial discrimination in employment.”

It is difficult to locate any convergence of plaintiff Rogers's interests with those of white elites. Her claim, by definition, was unique to black women (or at least women of color) who are excluded from economic opportunities due to their unwillingness to conform to white beauty standards. Rogers involved what Kenji Yoshino calls a refusal to “cover”: that is, Ms. Rogers refused to accede to demands to “modulate her conduct to make [it] easy for those around her to disattend her known stigmatized trait.”  A demand to cover, of course, is only imposed on those possessing the stigmatized trait. Thus, eliminating the grooming policy's demand to cover in Rogers would presumably be of little benefit to those not possessing that trait. Accordingly, the interests of black women in a case like Rogers would be unlikely to converge to any significant degree with those of white women, white men, or even most black men, since “beauty” standards  operate very differently for women than men.

To be sure, the explanatory power of interest convergence theory has limits, and cannot fully account for developments in civil rights law. In particular, the schism in the Thirteenth Amendment case law regarding whether the badges and incidents of slavery are ever judicially cognizable under Section 1, or whether eliminating the vestiges of slavery is solely a congressional power under Section 2, provides an alternative doctrinal explanation for the differences in the cases discussed in this Part.  Jones and Nelson involved statutes where Congress had proscribed the conduct at issue under its Section 2 power,  as did the earlier Supreme Court cases upon which the Nelson court relied.  By contrast, Palmer, Greene, and Rogers (and many of the other lower court cases rejecting badges and incidents of slavery claims) involved plaintiffs asserting badges and incidents of slavery claims directly under the Thirteenth Amendment itself, not a statute enacted pursuant thereto.

Moreover, case law provides counterexamples where interest convergence was arguably present yet the plaintiffs' claims nonetheless failed. For example, Warth v. Seldin  is arguably contrary to interest convergence theory with regard to housing segregation. Warth, like Jones, involved attempts to integrate a segregated community. In Warth, the community was segregated by class, rather than race. The town of Penfield (a suburb of Rochester, New York), had a zoning law that prohibited the construction of low-income or multi-family dwellings.  Given the correlation between race and income, the beneficiaries of a change to the zoning policy would likely have disproportionately been racial minorities.  The plaintiffs in Warth consisted of  three groups: individuals who wanted to live in Penfield, but claimed they could not due to the lack of affordable housing; Rochester property owners who claimed that Penfield's exclusionary practices increased their tax rates since Rochester had to accommodate those in need of affordable housing; and home builders who wanted to construct such housing in Penfield.  Thus, the interest convergence in Warth was apparent in the coalition that brought the lawsuit. Moreover, many of the same factors that interest convergence theory would suggest were important in Jones (for example, the magnitude of the housing sector as a portion of the American economy) would seem to be equally applicable in Warth. But the Warth Court dismissed their claims for lack of standing, holding that plaintiffs could not prove that the ordinance caused their alleged injuries.

While this Article recognizes the limits of interest convergence theory, * * * attention to interest convergence provides at least a partial explanation for the different results in the cases discussed above.

* * *

Negro Peonage and the Thirteenth Amendment (1904)

From: Comment, Negro Peonage and the Thirteenth Amendment, 13 Yale Law Journal 452 (June, 1904) (Comment)


No little interest has been aroused by Judge Speer's recent decision in the District Court at Savannah (United States v. McClellan, 127 Fed. 971), maintaining the application of the Thirteenth Amendment to uphold the constitutionality of the statutes of 1867 against peonage, and their prohibition of recent attempts to obtain forced labor from negroes to work out debts. This incipient system of compulsory labor, with its partial return to ante helium conditions, would seem to have met with a large measure of approbation among leaders in public affairs in the State. One of the defendants was the sheriff of the county where the negro in question was seized; members of Congress and other prominent men were active in behalf of the defense; the opinion makes allusion to the political aspect of the questions involved. For this reason the case has an interest quite out of proportion to its legal importance, for it is difficult to conceive that it could ever be successfully maintained that involuntary servitude within the literal meaning of the Thirteenth Amendment was not charged by the indictment, on a demurrer to which the case came before the court.

It is a more plausible proposition that the statute of 1867, passed as it was to check the New Mexican system of peonage then in operation, was not intended to have any such result as that sought, but on this point, as on the other, the well-rounded arguments of the court carry conviction. A rigid and impartial interpretation of these provisions, which represent a large part of the tangible results of our Civil war, will, it is to be hoped, check practises which, *453 however much they may be approved by local opinion, are undoubtedly looked upon throughout the country as a whole as obnoxious to the spirit of our institutions.

In this connection, it may not be out of place to note some of the attempts which have been made to limit or extend the application of this Thirteenth Amendment. It is hardly necessary to allude to the effort made in the Slaughter House Cases, 16 Wall. 36, to include within “involuntary servitudes” monopolies created by law in occupations which, in the absence of statute, would be lawful for the public. In Tyler v. Heidorn, 46 Barb. 439, an interesting but futile attempt was made to apply the amendment to invalidate an obligation to pay an annual rental in bushels of wheat in accordance with the covenant of the grantee of the land concerned. On the ground that begetting a bastard child had been made a misdemeanor it has been held not unconstitutional to compel the father to work out fines under bastardy proceedings. Myers v. Stafford, 114 N. C. 234. And a State constitutional provision substantially similar to the Thirteenth Amendment has been held not to be contravened by a statute providing that a wilful failure by a laborer without just cause to reasonably fulfill his contract should render him liable to fine or imprisonment. State v. Williams, 32 S. C. 583. Again, the employment at labor of a person committed to a city prison, crediting him with one dollar a day on the judgment against him is not repugnant to the Amendment. Topeka v. Boutwell, 53 Kan. 20. On the other hand, in Thompson v. Bunton, 117 Mo. 83, a statute authorizing a vagrant, unconvicted of crime, to be hired for six months to the highest bidder, was declared a contravention. An exceptionally salutary application was made when it was held in Re Sah Quah, 31 Fed. 327, that the customs prevalent in Alaska of slaveholding and enforced servitude among the native tribes were not only contrary to the terms of the Amendment, but also subject to its provisions.

As has been intimated, it is its connection with the race question in the South which lends to the recent peonage case its chief importance. As long as the cleft between the races remains so broad, as long as the memories of negro slavery remain so vivid, as long as the negro race itself remains in a condition of such widespread ignorance, courts will undoubtedly have to deal with efforts such as are involved in this case to nullify in part the constitutional requirements on this subject. It will be generally agreed that, aside from the purely legal phase of the question, to permit such practices would have an unhealthy influence, and would tend to the postponement of the solution of one of our most vital as well as most difficult national problems.

Prisoners, Sexual Slavery and the 13th Amendment

alvaro hasani

From:  Alvaro Hasani, ‘You Are Hereby Sentenced to a Term Of...enslavement?’: Why Prisoners Cannot Be Exempt from Thirteenth Amendment Protection, 18 Barry Law Review 273, 274 (Spring, 2013) (180 Footnotes).

“Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim.”  -U.S. Supreme Court Justice Harry Blackmun, 1980.

*274 I. Introduction

Slavery inside United States' prisons, sexual slavery in particular, has become an unfortunate reality. Judges, legal scholars, and human rights organizations have all confirmed its existence.  But because prisoners are generally incapable of eliciting society's sympathy, their effort to combat slavery inside prisons has gone virtually unnoticed. Arguably for the same reasons, many have turned a blind eye to available legal remedies. For instance, the Thirteenth Amendment to the United States Constitution, along with the statutes passed to enforce it, should be instrumental in abolishing this particular type of slavery. Yet, some courts have held, incorrectly so, that prisoners are completely barred from bringing Thirteenth Amendment claims as a result of the ““Punishment Clause” contained therein.

This Article argues that, notwithstanding one's moral perspective toward prisoners, it is undeniable that the Thirteenth Amendment not only affords prisoners its full protection but should be instrumental in abolishing the atrocities of prison slavery.  Furthermore, the notion of providing relief to prisoners by way of the Thirteenth Amendment is admittedly not wholly altruistic. The truth is, as will be more fully discussed herein, curtailing sexual slavery inside prison walls has significant benefits for society at large. This Article will thoroughly describe the societal benefits of ending prison slavery and comprehensively explore the inherent conflict between the Eighth and Thirteenth Amendments to the United States Constitution.

Part II of this Article will describe the existence of prison slavery as corroborated by prisoners, judges, columnists, and human rights organizations. It will then illustrate the societal benefits of abolishing its existence. Part III will attempt to demonstrate that the evidence of dominance and coercion inside prison walls does indeed meet the general definition of slavery as defined historically and jurisprudentially under both United States and international law. Part IV will chronicle the history of the Thirteenth Amendment and provide a survey of cases dealing with “punishment” under the Eighth Amendment in order to assess how courts should interpret the “Punishment Clause” in the Thirteenth Amendment. Part V will argue that prisoners are not exempt from the Amendment's full protection because, pursuant to its textual interpretation as well as case law, prison slavery cannot be considered a form of punishment. Otherwise, the claim would be inconsistent with our developed theories of punishment. In carefully considering all of these arguments, Part VI will expose an apparent conflict between the Eighth Amendment and the Thirteenth Amendment to the United States Constitution. This conflict, however, should not prove fatal for enslaved inmates seeking legal *275 redress. Finally, Part VII will demonstrate why the Thirteenth Amendment, no matter how novel a theory, is best suited to abolish the atrocities of prison slavery and should be fully utilized to serve that purpose.

II. Prison Slavery

As might be expected, the inmate community, notwithstanding their confinement, has established its own culture  comprising of values, norms, standards of conduct, and strict procedures for enforcing adherence thereto.  Enslavement of inmates by other inmates is regrettably firmly solidified in this culture.

Unfortunately, public awareness regarding slavery in prison is lacking. Indeed, when one contemplates the nature of slavery and its traditional meaning, it is difficult to consider how it would materialize inside prison walls. Yet, because of the media's portrayal of life inside a prison,  most people today are aware of the prevalence of sexual assaults among inmates. It is this form of demonstrated dominance and its implications inside the prison culture that leads to enslavement. While the connection between sexual assault and enslavement is not readily apparent to the general public, the quote at the beginning of this Article is illustrative of this phenomenon. As Justice Blackmun explained, an “inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim.”  Dominance through threat of sexual assault renders the inferior inmate property of his or her assailant. This amounts to slavery and is unfortunately all too common in our prisons.

A. The Story of Roderick Johnson

Roderick Johnson was a prisoner in the Texas prison system.  entered prison in early 2000  after bouncing a check for $300,  a violation of his probation for a prior nonviolent burglary.  Almost immediately upon his arrival, *276 Johnson, a homosexual effeminate black man, was violently raped.  Shortly thereafter, a prison gang member named Hernandez proclaimed ownership of Johnson and forced him to become his sexual servant, even renting him out to perform coerced sexual acts for other inmates.  Johnson's sexual services, which included oral and anal sex,  would cost other inmates anywhere from $3 to $7 in cash,  cigarettes, or reciprocal favors.  Johnson believed that if he refused to perform these sexual services, his health would be put in jeopardy on account of Hernandez having previously beaten him to the point where medical attention was required.  Even when Johnson was moved to a different building, he was bought and sold by other gang members, and beaten and raped on a daily basis.  He was simply “property” in the plain sense of the meaning of the term.

Prison officials ignored Johnson's cry for help.  Instead of taking remedial measures to protect Johnson from his torment, certain officials advised him to stand up to the gang members, noting that “[t]here's no reason why Black punks can't fight and survive in general population if they don't want to fuck.”  Officials also remarked that because Johnson was a homosexual, he probably enjoyed the sexual assaults he experienced.  Johnson's ordeal lasted the entire eighteen months of his incarceration.  Subsequent to his incarceration, Johnson brought a section 1983 claim against the prison officials asserting violation of his Eighth Amendment rights and the Equal Protection Clause.  No Thirteenth Amendment claims were brought.  The case was ultimately dismissed for failure to exhaust administrative remedies.

