Tuesday, May 11, 2021


Article Index

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.