Become a Patron


Andrea C. Armstrong

Excerpted from: Andrea C. Armstrong, Slavery Revisited in Penal Plantation Labor, 35 Seattle University Law Review 673 (Spring, 2012) (97 footnotes omitted)


Andrea C ArmstrongNot only does the Thirteenth Amendment to the U.S. Constitution prohibit involuntary labor writ large but it also includes an exception for penal servitude. Specifically, 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 The Punishment Clause or "prisoner-labor exception clause" is often misinterpreted to allow both conditions of slavery and involuntary servitude as a punishment for a crime.

A. Textual Analysis

Textually, the convict exception to the Thirteenth Amendment applies only to conditions of involuntary servitude and not to slavery. The rule of last the antecedent, a canon of judicial interpretation, requires that a clause "should ordinarily be read as modifying only the noun or phrase that it immediately This canon, however, may be applied flexibly and subordinate to other interpretation principles, such as eliminating absurdities and nullities and reading the statute as a whole.

Applying the rule of last the antecedent to the convict-labor exception raises the question of whether the exception modifies slavery and involuntary servitude or only the term involuntary servitude. In other words, what exactly is counted as the preceding noun or phrase? One court has noted that when terms are separated by a disjunctive conjunction (such as "or") and the last term is followed by a modifying clause, then the modifying clause applies only to the last term and not the term preceding the disjunctive conjunction. The convict-labor exception is immediately preceded by "neither slavery nor involuntary servitude." "Nor" is considered a disjunctive conjunction, and accordingly, the convict-labor exception should apply only to conditions of servitude and not to conditions of slavery. Furthermore, an interpretation of the convict-labor exception that applies to both slavery and involuntary servitude leads to a legal absurdity. Such a reading of the Amendment perversely implies that rather than abolish slavery in its entirety, the government abolished only private slavery, while monopolizing and sanctioning government-imposed slavery. This interpretation is squarely at odds with the intent of Congress at the time, as evidenced in the debates preceding the adoption of the Thirteenth Amendment.

B. Historical Analysis

Historically, the terms slavery and involuntary servitude were not synonymous. From the beginning of colonization, there was a difference in status between the two terms. The language of the Thirteenth Amendment was simply borrowed from prior federal enactments and therefore not a matter of great debate prior to adoption. Nevertheless, through the submission of alternate wordings and subsequent actions by Congress to address discriminatory state laws designed to resubordinate former slaves, it becomes clear that the early colonial distinction between the two terms continued. Leon Higginbotham contends that Africans were initially brought to the American colonies as involuntary-indentured servants. Although the terms "buying" and "selling" were used to refer to indentured servants, the terms referred only to the buying of services for a specific period of time, and not in regard to ownership of another individual. Certainly for Africans, the terminology was less salient because most could not speak, read, or write English, and therefore, their "services" were often sold for life. Not until the mid-1600s, according to Higginbotham, did slavery formally diverge as an institution different from indentured servitude on American soil. Indentured servitude became the status of white servants and slavery the status for Africans. Thus, well before ratification of the Thirteenth Amendment, the terms slavery and involuntary servitude referred to distinct practices. The language of Section 1 of the Thirteenth Amendment, including the prisoner-labor exception, was first used in the Northwest Ordinance. The Northwest Ordinance, passed by the Continental Congress and reenacted in 1789 by the First Congress, was a template for agreements limiting or abolishing slavery in the upper reaches of the Louisiana Purchase territory (the "Missouri Compromise") and in the District of Columbia. Article 6 of the Northwest Ordinance provided the following: "There shall be neither Slavery nor involuntary Servitude in the said territory otherwise than in the punishment of crimes, whereof the Party shall have been duly In later debates on the Thirteenth Amendment, Senator Sumner, an advocate of abolition, argued that the Northwest Ordinance's punishment clause was intended to recognize the right of states to continue the practice of imprisoning debtors for labor.

