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Involuntary Servitude: Cruel and Unusual

by Lucas Ward | Summer 2017

This essay examines the constitutionality of federal and state prison labor mechanisms by weighing them against the 13th and 8th amendments. The essay begins with a brief history of the 13th Amendment and involuntary servitude in America, beginning with slavery, and how the use of involuntary servitude remained legal in the case of punishment for a crime. The essay concludes with the argument that although the 13th Amendment did in fact leave the door open for the use of involuntary servitude in prisons, the punishments and practices that surround the incarcerated labor force should be deemed unconstitutional based on the 8th Amendment.

2. Alexander Tsesis, The Thirteenth Amendment and American Freedom (New York, NY: NYU Press, 2004), pp. 38–42.

4. Ibid.

6. Susanna Kim, “Whole Foods Suppliers Defend Using Prison Labor,” ABC News, October 5, 2015, http://abcnews.go.com/Business/foods-suppliers-defend-prison-labor/story?id=34258597.

8. Corrections Yearbook 2001, p. 130-131.

10. Joel Dyer, Perpetual Prisoner Machine: How America Profits from Crime (New York, NY: Basic Books, 2008), p. 19.

12. English Bill of Rights 1689: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;”

14. Thompson v. Oklahoma 487 U.S. 815 (1988)

16. Furman v. Georgia, 408 U.S. 238, 282 (1972)

18. General Accounting Office, Prisoner Labor: Perspectives on Paying the Federal Minimum Wage, May 1993 GAO/GGD-93-98, p. 19.

20. "Recidivism Among Federal Offenders: A Comprehensive Overview." United States Sentencing Commission. May 31, 2017.

22. "Rick Helfenbein, "How Prison Factories Pluck Jobs From The US Economy," Law360, June 20, 2017. https://www.law360.com/articles/936288.

As initially proposed by U.S. Senator Charles Sumner and Representative Thaddeus Stevens in 1864, the text of the 13th Amendment would have read, “All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere in the United States.”  The Amendment was intended to end slavery in all its forms but the radical wing of the Republican party’s concession to the Senate Judiciary Committee, chaired by Lyman Trumbull of Illinois, resulted in the use of language that would forbid slavery or involuntary servitude, but generate a loophole that would only provide such protection “otherwise than in the punishment of crimes.”

Although indeed responsible for ending chattel slavery and the outright owning of human beings as property, the 13th Amendment failed to outlaw several forms of what essentially amounted to continued slavery after its ratification. In the most extreme examples, this amounted to chain gangs, convict lease programs, and the practice of peonage.

Historian Douglas A. Blackmon described the southern legal response to slavery’s end as a series of “interlocking laws” intended to divert as many former slaves as possible into jails, and therefore back into the free labor market: “Blacks could be sentenced to forced labor for crimes including petty theft, using obscene language, or unemployment. These States passed new, strict vagrancy laws that were selectively enforced against blacks without white protectors. The labor of these convicts was then sold to farms, factories, lumber camps, quarries, and mines.”  In one such case, a black man by the name of Green Cottenham was arrested in Shelby County, Alabama, for vagrancy, or homelessness. Unable to pay the fine, Cottenham was sentenced to a term of thirty days of hard labor.   The example is just one of many in which petty laws were used to prosecute innocent African-Americans.

As the Federal Government fought to enforce the 13th Amendment, southern business owners who had formerly relied on the use of free labor from slavery sought other means for exploiting the newly free ex-slaves. Peonage was just such a system. University of Pennsylvania law professor Tobias Barrington Wolff describes peonage as “forced labor that depended upon the indebtedness of a worker, rather than an actual property right in a slave, as the means of compelling work. A prospective employer would offer a laborer a ‘loan’ or ‘advance’ on his wages, typically as a condition of employment, and then use the newly created debt to compel the worker to remain on the job for as long as the employer wished."  

In the 21st century—and throughout the 20th—the practice of involuntary servitude remains alive and well in our penal systems. Modern day correctional industries take advantage of the legality of involuntary labor, found in the 13th Amendment for those convicted of crimes, to supplement sources of funding and bolster ease of operation. In some cases, inmates work for their facility’s daily functions and maintenance, doing jobs such as food preparation, landscaping and grounds maintenance, and library work. In other cases inmates make products or provide services that are sold to private companies, which are attracted by the immensely inexpensive labor of prisoners. Until late 2016, Whole Foods purchased goat cheese from a company that partnered with Colorado Correctional Industries which paid inmates between $.074 and $4 a day to milk goats and raise fish.

