Introduction
In 2020, there were at least 600,000 slaves in the United States.
They cooked.
They cleaned.
They did building maintenance and repair work.
Some fought fires.
And others, harking back to an age most thought long past, even picked cotton.
These slaves, unlike many of their forebears, were not stolen from the coast of Africa or marked for this fate purely by dint of their birth. These people were enslaved by our criminal legal system: by prosecutors and judges empowered by our cities, counties, states, and nation. What’s more, they were almost uniformly enslaved by these carceral actors without a word that they were about to suffer this fate.
Indeed, it seems that even their advocates—their defense attorneys—made no mention that slavery was in their future.
This refers, of course, to the Thirteenth Amendment and its now infamous
“Except Clause.”
Despite being billed as a wide-ranging prohibition on slavery, the Thirteenth Amendment states that “[n]either 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.”
The puzzle and the problem at the heart of this Article, though, is not the existence of prison slavery or involuntary servitude; that practice is clearly contemplated by the Thirteenth Amendment itself. Instead, what motivates this Article is the silent enslavement of hundreds of thousands of incarcerated persons in the country. One might think that the decision to enslave someone—particularly given this country’s history of violent and purportedly successful resistance to the institution of slavery, and within a criminal legal system that disproportionately ensnares the descendants of those whom the country historically enslaved—would be a somber one, made with deep thought and reflection. But instead, prosecutors, judges, and even defense attorneys seem to give this potentially momentous punishment no thought at all, despite its near-constant imposition.
Why is this? In a system in which defense attorneys and prosecutors litigate every arcane issue affecting the sentence a judge can impose,
judges fiercely guard their discretion to impose individualized sentences,
and something as miniscule as a five-dollar special assessment is mentioned in the pronouncement of a sentence,
why does the fact that so many convicted defendants are about to be enslaved go unmentioned?
Past commentators have suggested that broader societal forces have pushed us here. Maybe capitalism is to blame, or racism, or the other systems that create the hierarchies within our society.
Or maybe we should look to the personal instead of, or in addition to, the societal. Perhaps there are psychological and social reasons for this phenomenon. All of these people—legislators, prosecutors, defense attorneys, judges—may simply want to think of themselves as good people,
and focusing on their role in enslavement makes that more difficult.
After all, even without considering enslavement, judges routinely remark that sentencing is the hardest part of their job.
But this Article is not about broader societal forces or carceral actors’ unspoken psychological motivations. It is about the legal regime that has enabled enslavement as default. Presumably, if the law said that at each sentencing the judge must announce whether a defendant was to be enslaved and explain the reasons for that decision, that is what judges would do. But our current legal interpretations require no such thing. This Article seeks to uncover what the law does require and to tell a thus-far unappreciated story of how it came to be that way.
What this analysis finds is not a bombshell or a smoking gun. Instead, it shows that our current system of prison slavery is built on the sorts of mundane processes and decisions that seem small and unimportant individually but, in the aggregate, create a regime that this Article calls administrative enslavement.
For nearly a century, the federal courts have almost uniformly stated that the only trigger necessary for the Thirteenth Amendment’s Except Clause is a conviction.
The standard processes that apply to the taking of a plea or pronouncement of a sentence have no purchase here.
There is no requirement, for example, that a defendant be told that a conviction carries with it the loss of Thirteenth Amendment rights as part of the punishment or that a sentencing judge (or legislature) offer any reason for why that punishment is appropriate.
Indeed, there may not even need to be a statute on the books imposing the punishment.
This permissive interpretation of the Except Clause did not come about through any sort of grand doctrinal innovation but through the slow march of common law decisionmaking. In cases across the federal courts, judges faced primarily with zealous—indeed, relentless—pro se and imprisoned litigants made broad, unreasoned pronouncements about the Except Clause.
Those pronouncements then became the basis for courts throughout the country to dismiss challenges to enslavement-as-punishment, even when facing novel arguments.
Narrower readings of the Except Clause occurred almost entirely in cases in which the plaintiffs were represented.
The common law, when combined with the realities of pro se and prison litigation, became a one-way ratchet to restrict the rights of imprisoned people.
This one-way ratchet has, in turn, allowed states and the federal government to create statutes and regulations that require all incarcerated people to be enslaved, most visibly through their forced labor.
Though the Except Clause explicitly states that slavery and involuntary servitude are only allowed as “punishment,” nearly every federal and state provision regulating prison enslavement is contained within the portion of the code dedicated to prison administration.
Functionally, what results is that none of the preconviction process usually attached to criminal punishment occurs for the punishment of slavery, and it is instead controlled almost entirely by prison administrators.
Administrative enslavement is this systemic, broad jurisprudential reading of the Except Clause combined with legislation transferring prison-slavery decisions into the hands of prison bureaucrats. Contrary to the usual notions of criminal punishment, the administrative-enslavement regime requires no notice that this punishment will be imposed, no explanation of why it is appropriate, and no decision by a judge or jury.
The rest of this Article proceeds in three parts. Part I introduces the Thirteenth Amendment, the Except Clause within it, and the commentary that has analyzed its role in our law and society. It does this with an eye toward the question: How have we gotten to where we are today? While most commentators focus on “big issues” to answer this question—race, capitalism, and maintaining the hierarchies of social and economic control those systems entail—this Article suggests that it is through small, mundane, and rarely noticed decisions that courts and legislatures have built the administrative-enslavement legal regime that allows these “big issues” to flourish. To highlight these decisions, Part I traces modern Except Clause cases to their origins. In doing so, it uncovers how the previous story told about these cases was incorrect and how the real story is much more troubling. Starting with bare statements and citations to largely inapposite precedent, the courts developed an Except Clause jurisprudence that slowly but surely constricted the rights of imprisoned people, typically in response to the pro se imprisoned litigants who brought challenges to their enslavement. The courts did so with little reasoning, often waving away novel pro se arguments in the process.
