Slavery Revisited in Penal Plantation Labor
| Publication year | 2012 |
I. Introduction
This isn't a story of slavery in the early 1800s or even sharecrop-ping in the early 1900s. Any inmate assigned to "field duty" at one of many penal plantations across the South could have told this story in 2011. In states such as Arkansas, Florida, Louisiana, and Texas, inmateare forced to recreate a practice outlawed in 1865-slavery.(fn1) For example, Louisiana State Penitentiary in Tunica, Louisiana was originally a slave plantation in the 1840s.(fn2) It was-and is still-familiarly named "Angola," reportedly because the best slaves came from that African country.(fn3) As recently as 1979, inmates were referred to as "hands"(fn4) in the fields, reminiscent of how masters referred to their slaves before the Civil War.(fn5)
This Article argues that the Thirteenth Amendment allows forced inmate labor only when the labor approximates the conditions of involuntary servitude, rather than conditions of slavery. There are critical differences between "slavery" and "involuntary servitude." One of the most important differences, as described by Orlando Patterson, is that slavery imposes "social death" upon the enslaved by excluding them from society through ritual, cultural, and legal means.(fn6)
And yet, courts and society in general have failed to critically evaluate this re-creation of slavery within the prison walls.(fn7) In modern jurisprudence, there are few exceptions to the rule that prisoners may be forced to work. Indeed, the Thirteenth Amendment's ban on slavery and involuntary servitude contains an exception for those individuals convicted of a crime. But this lack of critical attention to labor practices behind prison walls stems from confusion between the terms involuntary servitude and slavery. And the danger of slavery is not just a relic of the past.(fn8) States facing growing budget deficits are increasingly turning to inmate labor to produce additional revenue, or at a minimum, offset the cost of imprisonment.(fn9) The latest data available indicate that as of 2002, the Federal Bureau of Prisons and twenty-eight states had prisoners laboring in agriculture.(fn10)
This Article argues that society must critically examine the types of labor we require our inmates to perform and prohibit the imposition of slavery, even when the enslaved is an inmate. Part II focuses on the text and history of Section 1 of the Thirteenth Amendment(fn11) and argues that the Amendment's exception allowing forced inmate labor is not as broad as it first appears. Part III examines the Eighth Amendment and how the imposition of slave status on inmates should be considered cruel and unusual punishment. Lastly, Part IV applies these concepts to the history and operation of one such penal plantation-Louisiana State Penitentiary. This Article concludes by cautioning legislatures and prison wardens to be more cognizant of the inherent harms in selecting certain types of labor for inmates and will hopefully spark a broader public discussion on when inmate labor may be another form of slavery.(fn12)
II. The Thirteenth Amendment: Slavery, Involuntary Servitude, and the Convict-Labor Exception
Not only does the Thirteenth Amendment to the U.S. Constitution prohibit involuntary labor writ large but it also includes an exception for penal servitude. Specifically, the Thirteenth Amendment states: "Neither slavery nor involuntary servitude,
Textually, the convict exception to the Thirteenth Amendment applies only to conditions of involuntary servitude and not to slavery. The rule of last the antecedent, a canon of judicial interpretation, requires that a clause "should ordinarily be read as modifying only the noun or phrase that it immediately follows."(fn15) This canon, however, may be applied flexibly and subordinate to other interpretation principles, such as eliminating absurdities and nullities and reading the statute as a whole.(fn16)
Applying the rule of last the antecedent to the convict-labor exception raises the question of whether the exception modifies slavery and involuntary servitude or only the term involuntary servitude. In other words, what exactly is counted as the preceding noun or phrase? One court has noted that when terms are separated by a disjunctive conjunction (such as "or") and the last term is followed by a modifying clause, then the modifying clause applies only to the last term and not the term preceding the disjunctive conjunction.(fn17) The convict-labor exception is immediately preceded by "neither slavery nor involuntary servitude." "Nor" is considered a disjunctive conjunction,(fn18) and accordingly, the convict-labor exception should apply only to conditions of servitude and not to conditions of slavery.
Furthermore, an interpretation of the convict-labor exception that applies to both slavery and involuntary servitude leads to a legal absurdity. Such a reading of the Amendment perversely implies that rather than abolish slavery in its entirety, the government abolished only private slavery, while monopolizing and sanctioning government-imposed slav-ery.(fn19) This interpretation is squarely at odds with the intent of Congress at the time, as evidenced in the debates preceding the adoption of the Thirteenth Amendment.
Historically, the terms slavery and involuntary servitude were not synonymous. From the beginning of colonization, there was a difference in status between the two terms. The language of the Thirteenth Amendment was simply borrowed from prior federal enactments and therefore not a matter of great debate prior to adoption. Nevertheless, through the submission of alternate wordings and subsequent actions by Congress to address discriminatory state laws designed to resubordinate former slaves, it becomes clear that the early colonial distinction between the two terms continued.
Leon Higginbotham contends that Africans were initially brought to the American colonies as involuntary-indentured servants.(fn20) Although the terms "buying" and "selling" were used to refer to indentured servants, the terms referred only to the buying of services for a specific period of time, and not in regard to ownership of another individual.(fn21) Certainly for Africans, the terminology was less salient because most could not speak, read, or write English, and therefore, their "services" were often sold for life.(fn22) Not until the mid-1600s, according to Higginbotham, did slavery formally diverge as an institution different from indentured servitude on American soil.(fn23) Indentured servitude became the status of white servants and slavery the status for Africans.(fn24) Thus, well before ratification of the Thirteenth Amendment, the terms slavery and involuntary servitude referred to distinct practices.
The language of Section 1 of the Thirteenth Amendment, including the prisoner-labor exception, was first used in the Northwest Ordinance. The Northwest Ordinance, passed by the Continental Congress and reen-acted in 1789 by the First Congress, was a template for agreements limiting or abolishing slavery in the upper reaches of the Louisiana Purchase territory (the "Missouri Compromise") and in the District of Columbia.(fn25) Article 6 of the Northwest Ordinance provided the following: "There shall be neither Slavery nor involuntary Servitude in the said territory otherwise than in the punishment of crimes, whereof the Party shall have been duly convicted."(fn26) In later debates on the Thirteenth Amendment, Senator Sumner, an advocate of abolition, argued that the Northwest Ordinance's punishment clause was intended to recognize the right of states to continue the practice of imprisoning debtors for labor.(fn27)
There is little congressional documentation surrounding the drafting and debate of Section 1.(fn28) For example, there are no records of the debates occurring within the Senate Judiciary Committee-the committee that produced the text as adopted.(fn29) Instead, the majority of concerns voiced during the recorded debates by the full Senate centered on the authority of the federal government to enact the Amendment, the power of Congress to enforce the Amendment under Section 2, and a late proposal by Senator...
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