University of Denver Sturm College of Law
Legal Research Paper Series
Working Paper No. 09-22

A PROMISE THE NATION CANNOT KEEP:
WHAT PREVENTS THE APPLICATION OF THE THIRTEENTH AMENDMENT IN PRISON?
Raja Raghunath
University of Denver Sturm College of Law

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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 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.

A Promise the Nation Cannot Keep:
What Prevents the Application of the Thirteenth Amendment in Prison?
Raja Raghunath*
So this is the Chain Gang. Among ourselves it is most often referred to as
The Hard Road, as a noun and as a proper name, capitalized 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.1
Table of Contents
I.

Introduction………………………………………………………………………….. 3

II.

The Doctrine of Judicial Deference to Prison Officials and Its Implications………... 5
a. The Abdication of Judicial Responsibility, in Service of Punishment………. 5
b. The Hard Road, and What Condemnation To It May Illuminate……………. 9

III.

Re-Examining the Thirteenth Amendment’s Implications for Prison Labor……….. 13
a. The History of Forced Labor as Punishment……………………………….. 13
b. Forced Labor under the Thirteenth Amendment and Other Laws………….. 20

IV.

Using Tradition and History as a Tool for Interpreting the Thirteenth Amendment.. 22
a. The Ratification of the Thirteenth Amendment…………………………….. 22
b. Early Understandings of the Thirteenth Amendment………………………. 24

V.

Using Doctrine and Precedent as a Tool for Interpreting the Thirteenth Amendment28
a. The Meaning of Punishment in the Eighth Amendment…………………… 28
b. The Meaning of Punishment under the Fifth Amendment…………………..31

VI.

The Importance of Properly Applying the Thirteenth Amendment in Prison……… 35
a. The Difference Between Forced Labor as Punishment and “Hard Labor”… 35
b. The Potential of the Thirteenth Amendment in the Alternate Universe of the
Hard Road……………………………………………………………….... 39

VII.

Conclusion: The Hard Road as One That Is Potentially Less Traveled……………. 42

*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
DONN PEARCE, COOL HAND LUKE 6-7 (Thunder’s Mouth Press 1999) (1965).

A Promise the Nation Cannot Keep
I. Introduction
The walls of the prison are not solely physical. “Contempt, the highest of walls,”2
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,3 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 amendment 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.”4 In the years since ratification
of the amendment, the federal courts have construed this exception to allow for nearly all
forms of forced labor by convicts,5 except where particular instances of such labor have
run afoul of the Eighth Amendment’s ban on “cruel and unusual punishments.”6 In some
states, individuals may still be sentenced to hard labor,7 but in most systems today,
inmates labor under a more general requirement that, if they are able-bodied, they must
work.8
Reading the Thirteenth Amendment in a manner that is consistent with the weight
of constitutional jurisprudence under the Eighth Amendment9 and the Fifth
2

Michel Foucault, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 287 (1976) (quoting Michele
Perrot).
3
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 (1977) (holding, inter alia, that reasonable views
of correctional officials of possible detriment to institution from prisoner labor organizing outweighed
those inmates’ First Amendment associational rights).
4
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.
5
See Ali v. Johnson, 259 F.3d 317, 317 (5th Cir. 2001) (“inmates sentenced to incarceration cannot state a
viable Thirteenth Amendment claim if the prison system requires them to work.”).
6
U.S. CONST. amend. VIII. See Morgan v. Morgensen, 465 F.3d 1041 (9th Cir. 2006) (where plaintiff
inmate and other prison print shop employees noticed that his press was dangerously defective,” and
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
proceed for damages against prison official overseeing shop for “violation of the Eighth Amendment.”).
7
See, e.g., VT. CONST. ch. II, § 64 (“means ought to be provided for punishing by hard labor, those who
shall be convicted of crimes not capital, whereby the criminal shall be employed for the benefit of the
public, or for the reparation of injuries done to private persons: and all persons at proper times ought to be
permitted to see them at their labor.”).
8
See TEX. GOV’T CODE ANN. § 497.099 (“The department shall require each inmate…housed in a facility
operated by or under contract with the department to work…to the extent that the inmate…is physically
and mentally capable of working.”).
9
See Wilson v. Seiter, 501 U.S. 294, 300 (1991) (drawing distinction between harms characterized as
prison conditions and those “formally meted out as punishment by the statute or the sentencing judge,” with
former category only actionable where “some mental element…attributed to the inflicting officer” present).

3

A Promise the Nation Cannot Keep
Amendment,10 reveals that only those inmates who are forced to work because they have
been so sentenced should be exempted from the general ban on involuntary servitude.
That is not, however, how the courts have ever seen the Thirteenth Amendment. Instead,
the logic of the prison deference doctrine has driven the judicial broadening of the
meaning of punishment where such deference is served,11 and the narrowing of the
meaning of that word in situations where doing so serves the same end.12 This selfserving act of constitutional interpretation deprives the Thirteenth Amendment of
meaning and effect. “If Congress cannot say that being a free man means at least this
much” to those held behind prison walls, as the Supreme Court has noted in another
context, “then the Thirteenth Amendment made a promise the Nation cannot keep.”13
Part II of this article describes the doctrine of judicial deference to prison officials
and its centrality to both our modern system of punishment and the effectuation of
prisoners’ rights. This part also offers some predictions as to what might come out of a
re-examination, in the manner sought in this article, of the Thirteenth Amendment’s
protections for prisoners. Part III relates the history of forced labor programs as
punishment in Western society, and specifically describes how the protections of the
Thirteenth Amendment have been held to not apply to such programs. Part IV of this
article describes how neither the historical circumstances surrounding ratification of the
amendment, nor the relevant ways that courts’ understandings of the amendment have
evolved since that time, support the manner in which it is currently applied by courts to
prisoners. Part V describes the parallel jurisprudence of the Eighth and Fifth
Amendments, which have taken the opposite approach to the meaning of the word
“punishment” to reach the same end of defeating most prisoner claims for violations of
their rights under those amendments.
Part VI of this article explores the philosophical differences between what we
understand the phrase “hard labor” to mean, and the properly-understood meaning of
“punishment” in the Thirteenth Amendment, and asks whether those differences can
meaningfully guide the application of the arguments made herein. This part also
theorizes about the potential outcomes of such application, in particular the value of fully
understanding the punitive reasons why we compel prisoners to work as a potential
constraint on the types of labor to which we compel them. The article concludes that
there exists the possibility that prisoners in particular, and society as a whole, will be
better off as a result of adopting this new understanding of the Thirteenth Amendment.

10

See United States v. Ramirez, 556 F.2d 909, 920-21 (9th Cir. 1977) (withdrawn on rehearing) (holding,
inter alia, that the “punitive element [of incarceration] connected with the crime, and the only element still
controlled by the sentencing judge, is the loss of freedom for some period of time,” such that prison
officials could not “punish individual prisoners for their crimes” without violating indictment clause of
Fifth Amendment).
11
See, e.g., Smith v. Dretke, 157 Fed. Appx. 747, 748 (5th Cir. 2005) (“The Thirteenth Amendment
permits involuntary servitude without pay as punishment after conviction of an offense, even when the
prisoner is not explicitly sentenced to hard labor. Consequently, Smith has not shown that the defendants
violated his rights by making him hold a prison job.”).
12
See, e.g., Helling v. McKinney, 509 U.S. 25, 42 (1993) (Thomas, J., dissenting) (“The text and history of
the Eighth Amendment…raise substantial doubts in my mind that the Eighth Amendment proscribes a
prison deprivation that is not inflicted as part of a sentence.”).
13
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443 (1968).

4

A Promise the Nation Cannot Keep
II. The Doctrine of Judicial Deference to Prison Officials and Its Implications
a. The Abdication of Judicial Responsibility, in Service of Punishment
In earlier times, the protections of the Constitution were denied to prisoners
compelled to work because the beneficial value of the prisoners’ labor was owned by the
prison,14 i.e. they were enslaved by the state.15 Although such views do not necessarily
inform today’s courts,16 the modern doctrine of prison deference presents a comparably
formidable obstacle to an interpretation of the Thirteenth Amendment’s “punishment for
crime” exception that limits it to those inmates who are compelled to work as
punishment; that is, to the extent they are so sentenced by a judge or jury.17
The strength of the prison deference doctrine is shown by the courts’ uniform
resistance to prisoner attempts to invoke other workers’ rights, such as the statutory
minimum wage (or any wage at all),18 the protections of the Eighth Amendment’s ban on
“cruel and unusual punishments” to enforce limits on hours worked,19 or to hold prison
officials liable for constitutional torts when inmates are injured on the job.20 Although

14

See Noah D. Zatz, Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of
Employment Relationships, 61 VAND. L. REV. 857, 890 (2008) (“The second way that exchange might be
lacking is if inmate work, while productive, is in the prison’s possession from the start, rather than being
transferred in an exchange between the parties. An argument along these lines appears to underlie courts’
frequent assertion that inmates cannot be employees because ‘the economic reality is that their labor
belong[s] to the institution.’”).
15
See E. Stagg Whitin, The Caged Man, 1 BULLETIN OF SOC. LEGISLATION at 24 (July 1913) (“The
prisoner is the property of the state or a subdivision of the state while he is in penal servitude”); and Ruffin
v. Commonwealth, 21 Gratt. 790, 62 Va. 790, 796 (Va. 1871) (“A convicted felon, whom the law in its
humanity punishes by confinement in the penitentiary instead of with death, is subject while undergoing
that punishment, to all the laws which the Legislature in its wisdom may enact for the government of that
institution and the control of its inmates. For the time being, during his term of service in the penitentiary,
he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his
liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the
time being the slave of the State.”).
16
See, e.g., Washlefske v. Winston, 60 F. Supp. 2d 534, 539 (E.D. Va. 1999) (“the idea expressed by the
court in Ruffin, that inmates are no more than ‘slaves of the State,’ has been repeatedly and expressly
repudiated by other courts.”).
17
Cf. Helling, 509 U.S. at 38 (1993) (Thomas, J., dissenting) (“At the time the Eighth Amendment was
ratified, the word ‘punishment’ referred to the penalty imposed for the commission of a crime.”) (citation
omitted).
18
See generally Zatz, supra note 14, at 866-81 (discussing contemporary prison labor and consistent
exclusion of prisoners from Fair Labor Standards Act coverage, based on a variety of justifications).
19
See Woodall v. Partilla, 581 F. Supp. 1066, 1077 (N.D. Ill. 1984) (“In the instant case, Woodall does not
allege that defendants compelled him to perform labor beyond his physical capabilities or which
endangered his health. Nor does he allege that he suffered abusive treatment. Woodall merely asserts that
he worked an average of 16-18 hours per day. The complaint is wholly devoid of specific allegations of
extreme hardship in his working conditions and thus fails to state a claim under the Eighth Amendment.”).
20
See generally Colleen Dougherty, The Cruel and Unusual Irony of Prisoner Work Related Injuries in the
United States, 10 U. PA. J. BUS. & EMP. L. 483, 484 (2008) (arguing that “prisoners in many states can be
severely injured while forced to work with defective or unsafe prison machinery but have difficulty seeking
a remedy because they cannot meet the onerous deliberate indifference standard required to establish an
Eighth Amendment violation.”); and Amy L. Riederer, Note, Working 9 to 5: Embracing the Eighth
Amendment Through An Integrated Model of Prison Labor, 43 VAL. U. L. REV. 1425, 1444-48 (2009)

5

A Promise the Nation Cannot Keep
the stated rationale that courts have used has changed over time and in these different
contexts, the underlying principle of the judiciary’s deference has not,21 as it is rooted in
the essence of our modern system of punishment.
The courts defer to prison administrators because the prison by definition operates
in an entirely different sphere than the free world that the rest of us inhabit. As the
philosopher Michel Foucault described in his landmark work Discipline and Punish, the
modern prison has supplanted the public square as the site of collective punishment, but
the locus of that punishment has not changed – it remains the body of the criminal.22 In
lieu of inflicting physical pain as retribution for wrongs, we segregate the criminal from
public view and access to particular rights of the free.23 Foucault called this “an economy
of suspended rights.”24 Included among these suspended rights are most of the rights of
free workers, in part because the notion of providing them to convicted criminals offends
popular sensibilities.
David Garland has traced how, in the last forty years, in particular after the
rehabilitation of prisoners “was suddenly dislodged from its central, axiomatic position”
in criminal justice policy in the early 1970s, “and made to occupy a quite different and
diminished role in subsequent policy and practice,”25 we have come to measure our
collective well-being by the degree to which criminals are deprived of their rights as
punishment, what is called the “retributive” model of punishment.26 Garland saw this
trend as having come so far today that “[t]he interests of victim and offender are assumed
to be diametrically opposed: the rights of one competing with those of the other in the

