A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?

The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment—which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed “as a punishment for crime whereof the party shall have been duly convicted”1—has been seen by courts as one brick in this wall. This Article makes the novel argument that, properly read, the amendment should function instead as a breach in this wall—one of sufficient size to allow some needed light to shine within. Although in some states inmates may still be sentenced to hard labor, in most systems today, they labor under a more general requirement that, if they are able-bodied, they must work. Reading the word “punishment” in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced—which is not the vast majority of inmates compelled to work in the present day—should be exempted from the general ban on involuntary servitude. In addition to examining the jurisprudence of the Eighth and Fifth Amendments as it relates to this question, this Article also details the history of forced labor programs as punishment, and how courts’ reading of the punishment exception is not supported by either the circumstances surrounding ratification of the Thirteenth Amendment or the ways that courts have construed it as a whole since that time. This Article argues that the reason courts have broadened the meaning of “punishment” in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials’ actions. This Article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole