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.