There is little congressional documentation surrounding the drafting and debate of Section 1. For example, there are no records of the debates occurring within the Senate Judiciary Committee--the committee that produced the text as adopted. Instead, the majority of concerns voiced during the recorded debates by the full Senate centered on the authority of the federal government to enact the Amendment, the power of Congress to enforce the Amendment under Section 2, and a late proposal by Senator Sumner to replace the committee's proposed text with language foreshadowing the Equal Protection Clause of the Fourteenth Amendment.

On the other hand, the debates and discussion leading up to the adoption of the Thirteenth Amendment, to the extent that they related to the Punishment Clause, do indicate a recognized difference between involuntary servitude and slavery. For instance, in December 1863, Representative Ashley proposed that the Thirteenth Amendment should read, "Slavery being incompatible with a free government is forever prohibited in the United States, and involuntary servitude shall be permitted only as a punishment for a His proposed text provides a distinction between the two practices and clearly limits the penalty of criminal conviction to involuntary servitude. Similarly, Ashley's proposed text mirrored amendments to state constitutions in Kansas and Iowa, which both explicitly prohibited slavery and used independent clauses to allow involuntary servitude as punishment for a crime.

The proposal by the Senate Judiciary Committee, however, reproduced the language found in previous federal documents limiting or abolishing slavery, such as the Northwest Ordinance. The text proposed by the Senate Judiciary Committee and eventually adopted by the Senate read, "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 The Punishment Clause in the proposed text did not elicit great debate. Indeed, the only recorded challenge to the Punishment Clause language came from Senator Sumner, who preferred an amendment that would recognize the equality of all persons before the law.

Congressional action after the adoption of the Thirteenth Amendment further supports both arguments that slavery and involuntary servitude are distinct, and that only involuntary servitude may be imposed as punishment for a crime. Congress passed the Thirteenth Amendment on January 31, 1865, and the states ratified it on December 6, 1865. In response, ten of the former slave states enacted a series of discriminatory criminal laws, known as the "Black Codes," to recreate slavery in all but name. These laws, though enacted by different states, created a legal structure to maintain the subordination of African-Americans. In particular, the new laws ensured a steady supply of labor though the convict-labor exception to the Thirteenth Amendment. The Black Codes created new offenses, such as "insolent gesture" or "malicious mischief," that deliberately targeted African-Americans. Sentences were statutorily extended or even newly created for misdemeanor offenses. Due process protections were summarily dispensed with, and the state became the largest "owner" of able-bodied men. As such, the state would auction inmates off to the highest private bidder under the "convict-lease" program. "[T]he southern leasing systems that arose after 1865 were unprecedented in the number of prisoners involved, in the heavy use of black prisoners and in the nearly unfettered control given to the leasing In turn, Douglas Blackmon wrote that during the post-Civil War period, these leasing parties subjected the leased convicts to the same types of punishment formerly meted out to slaves (e.g, whipping and

The use of the Punishment Clause to resubordinate the formerly enslaved was not the intended effect of the Thirteenth Amendment. For example, Representative Kasson argued that the "only kind of involuntary servitude known to the Constitution and the law" was when a prisoner was directly sentenced to hard labor in the state prison under the control of state officers. In response to the abuses of the convict-lease system, Congress enacted the Civil Rights Act of 1866 to specifically cure these--and other--abuses.

Despite the enactment of the Civil Rights Act, some courts equated prisoners with slaves. For example, in 1870, the Virginia Supreme Court in Ruffin v. Commonwealth declared prisoners, by virtue of their incarceration, "civilly dead." Specifically, the court notoriously concluded: For the time being, during his term of service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State.