(describing various prison labor and non-labor conditions held not sufficient by courts to constitute
actionable violations of Eighth Amendment).
21
See, e.g., Ex Parte Taws, 23 F. Cas. 725, 725 (C.C. Pa. 1809) (“We do not think it right to interfere with
the jailer in the exercise of the discretion vested in him, as to the security of his prisoners, unless it
appeared that he misused it for purposes of oppression, of which there is no evidence in this case.”).
22
Foucault, supra note 2, at 11 (“But the punishment-body relation is not the same as it was in the torture
during public executions. The body now serves as an instrument or intermediary: if one intervenes upon it
to imprison it, or to make it work, it is in order to deprive the individual of a liberty that is regarded both as
a right and as property…Physical pain, the pain of the body itself, is no longer the constituent element of
the penalty.”).
23
See, e.g., M. Kay Harris and Frank M. Dunbaugh, Premise for a Sensible Sentencing Debate: Giving Up
Imprisonment, 7 HOFSTRA L. REV. 417, 419 (1979) (quoting Dr. Karl Menninger as noting that, “[o]ur
forefathers’ inventions were replaced by the slow tortures of imprisonment – away from the public view.”)
(citation omitted).
24
Foucault, supra note 2, at 11 (“From being an art of unbearable sensations punishment has become an
economy of suspended rights.”). Conservative critics of Foucault find his perspective replete with
“romantic myths about incarceration,” and argue that principles that “remain abhorrent to a Foucauldian
perspective on corrections” nevertheless are “essential to sound management.” Heather MacDonald, The
Jail Inferno, CITY JOURNAL, Vol. 19, No. 3 (Summer 2009), available at http://www.cityjournal.org/2009/19_3_jails.html.
25
DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY
54 (2001). See generally id. at Ch. 3 (describing how a “movement that initially aimed to enhance
prisoners’ rights, minimize imprisonment, restrict state power, and end predictive restraint, ultimately
ushered in policies that did quite the opposite.”).
26
See Kyron Huigens, On Commonplace Punishment Theory, 2005 U. CHI. LEGAL F. 437, 441 (2005)
(“The deontological theory of punishment justifies punishment by appeal to retribution: to take retribution
on a wrongdoer is an unconditional duty.”).

6

A Promise the Nation Cannot Keep
form of a zero sum game.”27 Paul Campos has referred to the inequalities and particular
retributive mismatches that necessarily result from seeking such a “reciprocity of
suffering”28 as the “paradox of punishment [that] has become hidden, like the criminal
himself, from our view.”29
The interplay between these various forces in our system of punishment has led to
what one court described as a “tension” in the modern doctrine of prison deference,
between the view that a prisoner enjoys many constitutional rights, which
rights can be limited only to the extent necessary for the maintenance of a
person’s status as prisoner (or parolee), and the view that a prisoner has
only a few rudimentary rights and must accept whatever regulations and
restrictions prison administrators and State law deem essential to a
correctional system.30
In 1974, a year after the above statement was made by the United States Court of
Appeals for the Seventh Circuit, the Supreme Court emphatically proclaimed that there
was no “iron curtain” between prisoners and their constitutional rights.31 At least one
observer optimistically predicted that, as judges had “begun to delve into the rationale
behind prison regulations,” in the future “a recital of ‘security’ or ‘rehabilitation’ as the
purpose of such regulations will not automatically justify them.”32 However, after a few
years of rising crime rates,33 and a number of Supreme Court decisions rejecting such a
fulsome approach to prison litigation,34 by the end of the 1970s others were seeing a

27

Garland, supra note 25, at 180. See also John Pfaff, Reform School: Five Myths About Prison Growth
Dispelled, Slate, February 19, 2009, available at http://www.slate.com/id/2211585 (“[I]f we look back
historically at the lockup rate for mental hospitals as well as prisons, we have only just now returned to the
combined rates for both kinds of incarceration in the 1950s. In other words, we’re not locking up a greater
percentage of the population so much as locking people up in prisons rather than mental hospitals. Viewed
through this lens, what seems remarkable is not the current era of mass incarceration but the 1960s and
‘70s, during which we emptied the hospitals without filling the prisons.”).
28
Paul Campos, The Paradox of Punishment, 1992 WIS. L. REV. 1931, 1936 (1992).
29
Id. at 1940.
30
Morales v. Schmidt, 489 F.2d 1335, 1338 (7th Cir. 1973). See also Ira P. Robbins, The Cry of Wolfish in
the Federal Courts: The Future of Federal Judicial Intervention in Prison Administration, 71 J. CRIM. L. &
CRIMINOLOGY 211, 213 (1980) (attributing doctrine of judicial deference to, inter alia, “the traditional
distinction drawn by courts between rights and privileges,” such that “courts often labeled all features of
prison existence as privileges, and consequently denied review.”).
31
Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (“But though his rights may be diminished by the needs
and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional
protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and
the prisons of this country.”).
32
Sarah M. Singleton, Unionizing America’s Prisons – Arbitration and State-Use, 48 IND. L.J. 493, 495
n.12 (1972).
33
See Garland, supra note 25, at 106 (“From the mid-1960’s onwards, rates of property and violent crime
that were double and treble those of pre-war rates increasingly became an acknowledged and commonplace
feature of social experience. By the early 1990’s, despite some leveling off, the recorded rates were as
much as ten times those of forty years before.”).
34
See Bell v. Wolfish, 441 U.S. 520, 547-48 (1979) (holding, inter alia, that “the problems that arise in the
day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators
therefore should be accorded wide-ranging deference in the adoption and execution of policies and

7

A Promise the Nation Cannot Keep
“clearly marked trend towards a presumptive validity for prison regulations,”35 a trend
that continues today.36
Today’s courts rely heavily upon the doctrine of prison deference to defeat
prisoner claims, irrespective of whether the inmate rights at issue have actually been
violated.37 In an earlier era, this was referred to by one observer as a “‘hands-off’
doctrine,” which, until approximately the late 1960s and early 1970s, compelled “a
majority of state and federal courts [to] follow[ ] a policy of declining jurisdiction over
most litigation involving prisons.”38 The modern federal courts often locate the source of
their deference in the separation of powers envisioned in the Constitution, noting that the
branches of government that are tasked by that document with implementing our system
of punishment are the legislature and the executive.39 As Foucault has pointed out, the
roots of this deference actually extend farther back in history than the American
Revolution, to the first institutions of penitentiary confinement.40 Even the first Western
jailers, in the Sixteenth and Seventeenth Centuries, demanded a degree of autonomy from
the judicial apparatus that created the need for their very profession.41
As a result of this history, where courts have wished to preserve the
impregnability of the prison’s walls from the intrusion of prisoners’ rights under
Constitutional amendments other than the Thirteenth, they have engaged in a far more
exacting analysis than they have in the Thirteenth Amendment context, and examined
whether the purposes behind the treatment of prisoner-litigants supported categorizing
that treatment as “punishment.”42 The question presented by this article is whether that

practices that in their judgment are needed to preserve internal order and discipline and to maintain
institutional security.”); and Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 119 (1977).
35
Robbins, supra note 30, at 218.
36
See Wilkinson v. Austin, 545 U.S. 209, 228 (2005) (“It follows that courts must give substantial
deference to prison management decisions before mandating additional expenditures.”); and Jones, 433
U.S. at 125 (“The District Court, we believe, got off on the wrong foot in this case by not giving
appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar
and restrictive circumstances of penal confinement.”).
37
See, e.g., Turner v. Safley, 482 U.S. 78 (1987) (holding facially valid restriction on inmate-to-inmate
correspondence, but striking regulation prohibiting inmates from marrying, as former was reasonably
related to a legitimate penological objective, in that case security, but latter was not).
38
Robbins, supra note 30, at 211.
39
See id. at 212 (describing “basic argument” of separation of powers basis for judicial deference as
“control over prison management lies exclusively with the legislative branch of government,” and “federal
and state statutes delegate exclusive responsibility for administration of prisons to the executive branch of
government, including wide discretion over routine prison matters.”); and Bell, 441 U.S. at 548 (“[T]he
operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches
of our Government, not the Judicial.”) (citations omitted).
40
See Foucalt, supra note 2, at 121 (“[The] functioning [of the oldest penitentiary, the Rasphuis of
Amsterdam, opened in 1596,] obeyed three great principles: the duration of the penalties could, at least
within certain limits, be determined by the administration itself, according to the prisoner's conduct...Work
was obligatory; it was performed in common...; and, for the work done, the prisoners received wages.”).
41
See id. at 129 (“The agent of punishment must exercise a total power, which no third party can disturb;
the individual to be corrected must be entirely enveloped in the power that is being exercised over him.
Secrecy is imperative, and so too is autonomy, at least in relation to this technique of punishment: it must
have its own functioning, its own rules, its own techniques, its own knowledge; it must fix its own norms,
decide its own results.”).
42
See Parts VIII and IX, infra.

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A Promise the Nation Cannot Keep
more exacting analysis, if brought to bear on prisoners’ Thirteenth Amendment claims,
would yield any benefits for them or only result in greater hardship.
b. The Hard Road, and What Condemnation To It May Illuminate
The chain-gang prisoners in the novel Cool Hand Luke referred to their grueling
conditions of forced road labor as “The Hard Road.”43 Compliance with the punitive
demands of a properly-understood Thirteenth Amendment, as argued for in this article,
could mean that much prison labor would return to something akin to this Hard Road.
The decisions that would have to be made for the implementation of such a return would
therefore provide the opportunity to revisit the discussion of who among us is – and is not
– properly sent down that road. The prospect of the Hard Road would also introduce in
all concerned the (hopefully) self-limiting awareness that we are subjecting individuals to
unpleasant conditions not for their own purported benefit, but as a penalty for their
commission of a crime, so it is incumbent on us to get it right and not overdo it.44
For jurisdictions wishing to retain a general inmate work requirement, the most
direct response to a Supreme Court opinion returning us to the Hard Road would likely
be to lobby for the enactment of a sentencing statute that explicitly includes hard labor or,
where such statutes already exist,45 for their broader application. The legislative,
administrative, and expert bodies that exist (or that are created)46 for such an undertaking
would then be given the opportunity to examine the state of prison work requirements,
and the nature of modern punishment generally, in their relevant systems, thereby
opening to public inquiry the largely unseen lives of the over 2.3 million people
incarcerated in the United States, the highest per-capita rate of imprisonment in the
world.47
The flowering of a thousand such examinations across the country could be seen
as a cause for guarded optimism. The doctrine of prison deference does have limits, after
all, and, in their more extreme forms, those limits are easily identifiable as such. For
example, it has been argued that a plain reading of the Thirteenth Amendment would
allow for the imposition of either involuntary servitude or slavery as punishment for
43

See Pearce, supra note 1.
See, e.g., Robert A. Pugsley, Retributivism: A Just Basis for Criminal Sentences, 7 HOFSTRA L. REV.
379, 403-404 (1979) (arguing that a retributivism is “the most appropriate theory upon which to construct a
just system of definite sentences,” as it “is honest about punishment-as-pain, and therefore, it seeks to limit
punishment,” and provides “truth-in-labeling,” insofar as it acknowledges “that punishment is an
unpleasant thing to impose on another human being and fellow citizen.”). See also Herbert Morris, Persons
and Punishment, The Monist 475, 484 (1967) (“Because treatment is regarded as a benefit, although it may
involve pain, it is natural that less restraint is exercised in bestowing it, than in inflicting punishment.”).
45
See LA. REV. STAT. 14:30(C)(1), (2) (declaring that for the crime of “[f]irst degree murder...the offender
shall be punished by death or life imprisonment at hard labor”); and BLACK’S LAW DICTIONARY 721 (7th
ed. 1999) (noting, in definition of “hard labor,” that “[s]everal states (such as Louisiana, Maine, and New
Jersey) impose hard labor as a sentence for a variety of crimes.”).
46
See, e.g., Ryan Grim, “Webb Crime Bill Moving in House,” The Huffington Post, June 24, 2009,
available at http://www.huffingtonpost.com/2009/06/24/webb-crime-bill-moving-in_n_220381.html (“The
Senate bill was introduced by Sen. Jim Webb and would create a commission to make recommendations on
the reform of everything from sentencing to drug policy.”).
47
Pierre Thomas and Jason Ryan, “U.S. Prison Population Hits All-Time High: 2.3 Million Incarcerated:
DOJ Report Reveals Record Numbers in Prisons Last Year, With Huge Economic Impacts,” June 6, 2008,
available at http://abcnews.go.com/TheLaw/story?id=5009270.
44

