Slavery Revisited in Penal Plantation Labor

Armstrong, Andrea C., Slavery Revisited in Penal Plantation Labor (April 5, 2012). 35 Seattle University Law Review 835 (2012); Loyola University New Orleans College of Law Research Paper No. 2012-06. Available at SSRN: http://ssrn.com/abstract=2034915

Abstract: 

The Thirteenth Amendment prohibits slavery and involuntary servitude, but contains an exception for convicted prisoners. Scholars who have interrogated the prisoner-labor exception have wrongly concluded that prisoners may constitutionally be subjected to slavery (not just involuntary servitude). Courts have simply construed prisoners’ laborcomplaints as involuntary servitude, failing to distinguish between the two concepts. Similarly, the public has failed to discuss the types of labor we expect from the incarcerated. The lack of attention to prison-created slavery is particularly problematic in the current economy. States, facing increasing budget deficits, are turning to inmatelabor to produce additional revenue, or at a minimum, offset the cost of imprisonment.

Based both upon the text and history of the Thirteenth Amendment, this article argues that prisoners may only be subjected to conditions approximating involuntary servitude. When a prisoner experiences “social death,” i.e. the chattelizing of a person through the ritual or symbolic social degradation and exclusion, the prisoner is subjected to constitutionally prohibited conditions approximating slavery. In addition, the imposition of slavery on prisoners constitutes “cruel and unusual punishment” under the Eighth Amendment. The article applies these concepts to the history and operation of a modern-day penal plantation, Louisiana State Penitentiary. Last, the article concludes that a broader public discussion of the re-creation of slavery behind prison walls can lead to other positive outcomes, including enhanced legitimacy of the criminal justice system.

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