The Ruffin case, decided only five years after ratification of the Thirteenth Amendment, clearly conflated the status of slavery with involuntary servitude. Although the opinion glaringly did not mention Ruffin's race, newspaper reports at the time indicate that Mr. Ruffin was an African-American prisoner. The Civil War had ended only five years prior to the Ruffin decision. Faced with an African-American defendant just a few years after emancipation, and still influenced by the racial legacy of slavery, the Virginia Supreme Court could see Mr. Ruffin as only a slave. Since Ruffin, courts routinely have failed to properly distinguish involuntary servitude from slavery. Although courts have taken pains to distance themselves from the Ruffin their efforts have not translated into a clear understanding of the differences between these two terms. In the Slaughter-House Cases, one of the first cases to examine the Thirteenth Amendment, the U.S. Supreme Court held that the Thirteenth Amendment applied to all forms of slavery, not just "African slavery." The Court appears to recognize a distinction between the two terms, noting that if "Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race ... this amendment may safely be trusted to make

In the Slaughter-House Cases, the Court defined slavery as a "legalized social relation" and just as quickly found that slavery was over following the Civil War. This vague definition of slavery, however, was accompanied by a broad definition of involuntary servitude. "Servitude," the Court held, is "of a larger meaning than slavery" and includes "all shades and conditions of African For example, the Court claimed that "apprenticeship for long terms, as it had been practiced in the West India Islands, ... or ... reducing the slaves to the condition of serfs attached to the plantation" would have been constitutional if Section 1 prohibited only slavery and not involuntary servitude. There is obvious confusion in the use of the terms "slaves" and "serfs." The Court implied a difference in the quality of bondage--that serfdom is a worse state of being than slavery. At the same time, the Court appeared to designate chattel slavery as the worst state of being, and involuntary servitude as a lesser form of chattel slavery. The Slaughter-House Cases, rather than providing a judicial framework for recognizing instances of slavery, instead provide very little insight into what conditions constitute slavery. The case appears to teach that slavery exists (and is therefore prohibited by the Thirteenth Amendment) only when the master calls it slavery. Just a few years later, the Court again confronted the definition of slavery and involuntary servitude in the Civil Rights While the Court indicated that it knew what slavery was, it failed to define the term. Instead, the Court concentrated on specific incidents of slavery, such as compulsory service, inability to hold property, lack of standing in court, and prohibitions against being a witness against a "white person." Nor did the Court meaningfully distinguish between the terms involuntary servitude and slavery. The Court, for example, failed to identify whether any specific circumstances apply to involuntary servitude. Although the opinion focused primarily on the extent of congressional authority to enact a law prohibiting racial discrimination under the enforcement provisions of the Thirteenth and Fourteenth Amendments, the Court continued to gloss over the distinctions between the two terms. The question before the Court in the Civil Rights Cases was whether Congress, under Section 2 of the Thirteenth and Fourteenth Amendment's enforcement provisions, had authority to pass the Civil Rights Act of 1875, making it illegal to discriminate on the basis of race. The Civil Rights Act prohibited discrimination in the provision of public transportation and accommodation. Without illuminating the difference between the two terms, the Court simply held, It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater or deal with in other matters of intercourse or business.

This trend of failing to distinguish between the two conditions of slavery and involuntary servitude continued in a series of cases through the modern era. For example, in Plessy v. Ferguson, the Court held that segregation of races on trains did not imply slavery or involuntary servitude. Most of the cases in the early-twentieth century focused solely on involuntary servitude. For example, the Court in Bailey v. Alabama held an Alabama statute unconstitutional under the Thirteenth Amendment because the law created the condition of involuntary servitude by requiring labor to repay a previously owed debt.

In the mid- to late-twentieth century, Thirteenth Amendment cases focused on the enforcement powers of Congress under Section 2. In Jones v. Mayer, the first case contemplating an expanded role for congressional action, the Court held that 42 U.S.C. 1982, barring private and public racial discrimination, was a "valid exercise of the power of Congress to enforce the Thirteenth Despite a series of cases centered on the rights created by the Thirteenth Amendment, the Court has provided little guidance on understanding how slavery and involuntary servitude are actually different. At most, courts have incorporated the American memory of slavery and have failed to provide a broader framework for understanding and distinguishing the terms slavery and involuntary servitude. While the American memory, or narrative, of slavery plays an important role in recognizing slavery, it does little to help us distinguish slavery from other conditions. Moreover, involuntary servitude is a much more nebulous concept in American history and therefore harder to identify. Accordingly, courts have refused to examine allegations of slavery behind prison walls, instead construing such claims as involuntary servitude and therefore constitutionally permitted. For example, the Fifth Circuit rejected a prisoner's claim that forced labor without compensation violated his Thirteenth Amendment rights. But instead of engaging in a deeper analysis of his claim, the Court preferred to apply "the Thirteenth Amendment precisely as it is