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A Promise the Nation Cannot Keep
crime.48 However, we no longer view the infliction of pain – or rather, too much pain49 –
as an acceptable form of punishment,50 so presumably sentencing convicted criminals to
slave-like conditions (or granting prison wardens the discretion to treat them as such)51 is
not an acceptable policy option. Justice Antonin Scalia has admitted, for example, “that
he would not vote to permit whipping or branding against an eighth amendment
challenge,” even where he “assumed an unequivocal demonstration that ‘these were not
cruel and unusual measures in 1791.’”52 Clearly there are situations where our modern
definition of punishment will necessarily, and correctly,53 trump what we take to be our
understanding of the original meaning of the term.54
But when would “hard labor” be too “hard” in this sense? The recent
reintroduction of chain gangs in Alabama, and the hurried retraction of this policy in the
face of litigation,55 despite strong public support for the practice,56 illustrates that some of
the traditional forms of inmate labor no longer fall within the acceptable legal boundaries
of modern punishment.57 How will the relevant decision-makers determine that the labor
which particular criminals will be compelled to do is “hard” enough to meet its punitive
48

See generally Scott W. Howe, Slavery as Punishment: Original Public Meaning, Cruel and Unusual
Punishment and the Neglected Clause in the Thirteenth Amendment, 51 ARIZ. L. REV. __ (forthcoming
2009), available at http://ssrn.com/abstract=1347156.
49
See Ray v. Mabry, 556 F.2d 881, 882 (8th Cir. 1977) (“Compelling prison inmates to work does not
contravene the Thirteenth Amendment...However there are circumstances in which prison work
requirements can constitute cruel and unusual punishment...[such as where] prison officials knowingly [ ]
compel convicts to perform physical labor which is beyond their strength, or which constitutes a danger to
their lives or health, or which is unduly painful.”) (citations omitted).
50
See, e.g., Morgan v. Morgensen, 465 F.3d 1041, 1046 (2006) (“For our purposes, we conclude that the
evidence, viewed in the light most favorable to Morgan, shows that Canady violated Morgan’s
constitutional right not to be compelled to perform work that endangered his health and caused undue
pain.”).
51
But see Watson v. Graves, 909 F.2d 1549, 1551-53 ((5th Cir. 1990) (denying Thirteenth Amendment
challenge by prisoners who “had [not] been sentenced to hard labor” to their being “assigned to work for
the Sheriff’s daughter and son-in-law.”); and Ariz. Rev. Stat. § 31-251(A) (2008) (“The director has the
authority to require that each able-bodied prisoner under commitment to the state department of corrections
engage in hard labor for not less than forty hours per week.”).
52
Howe, supra note 48, at 3.
53
See, e.g., H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659, 691 (1987) (“It is apparently
the hope of some originalists that history can serve as a way out of the realm of personal choice. They think
that if we accord authority to the opinions of the founders, we can preclude judges, and ourselves, from
importing into constitutional interpretation our own values, preferences, individual viewpoints, and
subjective and societal blindness and prejudice…[E]ven if this flight from choice were appropriate, it is
impossible if history is the chosen escape route.”).
54
See, e.g., Hope v. Pelzer, 536 U.S. 730, 738 (2002) (holding Alabama’s use of “hitching post” to
discipline chain-gang inmates an “obvious” violation of “the ‘basic concept underlying the Eighth
Amendment[, which] is nothing less than the dignity of man.’”) (citation omitted).
55
See generally Tessa M. Gorman, Back on the Chain Gang: Why the Eighth Amendment and the History
of Slavery Proscribe the Resurgence of Chain Gangs, 85 CAL. L. REV. 441, 453-57 (1997) (describing
newly-elected Governor of Alabama’s reinstitution of chain gangs on May 3, 1995, and state’s subsequent
cessation of the “practice of chaining inmates together” on “June 19, 1996, without being ordered to do so
by the Court…in a settlement with the Southern Poverty Law Center…”).
56
See id. at 453 (“Polling showed that an overwhelming majority of Alabamans approved of the idea.”).
57
But see id. at 458 (“Chain gangs still exist and continue to prosper in Alabama. The Alabama
Department of Corrections still has high-risk prisoners working on the roads, and they still are bound in
chains. Each prisoner on the chain gang has his legs shackled together, but is not chained to other
inmates.”).

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purpose,58 yet remain compliant with the other constitutional protections afforded
prisoners? Each jurisdiction will have to define according to its values the types of
forced labor that will be considered punitive in this respect, but this exercise does not
have purely abstract implications. For example, it has been observed that, where inmates
are subjected in apparently arbitrary fashion to additional hardship as punishment for
their crimes, such impositions detract from, rather than add to, the prospects for reducing
those inmates’ recidivism.59 Such additional hardship also detracts from the calculus of
proportionality that is inherent in setting out appropriate punishments for crime.60
Requiring policymakers and the public at large to confront the implications of
compliance with a properly-understood Thirteenth Amendment therefore has the
potential to initiate an illuminating debate about our modern system of incarceration, a
system larded with injustices, but one for which we have yet to discern any effective
alternative.61 Even if such a discussion never occurs in our wider society, the judiciary’s
response to a Supreme Court decision returning us to the Hard Road would, at minimum,
conclusively answer the question of whether “the freedom that Congress is empowered to
secure under the Thirteenth Amendment”62 includes in any of its aspects the rights of
prisoners to be free from forced labor.63
A return to the Hard Road would not mean the end of all “non-hard” prison labor
programs. It would simply mean that inmate participation in such programs could no
longer be compelled, a result that should serve rather than detract from those programs’
non-punitive purposes.64 The other tangible outcome in the law that may result from this
58

See JEREMY BENTHAM, THE RATIONALE OF PUNISHMENT 164 (1830) (“If labour then, even though
forced, will in time lose much of its hardship, how much easier will it become when the duration and the
mode are in some measure regulated by the will of the labourer himself; when the bitter ideas of infamy
and compulsion are removed, and the idea of gain is brought in to sweeten the employment?”). See also
Foucault, supra note 2, at 240 (“The labour of prisoners was remunerated in France. This posed a problem:
if work in prison is remunerated, that work cannot really form part of the penalty.”).
59
See, e.g., Foucault, supra note 2, at 266 (“The arbitrary power of administration: ‘The feeling of injustice
that a prisoner has is one of the causes that may make his character untamable. When he sees himself
exposed in this way to suffering, which the law has neither ordered nor envisaged, he becomes habitually
angry against everything around him; he sees every agent of authority as an executioner; he no longer
thinks that he was guilty: he accuses justice itself.’”) (citation omitted).
60
See, e.g., Morris, supra note 44, at 480 (“the deprivation, in this just system of punishment, is linked to
rules that fairly distribute benefits and burdens and to procedures that strike some balance between not
punishing the guilty and punishing the innocent.”).
61
See, e.g., Foucault, supra note 2, at 232 (“We are aware of all the inconveniences of prison, and that it is
dangerous when it is not useless. And yet one cannot ‘see’ how to replace it. It is the detestable solution,
which one seems unable to do without.”).
62
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443 (1968).
63
Cf. Bruce Western and Christopher Wildeman, Punishment, Inequality, and the Future of Mass
Incarceration, 57 U. KAN. L. REV. 851, 851 (2009) (“Since the zenith of the Civil Rights Movement in the
late 1960s, the character and extent of American citizenship have been redrawn by the steady growth in the
penal population. The emergence of mass imprisonment – historically high and concentrated rates of
incarceration – represents a new type of institutionalized inequality.”); and Coffin v. Reichard, 143 F.2d
443, 445 (6th Cir. 1944) (“A prisoner retains all the rights of an ordinary citizen, except those expressly, or
by necessary implication, taken from him by law.”).
64
See Edward M. Kennedy, Symposium on Sentencing, Part I: Introduction, 7 HOFSTRA L. REV. 1, 3-4
(1978) (“Abolition of prison rehabilitation programs is not the answer. Indeed, such programs should be
expanded, especially in the areas of vocational and educational training. What is needed is the abolition of
compulsory rehabilitation, particularly as a justification for imprisonment.”) (emphasis in original).

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return is the creation of what one observer has called, in another context, the “blameless
liberty” of the criminally accused.65 With respect to prison labor programs, such a
blameless liberty would take the form of a “(non-legally enforceable) right”66 of prisoners
to refuse to work except where they have been sentenced to do so. The right would be
“non-legally enforceable” in the sense that the doctrines of prison deference and qualified
immunity would still allow for a broad latitude of behavior on the part of officials, as
they do in the Due Process context,67 thus permitting those officials to seek out
alternative ways to coerce or convince individual prisoners to obey work requirements.68
The pendulum could, however, swing in the other direction, leading to a
proliferation of non-discretionary hard-labor sentencing statutes that embrace the
extremes of retributive justice’s demand for punishment as “an unconditional duty.”69
The argument has been made that the “imposition of a draconian penalty…can upset the
proper balance between society, the victim, and the offender just as surely as the crime
itself has done.”70 It is more difficult to argue today for such a conservation of harm
between the incarcerated and non-incarcerated worlds, since,
[l]ike the pre-modern sanctions of transportation or banishment, the prison
now functions as a form of exile, its use shaped less by a rehabilitative
ideal and more by what Rutherford calls an “eliminative” one…[T]he
offender is rendered more and more abstract, more and more stereotypical,
more and more a projected image rather than an individualized person.71
In lieu of genuine human understanding, then, some clarity on the nature of the
debate in which we are engaged would be welcome. If the Supreme Court were to return
us to the Hard Road, the many jurisdictions that would inevitably wish to retain their
existing apparatuses of prison labor would be forced to take the kind of legislative action
that would lay bare the extent of their desire to declare that this land of internal exile,
what Foucault called the “carceral archipelago,”72 is a place that is effectively outside of
“the United States, or any place subject to their jurisdiction,” for the purposes of the
Thirteenth Amendment rights of the individuals whom we have banished to that place.
The only question that remains is whether the potential benefits of making this discovery
65

Ristroph, supra note 267, at 28.
Id.
67
See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009) (upholding qualified immunity of high officials
involved in long-term detention of Arab-Muslim immigration violators after September 11, 2001, inter
alia, because complaint did not “contain facts plausibly showing that petitioners purposefully adopted a
policy of classifying post-September-11 detainees as ‘of high interest’ because of their race, religion, or
national origin,” and instead “[a]ll it plausibly suggests is that the Nation’s top law enforcement officers, in
the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure
conditions available until the suspects could be cleared of terrorist activity.”).
68
See Foucault, supra note 2, at 247 (“All this ‘arbitrariness’ which, in the old penal system, enabled the
judges to modulate the penalty and the princes to ignore it if they so wished, all this arbitrariness, which the
modern codes have withdrawn from the judicial power, has been gradually reconstituted on the side of the
power that administers and supervises punishment.”).
69
Huigens, supra note 26, at 441.
70
Id. at 442.
71
Garland, supra note 25, at 178-79.
72
Foucault, supra note 2, at 301.
66

