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.