B. The Story of Michael Blucker

Not all instances of prison slavery involve gay men. Michael Blucker was a straight 24-year-old married man when he was imprisoned in an Illinois state correctional facility for a nonviolent crime.  Shortly after his arrival, Blucker was *277 beaten, raped, and forced into sexual slavery by his fellow inmates and even prison guards.  The first time he was raped, Blucker was alone in his cell when three inmates, including his cellmate, encircled him, choked him with an electrical cord, and proceeded to sodomize him while threatening him with two makeshift knives.  All three took turns.  Following the ordeal, Blucker's “cellmate rented him out” as a sex slave to other inmates in the prison.  Astonishingly, even prison guards were alleged to have participated in this ordeal.  It was asserted that, in at least two instances, prison guards paraded Blucker from cell to cell, where he was raped and forced to perform sexual services for inmates who would pay his prison guard pimps.  As a result of the reoccurring rapes, Blucker ultimately contracted HIV.  In Blucker's suit for damages, the jury was unable to reach a verdict.

C. The Story of T.J. Parsell

In his memoir entitled FISH: A Memoir of a Boy Inside a Man's Prison, T.J. Parsell describes his experience with prison slavery as a straight man entering the Michigan prison system at the age of 17.  Parsell was imprisoned in an adult facility for robbing a store with a toy gun, the result of a ““stupid prank.”  His first day there, he was drugged and gang raped.  if that was not enough, when they were done, the inmates, who had violently raped him, flipped a coin to see to whom he would belong throughout the remainder of his sentence.  Parsell described his experience while testifying at a hearing in front of the National Prison Rape Elimination Commission:

I didn't last 24 hours before an inmate spiked my drink with Thorazine and then ordered me down to his dorm. Even with the drug's heavy effect, it was the most agony I had ever experienced. They knocked me out of the bed and nearly suffocated me as they shoved my head into a pillow to muffle my screams One of them grabbed my hair and smacked me and pulled my head down *278 while the others took turns sodomizing me. When I choked on my own vomit and gasped for air, it only made them laugh My rectum bled for several days, but I was too afraid to come forward, even to see a doctor I just wanted to do my time and get out alive. Everyone knew that snitches were killed It takes only one or two violent rapes before you start compromising.

The agony experienced by Parsell extended beyond the physical.  He went on to explain that the inmates involved in the rape had “stolen [his] manhood, [his] identity and part of [his] soul.”  Subsequently, he became a drug addict in an effort to “‘drown out the memories and pain.”’  Naturally, being gang raped and enslaved scarred him in ways that could not be seen or imagined.  

Sadly, the stories of Johnson, Blucker, and Parsell are far from unique. Consider Kendall Spruce, a bisexual man who was raped by more than twenty different inmates during his incarceration at the Arkansas Department of Corrections between January of 1991 and December of 1991.  After reporting the first rape, officials placed Spruce in protective custody, though this transfer did nothing to protect him from further attacks.  Spruce was labeled a “faggot” as a result of this victimization, and prison officials blamed the rape on Spuce's sexual orientation, claiming that he probably enjoyed being raped.  There is also Keith Deblasio, a gay man incarcerated for fraud at a federal prison in West Virginia.  After filing several claims against prison officials, Deblasio was transferred to a higher-security prison in Michigan in retaliation for his actions.  While there, he contracted HIV as a result of being repeatedly raped by gang members who threatened to stab him.

And there is Stephen Donaldson, an activist who in 1973 was placed in a Washington D.C. jail for two days as a result of trespassing at the White House in order to protest U.S. policy in Southeast Asia.  During those two days, Donaldson was gang-raped approximately sixty times and passed on to numerous inmates, ultimately contracting HIV.  He died of complications from AIDS in 1996.

*279 D. Enslavement of Female Inmates

It is important to note that while the aforementioned cases of prison slavery involved only men, females are by no means immune. In fact, 46% of all sexual abuse victims in state prisons are women.  One study has shown that in female correctional facilities, sexual coercion is prominent and varies in rates of 6% to 27%.  Females are especially vulnerable due to the risk of being sexually harassed, molested, fondled, pressured and forced into sexual intercourse by prison guards—the very people entrusted to protect their wellbeing.  For instance, female inmates in a California federal penitentiary have alleged that they were beaten, sexually assaulted, and sold by prison guards as sex slaves to male inmates.  Likewise, many female inmates in the District of Columbia testified that they too had been sexually assaulted by prison guards.  Incredibly, for female inmates, allegations of sexual enslavement and abuse extend beyond the walls of prisons. For example, female inmates at a Hawaiian correctional facility alleged that prison guards conducted a prostitution ring at the nearby hotels and forced inmates to serve as call girls.  It appears that the prison culture of enslavement and sexual abuse does not discriminate between the sexes.

E. Statistics

The aforementioned anecdotal evidence of prison slavery is not uncommon and its existence can be corroborated by statistical evidence. Admittedly though, accurate and factual statistics relating to prison rape are “notoriously difficult to generate.”  Feelings of shame and disgust contribute to difficulties in collecting vital data,  And because of these factors, victimized inmates are hesitant to disclose their ordeal to prison officials or through sexual violence studies.  Indeed, one such study based on the inmate population of Nebraska State prisons found *280 that approximately 50% of inmates who are raped do not confide in anyone and only one out of ten inmates actually tells the medical staff.

Another reason for not disclosing rape incidents has to do with the prison code and the potentially deadly result of its breach.  Many prisoners choose not to disclose the fact that they have been raped out of fear of retaliation.  In fact, it was stated by Judge Seiler of the Missouri Supreme Court in State of Missouri v. Green that an inmate's “life wouldn't be worth ‘a plugged nickel”’ if he reports to prison authorities the fact that he has been raped and upon report “he ‘was as good as dead.”’

The lack of reliable prison records also adds to the uncertainty of the data that is collected.  Accordingly, any data that purports to represent the existence of rape and slavery inside prisons is undoubtedly skewed and does not fully express the gravity and nature thereof. Thus, the rate of sexual assaults inside prisons is probably higher than current estimates.

Nevertheless, with this caveat in mind, the United States Congress has conservatively estimated that at least 13% of all inmates in the United States have been sexually assaulted.  The figure suggests an estimated 200,000 inmates, presently incarcerated, have been or will, in all likelihood, be victims of rape.  The figures, as Congress found, further suggest that over one million inmates have been raped in the past two decades.  When considering these rates annually, 4.4% of prison inmates and 3.1% of jail inmates of both sexes reported one or more incidents of rape involving either inmates or prison guards.  While these statistics are alarming, other studies have concluded that when considering an inclusive definition of sexual assault, reported victimization rates actually increase up to *281 20%.  So the numbers are even higher than those previously reported. Therefore, these numbers are astonishing particularly when considering that only 50% of rape victims actually report the incident.

While these statistics pertain specifically to rape and make no express reference to slavery, reports have shown that “‘sexual slavery following rape is an ordinary occurrence.”’  Scholars have noted that the “initial rape commonly serves as the first step in what prisoners refer to as ‘turning out’ the victim, which frequently resembles a form of slavery.”  Therefore, the available evidence of sexual assaults inside prisons is indicative of the prevalence of slavery since they are existentially linked to one another.  Simply put, sexual slavery inside prison walls is an epidemic.

F. Benefits of Curtailing Prison Slavery

It is indeed difficult to sympathize with individuals that society has deemed to be too dangerous or unfit to roam about freely. It is certainly understandable to question any effort that would attempt to give effect to the rights of prisoners. Yet, we should not be too quick to disregard the forsaken. After all, the function and ultimate goal of our correctional facilities is to ““correct” the behavior of its inmates.  Indeed, some have suggested that we ought to regard our prisoners as having a disease and use our correctional facilities as a place for treatment:

We shall look on crime as a disease, and its physicians shall displace the judges, its hospitals displace the galleys. Liberty and health shall be alike. We shall pour balm and oil where we formerly applied iron and fire; evil will be treated in charity, instead of in anger. This change will be simple and sublime.

The treatment of criminals, some have argued, may even be the true measure of a nation:

*282 The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation [[sic] of any country. A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.

Nevertheless, even if one is not fully persuaded by this humanitarian narrative of the treatment of prisoners, it is the close proximity between the free society and the incarcerated that should justify the advocacy for prisoners' rights. As Judge Posner has explained:

[W]e should have a realistic conception of the composition of the prison and jail population before deciding that they are scum entitled to nothing better than what a vengeful populace and resource-starved penal system choose to give them. We must not exaggerate the distance between ‘us,’ the lawful ones, the respectable ones, and the prison and jail population; for such exaggeration will make it too easy for us to deny that population the rudiments of humane consideration.

Whether we like it or not, prisoners are part of our society and when freed, they become part of our community. As previously explained by the story of T.J. Parsell, the effects of prison slavery go far beyond physical consequences and may lead to antisocial behavior that will undoubtedly have an overall effect on the community.  Naturally, many inmates victimized by sexual abuse become violent aggressors.  Some of them rape other prisoners preemptively out of fear of being raped or they may even kill their initial assailants.  This aggressive behavior will undeniably spill over into our community. Even lawmakers have recognized that “often non-violent first time offenders, come out of a prison rape experience severely traumatized and leave prison not only more likely to commit crimes, but far more likely to commit violent crimes than when they entered.”  Therefore it is *283 in society's best interest to curtail prison slavery if only to prevent its adverse impact on our community.

Curtailing prison slavery would have an even larger impact on our community. It has been noted that AIDS is rampant among U.S. prisons.  It constitutes the second leading cause of death for prisoners after natural causes.  An estimated 25% of the U.S. population living with HIV passes through the correctional system annually.  In the year 2000 alone, New York prisons held one-quarter of all known HIV-positive prisoners.  The reason why there is a high concentration of HIV-positive individuals in prison has to do with their lack of access to preventative measures.  For instance, because inmates have no access to latex barriers for practicing safe sex, they often relegate to using makeshift barriers from rubber gloves or plastic bags.  This leads to the contraction of HIV. And, because HIV is not readily detected, when HIV-positive prisoners are released into the community they transmit the virus without even knowing they had contracted it.  Accordingly, putting an end to prison slavery is essential to ensure the health and safety of not only inmates but also society at large.

III. Definition of Slavery

In presenting the evidence of sexual assaults and the subsequent sexual coercion of inferior inmates, this Article has reflexively categorized the conduct as slavery. However, because slavery has a long and complex legal pedigree that can result in draconian legal consequences, we must be sure that any conduct described as slavery satisfies the elements of the crime as it has been defined, both historically and jurisprudentially. Therefore, in order to get the full protection of the Thirteenth Amendment, one must first demonstrate that the sexual coercion and dominance that occurs in prisons amounts to slavery as contemplated by the Thirteenth Amendment.

Black's Law Dictionary defines slavery as “[a] situation in which one person has absolute power over the life, fortune, and liberty of another.”  Some have argued that pursuant to this definition an inmate cannot be considered a slave *284 because he or she was not captured and restrained by his or her assailants.  Indeed, it is the government that has denied his or her freedom through due process.  However, this argument ignores the fact that within the correctional facility an inmate's freedom of movement is further limited by his or her masters, i.e., the inmates that exert dominance over them.  Therefore, pursuant to this definition, an inmate who is subjected to sexual coercion by another inmate and whose rights, no matter how inherently limited, are further restricted, amounts to a slave. A slave is also “a person who is wholly subject to the will of another, one who has no freedom of action and whose person and services are wholly under the control of another, and who is in a state of enforced compulsory service to another.”  Certainly this definition applies to those cases previously discussed where an inmate in an inferior position, because of the use or threat of physical injury, is wholly subject to the will of other inmates and forced to provide compulsory services, such as sex or labor.  Even under international law, inmates in such situations can be considered slaves.  For instance, the 1926 Slavery Convention defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”  Clearly, this encompasses prison slavery.

Notwithstanding these definitions, the Supreme Court of the United States has explained that the purpose of the Thirteenth Amendment is to “abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit.”  Clearly, even if one is not fully convinced that sexual slavery in prison is actual “slavery”, the Supreme Court's assertion that all incidents of slavery are prohibited should suffice to establish that the Thirteenth Amendment prohibits the existence of slavery as it has materialized in United States' prisons.

Having thus far illustrated the existence of slavery within prison walls and the critical need to abolish it, the following sections assess whether the Thirteenth Amendment could be instrumental in achieving this goal.