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will outweigh the individual human costs of the official actions that would be the source
of such revelations.
III. Re-Examining the Thirteenth Amendment’s Implications for Prison Labor
a. The History of Forced Labor as Punishment
In the present day, “well over 600,000, and probably close to a million, inmates
are working full time in jails and prisons throughout the United States.”73 In the federal
system alone, which saw its inmate population increase “more than 650% [from] 1980”
to 2005,74 UNICOR, the trade name for Federal Prison Industries, Inc., employs almost
20,000 of this total,75 and is the thirty-ninth largest federal contractor.76 In Colorado, the
state correctional industries employ “approximately 1,500 inmates at 16 DOC facilities
located throughout Colorado,” in activities as diverse as “dog adoption and training,” the
production of “high quality office furnishings,” “forms printing and distribution,” “wild
land firefighting and reclamation,” and horse wrangling.77 Neither of these jurisdictions
sentence criminals to hard labor; instead, both promulgate a general work requirement for
all able-bodied inmates.78
Forced labor is a form of punishment that predates the penitentiary,79 and it
accompanied incarceration as punishment even in its earliest forms.80 In this country,
[i]n the early colonial period, imprisonment was usually an “intermediate
step in the punishment process;” the convicted criminal was temporarily
confined while awaiting punishment and, with the exception of those who
suffered capital punishment, he was released after the penalty had been
executed…Among the punishments inflicted were death, flogging,
mutilation, branding, stocks, pillory…It was not until the late eighteenth
and early nineteenth centuries that the new states supplemented or
replaced these forms of punishment with imprisonment and imprisonment
at hard labor.81
73

Zatz, supra note 14, 868.
CRS Report for Congress: Federal Prison Industries, updated July 13, 2007, Congressional Research
Service at 4-5.
75
CRS Report at Summary.
76
Imagine a World in Which Prisoners Have…, Daily Kos, August 4, 2008, available at
http://www.dailykos.com/storyonly/2008/8/4/14245/73239/33/562362.
77
Brochure, “Colorado Correctional Industries: We Build Opportunity,” available at
http://www.coloradoci.com.
78
See 28 C.F.R. § 545.20(a)(2) (“Sentenced inmates who are physically and mentally able to work are
required to participate in the work program.”); and COLO. REV. STAT. 17-24-102(1) (2008) (“[T]o the
extent possible, all able-bodied offenders should be employed.”).
79
See ELINOR MYERS MCGINN, AT HARD LABOR: INMATE LABOR AT THE COLORADO STATE PENITENTIARY,
1871-1940 107 (1993) (“Whereas the penitentiary had been chiefly a product of the nineteenth century,
convict labor on roads was certainly not a new concept; in fact, it had been a traditional role for servi
poenas (slaves of punishment or convicts) during the Roman times, if not before.”).
80
See Foucault , supra note 2, at 121.
81
United States v. Ramirez, 556 F.2d 909, 911 (9th Cir. 1977) (withdrawn on rehearing) (citations
omitted). See also James J. Misrahi, Note, Factories with Fences: An Analysis of the Prison Industry
Enhancement Certification Program in Historical Perspective, 33 AM. CRIM. L. REV. 411, 413 (1996)
74

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For lesser crimes, “[c]onfinement at hard labor in a workhouse or house of
correction for periods of less than a year was a punishment commonly imposed in
America in the colonial period…for offenses not deemed serious.”82 Forced labor as
punishment shared some of the expressive purposes of the pre-penitentiary public
punishments.83 In Europe, the “chain-gang, a tradition that went back to the time of the
galley slaves,” represented a transitional form of punishment during the period when the
penitentiary replaced the public infliction of pain as the primary penalty for lawbreaking,
as “it combined in a single manifestation the two modes of punishment: the way to
detention unfolded as a ceremonial of torture.”84 The visibly grueling conditions of the
roadwork to which the chain-gang prisoners in Cool Hand Luke were subjected85
illustrate additional potential reasons why prolific road-building societies such as the
Roman Empire thought to use conscripted labor for such tasks.86
In their development in the American colonies, “incarceration and inmate labor
became bedfellows for a variety of reasons,”87 including that, “since the inception of the
penitentiary, there has rarely been an occasion on which the degenerative effects of
inmate idleness have not been decried,”88 and both of the schools of American
penitentiary reform that arose “during the Jacksonian era…had great faith that disciplined
labor was an essential ingredient in building within offenders a moral fiber sufficiently
strong to resist the criminal temptations that prevailed in larger society.”89 Thirty years
ago, a study of various state prison-labor regimes by the United States Department of
Justice found that the unanimity on this question remained unchanged.
Ironically, the view that prisoners ought to work during confinement is
supported both by penologists who advocate that prisons serve a

(noting that the “history of American prisons is also the history of labor in prisons…Prisons were organized
around the concept of work in order to reform the inmate.”).
82
United States v. Moreland, 258 U.S. 433, 445 (1922) (Brandeis, J., dissenting). Justice Brandeis also
stressed that the “labor which inmates were required to perform was not imposed as punishment or as a
means of disgrace. Nor was the confinement imposed primarily as punishment.” Id. at 447.
83
See, e.g., id. at 448-49 (Brandeis, J., dissenting) (1786 Pennsylvania reform “substituting imprisonment
for death as the penalty for some of the lesser felonies…provided specifically that the imprisonment should
be attended by ‘continuous hard labor publicly and disgracefully imposed.’ Hard labor as thus prescribed
and practiced was merely an instrument of disgrace.”).
84
Foucault, supra note 2, 257.
85
See Pearce, supra note 1, at 114-19 (“Our shovel handles were slimy with sweat, our bodies covered with
mud, our lungs choked with the stench of tar and its heat and with the cloud of dust that billowed away
behind us.”). But see Bentham, supra note 58, at 166 (“In public works, the infamy of their publicity tends
to render the individuals more depraved than the habit of working tends to reform them.”).
86
See, e.g., Foucault, supra note 2, 109 (“Public works meant two things: the collective interest in the
punishment of the condemned man and the visible, verifiable character of the punishment. Thus the
convict pays twice; by the labour he provides and by the signs that he produces.”).
87
McGinn, supra note 79, at 53.
88
Paul R. Comeau, Labor Unions for Prison Inmates: An Analysis of a Recent Proposal for the
Organization of Inmate Labor, 21 BUFF. L. REV. 963, (1971).
89
Id.

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rehabilitative purpose as well as by those who advocate that prisons serve
a punishment and/or deterrence function.90
Whatever the justification, former North Carolina Governor Jim Hunt expressed
the basic rationale that has always held sway in the United States when he said, “Every
able-bodied prisoner in North Carolina ought to be working and working hard.”91
From the beginning, these reasons have helped inmate labor “persist[ ] as the sine
qua non of imprisonment” in this country.92 “By 1835 confinement and hard labor were
the most common punishments for all but the relatively few capital crimes in most
states.”93 In 1876, the Supreme Court expressed the common law rule of the era when it
held various federal sentencing statutes to mean that
where the statute requires imprisonment alone, the several provisions
which have just been referred to place it within the power of the court, at
its discretion, to order execution of its sentence at a place where labor is
exacted as part of the discipline and treatment of the institution or not, as it
pleases.94
One legal observer of the era noted similar trends in the states,95 where separate sentences
of hard labor and incarceration were not held necessary to subject inmates to both
penalties at once,96 although not all states agreed that this was always appropriate.97
Despite this conflation of the penalties of incarceration and forced labor by courts
and legislators through the Nineteenth Century, it still remained the case – at least in the
federal system – that “[h]ard labor was a distinct penalty expressly authorized for specific
crimes and penitentiary confinement, while not included in the penalty clauses of
particular offenses, was ordered by the sentencing judge as part of the punishment.”98

90

National Criminal Justice Reference Service, Study of the Economic and Rehabilitative Aspects of Prison
Industry – Technical Tasks and Results 4 (1978), NCJ 046046 (hereinafter, the “NCJRS Study”) (copy on
file with the author).
91
Quote available at http://www.doc.state.nc.us/work/. In North Carolina, “all able-bodied inmates shall
be required to perform diligently all work assignments provided for them,” and a failure to do so “may
result in disciplinary action.” N.C. GEN. STAT. 148-26(a).
92
McGinn, supra note 79, at 53.
93
United States v. Ramirez, 556 F.2d 909, 911 n.4 (9th Cir. 1977) (citation omitted).
94
Ex Parte Karstendick, 93 U.S. 396, 399 (1876).
95
See generally Whitin, supra note 15, at 17-18 (noting that, in Tennessee, the “sentence of the court
whether expressly provided or not is understood to be a sentence to hard labor,” and in a number of other
states, “hard labor, under reasonable restrictions as required in most prisons, is healthful for mind and body
and, in the judgment of prisoners is a veritable boon, compared with enforced idleness.”).
96
See generally Pounders v. State, 74 So. 2d 640 (Ala. App. 1954) (holding that sentence to perform hard
labor to pay for costs was not improper where court might lawfully have imposed a sentence to hard labor).
97
See Ex Parte Arras, 20 P. 683, 684 (Cal. 1889) (voiding judgment that “impose[d] hard labor as a part of
the penalty in case the fine is not paid,” on the basis that only “prisoners convicted of felonies” could be
sent to the state prison where such labor took place, and the “court below had no jurisdiction to impose
hard labor as part of the punishment” for the non-felonious offense.).
98
United States v. Ramirez, 556 F.2d 909, 913 (9th Cir. 1977); See also DAVID GARLAND, PUNISHMENT
AND WELFARE: A HISTORY OF PENAL STRATEGIES 7 (1985) (“‘Imprisonment’ is to be distinguished from
‘penal servitude’ in as much as the former involved sentences of up to two years, with or without hard labor

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Since before this time, hard-labor punishment without incarceration was also an available
penalty in the United States military,99 and remains one today.100 However, by the turn of
the Twentieth Century, “hard labor had become primarily a disciplinary measure used in
nearly all institutions regardless of the sentence, instead of a punishment for specific
crimes.”101 In 1909, “[a]s part of its revision and recodification of the penal
code…Congress eliminated hard labor from the punishment clause of each section,”102
but made sure to note that
[t]he omission of the words “hard labor” from the provisions prescribing
the punishment in the various sections of this Act, shall not be construed
as depriving the court of the power to impose hard labor as a part of the
punishment, in any case where such power now exists.103
It is only “since 1948” that “the [federal] district courts have not been permitted to
impose the punishment of hard labor…rather, it is available to prison administrators as
one part of the ‘individualized system of discipline, care, and treatment.’”104
Similar trends emerged in latter days in the states, such as Colorado, where the
inmates in the first United States Penitentiary located there, before statehood,105 quarried
the building materials for and built the prison.106 In 1972, the state General Assembly
revised the criminal code to, inter alia, remove an existing discretionary hard-labor
sentencing statute, but retained a general work requirement for state prisoners107 that had
existed in some form for many years.108 Some states, mainly in the Southeast, continue
to retain hard-labor sentencing laws today. In Alabama, for example, the statute
mandates that “[s]entences for felonies shall be for a definite term of imprisonment,
which imprisonment includes hard labor.”109 Where such statutes are retained, they are
(which, after 1865, was uniformly enforced whether or not the court had explicitly ordered it) and was
served in a local prison. Penal servitude, on the other hand, was to be served in a convict prison.”).
99
See Major Joseph B. Berger III, Making Little Rocks Out of Big Rocks: Implementing Sentences to Hard
Labor Without Confinement, 2004-DEC Army Law. 1, 6 (2004) (“Hard labor, with or without confinement,
was established as a permissible punishment in the U.S. Army nearly 200 years ago.”).
100
Id. at 5 (“Hard labor without confinement is an allowable punishment at a court-martial.”).
101
Ramirez, 556 F.2d at 915.
102
Id.
103
Id. at 915-16.
104
Id. at 917.
105
The prison is still in operation, and is now called the Colorado Territorial Correctional Facility. See
generally Colorado Department of Corrections Facilities: Colorado Territorial Correctional Facility,
available at https://exdoc.state.co.us/secure/comboweb/weblets/index.php/facilities/view/9.
106
See generally McGinn, supra note 79, Ch. II (describing siting and construction of Territorial
Penitentiary).
107
Compare COLO. REV. STAT. 39-10-11 (1963) (“Whenever any person shall be lawfully sentenced for
crime by the judge of any district court in this state, to imprisonment in the state prison, or to any county
jail, it shall be competent for the court awarding such sentence to incorporate therein a provision that the
person so sentenced shall be kept at hard labor during the term of such imprisonment, or for any specified
portion thereof, as may be adjudged by the said court.”) and COLO. REV. STAT. 17-24-102(1) (2008) (“to
the extent possible, all able-bodied offenders should be employed.”).
108
See THE PRISON PROBLEM IN COLORADO: A SURVEY BY THE PRISON INDUSTRIES REORGANIZATION
ADMINISTRATION 29 (1940) (hereinafter, the “PIRA Survey”) (“The law provides ‘that every able-bodied
convict shall be put to an kept at the work most suitable to his or her capacity.’”).
109
ALA. CODE § 13A-5-6(a).