UNICOR, or the Federal Prison Industries Corporation, a prison labor program for inmates within the Federal Bureau of Prisons, pays a maximum wage of $1.15, or about 15 percent of the federal minimum wage.  While this may seem inadequate, compared to some state facilities, like those in Georgia and Texas where prisoners are not paid a wage, the federal wages are generous.   UNICOR provides vocational training to federal inmates in the program and aims to reduce recidivism through work experience, however, federal inmates are required to have a job while incarcerated and must work at some other prison job if not one with UNICOR. It describes itself as “a program, not a business… the program’s real output is inmates who are more likely to return to society as law-abiding taxpayers because of the job skills training and work experience received in UNICOR.”   The program is just one segment of the entire prison labor industry as the Prison Policy Initiative estimates the “annual value of prison industries” is at minimum $2 billion.

While that mission may be at least partially true for UNICOR, and for state-level prison work initiatives as well, I would argue that as long as the prison labor industry fails to treat inmates like legal employees, it violates the constitutional and natural rights of the hundreds of thousands American citizens who are working in prison, as prescribed by the 8th Amendment.

Under current interpretation, U.S. federal correctional facilities are not breaking any law by paying prisoners fractions of the minimum wage for their work, given that the 13th Amendment provides that any labor connected with punishment for a crime is not subject to the same legal protections that by default all citizens enjoy. The loophole in the 13th Amendment continues to provide clear, legal, economic incentives for prisons to put their prisoners to work, a punishment that has questionable effects on lowering recidivism rates, in contrast to the claims of the National Correctional Industries Association.

Clearly, the 13th Amendment cannot reach beyond the bars of a jail cell to protect American prisoners from involuntary servitude, which many argue equates to a continuation of slavery in the US. A close examination of the 8th Amendment, however, indicates that there are already constitutional protections that should have closed the loophole created by the 13th. Part of the original ten amendments that make up the Bill of Rights, the 8th Amendment was lifted almost verbatim from the English Bill of Rights written 100 years prior: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;”   The 8th Amendment regulates the discretion of courts, specifically from employing either excessive fines or ‘cruel and unusual punishments’ in rulings. Usually associated with torture, the term cruel and unusual punishment has been the subject of extensive Supreme Court interpretation. Punishments such as drawing and quartering, public dissection, burning alive, disembowelment, and the execution of a minor have all been deemed cruel and unusual punishments, forbidden regardless of crime committed, by the Supreme Court.      Most of the debate over the years has revolved around what methods should be allowed for the death penalty, and more recently whether the death penalty should be allowed at all. Rarely does the Supreme Court determine that specific punishments which do not involve physically harming a criminal fall within the definition of cruel and unusual punishments. However, based on the 1972 Furman v. Georgia ruling that defined the parameters of cruel and unusual punishments, I will show that involuntary labor falls within these parameters and is further repudiated by our current repulsion and society-wide rejection of the historical practice of slavery and forced labor. Therefore, all prison labor that does not pay prisoners at least minimum wage or the industry average should rightfully be unconstitutional based on the 8th Amendment.

In the 1972 Supreme Court case Furman v. Georgia, regarding capital punishment, Justice William J. Brennan Jr. outlined a rubric for determining whether a specific punishment for a crime violated the 8th Amendment stipulation that such a punishment not be “cruel and unusual.”

 

“There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual.’ The primary principle, which I believe supplies the essential predicate for the application of the others, is that a punishment must not by its severity be degrading to human dignity [especially torture] … a severe punishment that is obviously inflicted in wholly arbitrary fashion… a severe punishment that is clearly and totally rejected throughout society… [or] a severe punishment that is patently unnecessary.” 

 

Generally, debates about “cruel and unusual punishment” in prisons revolve around medical malpractice, capital punishment, and sentencing. The often overlooked punishment of forced labor significantly meets, if not exceeds, Brennan’s four markers.

Beginning with the fact that all able-bodied federal inmates are required to work, it is hard to justify prison labor as anything other than a form of punishment.       Described as a way to help inmates “[develop] vital skills necessary for successful reentry to society” by UNICOR, the prison industries program may indeed provide some benefits such as work experience and occupational skills, but labor remains mandatory for inmates. Many inmates have reported they have found value in prison work programs, but prison labor is inseparable from the punishment of a prison sentence and is not a choice for even those inmates that have felt they benefitted through their prison jobs. As such, it must be considered whether or not this component of punishment for a crime bears cruel or unusual characteristics. To be clear, the jobs that inmates are given are not in themselves cruel or unusual punishments—that description cannot be given to janitorial services or food preparation—but the fact that inmates are not paid for their labor and required to work if able to can be shown to fall within that description.

