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Excerpted From: Wafa Junaid, Forced Prison Labor: Punishment for a Crime? , 116 Northwestern University Law Review 1099 (2022) (197 Footnotes) (Full Document)


wafajunaidAt the Louisiana State Penitentiary in Angola, crowds of Black and brown men can be seen moving meticulously through fields of vegetable crops, eerily resembling an image of Southern slave plantations. As of 2021, the Louisiana State Penitentiary houses over 6,000 individuals, who are required to grow crops, raise cattle, and produce supplies as part of their sentences. These incarcerated individuals do not have to be compensated for their work and can be forced to labor under threat of punishment, such as solitary confinement. In some instances, incarcerated people are “compensated” with as little as two cents per hour for their work. These practices should be unconstitutional under the Thirteenth Amendment's prohibition of involuntary servitude, yet courts have upheld these practices based on a textual exception.

The Thirteenth Amendment specifically permits the use of involuntary servitude as a “punishment for crime” when an individual has been “duly convicted.” The word “punishment” is not unique to the Thirteenth Amendment--it is also used in the Eighth Amendment, which prohibits “cruel and unusual punishment[].” Courts interpret this term distinctively in the Eighth and Thirteenth Amendments. In the Thirteenth Amendment context, courts consistently view the text as barring incarcerated people from bringing involuntary servitude claims, since labor is understood as part of the “punishment” for their crimes. Here, punishment is basically recognized as all institutional treatment that people experience while incarcerated.

In contrast, “punishment” under Eighth Amendment case law is interpreted very differently. Courts have held that treatment while incarcerated amounts to Eighth Amendment punishment if prison officials intend the treatment as punishment or if the treatment is a term of the sentence imposed by a court. Therefore, while unpaid labor is considered a punishment under the Thirteenth Amendment because it is viewed as institutional treatment, unpaid labor would receive additional scrutiny under the Eighth Amendment based on the intent of prison officials and the terms of the individual's sentence.

This Note calls into question the conflicting interpretations of punishment under the Eighth and Thirteenth Amendments and proposes an intratextual reading of punishment that interprets each use of the term in the Constitution in light of the other. This intratextual analysis presents a uniform constitutional definition of punishment that is more consistent with its original intended meaning under the Thirteenth Amendment. In sum, this Note concludes that incarcerated individuals must be explicitly sentenced to labor in order to be excluded from Thirteenth Amendment protections.

Although some scholars have considered the intersection of the term punishment in both the Eighth and Thirteenth Amendments, no scholar has engaged in an in-depth study of the corresponding case law and applied their findings to create doctrinal support for challenging involuntary servitude in prisons. This Note advances the scholarly conversation by employing a joint reading of the Amendments and resolving the current discrepancy in Eighth and Thirteenth Amendment case law regarding the constitutional understanding of punishment.

Part I outlines the persistence of forced prison labor today. Part II details the history of the Thirteenth Amendment and the socioeconomic and political context against which efforts to abolish slavery and ratify the Thirteenth Amendment occurred. Part II further highlights the significance of the punishment exception as a method to preserve the financial interests vested in systems of unpaid labor and encourage the unchallenged passage of the Amendment. Part III examines the Eighth Amendment's prohibition against cruel and unusual punishment and details the interpretation of punishment in Eighth Amendment case law as compared to Thirteenth Amendment case law.

After examining the contrasting ways in which the Court has interpreted punishment in both Amendments, Part IV applies an intratextual approach to illustrate the doctrinal support for a uniform interpretation of the term punishment. Part V subsequently describes how litigation challenging forced prison labor would be impacted if courts interpreted punishment similarly in both the Eighth and Thirteenth Amendment contexts. In conclusion, this Note argues that the theory of intratextualism necessitates that individuals cannot be exempted from Thirteenth Amendment protections unless they are explicitly sentenced to labor. The current inconsistencies in interpreting punishment in the Constitution call into question the legitimacy of the Thirteenth Amendment's punishment exception to begin with. This Note pushes the needle forward in an effort to extend Thirteenth Amendment protections to all individuals--irrespective of whether they are incarcerated or not.

[. . .]

In contrast to the Thirteenth Amendment's current treatment in case law, a number of states are starting to acknowledge the abusive and archaic nature of permitting forced labor in prisons. Voters in Nebraska, Utah, and Colorado have passed amendments to their state constitutions to remove language permitting involuntary servitude as a criminal punishment. In April 2021, Vermont's senate almost unanimously approved an amendment to the state constitution that explicitly banned slavery and indentured servitude “in any form.” Similarly, in May 2021, Tennessee passed a resolution banning all forms of slavery that will be placed on the 2022 ballot for voters to make the final decision.

As this momentum has been building at the state level, there has even been a push to directly amend the Thirteenth Amendment. In December 2020, Democrats introduced a joint resolution in the House and Senate named the “Abolition Amendment” that would remove the punishment exception from the Thirteenth Amendment--thereby prohibiting the imposition of involuntary servitude on incarcerated individuals. While these measures have not been approved yet and realistically may not be approved in the coming year or even years, these incremental changes signal a vision of a future in which members of society finally recognize forced prison labor as a brutalizing and unacceptable punishment.

For decades, the punishment exception has justified the inhumane treatment of people who are incarcerated. They were chained together while farming, leased out like property to industrialists, and continue today to be exposed to dangerous conditions to produce goods for others' profit. Forced labor deprives individuals of their right to bodily autonomy and violates the most fundamental principles of dignity. The entire Civil War is a testament to this. Yet, the persistence of an indiscriminate application of the Thirteenth Amendment's exception to all incarcerated individuals represents a disconnect with the intended meaning of punishment in the Constitution. An intratextual reading of punishment posits that an individual cannot be exempted from Thirteenth Amendment protections against involuntary servitude unless he or she is explicitly sentenced to labor. This argument represents a step forward in larger efforts to challenge the punishment exception and guarantee Thirteenth Amendment protections to all people. Such an abhorrent denial of liberty requires at least that.

J.D. Candidate, Northwestern Pritzker School of Law, 2022; B.A., New York University, 2017.

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