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in some instances quaint in their terms, such as in Nebraska, where the sentence of an
individual who is sentenced “to imprisonment in the jail of the county as punishment” is
required to include, inter alia, “that the convict…be kept at hard labor in the jail,” but as
an alternate to such labor, “the sentence may require the convict to be fed on bread and
water only, the whole or any part of the term of imprisonment.”110
It was also around the beginning of the Twentieth Century that elements of free
society, most notably a newly-militant labor movement,111 began to agitate against the
further expansion of prison labor, leading to a succession of legislative enactments meant
to curb such growth.112 “As a result of this legislation, the number of prisoners laboring
while in prison has greatly decreased from the numbers laboring in the nineteenth and
[early] twentieth centuries.”113
Thus, as the modern correctional regime began to take form, forced labor by
inmates “was not considered an essential element of the penitentiary punishment,” but it
remained widespread nonetheless, in part due to the experiences of some observers “that
it was in fact an alleviation” of the inmates’ conditions.114 Whatever its salutary benefits,
the compelled nature of the work had not vanished, as it remained the case that “a refusal
to work universally is treated as a disciplinary infraction.”115 Furthermore, while
[t]hose who support prisoner labor explain that it contributes to the
discipline of the prison population, combats idleness, allows the prisoner
to pay back the state for the costs of incarceration, and teaches marketable
skills that can be used upon re-entry to the community,116
the work programs did not always appear to very effectively serve their asserted goals of
rehabilitation and education, particularly where those goals conflicted with the ability of

110

NEB. REV. STAT. § 29-2208.
See Dougherty, supra note 20, at 488 (“in the early twentieth century, increasing pressure from labor
unions turned prison labor into a ‘major political issue.’”).
112
See generally id. at 489-90 (discussing events surrounding passage of reforms such as “the HawesCooper Act in 1929 and the Ashurst-Sumners Act in 1935.”); and Zatz, supra note 14, at 869 (“Since
roughly the New Deal era, prison industries have been tightly regulated, most prominently through the
Ashurst-Sumners Act’s criminal prohibition on the sale of inmate-produced goods in interstate
commerce.”).
113
Dougherty, supra note 20, at 491. See also Foucault, supra note 2, at 25 (“the penitentiary..., forced
labour and the prison factory appear with the development of the mercantile economy. But the industrial
system requires a free market in labour and, in the nineteenth century, the role of forced labour in the
mechanisms of punishment diminishes accordingly and ‘corrective’ detention takes its place.”).
114
United States v. Moreland, 258 U.S. 433, 449 (1922) (Brandeis, J., dissenting). See also Foucault, supra
note 2, at 269-70 (“Work must be one of the essential elements in the transformation and progressive
socialization of convicts. Penal labour ‘must not be regarded as the complement and as it were an
aggravation of the penalty, but as a mitigation, of which it is no longer possible to deprive the prisoner.’”).
115
Josephine R. Potuto, The Modern Prison: Let’s Make It a Factory for Change, 18 U. TOL. L. REV. 51,
51 (1986). See also Mikeska v. Collins, 900 F.2d 833, 837 (5th Cir. 1990), withdrawn and superseded on
rehearing on other grounds, 928 F.2d 126 (5th Cir. 1991). (“All TDCJ inmates, unless specially classified,
are expected to work. The refusal to work, by a group or even a single inmate, presents a serious threat to
the orderly functioning of a prison. Any unjustified refusal to follow the established work regime is an
invitation to sanctions.”).
116
Dougherty, supra note 20, at 485.
111

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the programs to generate revenue or be financially self-sustaining.117 As the Department
of Justice noted in its own survey of such programs, “[d]espite the statutory language
articulating a rehabilitative purpose…the statutory provisions reviewed indicate that the
primary benefit from the establishment of prison industries is to be derived by the
state.”118
There may also exist goals for the prison labor programs that go unsaid. Foucault
saw forced labor as “one of the essential elements in the transformation and progressive
socialization of convicts,”119 but did not agree that this transformation and socialization
was directed towards reducing recidivism. Instead, he argued that the unconscious and
unspoken purpose of the penitentiary and hard labor (the latter “necessarily
accompanying” the former),120 was the production of “a politically or economically less
dangerous” form of illegality, one that could be safely divided from law-abiding
society.121 The importance of creating this division overrode the consideration of factors
such as the negative effects such a consolidation of law-breakers would have on those
trapped on the other side of the divide,122 and the circumstances of how those individuals
arrived there. That is, whether they had become incarcerated criminals through
incorrigible social predation, technical violations of laws prohibiting inarguably minor
forms of misconduct,123 or some middle ground between those two extremes, was not a
relevant consideration, since they were all part of the same segregated criminal class.124
117

See GORDON LAFER, “THE POLITICS OF PRISON LABOR: A UNION PERSPECTIVE,” COLLECTED IN PRISON
NATION: THE WAREHOUSING OF AMERICA’S POOR, 125 (Tara Herivel and Paul Wright ed. 2003) (“prison
work programs themselves are not operated along job-training lines. Prisoners are not selected for work
based on their need for training, but just the opposite: employers look for prisoners who already have the
skills needed for their jobs. Even those prisoners who do pick up skills often are being trained in jobs that
do not exist, or do not pay living wages, in the free economy.”). See also Foucault, supra note 2, at 240
(“Moreover, wages reward the skill of the worker and not the improvement of the convict: ‘The worst
subjects are almost everywhere the most skillful workers; they are the most highly remunerated,
consequently the most intemperate and least ready to repent.’”).
118
NCJRS Survey at 6.
119
Foucault, supra note 2, at 269-70 (“Work must be one of the essential elements in the transformation
and progressive socialization of convicts. Penal labour ‘must not be regarded as the complement and as it
were an aggravation of the penalty, but as a mitigation, of which it is no longer possible to deprive the
prisoner.’”).
120
Id. at 240 (“Work is neither an addition nor a corrective to the regime of detention: whether it is a
question of forced labour, reclusion or imprisonment, it is conceived, by the legislator himself, as
necessarily accompanying it.”).
121
Id. at 277 (“For the observation that prison fails to eliminate crime, one should perhaps substitute the
hypothesis that prison has succeeded extremely well in producing delinquency, a specific type, a politically
or economically less dangerous - and, on occasion, usable - form of illegality.”).
122
See Morris E. Lasker, Presumption Against Incarceration, 7 HOFSTRA L. REV. 407, 412 (1979) (“While
incarceration may limit the individual’s contribution to crime in the community during the period of his
imprisonment, numerous studies of prison life indicate that it in fact generates more crime, and simply
confines it within the prison.”) (emphasis in original).
123
See, e.g., Barbara Ehrenreich, Is It Now a Crime to Be Poor?, N.Y. TIMES, August 9, 2009, available at
http://www.nytimes.com/2009/08/09/opinion/09ehrenreich.html (describing incarceration of homeless man
after “the police swept through the shelter in the middle of the night looking for men with outstanding
warrants,” and individual “did indeed have a warrant – for not appearing in court to face a charge of
‘criminal trespassing’ (for sleeping on a sidewalk in a Washington suburb).”).
124
See, e.g., MacDonald, supra note 24 (ascribing misconduct by correctional officers to “corruption” by
inmates, who “often share community ties” with officers, and speculating that two particular officers found

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Under Foucault’s view, then, the distinction between forced labor as punishment and
forced labor as rehabilitation is an irrelevant one.125
Prison labor, as seen from this perspective, occupies a nebulous space overlapping
two of the “three great schemata” to which Foucault argued “the carceral apparatus has
recourse,” namely “the economic model of force applied to compulsory work,” and “the
technico-medical model of cure and normalization,” what he called “the workshop” and
“the hospital.”126 The blurring of these two distinct ends illustrates their relative
unimportance in our system of punishment.127
After all, even the motivations for the penultimate punitive action that was taken
against Cool Hand Luke – making him repeatedly dig a ditch and then refill it for days on
end – were described by his jailers to him in what would be characterized today as
rehabilitative or administrative terms, i.e. to get his “mind right” and ensure he would no
longer “backslide” into his previous escape-prone behavior.128 This elision highlights the
misleading nature of these categories. What really drove us to force our prisoners to
work from the beginning was
the belief that prisoners were a separate group deserving only punishment
and deprivation; prison labor was perceived as merely a part of that
punishment. Even when theory evolved so as to characterize prison labor
as rehabilitative, this perspective remained.129
Thus, although “the idea expressed by the court in Ruffin [v. Commonwealth], that
inmates are no more than ‘slaves of the State,’ has been repeatedly and expressly
repudiated by other courts,”130 prisoners remain as a class “distinct[ ] from free labor,” in
a way that “inheres not just in the present organization of their work but also in their
persons more deeply.”131
One observer has noted that modern courts faced with work-related claims by
prisoners often seem to “imply that, absent imprisonment, inmate workers would be
single, unemployed, and adrift.”132 Adopting such a perspective on prisoners allowed
those courts to act on what Foucault called, in a different era, “the principle of nonto have engaged in misconduct “were undoubtedly lazy (and probably also part of the same criminal culture
to which their charges belonged).”).
125
Cf. Garland, supra note 25, at 42 (noting “the puzzling fact that one of the most frequently used
sanctions of the post-war period – the fine – was completely devoid of rehabilitative pretensions.”).
126
Foucault, supra note 2, at 248. The third schemata he described as “the politico-moral schema of
individual isolation and hierarchy,” or “[t]he cell.” Id.
127
Cf. Victor Rabinowitz, The Expansion of Prisoners’ Rights, 16 VILL. L. REV. 1047, 1054 (1971) (“The
present prison system…is really designed for only two purposes. One is to punish people…the other is to
quarantine them…All the talk about reform and deterrence is nonsense.”).
128
See Pearce, supra note 1, at 262-65.
129
Leroy D. Clark and Gwendolyn M. Parker, The Labor Law Problems of the Prisoner, 28 RUTGERS L.
REV. 840, 841 (1974). See also Zatz, supra note 14, at 885 (discussing instance where court declined to
find inmate was employee for FLSA purposes, due to “the essentially penological nature of labor
performed by prisoners for a prison.”) (quotations omitted).
130
Washlefske v. Winston, 60 F. Supp. 2d 534, 539 (E.D. Va. 1999).
131
Zatz, supra note 14, at 934. See also Garland, supra note 98, at 260 (“Today’s penal complex does not
prevent or stop crime in the main – the normal forms of socialization and integration do that…it
administers criminals and criminality, managing ‘social failures’ and not repairing them.”).
132
Zatz, supra note 14, at 934.