Working backwards through Justice Brennan’s four requirements for a definition of cruel and unusual punishment, I will first show that the prison labor industry is not only “patently unnecessary” to punish prisoners but detrimental to the country as an effective deterrent of crime. Prison labor has had little effect on recidivism rates in the United States: in 2005 three quarters of prisoners released from state facilities were re-arrested within five years.   Additionally almost half of prisoners released from federal facilities were re-arrested within five years.

Our nation’s re-entry programs focus their energies more on funding themselves—UNICOR prides itself on being fully self-funded—and less on actually effectively rehabilitating prisoners. The lure of using prisoners’ unique possibility of indentured servitude to pay for their own ineffective reentry programs is just too tempting for organizations, like UNICOR, that face immense pressure to cut costs. Unfortunately, the result is prisoners being treated as a source of free labor and revenue and not offenders to reform.

Perhaps most importantly, as per Brennan’s third point, a punishment involving involuntary servitude, is “clearly and totally rejected throughout society.” In 1871 the Virginia Supreme Court declared prisoners to be “slaves of the state.”  The situation for prisoners has not changed much since then. What is ‘clearly and totally rejected throughout society’ is the notion of owning a human being. By and large, Americans are repulsed by the idea that it was ever allowed and reject it as a value or even a tolerated wrong. To keep inmates working as virtual ‘slaves of the state’ goes against both Americans’ love of freedom and total rejection of slavery.

Furthermore, forced labor in prisons is, as Brennan described in his second point, “inflicted in wholly arbitrary fashion.” The focus is again on using the labor of prisoners to pay for the program, not necessarily if working in sweatshops is beneficial for their rehabilitation or for the American economy. CEO of the American Apparel & Footwear Association Rick Helfenbein described the industry’s frustration and struggle with being edged out of the domestic textile manufacturing market by UNICOR as “illogical” in a recent article. “We are competing with our federal government to secure production orders while trying to advance the interests of private domestic contractors. With prison wages as low as 23 cents an hour, it’s no wonder that FPI (also known as UNICOR) senses an opportunity for growth.”   Not only is forced prison labor inflicted on the prisoners in an arbitrary fashion, with no real regard for their rehabilitation, but the mechanism is inflicted in an equally arbitrary fashion on the US economy, from which prison labor siphons thousands of jobs. Such a mandate of unpaid labor for prisoners is an arbitrary punishment with no view towards prisoners’ rehabilitation, and it is a wholly unwarranted punishment for the American worker.

Finally, returning to Brennan’s initial criterion, prison labor fundamentally degrades inmates’ human dignity by forcing prisoners to work for interests other than their own, by not truly helping them prepare to re-enter society, and by diverting punishment away from something actually connected to atonement for their crimes and moving it towards monotonous and meaningless labor more in service of funding of the prison itself than decriminalizing the prisoner.

 

Therefore, although the 13th Amendment allows involuntary servitude as punishment for a crime, the eighth makes it unconstitutional. Each of Justice Brennan’s conditions for determining cruel and unusual punishment are met by the industry of inmate labor. While framed as an opportunity for inmates to prepare for reentry and develop occupational skills, an honest reentry program would be more focused on the individual prisoners and not just assigning them meaningless work because it is profitable for the prison.

A prison labor initiative that looked more like the non-profit “The Last Mile” which teaches inmates to code and pays them $17 an hour—the highest ever in a US prison—would be in complete alignment with the constitutional rights of American inmates and our national interest. The Silicon Valley program, started in San Quentin State Prison, consists of an intensive programming class along with a sister organization “The Last Mile Works” which gives inmates who have graduated from the class the chance to work on professional coding projects. “At TLM Works, we are employees, and nothing could be better for preparing us to succeed upon our release” the message from inmates on the TLM website reads. Such a program is an excellent, but unfortunately unique, example of an effective and constitutional prison labor program.

Prison labor programs and initiatives are more oriented towards cutting costs and lessening the burden of prisons on taxpayers: noble goals, to be sure, but useless if ineffective in preventing further crime and improving the prospects of released inmates.

