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Sunday, January 19, 2020

The Thirteen Amendment and Criminal Convictions

I want to flag an interesting new article by James Gray Pope in NYU Law Review. Professor Pope does terrific work on Reconstruction, and I want to digest this one before discussing the implications for the Fourteenth Amendment. Here is the Abstract:

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that convicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end, such as raising state revenue, generating private profits, or subjugating black labor. Within a few months of the Amendment’s ratification, the Republican majority in the Thirty-Ninth Congress had outlawed the early, race-based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which the Senate postponed when the focus of Republican strategy shifted to black voting rights. 

The Republican reading faded from view after the Democratic Party regained control of the Deep South. For several decades, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment authorizes such practices. Courts similarly honor the Democratic reading on the assumption it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth. 

Neither courts nor advocates have, however, taken into account the framers’ views. Their interpretation sank from sight not because it was wrong but because Democratic paramilitaries terminated Reconstruction, freeing states to expand convict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. 

Posted by Gerard Magliocca on January 19, 2020 at 09:12 PM | Permalink


"[C}onvicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end[.]" The problem is that traditional penological goals can justify virtually anything.

Posted by: Eduardo Corrochio | Jan 20, 2020 12:27:55 PM

Interesting and important, and up to this days really. Many consider, Forced labor for low or no wages in prisons, as slavery. The modern term (internationally ) is different by the way. One may wonder, what is the difference between "slavery" and" involuntary servitude " as stated in the 13th amendment. For the legislator, clearly distinguish between them both ( although not explicitly ) but, seems complicated right now.

I have come across that one, very " modern " one. Bloomberg and his current race to presidency, here:

" Michael Bloomberg says his presidential campaign used prison labour "


And this one very recommended:

" Sentenced to Prison Slavery"



Posted by: El roam | Jan 20, 2020 6:39:20 AM

What sort of servitude would act as punishment and not also increase state or private profits and subjugate black labor?

Even if we say prisoners performing maintenance of their prison is acceptable servitude, it still profits the state and any private business that may contract with the state to provide materials.

Posted by: thegreatdisappointment | Jan 19, 2020 9:36:03 PM

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