IV. The Thirteenth Amendment

The Thirteenth Amendment to the United States Constitution provides in part:

*285 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

It was first introduced in the House of Representatives on December 14, 1863 and then in the Senate on January 13, 1864.  The Amendment was ultimately ratified by the required number of states and recorded by the Secretary of State on December 18, 1865. “‘The version of the amendment that ultimately prevailed’ was written by the Senate Judiciary Committee using ‘language that closely paralleled the slavery provision in the [[Northwest] Ordinance [of 1787],’ which prohibited slavery ‘in areas north of the Ohio River.”’  Despite the Amendment's significant implications and objectives, little consideration was given to its actual text.  As one scholar explained, “‘[i]n the end, the amendment's text was selected more for its symbolic significance than for its ability to state the members' intention with exactness.”’  The Supreme Court echoed this sentiment when it remarked that the Amendment's “two short sections seem hardly to admit of construction, so vigorous is their expression and so appropriate to the purpose we have indicated.”  This lack of specificity, however, has previously contributed to misapplication and may be responsible for the current misinterpretation of the Amendment.

For example, two years after the ratification, Congressman John Kasson urged Congress to clarify the scope of the “Punishment Clause” because it had become evident that states were taking advantage of this clause in order to maintain slavery.  One scholar explained, “judges across the country were evading the requirements of the Thirteenth Amendment by enslaving blacks ‘as a punishment for crime.’ [and that] these ‘inferior tribunals [would] order that a man shall be sold at a public auction, and call that an execution of a legitimate sentence.”’  In fact, according to Kasson, one advertisement contained the following bold caption: “NEGROES TO BE SOLD AS A PUNISHMENT FOR CRIME.”  As a result, *286 Kasson introduced the following joint resolution in hopes of clarifying the Amendment:

[T]he true intent and meaning of [the Thirteenth Amendment] prohibits slavery or involuntary servitude forever in all forms, except in direct execution of a sentence imposing a definite penalty according to law, which penalty cannot, without violation of the Constitution, impose any other servitude than that of imprisonment or other restraint of freedom according to the usual course thereof, to the exclusion of all unofficial control of the person so held in servitude....

Kasson further attempted to clarify that “punishment” under the Amendment:

[T]here must be a direct condemnation into that condition under the control of the officers of the law like the sentence of a man to hard labor in the State prison in the regular and ordinary course of law, and that is the only kind of involuntary servitude known to the Constitution and the law.  

While Kasson's joint resolution passed in the House of Representatives, it was postponed indefinitely in the Senate.  The failure to clarify the Amendment should not, however, be construed as establishing Kasson's interpretation to be incorrect or that the Senate did not agree with it. Indeed, there is evidence from the floor debates in the House that the Senate's inaction could have resulted from the difficulty in determining whether Congress actually had the authority to change constitutional provisions without the Supreme Court's approval or whether the Court was the more appropriate venue to interpret the Amendment.

A. The “Punishment Clause”

Because Kasson's resolution was not adopted, the “Punishment Clause” remained ambiguous. Courts have taken it upon themselves to interpret its meaning. Evidently there is widespread consensus among the judiciary that the Thirteenth Amendment does not provide prisoners protection from hard labor, since it expressly authorizes involuntary servitude as punishment for a crime.  This is understandable. After all, Congress, in adopting the Amendment, sought to *287 abolish antebellum slavery but was cautious not to curtail the power of the states to punish criminals.  That appears to be the limited purpose of the clause, although some courts have lost sight of Congress' aim and have consequently misinterpreted the Amendment.  These courts have erroneously held that prisoners are completely exempt from Thirteenth Amendment protection.  

For instance, in Van Hoorelbeke v. Hawk, the plaintiff brought a Thirteenth Amendment challenge claiming that the denial of medical care and lack of recreation rendered him a slave to the institution.  Plaintiff brought a Thirteenth Amendment challenge claiming that the denial of medical care and lack of recreation rendered him a slave to the institution. The court held that even assuming that the plaintiff's injuries were recognized by the Thirteenth Amendment, “prisoners are explicitly excepted from that amendment's protection. Thus [the plaintiff] has no rights under the Thirteenth Amendment and cannot claim any violation.”  Likewise, the Second Circuit in Jobson v. Henne, unequivocally held that prisoners “are explicitly excepted from the [Thirteenth] Amendment's coverage.”  Seemingly, these courts have determined that the plaintiffs' claimed injuries were inflicted as part of their punishment. Anything different would suggest that the claimed injuries, while not expressly a component of the punishment, are in fact incidental to punishment and still within the bounds of the Thirteenth Amendment exception. Regardless, in either instance, the ultimate result is misguided.

1. Prison Conditions as Incidental to Punishment

Nevertheless, however misguided the logic may appear, courts have previously relied on this “incidental to punishment” theory to determine what constitutes punishment under the Eighth Amendment.  For example, in United States ex rel. Smith v. Dowd, the plaintiff challenged his imposed sentence as a violation of the Thirteenth Amendment.  Apparently, the trial court had imposed a ten-year sentence for carjacking but added the penalty of life imprisonment because of the plaintiff's status as a habitual offender.  The plaintiff appealed his life sentence because it included a term of involuntary servitude.  Thus, he argued that because the life sentence was a punishment for his status as a habitual offender, and not a *288 punishment for a specific crime, any forced labor would violate his Thirteenth Amendment right.  The court disagreed.  It held that the “penalty is imposed as an incident to a conviction of crime and in our opinion is punishment for crime excepted from the prohibition of the Thirteenth Amendment.”

Similarly, in Estelle v. Gamble, the U.S. Supreme Court established that one's punishment is not limited to one's actual sentence since prison conditions are inherently part of the punishment.  The Court held that the government was obligated to care and provide for those whom it is punishing by incarceration and concluded that claims of deliberate indifference in the administration of the inmate's medical care were sufficient to state an Eighth Amendment claim.  In so holding, the Court presumed that prison conditions were a component of one's punishment.  This line of reasoning continued in Rhodes v. Chapman, where the Court noted that “[i]t is unquestioned that ‘[c]onfinement in a prison is a form of punishment subject to scrutiny under Eighth Amendment standards.”’

2. Punishment Requires Intent

In Wilson v. Seiter, the U.S. Supreme Court suggested that punishment requires some form of intent.  Justice Scalia explained that “[i]f the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify.”  Justice Scalia then quoted Judge Posner as noting:

The infliction of punishment is a deliberate act intended to chastise or deter. This is what the word means today; it is what it meant in the eighteenth century [I]f [a] guard accidentally stepped on [a] prisoner's toe and broke it, this would not be punishment in anything remotely like the accepted meaning of the word, whether we consult the usage of 1791, or 1868, or 1985.

Under the Court's jurisprudence, punishment always requires a mental state: It is imposed intentionally by a legislature or a sentencing judge, or by a prison official through her deliberate indifference. Prison conditions, no matter how harsh, can never qualify as punishment without inquiring into the mental state of a prison official because the Eighth Amendment outlaws not ““cruel and unusual ‘conditions,”D’ but “cruel and unusual ‘punishments.”D’  Ultimately, the Court held *289 that in order for prison conditions to constitute punishment pursuant to the Eighth Amendment, one must prove intent to inflict punishment on the part of the prison official.  

3. Punishment is Limited to the Sentence Imposed

Certain Justices, Clarence Thomas in particular, have advocated for a very narrow understanding of the meaning of “punishment” in the context of the Eighth Amendment. In Hudson v. McMillian, Justice Thomas dissented from the majority and noted that “punishment” in the context of the Eighth Amendment only applies “to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration.”  Justice Thomas, therefore, believed that prison conditions that may befall a prisoner are not part of the prisoner's punishment because those conditions were not part of the initial sentence.

In a later case, Justice Thomas used Congressional intent to bolster his point of view. In Helling v. McKinney, the majority held that inmates' involuntary exposure to tobacco smoke could form a basis for Eighth Amendment relief.  In his dissent, Justice Thomas reasoned that during the ratification of the Eighth Amendment, the term “punishment” only “referred to the penalty imposed for the commission of a crime.”  He noted that there was no “historical evidence indicating that the framers and ratifiers of the Eighth Amendment had anything other than this common understanding of ‘punishment’ in mind.”  Justice Thomas further explained that the term “cruel and unusual punishment” was derived from the English Declaration of Rights of 1689, which was exclusively enacted to prohibit “sentencing abuses of the King's Bench” and nothing more. “Just as there was no suggestion in English constitutional history that harsh prison conditions [were considered to be part of]'punishment,' the debates surrounding the Bill of Rights were silent” on the issue of whether the Eighth Amendment was concerned with more than sentencing abuses.

V. Prison Sexual Slavery is Neither a Form of or Incidental to Punishment

A. Textual Interpretation

When considering the text of the Thirteenth Amendment and recent interpretations of “punishment,” it becomes abundantly evident that decisions holding that prisoners are unequivocally exempt from the protection of the Thirteenth Amendment are fundamentally erroneous.

*290 The Thirteenth Amendment to the United States Constitution prohibits the existence of slavery or involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”  Obviously, inmates subjected to slavery inside the prison walls were not sentenced to this form of punishment. The title of this Article conveys the absurdity of this notion. Therefore, the literal and logical reading of the Amendment does not bar prison inmates who have been victims of sexual slavery or any form of slavery from asserting the Amendment's full protection.

B. Requirement of Intent

Arguably, these prisoners also retain the Amendment's full protection if we embrace the interpretation of “punishment” as suggested by Justice Scalia in Seiter or Justice Thomas in McMillian and McKinney. For instance, in Seiter, Justice Scalia noted that “punishment” requires some element of intent by either the sentencing judge or the prison official.  As Judge Posner explained, “if [a] guard accidentally stepped on [a] prisoner's toe and broke it, this would not be punishment in anything remotely like the accepted meaning of the word [because punishment] is imposed intentionally by a legislature or a sentencing judge, or by a prison official.”  Under this legal framework,  a victimized inmate is barred from raising a Thirteenth Amendment challenge only if the onslaught of sexual assaults and coercion was an intended consequence of the imposed sentence. Certain outcomes are indeed intended consequences of any imposed prison sentence.  Those include the restriction of freedom, the restriction of movement, and the restriction of certain choices to name a few.  This is obviously not the case with prison slavery since sexual assaults and slavery cannot be said to be an intended consequence of an imposed sentence.

Even if we accept the interpretation of punishment as contemplated by Justice Thomas in McMillian and McKinney, victimized inmates should still retain the Thirteenth Amendment's full protection.  As Justice Thomas explained, punishment is limited to one's sentence and prison conditions cannot be considered a component of the imposed punishment.  Again, no one convicted in modern history has ever been sentenced to a term of enslavement. Certainly, no current inmate is serving any type of sentence to justify his enslavement by other inmates. The mere difference between Justices Scalia and Thomas' interpretation of *291 “punishment” is that Justice Scalia believes that even prison officials have the power to impose punishment, whereas Justice Thomas believes that only the legislature and judges are capable of imposing punishment. In either instance, inmates should retain their Thirteenth Amendment protection against prison slavery. Remarkably, the irony of Justices Scalia and Thomas' decisions is that while their holdings were meant to restrict inmates' legal rights for purposes of the Eighth Amendment, the holdings at the same time expand or at least clarify inmates' rights under the Thirteenth Amendment.

C. Incidental to Punishment

The only plausible explanation for prohibiting prisoners from bringing Thirteenth Amendment claims has to do with the notion that prison conditions that may befall a prisoner, be it rape, slavery, or involuntary servitude, are all incidental to their initial punishment and fully contemplated to be a component of their sentence. As we saw in Gamble and Chapman, the Court established that one's punishment may exceed one's actual sentence since prison conditions are inherently part of the punishment.  Again, as evident with Justices Scalia and Thomas' opinions, while the holdings in Gamble and Chapman attempted to expand inmates' rights under the Eight Amendment, the holdings restrict their rights under the Thirteenth Amendment since prison conditions that befall an inmate are considered part of the inmate's punishment. However, the “incidental to punishment” rational should not apply to prison slavery since it would render superfluous certain text of the exception clause of the Thirteenth Amendment. Clearly, if prison conditions were a part of a prison sentence, the framers of the Amendment would have simply excluded prisoners from its full protection without specifically referring to “punishment for crime.” Arguably, the framers included the phrase ““punishment for crime” because they only contemplated the actual sentence of the prisoner and not necessarily any condition that may befall him as a consequence of his incarceration. Otherwise, the “punishment for crime” text would be superfluous since they could have simply referred to prisoners being categorically exempt from the Amendment's protection.