The actual text, the history, and the Court's jurisprudence all consistently, with few exceptions, explicitly recognize--but fail to concretely articulate--a difference between the terms slavery and involuntary servitude. One explanation for this failure to differentiate is that the distinction between the two terms is practically meaningless in the majority of Thirteenth Amendment claims. Many of the initial cases brought under Section 1 of the Thirteenth Amendment were not on behalf of actual slaves or prisoners. Instead, the initial Thirteenth Amendment cases concerned, for example, butchers or owners of restaurants or public accommodations. Both types of status--slavery and involuntary servitude--are forbidden, and therefore, nonprisoner plaintiffs suing for redress need to prove only one or the other. Courts, in providing or denying redress, are required to find only one of the above factors. The differences between the two are immaterial if a nonprisoner plaintiff only needs to prove either condition. Second, the courts and the public have relied too extensively on the legally formalistic notion of slavery as legal ownership. Courts have assumed that slavery is not claimed in Thirteenth Amendment challenges to forced labor. In part, this assumption results from the contested discourse on race and racial history in the United States. By safely tucking slavery away as a long-dead practice, issues of persistent socioeconomic inequality center not on history but on the personal characteristics associated with certain racial groups. In sum, Thirteenth Amendment jurisprudence indicates a difference between the terms slavery and involuntary servitude. Both the Amendment text and dicta in the jurisprudence, with few exceptions, confirm that only involuntary servitude may be imposed for punishment of a crime. But while acknowledging the distinction, judges and society have failed to give meaning to the content of the terms slavery and involuntary servitude.

C. Distinguishing Involuntary Servitude and Slavery

The distinctions between slavery and involuntary servitude become meaningful when applied to prison labor. All prisoners duly convicted may be forced to work against their will. Indeed, penal labor was initially conceived in the late-seventeenth century as an alternative to other methods of punishment, like death and branding. In the modern era, many justify prison labor because it enhances the prospect of rehabilitation by providing training in job skills and fostering a sense of responsibility and duty. For example, the U.S. Catholic Conference has emphasized the importance of meaningful prison-work opportunities that enhance human dignity for restorative justice and rehabilitation. Even if prison labor fails to reach the lofty goals of the Catholic Conference, there is still an expectation that prison labor will "drain 'the filthy puddle of Prison labor, for both rehabilitative and punishment purposes, is perceived as normatively good. Most types of prison labor will approximate conditions of involuntary servitude and thereby become permissible under the convict-labor exception of the Thirteenth Amendment and under society's general expectation for punishment. Other types of labor, however, may approximate conditions of slavery. In such cases, the prisoner's enslavement is an anathema to the Constitution and to society's principles of human dignity. Chattel slavery, as practiced in the United States, is the clearest form of slavery, but there is significant disagreement on whether slavery encompasses more than just chattel slavery. Lea VanderVelde, in her arguments for an expanded and aspirational Thirteenth Amendment, rejects the three primary interpretations of the term slavery as "limitations." She argues that slavery heretofore has been interpreted narrowly to apply only to conditions (1) coerced by violence; (2) of legal ownership in the person by another; or (3) of lesser liberty entitlements than free men. Indeed, chattel slavery is a legally formalistic approach to slavery and has been the dominant understanding of slavery internationally. Nevertheless, most scholars would agree that while slavery and involuntary servitude may share many characteristics, the practice of slavery has distinct and unique harms beyond the involuntary nature of the labor performed.