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idleness.” 133 That is, “it was forbidden to waste time, which was counted by God and
paid for by men…[it was] a moral offence and economic dishonesty.”134 Within such an
ideological construct, the forced labor of inmates could be simultaneously justified as
being both selfless and punitive, and remain hidden behind penitentiary walls, in “a
context in which it appears to be free of all excess and all violence.”135 In service of this
pretense, courts have willingly abdicated their role in overseeing the boundaries of
inmates’ compelled labor, under any number of different potentially applicable laws.136
b. Forced Labor under the Thirteenth Amendment and Other Laws
“[C]ourts have rarely taken the thirteenth amendment inside the prison gates,”137
preferring instead to “uniformly reject[ ] claims that the prison-labor system imposes
involuntary servitude in violation of the thirteenth amendment.”138 In one instance, the
United States Court of Appeals for the Fifth Circuit relied upon what it viewed as the
“precise and literal wording of the Thirteenth Amendment,” as well as “the unwavering
line of authority which applies the Thirteenth Amendment precisely as it is written,” in
rejecting a prisoner’s challenge to forced labor without compensation in the Texas prison
system.139 In another, the Seventh Circuit held that forced labor “imposed as an incident
to a conviction of crime” was “in our opinion [ ] punishment for crime excepted from the
prohibition of the Thirteenth Amendment,”140 although the dissenting judge on the panel
pointed out in his portion of the opinion that this holding was not supported by a plain
reading of the amendment.141
Judge Jacques Wiener of the Fifth Circuit once agreed with an inmate-litigant’s
argument “that a prisoner who is not sentenced to hard labor retains his thirteenth
amendment rights.”142 His colleague Judge Edith Jones later described this position as
“an anomaly in federal jurisprudence” that, “to the extent [it] conflicts with” earlier
precedents, “lacks authority.”143 Judge Jones instead reaffirmed the doctrinal authority of
the line of cases that expressly disagreed with Judge Wiener’s reading of the amendment,

133

Foucault, supra note 2, at 154.
Id.
135
Id. at 302.
136
See generally Zatz, supra note 14.
137
Ira P. Robbins, The Legal Dimensions of Private Incarceration, 38 AM. U. L. REV. 531, 606 (1989).
138
Id.
139
Wendt v. Lynaugh, 841 F.2d 619, 621 (5th Cir. 1988).
140
United States ex rel Smith v. Dowd, 271 F.2d 292, 295 (7th Cir. 1959). See also Draper v. Rhay, 315
F.2d 193 (9th Cir. 1963); and Omasta v. Wainwright, 696 F.2d 1304 (11th Cir. 1983).
141
Dowd, 271 F.2d at 298 (Parkinson, J., dissenting) (“The exception in the Thirteenth Amendment does
not read punishment incident to crime…It clearly and succinctly states ‘as a punishment for crime.’ We
have no right to rewrite the Amendment and extend the provisions of the exception to include that which is
clearly without its ambit.”).
142
Watson v. Graves, 909 F.2d 1549, 1552 (5th Cir. 1990). Judge Wiener’s opinion on this issue may have
been motivated in part by his outrage at the “egregious nature of this misanthropic situation in the instant
case,” which had served to “disabuse [ ] us of th[e] innocent misconception” that “in the last decade of the
twentieth century scenarios such as the one now before us no longer occurred in county or parish jails of
the rural south except in the imaginations of movie or television script writers.” Id. at 1550.
143
Ali v. Johnson, 259 F.3d 317, 318 (5th Cir. 2001) (citations omitted).
134

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and “reiterate[d] that inmates sentenced to incarceration cannot state a viable Thirteenth
Amendment claim if the prison system requires them to work.”144
Courts express a consistent hostility to prisoners’ work-related rights claims,
which helps explain their equally consistent rejection of the Hard Road approach that is
argued for in this article. This hostility has also been demonstrated by courts’ use of
prisoner workers-rights claims to make attempts to combat violations of inmates’ other
constitutional rights more difficult.145 Perhaps the most famous example of this approach
came in response to “the issue of inmate labor unions, a focal point of prison activism
during the 1970s,” when the “[p]rison authorities’ fierce resistance met Supreme Court
approval in Jones v. North Carolina Prisoners’ Labor Union, Inc.”146 In the Jones
opinion, then-Justice William Rehnquist reaffirmed that “[p]risons, it is obvious, differ in
numerous respects from free society.”147 The Court overturned a district court’s grant of
equitable relief to inmates challenging regulations forbidding them from solicitation,
meeting, and the distribution of publications in support of a labor organizing effort on the
basis that, inter alia, the lower court’s “requirement of a demonstrable showing that the
Union was in fact harmful is inconsistent with the deference federal courts should pay to
the informed discretion of prison officials.”148
In other words, it did not matter that the “appellee’s two expert witnesses, both
correctional officers who had dealt with inmate reform organizations, testified that such
groups actually play a constructive role in their prisons,” or that the “weight of
professional opinion seems to favor recognizing such groups.”149 Such facts were
insufficient to disturb “the full latitude of discretion” that “courts should allow the prison
administrators.”150 Justice Thurgood Marshall protested to no avail that “‘the realities of
running’ a school or a city are also ‘complex and difficult,’ and [ ] those charged with
these tasks…also possess special ‘professional expertise,’” but “in no First Amendment
case of which I am aware has the Court deferred to the judgment of such officials simply
because their judgment was ‘rational.’”151
One observer described Jones as “shift[ing] the burden of proof away from the
state by compelling the plaintiff to rebut the officials’ general speculations as to the
union’s possible disruption to orderly administration,” and “emphatically [laying] the
144

Id. at 317.
Another area where this has been done is in the cases involving the Due Process rights of pretrial
detainees. See, e.g., Bell v. Wolfish, 441 U.S. 520, 539 (1979) (holding, inter alia, that “if a particular
condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it
does not, without more, amount to ‘punishment.’”).
146
Zatz, supra note 14, at 923 (citing Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977)).
147
Jones, 433 U.S. at 129.
148
Id. at 136 (citation omitted).
149
Id. at 145 (Marshall, J., dissenting). See also Comeau, supra note 88, at 963 (“Inmate leadership is
present in all prisons…The constructive use of inmate leadership is an obvious way to avoid riots. Some
type of inmate self-government that involves honest and well supervised elections of inmate representatives
to discuss problems, make recommendations and perhaps, even take some responsibilities from the
administration could be helpful.”) (quotation omitted).
150
Jones, 433 U.S. at 136.
151
Id. at 141 (Marshall, J., dissenting) (citations omitted). Justice Marshall expressed similar outrage when
the Court a few years later took the same tack in the case of a pretrial detainee bringing a Due Process
claim. See Bell v. Wolfish, 441 U.S. 520, 568 (Marshall, J., dissenting) (“by blindly deferring to
administrative judgments on the rational basis for particular restrictions, the Court effectively delegates to
detention officials the decision whether pretrial detainees have been punished.”).
145

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groundwork for almost absolute judicial deference to many aspects of prison life.”152 As
described below, the courts’ Thirteenth Amendment holdings with respect to prisoners
are not founded in any historical or original understandings of the amendment itself, and
can only be understood as expressions of this same doctrine of “absolute judicial
deference.”
IV. Using Tradition and History as a Tool for Interpreting the Thirteenth
Amendment
a. The Ratification of the Thirteenth Amendment
An amendment to the Constitution prohibiting slavery or involuntary servitude
anywhere in the United States or its territories was first introduced in the House of
Representatives and the Senate on December 14, 1863, and January 13, 1864,
respectively.153 “The version of the amendment that ultimately prevailed” was written by
the Senate Judiciary Committee using “language that closely paralleled the slavery
provision in the [Northwest] Ordinance [of 1787],”154 which prohibited slavery “in areas
north of the Ohio River.”155 This prohibition was reputedly drafted in its earliest form by
Thomas Jefferson.156 One observer has argued that it represented “the first known use of
the punishment clause in federal efforts to abolish slavery, and it became a template for
subsequent efforts.”157
The anti-slavery language was introduced late in the debates surrounding the
ordinance,158 and there is no record of its language being examined in a meaningful way
by a Congress that was depleted by the Constitutional Convention that was also
underway at that time.159 In any case, the prohibition did not provoke much controversy,
perhaps because it “was not so obnoxious to southern men generally as it might otherwise
be,” as it was included alongside a clause requiring the return of fugitive slaves.160
The narrower language originally proposed in the House of Representatives for
the Thirteenth Amendment “would have allowed only indentured servitude of prisoners,
but not slavery,” but “the drafters of the Thirteenth Amendment spent little time
152

Robbins, supra note 30, at 216.
Alexander Tsesis, The Thirteenth Amendment’s Revolutionary Aims, at 8 n.20.
154
Howe, supra note 48, at 9.
155
Kamal Ghali, No Slavery Except as Punishment for Crime: The Punishment Clause and Sexual Slavery,
55 UCLA L. REV. 607, 626 (2008).
156
Howe, supra note 48, at 11. But see Lea Vandervelde, The Labor Vision of the Thirteenth Amendment,
138 U. PA. L. REV. 437, 450 n.70 (1989) (“Despite the attribution of this phrase to Jefferson by the
Reconstruction Congress, there is some historical evidence that he did not coin the phrase.”).
157
Ghali, supra note 155, at 625-26.
158
JAY A. BARRETT, EVOLUTION OF THE ORDINANCE OF 1787 77 (1891) (“[T]he proposition did not appear
in the report, and not until Congress had fairly finished consideration of the ordinance, was the part relating
to slavery brought forward.”).
159
Id. at 78 (“The Congress of the summer of 1787 was materially affected by the sessions of the
Constitutional Convention. Many of the strong men of North and South were attending it at Philadelphia,
and the Old Congress was left with a somewhat quiet and peaceable company of men. Its most efficient
members were heartily in sympathy with the amendment in question, and naturally carried much influence
with them.”).
160
Id. at 79.
153

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discussing alternative wordings.”161 There are no records of the debates within the
Judiciary Committee regarding the amendment.162 Instead, “[t]he focus of the original
debate about the thirteenth amendment was not on its punishment clause but on its central
prohibition and its second section on enforcement.”163
Despite the extensive debates over the values and objectives of the
thirteenth amendment, the members of the Reconstruction Congress
directed very little attention to its actual text. The members of Congress
rarely considered whether the actual language of the amendment conveyed
the breadth of meanings its advocates ascribed to it. In the end, the
amendment’s text was selected more for its symbolic significance than for
its ability to state the members’ intention with exactness.164
The Senate passed the amendment without much delay on April 8, 1864, but it
failed in the House on June 15, and ultimately only passed that body in its next session,
“[a]fter much cajoling, vote swapping, and patronage dealing,” as well as the re-election
of Abraham Lincoln, on January 31, 1865.165
Senators and representatives expressed a variety of views about the
amendment’s scope. Consequently, they left little in the way of an
authoritative, contemporary perspective beyond the virtually universal
belief among congressmen that the amendment should accomplish much
more than the mere abolition of chattel slavery.166
Over ten months later, and nearly eight months after Lee’s surrender at Appomattox, the
Thirteenth Amendment was ratified by enough states to be declared adopted by the
Secretary of State, on December 18, 1865.167
As one modern observer describes it, “the Thirteenth Amendment was not simply
intended by its framers to create a vacuum, but instead to secure a positive end-state.”168
Towards this end, section 2 of the amendment169 “provided the authority to end all
manner of subjugation, not only chattel slavery.”170 However, since the time of its
ratification, courts have almost uniformly held “that prisoners are ‘explicitly excepted

161

Ghali, supra note 155, at 626-627.
Vandervelde, supra note 156, at 449 n.64.
163
Howe, supra note 48, at 10.
164
Vandervelde, supra note 156, at 448-49. The Supreme Court of that era seemed similarly unperturbed
by the existence of any ambiguity in the wording of the amendment. See The Slaughter-House Cases, 83
U.S. 36, 69 (1872) (“Its two short sections seem hardly to admit of construction, so vigorous is their
expression and so appropriate to the purpose we have indicated.”).
165
Howe, supra note 48, at 9.
166
ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM 38 (2004).
167
Howe, supra note 48, at 10.
168
Lea Vandervelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855, 857 (2007).
169
See,Foucault, supra note 2.
170
Tsesis, supra note 166, at 11. But see Vandervelde, supra note 168, at 858 (“Congress has only utilized
its authority under section 2 a mere five times in almost 150 years.”).
162

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from’” the amendment’s protections, relying on a definition of “punishment,” as used in
the amendment, that “includ[es] more than the actual prison sentence.”171
As discussed in detail below, this definition is broader than, and bears little
resemblance to, the ways the word punishment is understood and used in the
jurisprudence construing other constitutional rights and protections of prisoners.172 The
ramifications of adopting such a categorical interpretation of the exception immediately
became apparent, as the proponents of slavery sought to evade the Thirteenth
Amendment’s positive ban with a startling innovation.
b. Early Understandings of the Thirteenth Amendment
In the early years of Reconstruction, following the Civil War, “the southern states
came to rely heavily on convict-lease systems to handle their prisoners, and those systems
led to a dark history of savagery that matched the worst abuses of slavery.”173 In convict
leasing, inmates were leased to private parties to engage in compelled labor for those
parties’ economic benefit, a variant on the practice of forced labor as punishment that
was not itself new.174 But “the southern leasing systems that arose after 1865 were
unprecedented in the number of prisoners involved, in the heavy use of black prisoners
and in the unfettered control given to the leasing parties.”175
In 1867, John Kasson, a Republican Congressman from Iowa, sought to pass
legislation clarifying that the intent of Congress with the amendment was not to permit
the convict-lease system that had developed in its wake. He saw that system as “taking
advantage of the ‘except as a punishment’ language of the Thirteenth Amendment in
order to maintain slavery.”176 His resolution proclaimed that
the true intent and meaning of said amendment prohibits slavery or
involuntary servitude forever in all forms, except in direct execution of a
sentence imposing a definite penalty according to law, which penalty
cannot, without violation of the Constitution, impose any other servitude
than that of imprisonment or other restraint of freedom under the
immediate control of the officers of the law and according to the usual

