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Excerpted From: Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell Law Review 899 (May 2019) (512 Footnotes) (Full Document)


michellegoodwinNeither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Thirteenth Amendment (1865)


On August 31, 2017, The New York Times published a provocative news article, "The Incarcerated Women Who Fight California's Wildfires." California is particularly known for its wildfires. The dry-air, hot-weather conditions that persist much of the year and limited rainfall create the conditions that make pockets of the state ripe for devastating wildfires. Strong winds, often referred to as the Diablo (or the devil), radiate in the northern part of the state, exacerbating the already vulnerable conditions. The Santa Ana winds do the same in southern counties. Fighting these fires can be a matter of life or death.

In fact, Shawna Lynn Jones died in 2016, only hours after battling a fire in Southern California. She was nearly done with a three-year sentence--barely two months remained of her incarceration. However, the night before, at 3 a.m., she and other women had been called to put out a raging fire. Tyquesha Brown recalls that the fire that night required traversing a steep hillside of loose rocks and soil. This made their task even more challenging. Another woman told a reporter that Jones struggled that night--the weight of her gear and chain made it difficult for her to establish footing to hike up the hill where the fire blazed. However, she and the other women of Crew 13-3 performed their duties, holding back the fire so that it did not "jump the line." By doing so, they saved expensive properties in Malibu. However, Jones was dead by 10 a.m. the next morning.

For "less than $2 an hour," female inmates like Shawna Jones and Tyquesha Brown "work their bodies to the breaking point" with this dangerous work. The women trudge heavy chains, saws, medical supplies, safety gear, and various other equipment into burning hillsides surrounded by intense flames. On occasion, they may arrive "ahead of any aerial support or local fire trucks," leaving the prisons in the peak of night, when it is pitch black, arriving before dawn to the color of bright flames and intense heat.

Sometimes the women are called upon to "set the line," meaning they clear "potential fuel from a six-foot-wide stretch of ground" between the source of the fire (or whatever is burning) and the land or property in need of protection. They dig trenches, moving toward the fire with tools in hand, keeping about ten feet apart from each other while calling out conditions. The women cut wood, clearing it before the flames lick at its brittle brush. After, they scrape or shovel--all in syncopation--while clouds of smoke envelope them. For protection, thin bandanas or yellow handkerchiefs cover their mouths. They operate in a frightening rhythm of sorts: saw, hook, shovel, and rake charred earth, trees, or whatever remains from the blazing fire.

To the naked eye, the women could appear to represent progress. For too long, state, federal, and local agencies excluded women from professions that demanded the service of their bodies at the front lines of anything other than childbearing, motherhood, and domestic duties. Women waged legal battles to become firefighters and police officers. Thus, a glance at the women battling California's fires might convey a message of hope and that the only battles left are the fires themselves--and not the persistent claims of institutional and private discrimination, such as colleagues urinating on their beds, sexual harassment, and retaliation for performing their jobs well.

In fact, no special symbol adorns their uniforms announcing the prisoners' status. Make no mistake however; these women are inmates, performing arduous labor for cents on the dollar and without much training. Civilian firefighters typically receive a three to four-year apprenticeship and a competitive wage. By contrast, after "as little as three weeks" training, the women who make it into the program are sent out to contain wildfires.

Notwithstanding the troubling illnesses and even deaths that occur from inmates performing such dangerous tasks with limited training and incredibly low wages, such programs are perfectly legal. In some prisons and jails, inmates receive no pay or literally only pennies per hour for their labor, engendering analogies to slavery adapted to life behind bars. In Alabama, prisoners earn no pay for what are referred to as "non-industry jobs," although for work programs facilitated by the state for private industries (making couches, barbecue grills, and other items), a prisoner can earn $0.25 to $0.75 per hour. The same is true in Arkansas, Florida, and Georgia. In other states that pay for "non-industry" jobs, the wages are hardly better; in Arizona, pay can be as little as $0.15 per hour or up to $0.20 in Louisiana--with some exceptions for private industry jobs, which might fetch $1.00 per hour.

Ironically, the very first female firefighter, Molly Williams, was a slave, forced to put out fires in New York in the early 1800s. A chilling, undated rendering of Molly depicts a Black woman without a coat and seemingly no gloves, pulling an engine (also known as a "pumper") through thick snow, while white men in coats and top hats flee.

Molly's owner and city officials referred to her as a "volunteer" firefighter; she doused flames while still tethered to the bondage of slavery and a strange, gendered uniform consisting of nothing but her apron and calico dress. Molly's owner, a wealthy New York merchant, Benjamin Aymar, conscribed her to this duty. Like the California inmates, Molly could not simply walk off the "job."

For inmates, sometimes the labor is for the state--such as California harnessing prison labor to build roads, or to clear fires. According to Lt. Keith Radey, "[a]ny fire you go on statewide, whether it be small or large, the inmate hand crews make up anywhere from 50 to 80 percent of the total fire personnel." And it is not just women who make up these fire crews-- incarcerated men comprise the bulk of those who fight California's fires.