Moreover, the “incidental to punishment” framework cannot apply to prison slavery because it is inconsistent with our fundamental principles of punishment.

In the U.S. judicial system, justification for punishment is based on the Utilitarian and Retributive theories.  The Utilitarian theory of punishment suggests that there is a societal benefit served through punishment by incorporating the principles of deterrence, rehabilitation, and isolation.  In considering prison slavery, the purpose of the utilitarian theory of punishment cannot be served and is inconsistent with the notion of prison slavery as punishment. Certainly, the purpose of rehabilitation would not be served. There is no conceivable scenario where an *292 inmate will become rehabilitated as a result of sexual assaults and sexual coercions. If anything, the enslavement of inmates will cause more harm than good as was evidenced by the story of T.J. Parsell, wherein because of his enslavement and the resulting emotional scars, a former inmate became a drug addict in order to cope with his torment.  The same could be said with respect to isolation and deterrence. One does not need to enslave an inmate in order to isolate him from society. Indeed, the mere incapacitation as served by the inmate's actual imprisonment is sufficient to achieve the objective. Some may argue that prison slavery would indeed serve the purpose of deterrence. Certainly, some would be deterred from committing crimes based solely on their concern that they will be enslaved once they are imprisoned. However, this is a weak argument at best. First, there are legitimate concerns as to whether deterrence actually works since we currently have a high rate of recidivism.  Second, if deterrence works, the mere fact of incapacitation, restriction of movement and freedom, should be sufficient to deter the general public without having to rely on a regime of enslavement of inmates. Accordingly, using the utilitarian calculus, prison slavery does not seem to advance the principles of punishment.

The retributive theory of punishment is not concerned with societal benefit but merely attempts to inflict punishment just because the individual has committed the offense.  Using this approach, the punishment inflicted must be equal to that of the moral gravity of the offense.  This simply means if punishment is greater or more severe than what is deserved for the offense, then injustice has resulted.  Seemingly therefore, retributive theory of punishment is also inconsistent with prison slavery as an imposed form of punishment. This is so because, as already discussed, the enslavement of inmates is an unfortunate occurrence to even those inmates that are imprisoned for minor crimes. Consider, for example, the story of Roderick Johnson who was imprisoned after bouncing a $300 check and subsequently forced into sexual slavery for the remainder of his eighteen-month sentence.  Consider also the story of Stephen Donaldson who was jailed for trespassing and subsequently raped over sixty times during his two days in jail.  Surely, the rape and enslavement of these young men could not be said to have been equal to their offenses, i.e. bouncing a $300 check or trespassing. For this reason, slavery in prison cannot be consistent with our retributive theories of punishment, particularly when considering most enslaved inmates are usually weaker inmates who committed minor offenses as opposed to hardened criminals *293 who have the capacity to murder and rape. Unfortunately, while prison slavery may be considered an equal punishment for these hardened criminals, they are in all likelihood not subjects of enslavement because they can protect themselves and fight back.

All of the aforementioned theories of punishment have now been codified in a federal statute known as the Sentencing Reform Act:

[In a federal prosecution, a] court shall consider the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

The court must impose a sentence sufficient, but not greater than necessary, to comply with these purposes.  Again, prison slavery is inconsistent with any of these goals. As the Supreme Court has explained, “gratuitously allowing the beating or rape of one prisoner by another serves no ‘legitimate penological objectiv[e]’, any more than it squares with the ‘evolving standards of decency.”’

VI. Conflicting Amendments

In considering how “punishment” has been interpreted under the Eighth Amendment and attempting to apply it in the context of the Thirteenth Amendment, it has become apparent that a conflict may exist between these two very important Amendments to the United States Constitution. For example, as previously mentioned, while Justices Scalia and Thomas' framework was meant to restrict inmates' legal rights for purposes of the Eighth Amendment, it at the same time expanded their rights under the Thirteenth Amendment since prison conditions are not considered a part of their punishment. Thus, the “Punishment Clause” would not apply, permitting the Amendment's full protection. Similarly, while the holdings in Dowd, Gamble and Chapman attempted to expand inmates' rights under the Eighth Amendment, the holdings restricted inmate rights under the Thirteenth Amendment because prison conditions that befall an inmate are considered part of the inmate's punishment. The “Punishment Clause” being fully applicable would, therefore, theoretically not afford inmates protection of the Amendment.

The conflict between these two Amendments should not come as a surprise. The inherent friction is textually obvious. For example, conduct violates the Eighth *294 Amendment only if it amounts to punishment.  By contrast, conduct violates the Thirteenth Amendment only if it does not amount to punishment, because of the punishment exception clause.  Therefore, such conduct cannot violate both the Eighth and the Thirteenth Amendment. They conflict. However, this conflict may be merely academic. Certainly, it would not adversely impact an inmate's substantive legal rights. Even if an inmate brings a Thirteenth Amendment challenge, thus maintaining that prison conditions were not part of his imposed sentence, he would not forgo his Eighth Amendment rights. Indeed, the inmate's claim may include a Thirteenth Amendment challenge and an alternative Eighth Amendment challenge in the event that the court holds that prison conditions are considered part of the inmate's sentence. Demonstrably, an inmate has a better chance of arguing both claims rather than just one.

VII. The Thirteenth Amendment is Superior to Any Other Legal Remedy for Purposes of Abolishing Slavery Inside Prison Walls

Some may argue that determining whether or not prisoners may utilize the Thirteenth Amendment's protection is an unnecessary endeavor. They may note that rather than embarking on a novel theory of relief, enslaved prisoners should employ already proven legal theories such as tort claims, Eighth Amendment, and Fourteenth Amendment challenges. However, the Thirteenth Amendment is superior to such legal remedies for purposes of abolishing slavery inside prison walls.

A. Private Tort Claims

With respect to private tort claims, it is plausible that enslaved prisoners may bring actions against their assailants for the sustained injuries or against prison officials for failing to protect them. However, such actions may have fatal consequences as established by prison culture. Truth is, reporting or disclosing the identity of the assailant places the reporter's life in jeopardy. As Justice Blackmun explained, an inmate's life “isn't worth a nickel” if he reports to prison authority the fact that he had been raped.  Indeed T.J. Parsell noted that “everyone knew that snitches would get killed.”  Apparently, any legal remedy that requires an enslaved inmate to initiate the challenge is extremely risky due to the culture's aversion toward “snitches.” Effective relief would, therefore, have to be provided *295 without the efforts of the enslaved inmate. This is precisely why the Thirteenth Amendment is better suited for abolishing prison slavery. Indeed, the Thirteenth Amendment imposes an unequivocal duty upon states to abolish slavery within their borders when they become aware of its existence. As one scholar explains, as soon as a state became aware of the existence of “de facto slavery within its borders,” the state has an obligation to end it.  This standard obliges the state to take proactive measures rather than reactive ones. These proactive measures will ensure that prison slavery is abolished or at least curtailed. Additionally, because it is the state's burden to abolish slavery, enslaved inmates will no longer have to risk their lives to seek relief in order for their torment to end.

B. Eighth Amendment Challenges

The Eighth Amendment, while it obliges prison officials to protect inmates from harm, is ineffective in curtailing prison slavery. The “deliberate indifference” standard serves as an obstacle to this ultimate objective. Pursuant to Eighth Amendment jurisprudence, liability could be imposed upon a prison official for the deliberate indifferent denial of human conditions of confinement only if it is established that the “official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”  This specific knowledge requirement fails to properly incentivize prison officials to end prison slavery and in fact may prove as an incentive for them to ignore the matter altogether.  Indeed, because liability is imposed only when prison officials are subjectively aware of the incident or threat thereto, they are not encouraged to take proactive measures to prevent enslavement.

Furthermore, the complex nature of prison slavery is not suitable for Eighth Amendment challenges. For instance, the Eighth Amendment requires officials to act only when they know of an “excessive risk to inmate health or safety.”  However, the nature of sexual slavery, for instance when a weaker inmate “consensually” submits to a stronger inmate out of fear of physical injury and thereby appears to enjoy his master's company, may indicate to a guard that no excessive risk exists.  Under these circumstances, the appearance of consent and lack of overt violence may conceal the actual risk.

*296 Even if we assume the Eighth Amendment is capable of motivating prison officials to take proactive steps in curtailing prison slavery, it imposes no duty to do so on other state actors. Seemingly, the Eighth Amendment does not impose any duty on state actors such as prosecutors.  Indeed, prosecutors almost never prosecute inmates who rape or enslave other inmates.  The Thirteenth Amendment, however, imposes an affirmative duty on states to abolish slavery and because prosecutors are agents of the State, the Amendment's scope encompasses their prosecutorial discretion. This would undoubtedly lead to more prosecutions of prison enslavement.



VIII. Conclusion

This Article has shown that prison slavery is an unfortunate reality in American prisons. Its impact is troubling not only to the victimized inmates but also to the society at large. Accordingly, if not for the condemned, it is imperative that every effort is taken to abolish prison slavery for the benefit of our community. As it has been shown, current available remedies are insufficient and ill-suited to combat this problematic phenomenon. Therefore, the Thirteenth Amendment, no matter how novel a theory, must be fully utilized to alleviate the torment and agony of the forsaken and ensure the health and safety of the free.

Private Prisons and the Thirteenth Amendment

Ryan S. Marion


From:  Ryan S. Marion, Prisoners for Sale: Making the Thirteenth Amendment Case Against State Private Prison Contracts , 18 William & Mary Bill of Rights Journal 213 (October, 2009) (282 Footnotes)


Prison overcrowding has evolved into a critical social problem. Per capita, the United States incarcerates more individuals than any industrialized nation in the world. In 2006, for example, the number of people “under supervision” in the nation's criminal justice systems topped 7.2 million. As a result, states spend billions of dollars to house, supervise, and counsel inmates. Adding to this problem, criminal law reform is slow and often nonexistent, and states have been forced to find other ways to remedy the burden that incarceration places on taxpayers and treasuries.

Starting in the 1980s, one such remedy has been for states and localities to enter into contracts with private corrections construction and management firms. These companies are publicly traded and exist solely for the purpose of making profits from prison contracts with local, state, and federal authorities. In fact, Corrections Corporation of America (CCA), the oldest and most well-known private prison company, is listed on the New York Stock Exchange and recently reported nearly $1.5 billion in total revenue. CCA's success led to the creation of similar entities across the United States, taking the private prison industry from a one-man show to a billion dollar market in just two decades.

To grasp the constitutional concerns presented by the private prison industry, one must first understand how it makes a profit. First, a state or locality, either by statute or decree, approves a new prison and solicits bids from private prison companies. Once a prison company secures a contract, it builds the type of correctional facility requested and operates it for the government. The latter task requires the prison company to hire personnel (e.g., prison guards, wardens, and psychologists) and provide the same services as a state-owned prison. Criminal justice scholars and legal professionals have generally commented on the benefits of privatization, stating that competition among firms results in better facilities for the inmates as well as lower costs to taxpayers.

Private prisons also mimic their public counterparts in one interesting aspect: prison labor. As in state jail, prisoners confined by the state to a privately owned facility must perform menial tasks for little to no pay. The point of such work, consequently, is reformation and rehabilitation. By doing such work in the private context, however, prisoners directly contribute to the profit-making function of the corporation. At the very least, therefore, inmate labor in private prisons constitutes “involuntary servitude.” If the state is characterized as “contracting out” inmates to these corporations who subsequently aid the prison in earning corporate revenue, the system begins to resemble a modern day form of slavery.

The Thirteenth Amendment states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Since its passage, the “Punishment Clause” has been a bane for prisoners who argue that they are being subjected to conditions resembling slavery or involuntary servitude. Finding support from the Slaughter-House Cases, federal courts have held that the main purpose of the amendment was specific-to abolish African-American chattel slavery and its incidents. As such, the Punishment Clause renders any current prisoner's argument that they are slaves or involuntary servants void and frivolous. In these cases, the Court either implicitly assumes or directly states that private prison inmates have no Thirteenth Amendment claim without further elaboration.