171

Ghali, supra note 155, at 621-22.
See Wilson v. Seiter, 501 U.S. 294, 300 (1991) (“If the pain inflicted is not formally meted out as
punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting
officer before it can qualify.”).
173
Howe, supra note 48, at 25.
174
See Dougherty, supra note 20, at 488 (“[I]n 1844, during an economic depression, Louisiana leased its
penitentiary for five years to a private company for $50,000 a year.”); and Foucault, supra note 2, at 26667 (quoting early Nineteenth Century critic asking, “are not our prisoners sold, like the slaves, by
entrepreneurs and bought by manufacturers...Is this how we teach our prisoners honesty? Are they not still
more demoralized by these examples of abominable exploitation?”). See also Julie A. Nice, Welfare
Servitude, 1 GEO. J. ON POVERTY L. & POL’Y 341, 360-62 (1994) (discussing interpretive rationale in
various court decisions that “removes most pre-Civil War forms of labor from the reach of the Thirteenth
Amendment,” including conscripted maritime service and roadwork.).
175
Howe, supra note 48, at 26.
176
Ghali, supra note 155, at 627.
172

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course thereof, to the exclusion of all unofficial control of the person so
held in servitude.177
In the debate surrounding this resolution, Representative Kasson further clarified that
what he intended to communicate by the resolution was that, for forced labor to be
permissible under the Thirteenth Amendment, “there must be a direct condemnation into
that condition under the control of the officers of the law, like the sentence of a man to
hard labor in the State prison in the regular and ordinary course of law, and that is the
only kind of involuntary servitude known to the Constitution and the law.”178 The
resolution passed the House,179 but was postponed indefinitely by the Senate Judiciary
Committee because it “[thought] the whole subject is covered by the civil rights bill.”180
This somewhat opaque statement of reasons may have meant that the Senators on
the Judiciary Committee had repudiated Representative Kasson’s interpretation of the
amendment that they had authored.181 An alternate, narrower reading of the statement is
as a simple reference to Section 2 of the Civil Rights Act of 1866,182 which forbade “any
person…under color of any law” from subjecting “any inhabitant of any State or
Territory” to “different punishment, pains, or penalties on account of such person having
at any time been held in a condition of slavery or involuntary servitude…or by reason of
his color or race, than is prescribed for the punishment of white persons.”
Some of the statements made at the time of passage of the Civil Rights Act, 183 as
well as subsequent interpretations of the amendment or act that were adopted by the
Supreme Court184 and contemporary observers,185 agree with this interpretation of its
prohibitions. With respect to the punishment exception specifically, notwithstanding the
Judiciary Committee’s statement that “the whole subject” of the amendment had already
been “covered,”186 there was no contrary existing reading of that exception that had
177

37 Cong. Globe at 324 (39th Cong. 2d Sess. 1867).
37 Cong. Globe at 345-46 (39th Cong. 2d Sess. 1867).
179
Howe, supra note 48, at 29 n.279.
180
37 Cong. Globe at 1866 (39th Cong. 2d Sess 1867).
181
See Howe, supra note 48, at 29 n.279 (“[A]bandonment of the resolution in the Senate raises doubt that
the actual authors of the amendment agreed with the resolution.”); and Ghali, supra note 155, at 628-29
(“[T]he fact that the bill was postponed indefinitely in the Senate might be evidence that the drafters of the
Thirteenth Amendment explicitly rejected Kasson’s view of the punishment clause.”).
182
14 Stat. 27-30, Chapter 31 (1866).
183
See, e.g., 36 Cong. Globe at 603 (39th Cong. 1st Sess. 1866) (Statement of Senator Wilson) (discussing
former Confederate states passing laws to maintain freed slaves in slave-like conditions, referring to
instance “[i]n North Carolina [where] two men were sold into slavery for years under the vagrant laws.”).
184
See The Civil Rights Cases, 109 U.S. 3, 22 (1883) (“Severer punishments for crimes were imposed on
the slave than on free persons guilty of the same offenses. Congress, as we have seen, by the civil rights
bill of 1866, passed in view of the thirteenth amendment, before the fourteenth was adopted, undertook to
wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and
visible form.”).
185
See THOMAS M. COOLEY, TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE
LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 363 (1890) (“Nor do we suppose the
exception will permit the convict to be subjected to other servitude than such as is under the control and
direction of the public authorities, in the manner heretofore customary…it might well be doubted if a
regulation which should suffer the convict to be placed upon the auction block and sold to the highest
bidder…would be in harmony with the constitutional prohibition.”).
186
Cf. Powell, supra note 53, at 669 (warning that, “on some issues of interpretation the founders said
nothing at all useful.”).
178

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emerged from the original debates surrounding ratification of the amendment, to which
the committee could have been referring.187 The absence of a definitive historical record
on this issue therefore confounds further attempts to deduce the complete meaning of the
Thirteenth Amendment’s exception solely by way of such sources.188
Furthermore, there had already been resistance at the time of the amendment’s
ratification by some in Congress regarding the nature and scope of the amendment’s
prohibitions,189 despite the fact that “most of the southern states and their representatives
[had] withdraw[n]” as a result of the ongoing Civil War, with the result that “Congress
was composed primarily of representatives of northern states.”190 While abolitionists and
proponents saw the proposed Thirteenth Amendment as a positive ban on all forms of
slavery and involuntary servitude,191 its opponents expressed concern that the amendment
was an improper and overreaching exercise of the power to amend the Constitution,

187

See Vandervelde, supra note 156, at 450 (“Other than eliminating chattel slavery, the phrase carried with
it no other fixed meaning. Instead, the language assumed mythical proportions in the Reconstruction
debates because it was attributed to Thomas Jefferson. The members of Congress took solace in the fact
that although they were amending a sacred document, they did so with the language of one of its original
architects.”). See also Howe, supra note 48, at 12 (“Recorded debate over the punishment clause when the
House of Representatives promulgated the thirteenth amendment was also minimal.”); and 34 Cong. Globe
at 1488 (38th Cong. 1st Sess 1864) (Statement of Senator Sumner) (objecting that the punishment exception
did “no good there, but they absolutely introduce a doubt,” since “at the time [of the Northwest Ordinance],
for I understand that it was the habit in certain parts of the country to convict persons or doom them as
slaves for life as punishment for crime, and it was not proposed to prohibit this habit. But slavery in our
day is something distinct, perfectly well known, requiring no words of distinction outside of itself.”).
Responses to Sumner’s objection “did not focus specifically on the punishment clause.” Howe, supra note
48, at 13.
188
See, e.g., Powell, supra note 53, at 668 (“What is fundamentally wrong here is that the interpreter is
treating the Constitution itself as an empty shell, a container into which the founders originally poured
meaning that we now can extract by historical investigation. Having done so, we need pay little attention
to the labels on the container. This is fundamentally unacceptable, for it effectively denies that we have a
written Constitution at all (or locates the Constitution in the scattered and fragmentary records of its
framing and adoption), and opens the door to the very subjectivity in interpretation that originalists avow a
desire to escape.”).
189
See 34 Cong. Globe at 1490 (38th Cong. 1st Sess 1864) (“The slaves of ancient time were not the slaves
of a different race. The Romans compelled the Gaul and the Celt, brought them to their own country, and
some of them became great poets, and some eloquent orators, and some accomplished wits, and they
became citizens of the republic of Greece, and of the republic of Rome, and of the empire. This is not the
condition of these persons with whom we are now associated and about whose affairs we undertake to
establish administration. They can never commingle with us.”); and id. at 1484 (“[The negro] is an inferior
man in his capacity, and no fanaticism can raise him to the level of the Caucasian race. The white man is
his superior, and will be so whether you call him a slave or an equal. It has ever been so, and I can see no
reason why the history of all the past should be reversed.”).
190
Vandervelde, supra note 156, at 444. See also Nina Shen Rastogi, Uh…Mind if I Sit Here?: What's
going to happen to the Minnesota and Illinois Senate seats?, Slate (January 5, 2009) available at
http://www.slate.com/id/2207908 (“The 13th Amendment, for example, which formally abolished slavery,
made its way through Congress during the tail end of the Civil War, when both the Senate and the House
were refusing to seat members from rebel states. That meant there were 52 active senators, with 20 vacant
Southern seats, when the amendment passed in January 1865 (The final vote was 38-6.).”).
191
See Tsesis, supra note 166, at 10 (“Pennsylvania Congressman M. Russell Thayer wondered
incredulously whether a constitutionally granted freedom ‘could be confined simply to the exemption of the
freedom from sale and barter? Do you give freedom to a man when you allow him to be deprived of those
great natural rights to which every man is entitled?’”).

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A Promise the Nation Cannot Keep
particularly at a time when the Civil War was still being fought.192 Among the
Republicans, there was a faction that “urged that the amendment strictly be limited to
enslaved blacks, and [ ] adamantly resisted any broader interpretation.”193
The Senate Judiciary Committee may simply have lacked the political will or
desire, two years later, to re-engage in these difficult debates, even though the seats of the
former Confederate states in both the House and the Senate remained unoccupied.194 The
silence of the Thirteenth Amendment’s authors on the scope of the punishment exception
in this instance may foretell a similar reluctance on the part of modern legislatures to
engage in the difficult debates called for by this article. But their silence is also a
blessing, as it relieves us of the burden of “obedience to history,” and forces us to “use
some process of generalization or analogy to go beyond what history can say.”195
History has, after all, already had its role in restricting the core power of the
Thirteenth Amendment to ban slavery or involuntary servitude anywhere in the United
States or its jurisdiction. The abolitionists who advocated a broader reading of the
amendment comprised the faction that is “generally recognized as having carried the
day,”196 but the dissenters’ narrow reading of the Thirteenth Amendment ultimately
succeeded in defining the scope of the amendments’ application for decades to come,
after the Supreme Court’s 1883 decision in The Civil Rights Cases.197 In that decision,
the Court read section 2 of the amendment to only “clothe[ ] congress with power to pass
all laws necessary and proper for abolishing all badges and incidents of slavery in the
United States.”198 In the eyes of many modern observers, the Court thereby restricted all
future federal legislation passed under section 2 to that which “only end[ed] practices
directly related to institutional slavery, including impediments to black court testimony
and property ownership,”199 and “reduced the amendment to its least common
denominator: the abolition of mid-nineteenth century southern racial chattel slavery.”200
192

See 34 Cong. Globe at 1483 (38th Cong. 1st Sess 1864) (“I do not believe it was ever designed by the
founders of our Government that the Constitution of the United States should be so amended as to destroy
property.”); and 35 Cong. Globe at 528 (38th Cong. 2nd Sess 1865) (“In my opinion the amendment you
now propose to provide for may stand in the way of both peace and Union. Even while this measure is
under discussion messengers are passing between Washington and Richmond, and if these men are
successful, and if the negotiations they propose to inaugurate result in anything, the very question we now
propose to commit ourselves upon will form the chief obstacle in the way of a settlement of our
difficulties.”).
193
Vandervelde, supra note 156, at 445. See also id. at 478 (“The true meaning and intent of that
amendment was simply to abolish negro slavery. That was the whole of it…What more did it do?
Nothing.”) (quoting Cong. Globe, 39th Cong. 1st Sess. 1784 (1866) (statement of Senator Cowan)).
194
Howe, supra note 48, at 29 n.279.
195
Powell, supra note 53, at 665 (“But once it is conceded that the Constitution speaks to questions that
those who adopted it did not answer, it becomes obvious that in such cases the interpreter must use some
process of generalization or analogy to go beyond what history can say. The inevitable disputes over
whether a given interpretation over-generalizes or is based on a faulty analogy are not resolvable by
historical means; at this point history, and originalism as a program of obedience to history, have no more
to add to constitutional discourse.”).
196
Vandervelde, supra note 156, at 445.
197
109 U.S. 3 (1883).
198
Id. at 20.
199
Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism Through the
Thirteenth Amendment, 39 U.C. DAVIS L. REV. 1773, 1826 (2006) (citing The Civil Rights Cases, 109 U.S.
3, 22 (1883)).
200
Vandervelde, supra note 156, at 503.