Ultimately the practice of forced labor in the rest of US prisons is a cruel and unusual punishment, both for its disregard for the rights of men and women to the product of their labor, and for the inexplicable illogic of the prison industry taking jobs and business away from the private sector. Programs such as UNICOR and other inmate job initiatives do provide some benefit, in terms of minimizing cost to taxpayers and giving inmates the opportunity to build skills and earn money, but these programs are clearly not working as well as we need them to. For the long term health of the nation and the preservation of the freedom of our citizens, state correctional facilities and federal prisons should re-orient resources towards effective reentry and fair labor practices, instead of taking advantage of the mistakes of our fellow citizens for greater profits. If prisoners are forced to work, then we should guarantee their 8th Amendment rights and pay them at the federal minimum wage.

1

1. Amy Dru Stanley, "Instead of Waiting for the Thirteenth Amendment: The War Power, Slave Marriage, and Inviolate Human Rights,” The American Historical Review 115, no. 3  (2010), pp. 741–742.

2

3. Douglas Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II, (New York, NY: Knopf Doubleday Publishing Group, 2008).

3

4

5

5. Tobias Barrington Wolff, "The Thirteenth Amendment and Slavery in the Global Economy." Columbia Law Review 102 no. 4 (2002): 973-1050.

6

7

8

9

10

7. Federal Prison Industries RL32380 (PDF), Congressional Research Service, July 13, 2007.

9. Factories With Fences: The History of Federal Prison Industries; UNICOR, 1996.

11

11. National Correctional Industries Association, “About,” http://www.nationalcia.org/about/ncia.

12

13

14

13. Wilkerson v. Utah 99 U.S. 130 (1878)

15

15. Eighth Amendment to the United States Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

16

17

18

17. Peter Wagner, “The Prison Index: Taking the Pulse of the Crime Control Industry,” Prison Policy Initiative, April 2013, https://www.prisonpolicy.org/prisonindex/toc.html.

19

20

19, Matthew R Durose, et al., ”Recidivism of Prisoners Released in 30 States in 2005,” United States Department of Justice, April 2014.

21

21, Ruffin v. Commonwealth, 62 Va. 1024 (1871)

22

REFERENCES

Blackmon, Douglas. ”Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II.” New York, NY: Knopf Doubleday Publishing Group, 2008.

Calacal, Celisa. "'Modern-Day Slavery': Many Southern States Have Prison Inmates Working in Governor's Mansions and Capitol Buildings." Alternet. June 23, 2017. http://www.alternet.org/human-rights/number-southern-states-prisoners-serve-legislators-state-buildings.

Dyer, Joel. “Perpetual Prisoner Machine: How America Profits from Crime” (New York, NY: Basic Books, 2008), p. 19.

Durose, Matthew R., et al. ”Recidivism of Prisoners Released in 30 States in 2005.” United States Department of Justice. April 2014.

Factories With Fences: The History of Federal Prison Industries; UNICOR, 1996.

Federal Prison Industries RL32380 (PDF), Congressional Research Service, July 13, 2007.

General Accounting Office, Prisoner Labor: Perspectives on Paying the Federal Minimum Wage, May 1993 GAO/GGD-93-98, p. 19.

Helfenbein, Rick. "How Prison Factories Pluck Jobs From The US Economy." Law360. June 20, 2017. https://www.law360.com/articles/936288.

Kim, Susanna. “Whole Foods Suppliers Defend Using Prison Labor.” ABC News. October 5, 2015. http://abcnews.go.com/Business/foods-suppliers-defend-prison-labor/story?id=34258597.

National Correctional Industries Association. “About.” http://www.nationalcia.org/about/ncia.

"Recidivism Among Federal Offenders: A Comprehensive Overview." United States Sentencing Commission. May 31, 2017. https://www.ussc.gov/research/research-reports/recidivism-among-federal-offenders-comprehensive-overview.

Stanley, Amy Dru. "Instead of Waiting for the Thirteenth Amendment: The War Power, Slave Marriage, and Inviolate Human Rights.” The American Historical Review 115, no. 3  (2010), pp. 741–742.

Tsesis, Alexander. The Thirteenth Amendment and American Freedom. New York, NY: NYU Press, 2004.

Wagner, Peter. “The Prison Index: Taking the Pulse of the Crime Control Industry.” Prison Policy Initiative. April 2013. https://www.prisonpolicy.org/prisonindex/toc.html. Columbia Law Review 102, no. 4 (2002): 973-1050.

Wolff, Tobias Barrington. "The Thirteenth Amendment and Slavery in the Global Economy."