Involuntary servitude is, at its core, forced labor for the benefit of another. Such labor may be compelled by physical force or coerced. Coercion must amount to the laborer justifiably believing he has no choice but to perform the ordered work. Such coercion may, but need not necessarily, be physical. The classic example of involuntary servitude is the system of peonage, whereby the poor were forced to labor until their debt was satisfied. More recently, examples include claims of involuntary servitude against human trafficking, the denial of abortion services, racial profiling, and rape. In this sense, involuntary servitude is broader than the practice of slavery. It could be argued that the key difference between slavery and involuntary servitude is that slavery status attaches for life, but involuntary servitude for only a definite period of time. This supposed distinction, however, is meaningless when we consider the purpose behind a future possibility of freedom. Involuntary servitude need not necessarily be for life but rather may exist for a few days, months, or years. The framers of the Amendment referred to the practice of indentured apprenticeship, which is where a person or child is compelled to labor against their will for the benefit of another, ostensibly to learn a particular trade. After the period of servitude, the person is free, perhaps to practice the trade for their own benefit or take on their own apprentices. Thus, involuntary servitude may be a temporary condition, after which the stain of servitude is removed and no longer socially recognized.

In contrast, slavery, under our traditional narrative, was for life. Slavery could be inherited, such that an African-American could be born and die as a slave, never knowing any other status. As applied to prisoners, it could be argued that prisoners are not always sentenced to life and that their status within the prison, even if appearing slave-like, is more like involuntary servitude. The length of their degraded status, under this argument, is entirely dependent on the sentence received at the end of their criminal trial. Another supposed distinction between slavery and involuntary servitude is the legal ownership of the enslaved versus the compulsion by nonlegal methods (e.g., quasi-contractual or psychological) of involuntary servants. Focusing solely on this formalistic distinction ignores the broader differential effects of law upon the enslaved. The role of law is important for a rich understanding of slavery, not as a formal matter, but because law undergirds and reinforces social death. Slavery cannot exist without a legal structure that maintains the obligation of a slave to serve the master. In this case, it is the law that provides the compulsion, instead of the compulsion by a private actor

. Whereas in cases of involuntary servitude the servant must justifiably believe there is no alternative other than service, in slavery there simply is no other alternative, as the law stands ready to enforce the obligation. Not only is the law used for enforcement but it also differentiates punishment based on a person's enslaved status. Prior to the Civil War, the law provided a different set of punishments for violations of the law for those legally designated as slaves. After the Civil War, prisoners could be whipped and beaten under authority of law for any supposed transgression. In modern times, an inmate may be subject to additional punishments (e.g., segregation, revocation of privileges, etc.) for committing the same crime as a person who is not imprisoned, and acts that normally are not considered a "crime," such as failure to work, become disciplinary violations within the prison walls and thereby punishable by the prison administration.

Compared to involuntary servitude, the law plays a more significant role in slavery even beyond the primary functions of enforcement and punishment. Law structures the rights and obligations of one person to another and of the government to individuals. By law, slaves were, among other things, forbidden to marry by choice, unable to conclude contracts, and noncognizable as witnesses testifying in a court of law. Involuntary servants, however, retained their full panoply of rights once beyond their master's control of their economic productivity (i.e., after their term of For slaves, all rights and duties flowed either to or through their master. For indentured servants, there remained an independent authority--the contract and the will of the state to enforce it beyond the master, through whom rights and duties were perfected.

