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August 16, 2009

"What Prevents the Application of the Thirteenth Amendment in Prison?"

The question of this post is from the title of this new article by Raja Raghunath appearing on SSRN. The full title is "A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?" and here is the 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 punishment.  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' — has been seen by courts as one brick in this wall.  This article makes the novel argument that, properly read, the amendment should instead function 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 systems 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 general 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 punishment 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 of the meaning of 'punishment' in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation 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 outcomes 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.

August 16, 2009 at 10:07 AM | Permalink


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I find it a strange argument that confinement as punishment for crime should not qualify under the exception contained in the 13th amendment. And I doubt the author would prefer the easy way to make the 8th and 13th consistent in terms of the complained of disunity: make the 8th less protective.

If any phenomena is responsible for the incongruity this article wishes remedied it would be that very widening of the constraints placed on punishment by the courts.

And I seriously doubt the author would enjoy a regime where criminals are auctioned out to private parties as forced laborers for a term of years, even though on the face of the 13th that would appear to be allowed.

Mostly this appears to be yet another article written because of "publish or perish", too bad academics have to write even when they don't actually have something to say.

Posted by: Soronel Haetir | Aug 16, 2009 10:31:27 AM

This bird would be singing another tune if a fraction of earnings from prison labor were to reimburse the incompetents that defended these unfortunates, to spare the taxpayer the dollars totally wasted on make work for these incompetents. How much training beyond grammar school does it take to tell almost everyone (97%), "Just plead, guilty?" As with all criminal enterprises, all problems would be solved by paying a "tribute," as Tony Soprano calls it.

Clue. In most cases, work is a high privilege for good conduct. And prisoners strive to earn the privilege. It is the lack of the work that is punitive to the prisoner. When a prisoner gets extreme in rule breaking, he is punished by being sent to...? Correct. The "hole." In the "hole" he does ...? Correct. Nothing.

Are there Boolean search criteria for these clippings, ((any "dumbass" and left wing) and (not common sense or reality))? "Dumbass" is a lawyer term of art here, and not an epithet. The high threshold, scientifically valid criteria for lawyer term of art, "dumbass" are listed here:


Posted by: Supremacy Claus | Aug 16, 2009 11:07:03 AM


Many states have moved to prison models where very few inmates do any work, useful or otherwise. It's just far harder to supervise inmates who are supposed to be doing something.

What bothers me more is how some prison training programs train people to perform work that they can't get licensed to perform once released due to their criminal record. That just doesn't make sense to me, though in general I would say the licensing requirement needs to go rather than change what the programs teach. Who cares if a barber or manicurist has a criminal record?

Posted by: Soronel Haetir | Aug 16, 2009 11:23:56 AM

This bird quotes Ramsay Clark on the measure of a civilization being its treatment of prisoners. The author has zero credibility. No mention of civilization's treatment of the 23 million FBI Index Felony victims a year.

On p. 42, "The Supreme Court has similarly conflated the circumstantial and purposeful imposition of prison conditions in its Due Process jurisprudence.323 This conflation ignores the
distinction between non-punitive practices such as rehabilitation, which has a forwardlooking
purpose – to change future conduct – with punishment, which is necessarily backwards-looking and premised on conduct that has already occurred.324"

This is a fundamental misunderstanding from the Scholasticist indoctrination of the lawyer "dumbass." Punishment teaches the being avoidance. It is a far more effective "treatment" than "treatment" in changing future conduct. Most of us are deterred by the small chance of arrest. Arrest is a physical procedure like surgery, taking medication, or caning. (All legal remedies are physical procedures requiring proof of safety and efficacy were not the cult criminals running the law like a criminal enterprise granting themselves self-dealt immunities from any accountability or even competence, at the point of a gun.)

The remote possibility of punishment influences our future behavior, as does seeing others punished (social learning). The antisocial personality disorder represents a defect in that ability to learn from punishment, its possibility, and application to others. In the extreme, repeat prison sentences, and even the death penalty have no deterrent effect. In those cases, the remedy is not punishment because the criminal has no ability to learn from it. It is attrition by 123D.

The author misunderstands the effect of punishment on future conduct, because he was taught basically the Catholic Catechism in law school, an unlawful and incompetent methodology in this secular nation.

Posted by: Supremacy Claus | Aug 16, 2009 11:30:20 AM

I asked my Hair Cuttery person what she did to earn the license on the mirror. She spent 2000 hours in school, over two years. She took a written test with 200 questions, including testing the knowledge of scientific data on the skin, like a Dermatology specialty board exam. Then a licensing official saw her cut the hair of three different types of people. I told her she has about 1000 times the training of our judges.

No easy answer.

Most licensed occupations carry some responsibility for the safety of the person. Someone convicted of beating up a bunch of cops, if told about that, would you want your haircut from that person? What if you say something that offends him, with his standing over your head, neck and ears with scissors. Many addicts are normal people with good morals outside of addiction and the necessity to supply themselves. I have no problem with them in jobs requiring responsibility for the safety of others.

How about construction? If unsupervised, the criminal may cut corners in workmanship that allow the house to get blown away in a brisk wind.

Under supervision and with tight checking, they are quite competent. For example, running a call center, they should be quite good salesmen, having superior persuasion skills than even the lawyers here. But that is where one must really "monitor this call for educational and quality purposes." Or else, they may end up making side deals that bilk people, with deposits of funds in outside accounts. If they sell legitimate mutual funds or products, they should get a real commission, and keep a third. A third should go to the prison to defray costs, a third to court and legal costs. Now the lawyer would love it. The prisoner also builds the resume. He walks into office of an outside mutual fund, and says, I brought in $10 million in accounts. Any problem with the conviction in my record? What do you think the answer would be? But that person still requires more than average scrutiny and supervision. These help the prisoner not break the rules, since there is a higher chance of discovery.

Posted by: Supremacy Claus | Aug 16, 2009 11:49:37 AM

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