This Note argues that, given the history of the Thirteenth Amendment and the current state of private prison contracts, inmates working in these privately owned and operated facilities do indeed have a constitutional claim. The Punishment Clause does not, in fact, justify the current relationship between government entities and private prison companies. In its current form, the state is handing over control of prisoners to private companies who, in turn, use the prisoners to improve their facilities and increase profits, thus indirectly benefiting these companies' shareholders. Such a system of private, unpaid use of labor too closely resembles the slave system that the Thirteenth Amendment sought to abolish, and was not the punishment scheme envisioned by its drafters when they carved out an exemption for convict servitude.

The argument will proceed in several parts. Part I will outline the development of the penitentiary system in the United States by focusing on how the private sector has been used to aid the state in its responsibility to rehabilitate and punish criminals. The Thirteenth Amendment's contributions to prison organization, the Southern “convict leasing” system that resulted, and the modern private prison industry's emergence will also be discussed, along with the Supreme Court's early Thirteenth Amendment jurisprudence, which simultaneously killed and partially revived the amendment as a protector of civil rights.

Part II, discussing current judicial treatment of the Thirteenth Amendment, will outline the private prisoner's possible constitutional claim. Utilizing this discussion, this Note will contend that the Supreme Court would be justified in rendering the current private prison industry unconstitutional under the Thirteenth Amendment's prohibition against “slavery [and] involuntary servitude.”

Finally, Part III will propose a legislative solution, modeled on Virginia's administrative code, that will allow the private prison industry to exist and make profits while avoiding any suggestion that its existence violates prisoners' civil rights against slave-like, compulsory labor.

I. Private Corrections and the “Punishment Clause”: A History

A. Early American History to the Civil War

During the early colonial period, imprisonment itself was not even considered a form of criminal punishment. Instead, jails were simply holding areas where the accused awaited trial and the condemned awaited actual punishment, which could be the stockade, banishment, the gallows, or other such punitive measures. British colonial governments employed private citizens to build and subsequently run these jails. To supplement their usually meager fee, these jailers often took bribes, charged prisoners for meals, and provided cheap accommodations.

Nevertheless, these private jailer contracts, and the often undesirable outcomes that resulted from them, were accepted by the authorities due to the overarching need to cut housing costs. That same desired goal also paved the way for the primitive version of the modern corrections system. As early as 1555, England sought to decrease the cost of housing their debtors by assigning them to privately owned “workhouses.” Prisoners, during their brief period of confinement, would work to offset the costs of holding them as well as to supplement the jailer's small government salary.

Those in favor of such establishments, however, offered another, more powerful justification-that “confinement at productive labor [is] a means of checking vagrancy and other evils.” Indentured servitude as a method of criminal punishment and social improvement thus began its evolution and became so popular that it eventually established itself in the American colonies as well. The British Crown transported several thousand criminals to work off their debts to society on cotton and tobacco plantations, a practice that proved to be economically advantageous for the Empire while theoretically reducing crime in the mother country by removing its criminal elements. The colony of Georgia, in fact, was established as just such a penal colony for England's prisoners and poor debtors.

Finding merit in this vision of the prison as a redeeming institution, William Penn created a distinctively American philosophy on criminal punishment. Penn, Quaker leader and founder of the Pennsylvania colony, abhorred the traditional European view that only corporal and capital punishment were effective. Believing that the criminal could be redeemed if he were taken out of society and trained in good morals, Penn advocated for the use of the prison as punishment itself. In 1682, he pushed for the creation of “houses of correction as a major instrument of deterrence and justice.” This effort resulted in the Great Law of 1682, which required “‘every county within the Province of Pennsylvania and territories there unto belonging [to] build or cause to be built a house of restraint, labor and punishment’ for persons convicted by law.” Under this scheme, recouping the costs of housing prisoners became a secondary motive compared to the greater desire for the state to use work for rehabilitative purposes.

Following the American Revolution, the new Commonwealth of Pennsylvania expanded upon its founder's vision by building the first “penitentiary” in 1790. Considered a major reform in punishment at the time, the Walnut Street Prison required its inmates to work “in order to attack idleness, thought to be a major cause of crime.” The major difference between Penn's new rehabilitative penitentiary system and the punitive system that had previously existed, therefore, was that under Penn's system work was imposed to further the state's police power objective of enforcing public morals rather than create a private profit motive. As such, punishment and its accoutrements became state functions.

The “Pennsylvania” system of punishment, as it was called, became greatly accepted in the post-revolutionary period. The Pennsylvania system was more humane, uniquely American, and more in line with the Enlightenment ideals that informed the United States' founding. Penitentiaries were praised and readily adopted in nearly every state during the 1820 prison reform. In one 1829 report, for example, the City of Boston praised the penitentiary system, stating, “It is productive, it is healthful, it teaches convicts how to support themselves when they leave prison, it is reformatory, and is consonant with republican principles.” In putting the prisoner to work, reformers and legislators believed that they could resolve the country's crime problem by removing its criminals from their “corrupt” environments and transforming them into proper, productive American citizens.

In addition to rehabilitative labor, the Pennsylvania system also emphasized solitary confinement and silence among prisoners as part of their personal penances. Prisoners were not to make eye contact or speak to each other, and were to spend their time either working or studying the Bible. This isolation rendered prisoners' labor grossly inefficient and thus undesirable for the private sector. The Pennsylvania system was incompatible with the cooperative nature of private employment and with the hierarchy of management structures. As a result (and as intended), state officials became the sole controllers of prison labor.

The growing popularity of the penitentiary, however, soon created a system to compete with the Pennsylvania model: the Auburn system. Named after the Auburn Prison in New York and also called the “congregate” system, this model retained the rehabilitative motives of the Pennsylvania variant by requiring silence and segregation into private cells. However, solitude was eventually abandoned in favor of a “collective, factory-like,” form of labor. Whereas Pennsylvania-style prisons could produce only small amounts of household goods such as firewood, woven baskets, and repaired shoes, Auburn inmates were able to produce everything from factory-quality shoes to furniture. Recognizing the potential for recouping the state treasury, more states adopted the Auburn model during the nineteenth century, turning prison officers into factory managers whose main goal was to make the prison a self-sustaining entity via profit.

Despite the greater focus on prison labor as a profit producer, states insisted that officials retain their tight control over both the prisoners and the nature of their work. Reformation and reintroduction into society-not money-were the main drivers of penitentiary labor. This ideal remained true despite the fact that governments eventually encouraged more involvement from the private sector. States using both models would often award contracts for the sale of prisoners' goods and services, but ensured that the inmates were given fair pay (from which the cost of food, lodging, and clothes were deducted). In 1838, for example, the New Jersey legislature passed an act that required labor from inmates in order to offset the costs of prison upkeep and established for each prisoner an account from which wages and deductions were respectively credited and debited.

Even with the Auburn system's collaborative, more businesslike model, private entities were still discouraged from displacing the state in its role as controller of inmate labor. Though inmates could be leased out to perform services and their goods sold on the open market, the law ensured that any profits arising out of a contract with a private entity ended up in the state's hands. The relevant agency could then redistribute it to the state treasury and the prisoners as it saw fit. As Professor White comments, “[W]hile the Auburn system could profitably employ labor, it was only rarely that this involved direct private control.” The state still acted as a middleman between the prisoners and the private sector who wished to exploit their labor.

Moreover, all antebellum attempts to fully involve private industry failed miserably and were generally considered unwise. The most infamous example occurred in California. In 1852, the state converted a private prison ship in San Francisco Bay into the country's first privately constructed and operated prison-San Quentin. Only four years later, and despite the private contractors' contentions that cost-cutting justified their operation of the facility, a number of mismanagement scandals convinced the state government to take over the prison. A California newspaper even opined, “whatever it cost, a final end had to be put to the system of farming out the management of the state convicts.” This sentiment was in accord with the state's general perception that “regardless how much money it might save the taxpayers, a private contract was no way to run the state prison.” These sentiments indicate that, by the time the Civil War erupted in 1861, the American philosophy on punishment strongly favored the public prison to private inmate labor regimes.

B. The Thirteenth Amendment and “The Incidents of Slavery”

The next government action to affect prison labor originated from the need to rid the United States of its most ostensible form of oppressive labor control-chattel slavery. Largely rooted in notions of racial superiority, the South's slave system also provided the promise of acquiring social standing via the ownership of “human capital.” Poor whites often aspired to own slaves as a symbol of economic independence, and as a result, supported their wealthy counterparts' efforts to enforce anti-education and fugitive slave laws despite the fact that they were just as dominated by the plantation system.

Due to these cultural norms, the abolitionists and Radical Republicans who eventually gained control of the federal government recognized that simply ending the practice would not be enough to end “slavery.” Once the Emancipation Proclamation and the Civil War's outcome cemented slavery's demise, Congress began to debate the form and substance of the Thirteenth Amendment. Congress's main goal from the outset was to permanently end unpaid, unjustified, and coercive labor for the benefit of private parties (and everything associated with it) within the United States. One legal historian describes the legislators' attitudes in this manner:

The incidents of servitude that the Thirteenth Amendment wiped away were endemic to the entire culture. They were neither confined to plantations nor even just to the South. Constitutional protections for slavery percolated into accepted ruthlessness against blacks. They encountered barriers to freedom in their work, family life, child rearing, career pursuits, mobility, and entertainment. The Thirteenth Amendment ended all of these incidents of servitude and provided the United States Congress with the enforcement power to prevent them.

With the immediate goal of phasing out African slavery and the long-term goal of ending private oppression in general, the Radical Republicans set to work drafting an acceptable version of the amendment.

During the congressional debates, various legislators on both sides revealed their intentions regarding this amendment. Most importantly, they wanted language that would end chattel slavery once and for all. However, they anticipated that the Thirteenth Amendment would disallow the state from introducing new forms of involuntary servitude that resembled the former practice. Senator Henry Wilson, a lifelong abolitionist, stated:

[The Thirteenth Amendment] will obliterate the last lingering vestiges of the slave system; its chattelizing, degrading, and bloody codes; its dark, malignant, barbarizing spirit; all it was and is, everything connected with it or pertaining to it . . . . [The Amendment] will make impossible forevermore the reappearing of the discarded slave system, and the returning of the despotism of the slavemasters' domination.

Senator Wilson also had a strong belief that the Thirteenth Amendment should not touch only African-Americans but every citizen, a conviction reinforced by his upbringing. He was born on a poor farm in New England, and once had himself been “bound-out” by his family to earn money. In the House of Representatives, Representative Ebon Ingersoll agreed that the proposed amendment should also affect “the seven millions of poor white people who live in the slave States but who have ever been deprived of the blessings of manhood by reason of . . . slavery.”

The resulting text of the amendment became one of the most succinct-and broad-amendments in the United States Constitution: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Most current scholars agree, due to its broad language, the amendment was meant to apply “[w]henever one person improperly held another in bondage.” This implies that the drafters intended the Thirteenth Amendment to end any and all forms of bondage resembling the culture of private control that existed in the plantation slavery system.

As will be discussed in detail later, courts interpreting this amendment have used its inclusive wording to hold that the race of the individual has no weight as far as his or her protection against slavery and involuntary servitude is concerned. Whether the state or a private actor imposes that servitude has been held to be similarly irrelevant. The Thirteenth Amendment imposes a positive duty upon the states to eradicate de facto slavery whenever they recognize it within their borders.

A curiosity of this otherwise far-reaching amendment, however, is that it includes one exception that became quite important, especially in the South, for the status of prisoners and prisons themselves in the years following the Thirteenth Amendment's adoption. The Punishment Clause allowed involuntary servitude “as a punishment for crime whereof the party shall have been duly convicted.” This portion of the amendment is usually simply recited as part of the text, and hardly analyzed in court opinions or studies. It is either ignored or simply accepted as an absolute condition.

