William & Mary Bill of Rights Journal Volume 18 (2009-2010) Issue 2 Article 4 December 2009 A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison? Raja Raghunath Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons Repository Citation Raja Raghunath, A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?, 18 Wm. & Mary Bill Rts. J. 395 (2009), https://scholarship.law.wm.edu/wmborj/vol18/iss2/4 Copyright c 2009 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj A PROMISE THE NATION CANNOT KEEP: WHAT PREVENTS THE APPLICATION OF THE THIRTEENTH AMENDMENT IN PRISON? Raja Raghunath* ABSTRACT 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 punish- ment. 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 sys- tems 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 gen- eral 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 punish- ment 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 “punish- ment” in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation * Assistant Professor, University of Denver Sturm College of Law; B.A. 1997 Duke University; J.D. 2002 University of Michigan Law School. The author wishes to thank Alan Chen, Diane Burkhardt, Laura Rovner, and his colleagues in the Colorado Employment Law Faculty, the Conference of Asian/Pacific American Law Faculty, and at DU for their insight and guidance. He also wishes to thank Christopher Brown and the personnel of the DU law library and Student Law Office for their research support and assistance, as well as his sons, who have been learning the concept of punishment the past few years from first principles, and his wife, for making the writing of this Article possible. 1 U.S. CONST. amend. XIII, § 1. 395 396 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 18:395 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 out- comes 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. So this is the Chain Gang. Among ourselves it is most often re- ferred to as The Hard Road, as a noun and as a proper name, capi- talized and sacred. In the evening you can see us driving down the highway in a long caravan of black and yellow trucks heading back to Camp. And as we go by we get down on our knees in order to get a better view, our wicked, dirty faces peering through the bars to eyeball at your Free World.2 INTRODUCTION .................................................397 I. THE DOCTRINE OF JUDICIAL DEFERENCE TO PRISON OFFICIALS AND ITS IMPLICATIONS ..............................................399 A. The Abdication of Judicial Responsibility, in Service of Punishment . 399 B. The Hard Road, and What Condemnation to it May Illuminate .....404 II. RE-EXAMINING THE THIRTEENTH AMENDMENT’S IMPLICATIONS FOR PRISON LABOR ....................................................409 A. The History of Forced Labor as Punishment ...................409 B. Forced Labor under the Thirteenth Amendment and Other Laws . 417 III. USING TRADITION AND HISTORY AS A TOOL FOR INTERPRETING THE THIRTEENTH AMENDMENT .....................................419 A. The Ratification of the Thirteenth Amendment ..................419 B. Early Understandings of the Thirteenth Amendment .............421 IV. USING DOCTRINE AND PRECEDENT AS A TOOL FOR INTERPRETING THE THIRTEENTH AMENDMENT .....................................427 A. The Meaning of Punishment in the Eighth Amendment ...........427 B. The Meaning of Punishment under the Fifth Amendment ..........431 V. THE IMPORTANCE OF PROPERLY APPLYING THE THIRTEENTH AMENDMENT IN PRISON ..................................................435 A. The Difference Between Forced Labor as Punishment and “Hard Labor” ...........................................435 B. The Potential of the Thirteenth Amendment in the Alternate Universe of The Hard Road........................................439 CONCLUSION: THE HARD ROAD AS ONE THAT IS POTENTIALLY LESS TRAVELED ....................................................442 2 DONN PEARCE, COOL HAND LUKE 6–7 (1965). 2009] A PROMISE THE NATION CANNOT KEEP 397 INTRODUCTION The walls of the prison are not solely physical. “[C]ontempt, the highest of walls,”3 reinforces and heightens the barrier between inmates and free society. In the realm of individual rights, the doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances,4 is a high barrier to the effective scrutiny of modern practices of punishment. Since the time of its ratification in the Reconstruction Era, the Thirteenth Amendment has been improperly employed as one brick in this wall. Properly read, however, the amend- ment instead functions as a breach in this barrier: not one large enough to permit escape, but a breach of sufficient size to allow some needed light to shine within. The Thirteenth Amendment 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.”5 In the years since rati- fication of the amendment, federal courts have construed this exception to allow for nearly all forms of forced labor by convicts,6 except where particular instances of such labor have run afoul of the Eighth Amendment’s ban on “cruel and unusual punish- ments.”7 In some states, individuals may still be sentenced to hard labor,8 but in most systems today, inmates labor under a more general requirement that, if they are able-bodied, they must work.9 3 MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 287 (Alan Sheridan trans., Pantheon Books 1977) (1975) (quoting Michèle Perrot). 4 See Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”); Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 121 (1977) (holding, inter alia, that reasonable views of correctional officials of possible detriment to the institution from prisoner labor organizing outweighed those inmates’ First Amendment associational rights). 5 U.S. CONST. amend. XIII, § 1. The amendment reads in full: “SECTION 1. Neither 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. SECTION 2. Congress shall have power to enforce this article by appropriate legislation.” Id. 6 See Ali v. Johnson, 259 F.3d 317, 317 (5th Cir. 2001) (“[I]nmates sentenced to incarcer- ation cannot state a viable Thirteenth Amendment claim if the prison system requires them to work.”). 7 U.S. CONST. amend. VIII; see Morgan v. Morgensen, 465 F.3d 1041, 1044 (9th Cir. 2006) (holding that where plaintiff-inmate and “other prison print shop employees noticed that his press was dangerously defective,” and the machine had previously “bucked and almost tore off two of his fingers while he was operating it,” plaintiff who “was subsequently injured when the press caught his hand and tore off his right thumb” was entitled to proceeds for damages against the prison official overseeing the shop for a “violation of the Eighth