The Thirteenth Amendment to the United States Constitution outlawed chattel slavery in the United States following a violent Civil War and a chilling era of slavery conducted primarily in the nation’s southern states. In passing this Amendment, Congress included a clause that excepted a certain population from this general prohibition, namely, prisoners. In what has become known as the “punishment clause,” Section I of the Thirteenth Amendment states explicitly “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.” U.S. Const. amend. XIII (emphasis added). Amici here argue that the Thirteenth Amendment intended to end private chattel slavery, full stop; the Thirteenth Amendment’s punishment clause was never intended to support, enable or promulgate private, for-profit re-enslavement of American citizens.
Despite this intention of the Thirteenth Amendment to end private for-profit chattel slavery, the punishment clause has regrettably evolved into a loophole that has allowed and continues to allow American prisoners to be re-enslaved by private parties and corporations for money. Southern states in the 1800 and 1900s discovered ways to avoid this prohibition by enacting laws that bastardized the punishment clause, allowing re-enslavement of newly freed Black Americans. This re-enslavement by private profit centers took the form of southern state Black Codes and Convict Leasing. Today, in the 21st century, this private profit center re-enslavement has taken the form of private corporations like CoreCivic, the GEO Group, and others usurping the government function of citizen incarceration and are maximizing profits from the bodies of prisoners and the prison labor that these prisoners engage. Both Black Codes and Convict Leasing violated the Thirteenth Amendment (as evidenced by Congressional prohibitions through later legislation, like the Civil Rights Acts of 1866 and 1875).
Today, this bastardization of the punishment clause continues, through the likes of private, for-profit prison corporations that treat prisoners as commodities and profit from their often-free labor in violation of the Thirteenth Amendment. Private prison corporations violate the Thirteenth Amendment by enslaving prisoners for profits.
Amici note here that the Amended Complaint plainly states Thirteenth Amendment claims in the alternative: First, that the prohibition of slavery is absolute; and Second, that private slavery is prohibited. This amicus curiae brief provides historical context for the Court’s consideration of primarily the second claim; i.e., that the Thirteenth Amendment prohibits private slavery as punishment for a crime. Notwithstanding this, the state defendant argues in its Response Brief that the punishment clause strips all Thirteenth Amendment rights from prisoners, thereby sanctioning the practice of re-enslavement which sounds in chattel slavery and convict leasing. This reading of the punishment clause however, is not consistent with the historical context in which the Thirteenth Amendment was enacted nor is it coherent when compared to the intent, purpose, tone and prose from which the Thirteenth Amendment language was crafted, as demonstrated below. In fact, events before and after the passage of the Thirteenth Amendment demonstrate that the punishment clause language was understood to allow for public prison labor, not for the reintroduction of private slavery, the end of which was the very aim of the abolition amendment.
When confronted with two inconsistent interpretations of the punishment clause language, one supported by the state defendant arguing that the punishment clause strips all Thirteenth Amendment protections from prisoners and the other supported by plaintiffs and Amici arguing that the punishment clause was to allow for public prison labor, most likely temporarily, and not for the re-enslavement of freed Black Americans, the interpretation supported by history, intent, logic, and nearly all historians, including legal historians, should prevail. The Courts (and Congress) must recognize this truth and close the punishment clause loophole by staying true to the Thirteenth Amendment’s prohibition of private chattel slavery through ending for-profit incarceration.
cummings, andré douglas pond et al., Amicus Curiae Brief of Law Professors and Law Students from Arkansas: Private For Profit Incarceration Violates the 13th Amendment of the United States Constitution (June 24, 2021), Nielsen et al v. Shinn, 2:20-CV-01182 (D. Arizona).