In other instances, inmates labor for private, multi-million and billion-dollar industries, earning very little or what might be described as "slave-like" wages. The most famous case of this was in the 1990s, when inmates sewed the merchandise sold by Victoria's Secret, J.C. Penney, and other retailers. Sometimes inmates work for the state, and in other instances, private businesses essentially lease their labor. The employers, whether private industry, the state, or private prisons, would be correct in pointing out that in the traditional sense, these women and men are not slaves; in fact, California refers to them as "volunteers." After all, American slavery was a specific, racialized institution abolished with the ratification of the Thirteenth Amendment in 1865.

For some rehabilitation programs and prison systems, employment is a key part of allowing inmates to develop skills, prepare for the workforce, and shape a positive life within and one day beyond prison walls. As social "reentry" and "ban the box" programs emerge, even more industries are open to assisting the formerly incarcerated upon their release. However, whether these programs represent progress by producing outcomes that benefit rather than exploit inmates or serve as a "chokehold," fitting within the narrow exception of the Thirteenth Amendment, which permits forced, uncompensated servitude or slavery of those convicted of crimes is a question that deserves debate and scrutiny. Arguments that a low wage is better than no wage, and thus not slavery at all, fall short and fail to address the substantive quality of slavery embedded in the prison economy and how pernicious forms of servitude are ritualistically reimagined, reified, and re-instantiated in the American criminal justice system. Nor do such arguments shed light on the economic motivations of contemporary slavery. From an unpaid laborer's perspective, the conditions and terms that instantiate her condition may seem unfair, inhumane, and downright abusive. However, situated from the view of the state as "holder" of the labor, slavery of this sort is quite simply profitable and legal.

This Article argues that cries for penal reform, while important, do not speak to the urgent issue of slavery behind bars and the externalities that pervade the broader consequences of prison labor markets.  Second, although recent attention to private prisons raises questions about whether states should contract with firms that seek to maximize profits in relation to incarceration, this work argues that slavery's fundamental importance to U.S. capitalism and the American economy extended beyond bankrolling private business interests in the 18th and 19th centuries.

For these reasons, now is an important time to consider these matters in order to develop a more robust jurisprudence in exile. Even though political interest and efforts to address the lingering consequences of legalized slavery may not be at the forefront of congressional or state legislative debate (if present at all), it is nevertheless important to grapple with this important issue. To answer Stephen Sachs' question, "[i]f law is a matter of social practice, as most seem to agree, can there be social practices that hardly anybody in society knows about?": yes, the prison slave economy.

This Article makes two conceptual contributions.

First, it tells a story about the Thirteenth Amendment forbidding one form of slavery while legitimating and preserving others. Of course, the text does not operate absent important actors: legislatures and courts. Yet, as explained by Reva Siegel, despite "repeated condemnation of slavery," such united opposition to the practice "may instead function to exonerate practices contested in the present, none of which looks so unremittingly 'evil' by contrast." In this case, uncompensated prison labor, including that of the dangerous work of female firefighters, inures economic benefits to the state and the companies capable of extracting it.  This Article argues that this preservation of the practice of slavery through its transformation into prison labor means that socially, legislatively, and judicially, we have come only to reject one form of discrimination--antebellum slavery--while distinguishing it from the marginally remunerated and totally unremunerated prison labor that courts legitimate.

Second, this Article argues that the promises of the Thirteenth Amendment may actually fill in gaps of the Fourteenth Amendment. For example, the Fourteenth Amendment has been interpreted only to prohibit purposeful/intentional consequences or the purposeful/intentional production of disparate burdens. Yet, the Thirteenth Amendment is different textually and historically.

This Article demonstrates that not only is the prison slave system vibrant, it produces profits and wealth for those who exploit prison labor.

Part I establishes the framework of this Article.

Part II examines the preservation of slavery through the ratification of the Thirteenth Amendment and the Punishment Clause.

Part III examines the scale of modern incarceration and forced labor. It argues that just like traditional forms of slavery, the modern system functions according to certain fundamental principles, such as the laws of supply and demand, creating perverse incentives in criminal justice.

Part IV turns to the question of reform and offers recommendations to eradicate modern vestiges of slavery.

[. . .]

Slavery's preservation in the United State can--in part--be explained by its fluid transformations, which continuously exacted economic gains, preserved southern social order, and inured benefits to private parties as well as the state. These transformations did not outpace law. Rather, the rule of law in the south and lawlessness among local law enforcement frequently accommodated these transformations and innovations. Historically, efforts to stamp out the myriad forms of slavery--convict leasing, peonage, contract transfers, so-called "apprenticeships," and chain gangs--frequently fell short because of local collusion and complicity, weak federal interventions and protections, and violence. The specter of lynching, which included the hanging women and children, bombings of churches and homes, and arrests, succeeded in instilling a crippling fear among even the most courageous southern Blacks. Local and state laws aggravated these injustices and provided little or no relief for Black men, women, and children subjected to them.

These historic conditions matter today. With the ratification of the Punishment Clause, states lacked any disincentive to do otherwise. Effectively, there were no consequences for continuing slavery within the means articulated by the Thirteenth Amendment. If anything, the Thirteenth Amendment's Punishment Clause may have exacerbated slavery's spread into states that had previously abolished the practice. Substantively, freedom shall not and truly cannot exist without a fundamental change in the criminal justice system, including the abolishment of the Punishment Clause.

Michele Goodwin, Chancellor's Professor of Law, is the Founding Director of the Center for Biotechnology and Global Health Policy at the University of California, Irvine.

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