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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) (Full Article)


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.