Several reasons may exist for its existence in the amendment. The first, and most easily acceptable, is that nineteenth-century prison labor was not considered an incident of slavery. The Southern slave codes deprived innocent people of pay for their work and the ability to choose their own lifestyle, receive an education, and enjoy the rights and privileges allowed to free citizens under the Constitution. It was this deprivation of life and liberty by private citizens, and upheld by the states, that the Thirteenth Amendment sought to excoriate from American soil. A similar motivation informed the drafting and passage of the Fourteenth Amendment's Due Process Clause. Prisoners, on the other hand, had to be convicted of a crime before they fell under the Punishment Clause's exception. Assuming that a prisoner has no claim to lack of due process, federal courts have largely been in agreement that the state is justified in depriving him or her of his life and liberty (which would include the right to choose the type of work performed and negotiate compensation).

There exists, however, an alternative and equally plausible reason for the inclusion of the Punishment Clause within the Thirteenth Amendment. Though slavery has been considered a form of punishment throughout history, the prison system as it developed in the United States separated those two concepts in the American mind-set. Punishment has both a rehabilitative and retributive purpose in American (and now largely Western) thought, whereas antebellum slavery valued dominion, financial gain, and retribution alone. In fact, Hallett claims the wording of the amendment itself created this cognitive separation. He writes, “That the American Thirteenth Amendment simultaneously abolished slavery and initiated ‘involuntary servitude’ in the United States speaks to the duality of slavery and punishment in the American context.” Unlike the ancients and Renaissance Europeans, who used slavery to punish offenders and prisoners of war, American history created a culture which treated slavery and criminal justice as completely dichotomous institutions.

C. The Post-Reconstruction Era, “Convict Leasing,” and Thirteenth Amendment Interpretation

The first real test of the Thirteenth Amendment came during Reconstruction. Embittered by their shattered agrarian economy and social structure, Southern states found the Punishment Clause to be an excellent loophole for reinstating the plantation economy and its racial hierarchy. “Convict leasing” was the first instance of total private control over the inmate's labor and person, but Southern legislatures nevertheless justified it by borrowing a line from the Pennsylvania and Auburn prison models. The devastated Southern economy left legislatures unable to bear the costs of prison upkeep, proponents argued, and thus inmates must be required to work to pay their own costs. Also, the South was in need of a large pool of cheap labor, making inmates a ready resource. Laws were passed allowing prisons to lease their prisoners out to plantation owners and other private firms, who provided for inmates' needs and controlled the type of work performed as long as they fulfilled their contractual obligations.

The actual, pernicious reason for the convict lease system, however, can be found in the way it gathered inmate laborers. Realizing that the recently freed slaves often had no homes and could not find a job, many Southern states passed vagrancy laws providing for the arrest and imprisonment of “‘[r]ogues and vagabonds, idle or dissolute persons, common night walkers, [p]ersons who neglect their calling,’ [and] ‘all able-bodied male persons over eighteen . . . who are without means of support.”’ While race was not specifically mentioned, this definition was meant to apply to (and was enforced against) African-Americans. A large number of African-Americans were consequently punished for their poverty, only to be leased out to white landowners and subjected to a condition essentially similar to the one they had endured under slavery.

These cruelties, combined with other private prison mismanagement and abuse scandals occurring in the late nineteenth and early twentieth centuries, caused the use of private contractors in incarceration to fall into disfavor. Curiously, however, the courts during this time period never intervened on Thirteenth Amendment grounds to stop convict leasing, the San Quentin affair, or the Arkansas inmate coal-mining incident. In fact, no cases were brought under this amendment in the prison labor context. This, however, may be largely due to America's viewpoint at the time regarding the purpose of the Thirteenth Amendment and the Punishment Clause's role in fulfilling it.

Although the Thirteenth Amendment's proper interpretation was questionable during Reconstruction, it received its first serious treatment by the Supreme Court in 1872-just as the era was drawing to a close. In the Slaughter-House Cases, a group of private butchers challenged a Louisiana statute banning animal slaughter in all but one section of New Orleans, which effectively granted a monopoly to one area slaughterhouse. As the regulation essentially required petitioners to work for the city or not at all, one of petitioners' arguments was that the law subjected them to “involuntary servitude” and hence violated the Thirteenth Amendment.

Justice Miller, writing for the majority, quickly dispensed with this argument. He responded to the butchers' claim by appealing to the legislative purpose. Giving modern readers a glimpse into Reconstruction America's attitudes, Justice Miller related the exact “purpose” to which he was referring:

[N]o one can fail to be impressed with the one pervading purpose . . . lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.

As slavery's abolition was the end to be achieved, Miller continued, protection of the butchers' interest in pursuing their occupation was invalid as a Thirteenth Amendment claim. The prohibition against involuntary servitude was meant only to end “slavelike relations,” and more specifically, those tied to the experience of African slaves in the United States.

In subsequent Supreme Court cases, Justice Miller's application of the Thirteenth Amendment was held to be authoritative when parties other than African-Americans sought relief for oppressive conditions. As such, the Court effectively inhibited the amendment's use as an expander of civil rights in the late nineteenth century. Restraint was, of course, both politically and culturally expedient at the time, as Congress and the nation were trying to end Reconstruction and its abolitionist ideals.

Justice Bradley's opinion in the Civil Rights Cases, known mostly for its rulings on the Fourteenth Amendment's scope, also affected Thirteenth Amendment jurisprudence by differentiating the two amendments from each other. The Thirteenth Amendment, Bradley argued, “simply abolished slavery” and gave Congress the power to regulate private individuals' actions in order to eradicate it. On the other hand, the Fourteenth Amendment gives the federal government the power to nullify state laws that either abridge citizens' privileges and immunities or deprive persons of life, liberty, or property without due process. This private/state action dichotomy rendered the two amendments “different,” and thus the Fourteenth Amendment could not be used to strike down slavery-related actions against the states.

From Slaughter-House's limitation of the Thirteenth Amendment to its historical purpose and the Civil Rights Cases' separation of it from state actions, the amendment became all but dead letter. With these two cases firmly rooted in American jurisprudence, the Fourteenth Amendment instead emerged as the major vehicle for civil rights protection, but even it was not successful until Brown v. Board of Education and the later passage of the 1964 Civil Rights Act. Indeed, Justice Bradley seemed stalwart in his conviction that the Thirteenth Amendment protected only the “fundamental” rights of African-Americans such as freedom and citizenship against their former masters. Consequently, the Court did not uphold the “social” rights of every American, such as the right to eat in a restaurant or, for this Note's purposes, the right to perform private work for wages.

Removing the Thirteenth Amendment from claims against the states, along with the Punishment Clause itself, may have caused the lack of response from the Supreme Court toward convict leasing and other attempts at the privatization of state punishment. There was, however, a glimmer of hope for those who took a more expansive view of the Thirteenth Amendment's potential. Even in the Slaughter-House Cases, after declaring the end of African slavery to be the Amendment's purpose, Justice Miller conceded that the Thirteenth Amendment could be utilized to shield other groups from economic exploitation. He wrote:

We do not say that no one else but the negro can share in this protection. . . . [I]t forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery . . . within our territory, this amendment may safely be trusted to make it void.

At least, then, the Supreme Court acknowledged that Congress did not intend for the amendment to stop at ending African bondage. Instead, its broad wording allowed future legislatures and courts to dismantle any system that may arise which resembled slavery.

Justice Harlan reminded the Civil Rights Cases Court of this feature of the Thirteenth Amendment in his dissent. He asserted that the federal government, by virtue of the amendment's second section, had the prerogative to rid the country of the “badges and incidents” of slavery and involuntary servitude. Even as early as 1867, Justice Chase held that “indenture” of any form was illegal as a violation of the Thirteenth Amendment and the Civil Rights Act of 1866, which was enacted under the amendment's enforcement section. The Thirteenth Amendment, he argued, established freedom “as the constitutional right of all persons in the United States.” The Thirteenth Amendment, therefore, was to be considered just as great a guarantor of freedom as the Fourteenth Amendment or any of the incorporated constitutional provisions.

As the twentieth century dawned, the Thirteenth Amendment had been rendered ineffective and convict leasing was in full swing. By the 1920s, however, the system was falling out of favor, but not due to Thirteenth Amendment concerns. Instead, white paid laborers felt that they were losing valuable opportunities to the cheap labor provided largely by black inmates. To address this problem, constituencies looked to the executive and legislative branches. In 1905, for example, President Theodore Roosevelt issued an executive order preventing federal agencies from contracting with convict labor on government projects. Congress later passed the Hawes-Cooper Act of 1929, allowing states to ban the importation of convict-made goods from other states. Responding to further pressure from suffering Americans during the Great Depression, the New Deal Congress passed the Ashurst-Sumners Act in 1935. This act not only banned convict-made goods, but also made their interstate importation a federal crime.

Due to these measures, convict leasing and private prison operation eventually faded away at the state level, though some form of it existed in Southern counties until the Civil Rights Era. From the early 1940s until the early 1980s, there was “virtually no private sector involvement in correctional services.” At both the state and federal levels, the operations and administration of prisons was “delegated to governmental agencies, authorized by statute, staffed by government employees, and funded solely by the government.”

Though this period was admittedly “brief” in American history and one not initiated by the federal courts using the Thirteenth Amendment, subsequent decisions from the 1940s to the 1980s revealed that the Court was changing its view on both the Amendment and its applicability to other servile and custodial relationships. Pollock v. Williams, decided by the Supreme Court in 1944, defied the Slaughter-House/Civil Rights Cases tradition and directly applied the Thirteenth Amendment to strike down a Florida statute. In fact, the Court found the Thirteenth Amendment argument to be so powerful, it did not even find it necessary to reach the petitioner's Fourteenth Amendment claim.

The particular statute in question was a so-called “peonage” law, which made it a state crime, subject to imprisonment and a fine, for a laborer to refuse to repay his employer's advance when leaving employment. A private corporation signed a contract with Pollock promising a $5 advance, but had not paid it by the time Pollock left the job. Despite this fact, Sheriff Williams and the State of Florida claimed that he was still under contract and thus subject to criminal penalty. The majority declared that the peonage law amounted to “involuntary servitude,” forcing a person to labor against his will, and thus was facially unconstitutional on Thirteenth Amendment grounds.

In the Pollock opinion, Justice Jackson, after finding the Thirteenth Amendment to be effective in invalidating laws requiring compulsory labor to pay off a debt or obligation, made an interesting observation on the Punishment Clause. Commenting on this exception for involuntary servitude, he stated:

The undoubted aim of the Thirteenth Amendment . . . was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States. Forced labor in some special circumstances may be consistent with the general basic system of free labor. For example, forced labor has been sustained as a means of punishing crime, and there are duties such as work on highways which society may compel. . . . Whatever of social value there may be, and of course it is great, in enforcing contracts and collection of debts, Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service.

The only form of forced labor compatible with the post-Reconstruction system, Jackson seems to be arguing, is public forced labor accompanying criminal punishment. Combined with the fact that Pollock was drafted during a time when control of the prison system had reverted completely to public authorities, the Court would have believed that such was the norm in criminal punishment as well as the one envisaged by the Thirteenth Amendment's drafters.

Another breakthrough came with the Court's 1968 decision, Jones v. Alfred H. Mayer Co. Handed down during the Civil Rights Era, Jones affirmed that the Thirteenth Amendment is a separate and effective tool in protecting civil rights-though maybe not as effective as the amendment that directly follows it. The majority, per Justice Stewart, utilized the “badges and incidents” language to find that citizens may bring discrimination claims against private actors under the Thirteenth Amendment and § 1982.

The Court did so by first asserting that the Thirteenth Amendment is self-executing: “‘By its own unaided force and effect,’ the Thirteenth Amendment ‘abolished slavery, and established universal freedom.”’ Second, in contravention to the Civil Rights Cases, the Court held that the Enabling Clause of the amendment granted Congress the unqualified power to abolish all institutions and practices resembling slavery instituted by public and private actors. Despite this victory for the Thirteenth Amendment, it came too late to address the problem of prison labor for private parties. By the 1960s, the state governments were back in control of the nation's ever-increasing incarceration rates. It would not be long, however, before new criminal issues and the sheer numbers of incarcerated citizens caused the states to seek new methods of imprisonment.

