A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 3, SPRING 2016

A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond

Noah D. Zatz(fn*)

CONTENTS

INTRODUCTION.....................................................................................928

I. PRESENT DAY INCARCERATION FOR NONWORK...............................930

A. Probation, Parole, and Other Community Supervision...............930

B. Criminal Justice Debt........................................................931

C. Child Support Enforcement..............................................933

II. INCARCERATION FOR NONWORK IN THE PAST: LESSONS FROM PEONAGE...............................................................................................935

A. The Present Involuntariness Principle............................936

B. The Unjustified Quit Principle.......................................937

C. The Work-Under-Threat Principle..................................937

D. The Insufficient Alternative Principle, At Least With Regard to Payment............................................................................................938

III. SEAMEN AND PEONS: THE CONSTITUTIONAL MARGINALIZATION OF ROBERTSON......................................................................................940

A. The Two General Exceptions: Work for the Family or the State . .....940

B. Constructing the Seamen Exception..............................942

1. The Public Interest in Orderly Labor........................................942

2. Labor Paternalism.....................................................................944

C. Traditional Servitude........................................................947

IV. APPLYING THE THIRTEENTH AMENDMENT TO THE NEW PEONAGE..............................................................................................................948

A. The Peonage Analogy and Limits of Debt....................................948

B. Compulsory Work vs. Compulsory Work for a Particular Employer ..................................................................................................... 950

C. Robertson Redux: A Child Support Exception in the Private Sector?.......................................................................................................... 952

CONCLUSION......................................................................................... 954

INTRODUCTION

Eight months after his famous and lonely objections to Plessy v. Ferguson,(fn1) Justice Harlan again dissented alone. Once more, the Court was hollowing out the Reconstruction Amendments' promises of liberty and equality, but unlike Plessy Robertson v. Baldwin, (fn2) is an obscure decision. It holds no place in the anticanon of constitutional error, not even a nomination. To the contrary, courts continue to rely upon it, though always in passing.

What provokes this Essay is an occasion to attend more carefully to Justice Harlan's wisdom, which quietly haunts Thirteenth Amendment jurisprudence. That provocation is the routine threat and actual practice of incarcerating Americans for not working, or not working hard enough; a practice visited disproportionately on low-income communities of color. This practice represents an extreme extension of broader patterns that construe racial and economic inequality as manifestations of personal vice and thus as occasions for inflicting further punishment.(fn3) These occasions involve not just the withdrawal of the social welfare state, but also its substitution with the carceral state, which "depends for its legitimacy on the widespread belief that all those who appear trapped at the bottom actually chose their fate."(fn4)

This Essay offers a provocation of its own. I suggest that these practices are constitutionally dubious, despite being widely implemented and actively embraced by mainstream Democrats, hardly obscure authoritarian outposts. These doubts emerge through redescribing, in labor terms, a set of policies that generally are analyzed under quite different rubrics: child support enforcement and criminal justice debt collection, as well as probation, parole, and related techniques of "community supervision." In each case, work is offered for noble purposes and as a benevolent "alternative to incarceration." But when low-income communities, of disproportionately people of color, are offered incarceration as the alternative to work, Thirteenth Amendment jurisprudence should go to high alert.

These coercive labor practices are redolent of peonage, one component of the Jim Crow South's broader system of racial labor control, which leveraged a racist criminal justice system into an institution of labor subordination. That system, too, often flew the banner of disciplining the dissolute laborer and containing his threat to social order. This Essay is no attempt at a comprehensive treatment of either the present situation or the historical analogy. Instead, it is a call for such examination.

Robertson's obscure vitality suggests the divergent paths followed by the constitutional jurisprudence of race and labor.(fn5) With no apparent connection to the Jim Crow South, Robertson never faced a reassessment in light of the Court's peonage jurisprudence, which traditionally has been situated in the jurisprudence of racial justice.(fn6) Indeed, the case arose far away in miles and context. Robert Robertson was a San Francisco seaman,(fn7) apparently white,(fn8) who thought better of his voyage on the barkentine Arago.(fn9) Upon arrival in Oregon, he exercised with three shipmates what one might have thought was their constitutional right to quit.(fn10) But instead, they were jailed until the Arago set sail again, hauled back to the ship by a marshal, forced to work the remainder of the voyage, and criminally prosecuted for their insubordination upon return to San Francisco. All this occurred pursuant to federal statute, and all this was forcefully upheld by the Supreme Court.(fn11)

Robertson's significance lies in its unique crack in the wall between penal compulsion and the private labor market. Justice Harlan decried it for that reason, objecting that,In my judgment, the holding of any person in custody, whether in jail or by an officer of the law, against his will, for the purpose of compelling him to render personal service to another in a private business, places the person so held in custody in a condition of involuntary servitude, forbidden by the constitution of the United States.(fn12)Larger breaches of Harlan's principle are invited by today's era of proliferating criminal justice control and shrinking labor rights.

I. PRESENT DAY INCARCERATION FOR NONWORK

Three contemporary contexts generate requirements to work for a private business on pain of arrest or incarceration, contrary to Justice Harlan's principle. Although not typical of low-wage work today, neither are they marginal. Moreover, they either are on the rise or show substantial growth potential. Each involves legally authorized physical violence-arrest and incarceration. Thus, like Robertson, they raise none of the subtleties associated with contemporary Thirteenth Amendment controversies over what conduct constitutes compulsion.(fn13) Instead, the only issues are whether the thing compelled is "servitude" and, if so, whether the resulting involuntary servitude nonetheless falls outside the Thirteenth Amendment's prohibition on just that.

A. Probation, Parole, and Other Community Supervision

The most straightforward example is the duty to seek and maintain employment as a standard condition of probation and parole.(fn14) As with any such condition, a violation-not working-may trigger (re)incarceration. The scope of these work requirements is vast. Nearly five million adults are on probation or parole at any time,(fn15) and that number increases if one considers all who pass through these systems in the course of a year, decade, or lifetime. Black and Latino inmates constitute a large majority of those incarcerated for probation or parole violations, and the disproportionality increases further when considering only violations related to nonwork or, closely related, nonpayment of financial obligations.(fn16)

Despite the penal exception to the Thirteenth Amendment,(fn17) the Amendment may still apply to these work conditions because they arguably are not imposed as a "punishment," but rather as a means to promote social integration and prevent future offending.(fn18) That separation from the "punishment" exception is particularly clear for closely related and increasingly popular forms of community supervision that operate as "diversions" designed to avoid a criminal sentence, not as part of such a sentence.(fn19) Nonetheless, the proximity to criminal sentencing makes these work requirements less legally provocative than the next.

B. Criminal Justice Debt

Second, the nation is rightly awash in concern over modern-day debtors' prisons. The primary focus has been on debt arising from assessment of fines and fees through the criminal justice system.(fn20) Such exactions range from financial punishments accompanying imprisonment,(fn21) tickets for minor quality of life offenses or traffic violations,(fn22) to the obligation to reimburse the state for the costs of providing criminal defense counsel under Gideon.(fn23) Unlike most...