Part II shifts from the courts to the statute books. It reviews how prison labor has been enacted and regulated in all fifty states and in the federal code, and creates a taxonomy of those laws. What it finds is striking: Statutes in almost every jurisdiction in the United States treat prison slavery as a piece of prison administration as opposed to a criminal punishment. Prison-slavery statutes are located in parts of the code distinct from those that set out criminal punishments. What’s more, they do not empower the judiciary to impose this punishment; instead, they almost uniformly empower prison administrators. To the extent that the statutes mention punishment at all, it is through the lens of rehabilitation. Often, however, they state that incarcerated people should work for idleness-prevention and cost-saving reasons. Part II also discusses other statutory design features that, while currently dormant, will likely become relevant if the administrative-enslavement regime comes under attack. These are whether a prison-labor statute imposes labor through mandatory or permissive language and the (for now) rare statutes explicitly stating that some or all prison labor must be voluntary.
While Parts I and II merely illuminate the current state of the world, Part III seeks to change it. To that end, it sketches a number of arguments that might end, or at least contract, the administrative-enslavement regime. It argues that administrative enslavement is constitutionally suspect on numerous grounds from both living constitutionalist and originalist frames. Turning to practice, Part III suggests how prosecutors and defense attorneys might use plea bargaining to disrupt administrative enslavement by allowing accused people to bargain to retain their Thirteenth Amendment rights. Finally, Part III looks toward the future to analyze how the courts, legislatures, and prison administrators who have created the status quo might seek to maintain it as administrative enslavement comes under attack.
This Article comes at a particular moment in history. After well over a century of constitutional stasis, we have allowed the peculiar institution
—which most imagined dead and gone—to instead evolve and recapture hundreds of thousands of people in its grasp.
But change is fomenting. In 2018, Colorado voted to amend its state constitution to prohibit slavery and involuntary servitude totally.
In 2020, Utah and Nebraska joined in this movement.
And in 2022, Alabama, Vermont, Oregon, and Tennessee did, too.
In many of these states, the votes to entirely abolish slavery and involuntary servitude were overwhelming. Tennessee’s measure passed with nearly eighty percent of the vote,
and Vermont’s passed with nearly ninety percent.
Now is a time when the possibility of truly ending slavery and involuntary servitude is not only imaginable but seemingly likely.
Attacking, and ending, administrative enslavement is one important step toward that goal.
* * *
Before continuing, a note on terminology is warranted. This Article uses the terms administrative enslavement and prison slavery
while also occasionally mentioning involuntary servitude. The choice to name this phenomenon “slavery” is intentional, as it accurately describes the system that is this Article’s subject. Nevertheless, there are several serious objections to this choice. Grappling with them explicitly will illuminate the relatively limited scope of this Article and the broad scope of the problems and systems it describes.
Objections to calling the current regime “slavery” might come from two directions. First, one might argue that the Thirteenth Amendment’s Except Clause in fact only authorizes involuntary servitude, not slavery, thereby making the Amendment’s prohibition on slavery total.
That this potentially major interpretative question has gone largely uninterrogated by the courts for over 150 years is one example of the lack of thought, here in the form of doctrinal stagnation, that this Article suggests administrative enslavement has enabled. Ultimately, there are reasonable arguments on both sides,
and the answer to this question—while potentially momentous for the lives of imprisoned people—does not alter the analysis of administrative enslavement.
And while fully clarifying the distinction between involuntary servitude and slavery in this context is beyond the scope of this Article, it is worth briefly highlighting that the Article’s focus on forced labor is, in some ways, artificial. While forced labor for the benefit of another has always been at the core of American slavery, the institution included other pathologies that our current carceral system replicates.
For that reason, this Article does not identify a precise number of people that our carceral system has enslaved. At a minimum, the hundreds of thousands of people currently forced to work while incarcerated seem clearly within the Except Clause’s ambit.
But a more capacious comparison between chattel enslavement and Except Clause enslavement might suggest that everyone who is incarcerated, or perhaps everyone who is on parole or probation, or has been convicted of a crime, has experienced the sort of status-based degradation of their place in civil society that previously marked those who were chattelly enslaved.
Second, one could argue that referring to the current regime of forced prison labor as enslavement belittles the experience of those who suffered through chattel slavery. I am particularly sensitive to this possibility, but I believe that referring to our current system as slavery is correct for three reasons. First, while chattel slavery may have been a particularly evil and extreme incarnation of slavery, it is not the only practice that warrants that label.
Slavery in various forms has existed in numerous cultures throughout human history. Even today, individuals, organizations, and governments fight against forced labor practices across the world that are rightly labeled slavery despite contours that differ from chattel enslavement.
Relatedly, this Article uses the term “slavery” here because courts have attempted to use the depth of the evil of chattel enslavement to constrict the Thirteenth Amendment’s reach. Because even practices that fit well within the label “involuntary servitude” were not “akin to African slavery,” the courts have allowed them to continue.
Finally, and perhaps most importantly, the term slavery is used here because it is a term that numerous imprisoned people have used to describe their experiences,
experiences which too often reflect those of chattel enslavement. Indeed, their descriptions, which invoke traumas beyond merely being forced to work,
accord with the conception of slavery put forward by Professors Jack Balkin and Sanford Levinson as “more than simply being free from compulsion to labor by threats or physical coercion. Rather, the true marker of slavery was that slaves were always potentially subject to domination and to the arbitrary will of another person.”
Though this Article focuses overwhelmingly on forced labor, it should not be lost that labor is only one way that the ever-present threat of domination manifests for convicted people.