D. The Private Prison Boom in the 1980s

During the Reagan presidency, the United States famously announced its “War on Drugs.” Prior to the 1980s, drugs were considered more of a public health concern. President Reagan, however, advocated for stricter federal criminal laws against the production, possession, and distribution of narcotics. His efforts resulted in the passage of the Comprehensive Crime Control Act and the Sentencing Reform Act, which eliminated federal parole and established mandatory minimum sentences for drug-related crimes. While dramatically increasing the number of inmates in federal prisons, these acts also started a national trend for state politicians who wanted to be seen as “tough on crime.” By the end of the decade, the prison population of the United States had experienced a 115% increase.

The rise in prison populations and a harsher criminal justice system were complemented by yet another trend from the Reagan era: privatization. The widespread belief that the government should get “off the backs” of the American people extended from health care to trash collecting, and the criminal justice system was no exception. Believing that the rising prison population could be accommodated more safely and efficiently by competition in the marketplace, two prominent Tennessee politicians, Tom Beasley and Doc Crants, founded Corrections Corporation of America (CCA) in 1983. The concept was inspired by the federal government's first privatization project in 1979 when it hired a private company to construct and operate alien detention centers for the Immigration and Naturalization Service. Headquartered in Nashville, CCA currently controls a majority of Tennessee penitentiaries as well as the greatest portion of market share in private corrections nationwide. By the mid-1990s, CCA and its primary competitor, Wackenhut Corrections, controlled 75% of the private prison market. In 2007, CCA reported nearly $1.5 billion in net income. The company operates 65 prison facilities, including 41 entirely owned by CCA, in 19 states and the District of Columbia. In total, they have a design capacity of 78,000 beds.

The growth of entities such as CCA can be attributed directly to the states' perceived need for them as a cost effective response to the incarceration of an increasingly higher rate of criminals. After entering into contracts, states then begin shipping inmates to the new prisons, which may sometimes be out of state. By simply providing the contract money and not having to worry about salaries for prison guards or maintenance, states believe that private prisons provide large savings to their treasuries while still accommodating the ever-growing number of incarcerated criminal offenders. Also, private companies are perceived as more efficient in constructing and operating these facilities. Finally, these prisons are often considered cleaner and safer than their state-run counterparts. As a result, the number of state-contracted private prison inmates has risen almost every year since the industry's inception, reaching 87,860 in 2007. This was a 3.3% increase from the previous year, and constituted 7.4% of the state inmate population nationwide. An even higher increase is apparent in the federal prison system, with the number of private prisoners increasing by 12.1%. Given the history of its criminal punishment philosophy and the constitutional imperative to prevent private exploitation of citizens, it is appropriate to question this relatively new privatization trend in American criminal justice. Specifically, one must ask whether a privately held prisoner has a colorable claim against the state and the private prison corporation on the grounds that their incarceration and involuntary servitude violate the Thirteenth Amendment.

II. Making the Private Prisoner's Case for “Slavery and Involuntary Servitude”

A. The Plaintiff Prisoner's Standing

Before discussing the merits, it is essential to any constitutional claim to first establish standing-that the potential plaintiff has suffered an injury “fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” As state governments have subjected prisoners to private incarceration, a prisoner would most likely bring a Thirteenth Amendment cause of action under 42 U.S.C. § 1983. In other words, the plaintiff prisoner, to be successful, would first have to prove that the prisoner's predicament constitutes “slavery” or “involuntary servitude” in contravention of the Thirteenth Amendment. In both establishing standing and proving causation, the prisoner would also be required to show that this involuntary servitude is the result of the state's decision to contract with a private prison corporation.

B. The Private Prisoner's Thirteenth Amendment Claim

A § 1983 suit to uphold a modern private prisoner's Thirteenth Amendment rights, like Fourteenth Amendment actions, necessarily requires an analysis of his or her living and working conditions. Since avoidance of the Punishment Clause must be based on a historical argument, any parallel between modern private prisoners and antebellum slaves, Reconstruction-era leased convicts, or peonage workers is helpful. Admittedly, most of the prisoners' work is “housework and upkeep of the prison itself.” Some examples include laundry, cleaning duties, library staffing, and food service. Nevertheless, some private prison inmates do produce goods for private contractors as a result of the Percy Amendment, which exempted certain prisons from the Sumners-Ashurst Act's ban on prison-made goods. The Percy Amendment and most state contracts require only “a competitive wage,” usually commensurate with the wage paid to public inmates for the same work.

If one had only this cursory view of the private prisoner's work conditions, he or she might argue that a Thirteenth Amendment claim is at least irrelevant and at most ludicrous. Private prisoners perform only menial tasks, and certainly are not subject to the highway, chain gang-like work that prevailed in convict leasing and has reemerged in some public prison systems. Additionally, no serious legal argument could be made that these prisoners are being treated as property similar to antebellum slaves.

Indeed, many courts have adopted this narrow view of modern prison labor, deciding that the Punishment Clause renders the Thirteenth Amendment a nonstarter. In the private prison context, however, one must place the prisoners' remuneration and tasks performed in the context of the industry itself. Private prison companies are publicly traded entities. CCA, Wackenhut, and others have boards of directors, shareholders, and executives, all of whom depend on an influx of prisoners to make a profit. By living in, cleaning, and maintaining the prison, as well as engaging in other forms of labor either mandated or allowed by the state, the prisoners contribute to the success of these prisons at annual reviews and among popular perception. Additionally, prisoner labor reduces corporate costs, as CCA and others do not have to hire low-level staff to carry out menial tasks. Cost reduction does not, however, occur only in prisoners' labor. It is also apparent in their living conditions, with inmates receiving meager living conditions and less rehabilitative drug programs in an effort to turn profits. The resulting increase in profit margins renders the corporation more successful, and hence more attractive to state legislatures. Consequently, prison labor's contributions to the corporation lead to more state contracts, and thus further the profit-making objective of the corporation.

Hallett writes, “Under the auspices of prison privatization, crime and criminals become engines of private investment . . . . For shareholders in private prison companies, inmates have quite literally become commodities rather than liabilities.” Each shareholder in a private prison company, therefore, has an interest in ensuring that crime and criminal punishment remain high, and that the prisons are filled and well kept by prison labor. On the other hand, state taxpayers consider prisoners a drain on resources, giving them an incentive to pressure lawmakers to rehabilitate them and make them productive members of society.

Other relevant constitutional differences exist between the prisoner in a private facility and his public counterparts. Modern public prisoners, like those in the early Pennsylvania system, are put to work mainly to rehabilitate them and/or teach them a skill. Their low wage is due simply to their prisoner status. Private prisoners, however, are placed in cheap living conditions and put to work primarily to cut costs. Additionally, states hire, train, and equip the officers that oversee their correctional facilities. This renders the state liable for the actions of prison wardens, guards, and support staff under the “state action” doctrine for any civil rights violations. Private prison employees, on the other hand do not have the same status.

With all of these factors under consideration, one begins to formulate a Thirteenth Amendment case for the private prisoner plaintiff, even if he or she only sweeps the floors and cleans the bathrooms. After sentence is imposed, the prisoner, via a contract between the state and a private prison company, is sent to a private correctional facility. The prisoner is then made to work under the direction of prison guards hired by the corporate office for little to no wages. Also, the prisoner is forced to live in more meager conditions than state prisoners as a corporate cost-cutting measure. Finally, both their living and working conditions serve the notion that a private prison is cheaper and more efficient than the alternative, which helps the corporation secure more state contracts and increase the value of shareholders' investments.

At the very least, the private prison corporation in this scenario parallels the state contractors who took advantage of the vagrancy laws to gain cheap labor through convict leasing. At the worst, however, the exploitation of criminals' lives for profit is a “badge or incident” of slavery under cases such as Turner or Pollock. Whether one agrees or disagrees with these statements, all can agree that this situation is certainly not the “involuntary servitude” allowed by the Thirteenth Amendment's framers under the Punishment Clause.

C. Preparing for Trial: An Analysis of the Case Law

Since the private prison boom, courts have had varied attitudes toward the status of these new prisons and the Thirteenth Amendment. While no case addressing this precise issue has ever come before the Supreme Court, a number of federal appellate courts have had the opportunity to address Thirteenth Amendment arguments in relation to private prisoners. Nevertheless, the typical response is to entirely dismiss the issue. Relying on the notion, supported by Slaughter-House Cases and the Civil Rights Cases, that the Thirteenth Amendment is relegated to history, a federal court is more likely to move on to potential Fourteenth Amendment, Eighth Amendment, or statutory claims.

One early example is United States v. Olson. The defendants argued at trial that the war draft constituted a condition of involuntary servitude in violation of the Thirteenth Amendment. Borrowing exact language from an earlier Supreme Court case, the court stated that “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery, which in practical operation would tend to produce like undesirable results.” Without analyzing the specific condition imposed on American males by the Selective Service Act, the court moved on to the defendant's Fifth Amendment claim.

More recently, the Fifth Circuit Court of Appeals engaged in the same dismissive behavior. In Watson v. Graves, a Louisiana sheriff and prison warden instituted a work-release program in which prisoners could work outside the jail for private individuals or businesses. Two prisoners assigned to work for the sheriff's daughter and son-in-law sued under § 1983, claiming that the program violated the Thirteenth Amendment and the Fair Labor Standards Act (FLSA). In hardly one page, the court disposed of the prisoners' Thirteenth Amendment argument. To the contention that the Punishment Clause did not apply to the prisoners because labor was not imposed as a sentence, the court answered that it was irrelevant because the plaintiffs had not been subjected to involuntary servitude. The court stated, “Involuntary servitude is defined as ‘an action by the master causing the servant to have, or to believe he has, no way to avoid continued service or confinement.”’ Consequently, if the prisoner has a choice, there is no involuntary servitude. Combined with the Punishment Clause's general idea that “the requirement that incarcerated prisoners work without pay does not constitute involuntary servitude in violation of the [T]hirteenth [A]mendment,” then, the prisoners had no legitimate claim, and the court proceeded to the FLSA arguments. No discussion of the condition created by the work-release program, and whether it was a “badge or incident” of slavery as required by prior Thirteenth Amendment cases, ever occurred in the opinion.

Pischke v. Litscher stands as one notable exception to the general dearth of case law directly pitting the Thirteenth Amendment against the privatized prison system, albeit in dicta. Petitioner Pischke, a Wisconsin inmate, filed a habeas corpus petition with the local federal district court. He claimed that the Wisconsin statute authorizing the State to enter into contracts with out-of-state private prisons to house prisoners violated the Thirteenth Amendment. Chief Judge Posner affirmed the district court's denial of the petition, holding that “[t]he challenge here is not to being in custody, but to the location in which one is in custody.” Such arguments, he continued, are best brought as § 1983 challenges to the inmate's living conditions in private prisons. Though this determination adequately disposed of the case, Posner further warned, in dicta, that it would be “foolish” for the petitioner to attempt to refile his claim. By bringing a § 1983 claim under the Thirteenth Amendment, private prison inmates “will merely waste their money and earn a strike.” Defending his statement, Posner launched a full attack on the Thirteenth Amendment's applicability to private prisons:

The Thirteenth Amendment, which forbids involuntary servitude, has an express exception for persons imprisoned pursuant to conviction for crime. Nor are we pointed to or can think of any other provision of the Constitution that might be violated by the decision of a state to confine a convicted prisoner in a prison owned by a private firm rather than by a government. A number of cases assume the propriety of such confinements. . . .

The Seventh Circuit, as a result, effectively employed the Punishment Clause to foreclose prisoners-whether incarcerated by the state or a private entity-from ever bringing Thirteenth Amendment claims. “A prisoner has a legally protected interest in the conduct of his keeper,” Posner concluded, “but not in the keeper's identity. Let Wisconsin prisoners have no doubt of the complete lack of merit of their Thirteenth Amendment claims.” Interestingly, however, Posner's only support for this contention was that no court had “opined to the contrary,” and that one non-majority judge had “said the practice is constitutional.”

By far, Pischke is the strongest use of the amendment's language. The Fifth Circuit, for example, came to the same essential conclusion, but at least analyzed the Thirteenth Amendment claim and did not foreclose the possibility of a successful prisoner plaintiff. Later, in Loving v. Johnson, the court stated that prisoners fit the definition of “employees” under the FLSA when made to work for a private firm, but they could never be employees of the prison. Due to the fact that the inmate worked “in and for the prison” as a launderer, therefore, the court denied his FLSA claim. Nevertheless, the court still failed to discuss the prisoner's constitutional status when the prison and the private firm are one and the same.