D. Social Death as a Concept

The key difference between slavery and involuntary servitude is the social death of the unwilling laborer. Orlando Patterson has argued that slavery is unique in its imposition of social death. Based on his comparative study of over 180 separate slave societies around the world, Patterson argues that a distinguishing characteristic of slavery as compared to other forms of forced labor is the social death of the slave. Social death is the alienation or exclusion of the slave from the community at large justified by the general unworthiness of the slave. Social death may be accomplished through law, such as through the lack of legal recognition of a slave's genealogical relationships (ascendants and But it may also be accomplished through repetitive practices, rituals, and symbols denoting unworthiness and, ultimately, social banishment. It is these symbolic interactions and relationships of domination culminating in social death that fundamentally distinguish slavery from involuntary servitude. Forced plantation labor is culturally significant in the American narrative of slavery. Penal plantation labor arose as a method to reimpose slavery following enactment of the Thirteenth Amendment. In modern times and as practiced, it lacks any rehabilitative value and in fact may actually delay a prisoner's reintegration into society even when freed. When a prisoner is forced to labor on a plantation, he is ritually marked as enslaved. The cultural symbols of exclusion and degradation symbolic of social death produce a stigma of inferiority.

Charles R. Lawrence III, in his seminal article on unconscious racism, has argued that the cultural meaning of an act or practice is a better predictor of underlying racism than the intent requirement announced in Washington v. Although his analysis focuses on the Fourteenth Amendment, his general proposition on the influence of culture is still relevant to distinguishing slavery from involuntary servitude. When an act "conveys a symbolic message," the act draws on a shared language of symbols and culture developed over time. An act may stigmatize an individual or group and produce unique harms beyond those contemplated by the act. Much like social death, the stigma both "assault[s] a person's self-respect and human dignity" and "brands the individual" as inferior and outcast. In cases of slavery, we are confronted with the most extreme form of stigma possible, namely, social death.

Although a prisoner may not be a slave for life, as Orlando Patterson notes, slavery as an institution is not just about the static existence of a slave but rather about the processes associated with maintaining the institution. The potential access to eventual freedom molds the institution, creating incentives, and indeed, justifying the existence of slavery as a practice. Patterson's argument makes practical sense, particularly in this day and age of longer sentences and mandatory terms for habitual offenders. For an inmate sentenced to twenty or forty years, the fact that at some point he may eventually seek parole or release at the end of the term in fact aids the maintenance of his confinement and labor, creating incentives toward participation in labor that would otherwise be considered slavery. Historically, the use of symbols and rituals in slavery branded or marked the servant as a slave. As such, those particular practices, symbols, or rituals assume a particular significance when invoked in modernday prisons. Accordingly, the history of slavery in a specific place becomes relevant when determining if the prison, by forcing an inmate to labor in a certain way, has fostered the social death of the inmate.

Adopting Orlando Patterson's framework into our understanding of the definition of slavery largely avoids the difficulties inherent in the previously described frameworks. By focusing on the harm to be avoided rather than the condition of slavery or the legal formality of slavery, the actual situations to be prohibited are much clearer.

E. Social Death in the Modern Era

All convicts, whether laboring on state-run plantations or not, experience a degree of social death. Their ability to meaningfully participate in our democracy is severely curtailed while serving a sentence of punishment. For example, states may preclude inmates from voting and organizing unions. But the harm suffered by certain inmates working on penal plantations is the dignitary harm of being made into a slave, laboring in similar conditions as generations prior, and being made property, even if it is property of the state. To be made slaves again is to strip inmates of their basic human dignity and to "treat members of the human race as

Moreover, the punishment of degradation, of being enslaved and thereby excluded, is contrary to our professed (even if confused) penological goals of retribution, deterrence, incapacitation, and rehabilitation. While retribution still plays a role in our criminal justice system, retribution nevertheless has limits. Our laws do not permit torture as a legitimate form of retributive punishment because "[e]ven the vilest criminal remains a human being possessed of common human

Imposing slavery also fails to serve the goal of deterrence. First, the punishment of slavery status does not depend on the crime of conviction and could apply to prisoners convicted of robbery as well as murder. By sweeping so broadly, slavery as punishment loses any deterrent effect it might have had if targeted to a particular class of crimes. Second, deterrence is undermined by the pronounced racial dynamics in the modern operation of prisons, whereby minority racial groups are significantly overrepresented in prison populations. Accordingly, members of these groups may instead believe that, whether or not they commit criminal acts, the purpose of prison is simply to codify their enslaved status. Last, slavery status undermines the goals of rehabilitation because prisoners experience feelings of injustice as they undergo a punishment ordered by a prison administrator rather than a sentencing judge.

As Foucault wrote, when the administrator's power seems arbitrary--when the prisoner is "exposed in this way to suffering, which the law has neither ordered nor envisaged, [the prisoner] becomes habitually angry against everything around him; he sees every agent of authority as an executioner; he no longer thinks that he was guilty: he accuses justice Such attitudes detract from the promise of rehabilitation and the potential contribution of a prisoner once he rejoins society. The public, in discussing when and how slave status attaches, may find that it is connected to the nation's (or even the specific region's) historical practice of slavery. The dominant American narrative of slavery is chattel slavery as practiced in the South at the time of the Civil War. The Southern economy, based on the production of raw goods for shipment to the manufacturing centers in the North, profited from the large-scale enslavement of individuals working the agricultural fields for cotton, soybeans, sugar, and row crops. To maintain slavery as an institution, both the laws and culture demonized the slave and beatified the owner. Slavery, according to this narrative, attached to African-Americans by virtue of their race. Yet, other narratives and experiences may also be salient in considering when a particular type of work is so connected to our nation's history of slavery that it mimics the social death experience.

Slavery in the United States was much more varied than the dominant narrative of Southern-style plantation slavery suggests. Historically, the types of work performed--like mining for gold and laying railroad track--varied by region, as did the particular groups treated as slaves (e.g., Mexican and The California Constitution of 1879, despite its deliberate subordination of the Chinese by forbidding Chinese employment, specifically noted that "Asiatic coolieism is a form of human The U.S. Supreme Court also specifically allowed for the possibility that Mexican peonage and Chinese "coolie" labor, for example, could "develop" into slavery. Without dismissing or denigrating these other experiences, it is clear that at least chattel slavery is a part of our American narrative on slavery. Unlike slavery, involuntary servitude was not racially defined; servitude did not automatically attach by virtue of belonging to a particular race or ethnic group. Indeed, involuntary servitude was expressly included in the Thirteenth Amendment to encompass those types of compelled labor where race was not the defining criterion. The U.S. Supreme Court has noted that involuntary servitude was intended to free all types of labor--from the English practice of debt servitude to the bondage of newly arrived immigrants paying for their passage to America. The architects of the Thirteenth Amendment, by adding the term involuntary servitude, sought to erase more than slavery as it was practiced prior to the Amendment. Instead, the Amendment sought to maintain a free labor supply, no matter how or why the labor was compelled.

Although the dominant American narrative of slavery is the racialized assignment of slave status, the harm of social death in modern times affects prisoners of all races. From a public policy perspective, should the public be concerned about certain types of labor when performed by a group of Caucasian inmates who were not historically treated as slaves? Put differently, should we be concerned for all convicts performing the same type of labor? The harm at the heart of this argument is the social death and exclusion that result from an implied or explicit slave status. That stigma applies to all inmates who perform slave labor--not just those whose ancestors may indeed have been slaves. While historically slave status was race-dependent, slave status also independently denied a person's humanity. Returning to our example of Caucasian inmates, their ideas are also shaped by slavery narratives, and therefore, the social death entailed is just as real for them as it is for African-American inmates. The cultural meaning of plantation labor in America is the imposition of stigma to all participating inmates, regardless of their race. The imposition of that stigma, and the accompanying exclusion and social death, bestow an additional punishment on the prisoner beyond that meted out by a judge. The punishment, likely not contemplated by either the sentencing judge or society in general, strips a prisoner's humanity from him and recasts the prisoner as property of the state.




[FNa1]. Assistant Professor of Law, Loyola University New Orleans College of Law; J.D., Yale Law School; M.P.A., Princeton University; B.A., New York University.