Despite Posner's strict adherence to a strong Punishment Clause regardless of prison identity, the judiciary's history of considering punishment a state function, other circuits' failure to adopt uniform standards, and the Supreme Court's view of private prisons all suggest that the Supreme Court may disagree with Pischke. Instead of finding that identity of the incarcerator is irrelevant, the Supreme Court has clearly held that private versus public is an important distinction in the prison context. In Richardson v. McKnight, a prisoner in a Tennessee private prison sued his guards for a § 1983 violation. The guards responded that they were immune from such lawsuits under the doctrine of “qualified immunity,” as they were acting under color of state law. The Court rejected this argument, however, stating that “[h]istory does not reveal a ‘firmly rooted’ tradition of immunity applicable to privately employed prison guards.” As the private prison management “firm is systematically organized to perform a major administrative task for profit,” the state's contract “grant[s] this private firm freedom to respond to those market pressures through rewards and penalties that operate directly upon its employees.” Since these aspects of the private firm can control the behavior of employees, the immunity typically granted to a public prison guard as a government employee is unnecessary.

Two important aspects of Richardson must be mentioned with regard to a potential Thirteenth Amendment claim. First, the Court insulated the public prison system from liability for the actions of the private prisons with whom it contracts. Implicitly, then, the Court also recognized that private prison companies and states' departments of corrections are two different entities with different interests. As other courts have held, the government's interest is in rehabilitating the offender. The private prison, on the other hand, exists solely for profit. Given the Supreme Court's recognition of this function, it becomes easier to make the argument that, in the private prison's hands, an inmate plaintiff is subjected to slavery-like conditions. He is dehumanized to nothing more than a commodity-being sustained at a modest price while used to increase the value of CCA's, Wackenhut's, and similar companies' shares.

Second, Richardson creates the possibility of a claim against private prison officials for constitutional rights violations. If a private inmate can bring an action against the officials who hold him, unlike his counterparts in the public prison, one must ask which of the prisoners' rights render that distinction important and thus give meaning to this right to sue. As even the Seventh Circuit has held, prisoners are not “employees” as defined in the FLSA. Rights given to employees are obtained by contract, whereas prisoners have not contracted with either the state or the private prison company to perform services. Instead, prisoners have been “taken out of the national economy” to work toward their rehabilitation. The circuits are, therefore, essentially in accord with the idea that a prisoner never has the right to sue for labor rights.

In determining that the public-private distinction is immaterial regarding a prisoner's right to wages, Posner reasoned that “neither the rights nor the liabilities of a state agency should be affected by its decision to contract out a portion of the services that state law obligates it to provide.” Richardson, however, clearly holds that a state agency's liabilities are affected by its decision to send inmates to a private facility. Once the agency does so, it effectively requires the prisoner to seek relief against his private holders and not the state. Not only are these suits allowable, Richardson's public jail versus private prison distinction practically requires the inmate, if he wants to challenge his conditions, to sue the private corrections corporation or challenge its contract with the state under § 1983.

The isolation and liability of the private prison industry created by Richardson could prove extremely beneficial to an inmate seeking redress under the Thirteenth Amendment. Though the Supreme Court has held those who work in private prisons to be performing state action sufficient to satisfy § 1983, finding state action is irrelevant in the Thirteenth Amendment context. It regulates both private and public acts that create the “badges and incidents” of slavery. Regarding the prison work performed by private inmates, then, there is only one remaining question: If prisoners are not employees of the private firm, and they are not under state custody, what is their condition? The only plausible answer seems to be an illegal one-that of private indentured servants.

D. The Prisoner Plaintiff's Rights and Chances for Success

Under these circumstances, a Supreme Court claim for a private prisoner under the Thirteenth Amendment is at least plausible, if not potentially successful. Under Richardson, the state, when it performs its contract with the private prison firm, essentially removes the inmates from its purview when it requires their incarceration at sentencing and then transfers them to a private facility. It places them on private property under the supervision of private officers, who are treated by the Supreme Court as members of a profit-driven, cost-reducing system that does not share the public prison philosophy of rehabilitation and inmate reform. At least one circuit has held that a prisoner is an “employee” under FLSA when the state department of corrections sends him to work for a private firm. Nevertheless, they can never be employees of their prisons, either public or private, because “[p]eople are not imprisoned for the purpose of enabling them to earn a living.” The private prison thus exploits these prisoners to make profit with the state's permission, while the prisoners are legally forbidden from being considered its employees and taking part of that revenue. As such, their condition appears to be that of involuntary servants akin to antebellum slaves, the “Chinese coolie[s],” or “Mexican peonage” victims mentioned by Justice Miller.

Contrary to Pischke and similar cases, the legislative and judicial history of the Punishment Clause does not allow the establishment of involuntary servitude alone to dispose of the question. It allows a prisoner, duly convicted of a crime, to be compelled to work without pay during the period of incarceration. Nevertheless, the history of this clause in both Congress and the courts speaks against Posner's conclusion and holds that the incarcerator's identity does matter. The Punishment Clause was drafted at a time when criminal punishment was considered a function of the state, and was totally under the state's control.

As Justice Bradley noted in Pollock, forced labor is a punishment “which society may compel,” but otherwise labor in the United States must be free and voluntary. The Thirteenth Amendment was never meant to authorize criminals to be put to work against their will for a profit motive, as indeed that would violate the amendment's spirit at the time of its drafting. Instead, the exception was made due to the state's different motives in forcing a prisoner to work, i.e., rehabilitation and turning the prisoner into a prosperous taxpayer rather than a tax consumer. As private prison corporations' motives differ, the Court could consider their actions in housing and working inmates, and the state's actions facilitating them, to constitute a “badge or incident” of involuntary servitude similar to a convict lease system. The logical conclusion, then, is that state private prison contracts, and indeed the industry in its current form, violate the Thirteenth Amendment's prohibition against such activity.

III. Turning the Private Prison Public: A Proposed Solution

Despite the Thirteenth Amendment concerns, it is a bit unrealistic to call for the complete shutdown of the private prison industry. Its recent popularity and wide use would cause even the Supreme Court to pause at such a suggestion. It is, after all, a billion dollar industry. Additionally, these prisons have been lauded for bringing needed economic investment and jobs to poverty stricken rural areas. The good news, however, is that these prisons do not have to go away, or even lose profitability, in order to avoid Thirteenth Amendment concerns. As this Note has argued, the major historical and constitutional problem with incarcerating prisoners and putting them to work, as one California prison official has admitted, is that it is a “core state function.” If these prisons and their employees were brought under the purview of the state, therefore, the Thirteenth Amendment issue of private exploitation would dissipate. After all, the Thirteenth Amendment certainly allows the state to compel post-conviction involuntary servitude via the Punishment Clause. As the federal government and the states hold the responsibility for both their criminal punishment systems and procurement regimes, even the Supreme Court has recognized that legislatures must take action within their administrative codes to remove the taint of prisoner civil rights violations in private facilities.

For each state, there are statutes and/or provisions in its administrative code regarding the solicitation and award of prison construction and operation contracts. When these contracts were first distributed in the 1980s, the haste to privatize corrections led many states to be lenient in oversight and accountability standards. This has led to problems with prison guard training, abuse of prisoners, and corruption in the twenty-first century. Understandably, Reagan-era beliefs reinforced the notion that all the state had to do was pay the contract price, and the rest would be taken over by the private firm. The lack of oversight of private prison officials, however, was the impetus for Eighth Amendment, FLSA, and Thirteenth Amendment legal arguments that followed as well as the exposure to liability set forth in Richardson.

Nearly all states that allow private prison contracting require some form of reporting, usually that the prisons comply with the standards outlined by the American Correctional Association (ACA). Some scholars nonetheless scoff at this requirement since ACA accredited facilities are considered among the worst in the nation. Tennessee, the birthplace of CCA and the first state to privatize, has one of the most relaxed standards. The Tennessee Code explicitly states that the private firm, not the state, employs the guards and is responsible for them. The District of Columbia, possibly due to its small size and great need to send prisoners elsewhere, is also quite lenient in its standards, simply allowing prisoners to be shipped to any prison “operated or contracted for by the Bureau of Prisons.” In fact, D.C.'s administrative code goes on to list specific types and numbers of prisoners who will be committed to private facilities, with only slight mention of the status of private prison employees.

California is better in this regard, requiring reporting and sanctions if health and safety laws are violated, but it still does not provide for state liability or conditions placed in the initial contract. Texas and Arkansas, by contrast, are relatively new to prison privatization compared to other states and thus are still developing their contracting laws. However, no trend has appeared that would suggest greater state oversight of private prisons.

In reviewing the state codes, therefore, a scheme similar to that adopted by Virginia seems to have come the closest to avoiding the Thirteenth Amendment problem. Its Corrections Private Management Act (CPMA) authorizes the public procurement of private prison contracts, but it is accompanied by an extensive portion of the Virginia Administrative Code. In those regulations, Virginia requires private prisons to compensate inmates at levels commensurate to the state department of corrections pay schedule, send its employees to the same training that public prison guards receive, and report all revenue-producing activities to the state. Furthermore, the CPMA does not allow the state prison authority to delegate the determination of inmate work performed or wages received to the private prison corporation. In other words, if the inmate works or is paid, it is at the behest and benefit of the state.

Essentially, this code makes private prisons an arm of the state. It takes the living conditions, work environment, and cost-cutting incentives out of the private contractor's hands, and redirects them toward the state agency. The contract, essentially, is for the construction and daily management of the prison-and nothing more. The guards must be trained and the prison is subject to stringent and regular reporting standards. This facet is especially important since one of the greatest civil rights criticisms against private prisons is the lack of accountability and oversight. By pulling oversight, prison employees, and inmate conditions back under the state umbrella, Virginia's procurement system takes the privately held inmate out of the profit-driven environment and reestablishes rehabilitation as the goal of incarceration, thus answering both the immunity problem of Richardson and the exploitation factor shunned by the Supreme Court's early Thirteenth Amendment cases.

Due to Virginia's administrative safeguards, its procurement regime is the most successful at avoiding any Thirteenth Amendment concerns. As a further benefit, its takeover of prison management reduces the amount of other § 1983 suits that could be brought due to unmonitored prison abuses. On the other hand, there is a downside to having such strict standards. As of 2003, Virginia only had one private prison within its borders. In 2008, Virginia's private prison inmates numbered a mere 1579. While this number may be small, Virginia inmates in private prisons can at least be sure that it is the Commonwealth holding them and putting them to work without the taint of exploitation by a board of directors. The administrative code effectively removes the incentive for legislators to reduce oversight of prison conditions in the name of cutting costs. Finally, by maintaining the state's responsibility over Virginia inmates, the code also allows the state to focus on other ways of reducing its prison population.


Since the Thirteenth Amendment's passage in 1865, three distinct interpretations of the Punishment Clause have emerged. The first considered the entire amendment dead letter after African slavery was abolished, and the second allowed the state to punish its criminals, i.e., those convicted and deprived of liberty via due process, through work as a dedication to Penn and the early penitentiary reformers. The third, which became apparent after the private prison boom of the 1980s evidenced by Pischke and other circuit cases, disturbingly neglects the state's role in incarceration and assumes that the Punishment Clause is an absolute bar to prisoners' claims of involuntary servitude. Given the profit-driven motive of these corporations, the rising inmate population, and the widespread failure of the criminal justice system to prevent recidivism, such a judicial stance could be extremely harmful to the nation's attempts to improve its punishment regimes.

Many scholars have asserted the moral problems accompanying the recent private exploitation of inmates. By combining the Supreme Court's early rulings on the Thirteenth Amendment with its recent decision in Richardson, a moral argument can be made into a viable legal argument. A state, by contracting its inmates out of a rehabilitative system and into the marketplace, subjects them to involuntary servitude that constitutes a badge or incident of slavery. The Supreme Court is at least poised to render such a decision. By pulling the inmates and prison employees back under the public umbrella via their procurement standards, states and the federal government can do much to avoid the issues that bristle the feathers of scholars, civil rights groups, and prison guard unions.


Transatlantic Slave Trade
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Civil War and Reconstruction
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13th Amendment
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Racial reentrenchment
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