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The Supreme Court had first held, in 1872, that, “[u]ndoubtedly while negro
slavery alone was in the mind of the Congress which proposed the thirteenth article, it
forbids any other kind of slavery, nor or hereafter,” and therefore “if other rights are
assailed by the States which properly and necessarily fall within the protection of these
articles, that protection will apply, though the party interested may not be of African
descent.”201 After its opinion in The Civil Rights Cases, though, and for the remainder of
the Nineteenth Century and beyond, the Court continued to “read the Thirteenth
Amendment as a narrow rule against slavery-like forms of involuntary servitude.”202 It
was not until the early Twentieth Century that the Court would explicitly uphold a statute
on the basis that the Thirteenth Amendment’s protections extended farther than this,203
and it was not until the modern civil rights era that the Court would begin to affirmatively
apply the amendment’s protections on that basis,204 thereby “recalling the Civil War
Rights Statutes into service after a century’s desuetude.”205
As discussed above, one constant that remained throughout this time period was
that the federal courts continued to reject any application of the amendment’s protections
within prison walls, a view that remains consistently held, with some scattered exceptions
in dicta,206 through the present day. This stands in striking contrast to how those same
courts have construed the meaning of “punishment,” where it has arisen in the context of
other amendments to the Constitution.
V. Using Doctrine and Precedent as a Tool for Interpreting the Thirteenth
Amendment
a. The Meaning of Punishment in the Eighth Amendment
The language of the Eighth Amendment207 was, like the Thirteenth Amendment,
taken from an earlier provision in the Northwest Ordinance of 1787.208 The two
201

The Slaughter-House Cases, 83 U.S. 36, 72 (1872).
Risa L. Goluboff, The Thirteenth Amendment and the Lost Origins of Civil Rights, 50 DUKE L.J. 1609,
1638 (2001).
203
Bailey v. Alabama, 219 U.S. 219 (1911) (upholding 1867 anti-peonage statute enacted under section 2
authority as “a valid exercise of this express authority,” because “Congress was not concerned with mere
names or manner of description, or with a particular place or section of the country. It was concerned with
a fact, wherever it might exist; with a condition, however named and wherever it might be established,
maintained, or enforced.”). See also United States v. Reynolds, 235 U.S. 133 (1914). One observer sees
these “peonage” cases as the “exception” to the otherwise nearly-uniform view of the courts that “the
thirteenth amendment [is not] protective of the convicted prisoner.” Howe, supra note 48, at 34 n.330.
204
See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). See also Goluboff, supra note 106, at 1675
(“The South had in many respects operated as a separate labor market into the middle of the twentieth
century…Maintaining the impermeability of the southern labor market, however, was precisely the goal of
many state and local enticement, emigrant agent, hitchhiking, and vagrancy laws.”).
205
Bhandari v. First Nat’l Bank of Commerce, 829 F.2d 1343, 1345 (5th Cir. 1987).
206
See Watson v. Graves, 909 F.2d 1549, 1552 (5th Cir. 1990) (“We agree that a prisoner who is not
sentenced to hard labor retains his thirteenth amendment rights; however, in order to prove a violation of
the thirteenth amendment the prisoner must show he was subjected to involuntary servitude or slavery.”).
But see Ali v. Johnson, 259 F.3d 317, 318 (5th Cir. 2001) (“Watson’s statement about involuntary servitude
is an anomaly in federal jurisprudence.”).
207
U.S. CONST. amend. VIII. The amendment reads in full: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
202

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“amendments are the only two provisions of the Constitution that purport to regulate the
treatment of prisoners,”209 and the only instances where the word “punishment” appears
in the amendments, although it also appears twice in the Constitution itself.210
The Eighth Amendment prohibits, inter alia, the “inflict[ion]” of “cruel or
unusual punishments.”211 Through the Nineteenth Century, it was generally understood
that “the prohibition extended only to such punishment as amounted to torture, involved
unnecessary cruelty, or shocked the conscience of the community.”212 At the beginning
of the Twentieth Century, however, the Supreme Court allowed that, based on the
“precept of justice that punishment for crime should be graduated and proportioned to
offense,” certain punishments “might be so disproportionate to the offense as to
constitute a cruel and unusual punishment.”213 A half-century later the Court went
further and proclaimed that the “basic concept underlying the Eighth Amendment is
nothing less than the dignity of man.”214 Because “the words of the Amendment are not
precise,” and “their scope is not static,” for courts to properly apply its protections, “[t]he
Amendment must draw its meaning from the evolving standards of decency that mark the
progress of a maturing society.”215
Until 1991, “it was assumed, if not established, that the conditions of confinement
are themselves part of the punishment, even if not specifically ‘meted out’ by a statute or
judge.”216 It was during this era that the Court first held, in Estelle v. Gamble,217 “that
deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary
and wanton infliction of pain’…proscribed by the Eighth Amendment.”218 As one
observer saw it, “[s]ince Estelle v. Gamble, the Supreme Court has adhered to the view
that punishment means more than one’s actual sentence.”219 However, in 1991, in Wilson

208

Gorman, supra note 55, at 462. See also Barrett, supra note 158, at 61, 86-87 (relevant text of ordinance
reads, “all fines shall be moderate, and no cruel or unusual punishments shall be inflicted.”).
209
Ghali, supra note 155, at 611.
210
See U.S. CONST. art. I, § 8 (“The Congress shall have Power...To provide for the Punishment of
counterfeiting the Securities and current Coin of the United States...[and] To define and punish Piracies and
Felonies committed on the high Seas, and Offences against the Law of Nations.”); and art. III, § 3 (“The
Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work
Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”).
211
U.S. CONST. amend. VIII. The Supreme Court has held that this prohibition applies through the
Fourteenth Amendment to set substantive limits on the sentences states may impose. See Robinson v.
California, 370 U.S. 660, 667 (1962) (“We hold that a state law which imprisons a person thus afflicted as a
criminal, even though he has never touched any narcotic drug within the State or been guilty of any
irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth
Amendment.”).
212
Commentary, Constitutional Law-Eighth Amendment-Cumulative Impact of Deplorable Conditions of
Confinement in State Prison Constitutes Cruel and Unusual Punishment, Even Though Inmates Were
Subjected Incidentally Rather Than in Deliberate Retribution for Criminal Conduct, 23 ALA. L. REV. 143,
145 n.16 (1970) (hereinafter, the “Alabama Commentary”).
213
Weems v. United States, 217 U.S. 349, 367-68 (1910) (citation and quotations omitted).
214
Trop v. Dulles, 356 U.S. 86, 100 (1958).
215
Id. at 100-101.
216
Farmer v. Brennan, 511 U.S. 825, 856 (1994) (Blackmun, J., concurring) (citations omitted).
217
Estelle v. Gamble, 429 U.S. 97 (1976).
218
Id. at 104 (citation omitted).
219
Ghali, supra note 155, at 634.

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v. Seiter,220 a majority opinion authored by Justice Scalia, the Court sharply proscribed
the circumstances under which it would so expand the meaning of punishment.
In Wilson, the Court distinguished between harms that it characterized as prison
conditions and those that are “formally meted out as punishment by the statute or the
sentencing judge,” with the former category of harms only being actionable where “some
mental element…attributed to the inflicting officer” is present.221 Stated differently,
“Eighth Amendment claims based on official conduct that does not purport to be the
penalty formally imposed for a crime require inquiry into state of mind.”222 The
animating concern for Justice Scalia in promulgating this rule was that prison officials
should be immune from constitutional tort damages where the proximate cause of harm
was not something that “has been deliberately administered for a penal or disciplinary
purpose.”223
The infliction of punishment is a deliberate act intended to chastise or
deter. This is what the word means today; it is what it meant in the
eighteenth century…{I]f [a] guard accidentally stepped on [a] prisoner’s
toe and broke it, this would not be punishment in anything remotely like
the accepted meaning of the word, whether we consult the usage of 1791,
or 1868, or 1985.224
In dissenting from subsequent Court majorities, Justice Clarence Thomas
characteristically expressed this concern in more sweeping terms. “The Eighth
Amendment is not, and should not be turned into, a National Code of Prison
Regulation.”225 As he saw it, the Court had “made clear in Estelle that the Eighth
Amendment plays a very limited role in regulating prison administration.”226 He also
believed that “the 185 years of uniform precedent” prior to Estelle, “consistent with [the
amendment’s] text and history,” provided strong “support [for] the view that judges or
juries – but not jailers – impose ‘punishment,’”227 and that “[t]hat is also the primary
definition of the word today.”228 Accordingly, the operative principle to which the
federal courts adhere today in construing the amendment is that
[t]he Eighth Amendment does not outlaw cruel and unusual “conditions;”
it outlaws cruel and unusual “punishments”…an official’s failure to
alleviate a significant risk that he should have perceived but did not, while
no cause for commendation, cannot under our cases be condemned as the
infliction of punishment.229

220

Wilson v. Seiter, 501 U.S. 294 (1991).
Id. at 300 (emphasis in original).
222
Id. at 302.
223
Id. at 300 (citation and quotations omitted).
224
Id. at 300 (citation and quotations omitted).
225
Hudson v. McMillian, 503 U.S. 1, 28 (1992) (Thomas, J., dissenting).
226
Id. at 20 (Thomas, J., dissenting).
227
Helling v. McKinney, 509 U.S. 25, 39-40 (1993) (Thomas, J., dissenting).
228
Id. at 38 (Thomas, J., dissenting).
229
Farmer v. Brennan, 511 U.S. 825, 837-38 (1994).
221

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Admittedly, there are textual differences in the usages of the word “punishment”
in the Eighth and Thirteenth Amendments, respectively. For one thing, the Eighth
Amendment uses a verb to ban a particular action (“no cruel or unusual punishments
shall be inflicted”), while the Thirteenth Amendment bans the existence of slavery or
involuntary servitude, except as punishment (“Neither slavery nor involuntary servitude,
except as a punishment for crime…shall exist.”).230 For another, the word is singular in
the Thirteenth Amendment but plural in the Eighth, although this distinction seems
irrelevant for interpretative purposes.231
The importance of the word “inflicted” in Eighth Amendment jurisprudence can
be seen in the second of the two requirements that must be met to find that a prison
official has violated the amendment: the “prison official must have a ‘sufficiently
culpable state of mind.’”232 This requirement “follows from the principle that ‘only the
unnecessary and wanton infliction of pain implicates the Eighth Amendment.’”233 What
the presence of the verb does, then, is provide for an additional category of wrongful
conduct, i.e. situations where “the pain inflicted is not formally meted out as punishment
by the statute or the sentencing judge,” but “some mental element” can still “be attributed
to the inflicting officer.”234 The baseline understanding of the meaning of “punishment”
as something that is “formally meted out” as such “by the statute or the sentencing
judge,”235 is not itself modified.
Finally, the fact that the Eighth Amendment employs an active voice, and the
Thirteenth a passive one, should not affect the meaning of “punishment” as used
respectively in these amendments. It would be a slender reed indeed to rely on such a
latter-day grammatical distinction to differentiate the substantive nature of these
amendments’ protections, where no other meaningful basis for doing so exists.236
b. The Meaning of Punishment under the Fifth Amendment
Although the word “punishment” does not appear in the Fifth Amendment, the
meaning of the word has always played an important role in judicial understandings of
the amendment’s protections. “The distinction between disciplinary and administrative
230

See Ghali, supra note 155, at 633-34 (“The Eighth Amendment’s use of punishment is part of a
prohibition. It forbids certain kinds of punishments – cruel and unusual ones. The Thirteenth
Amendment’s use of punishment is part of an exception to the amendment…the punishment clause limits
the amendment’s reach.”).
231
Accord id. at 633 (“It is true that the Eighth Amendment’s usage of punishment is plural, whereas the
Thirteenth Amendment’s usage is singular. But that is hardly a distinction that makes a difference. Both
uses of punishment appear to contemplate some kind of a penalty.”).
232
Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
233
Id. See also Estelle v. Gamble, 429 U.S. 97, 103 (1976) (“The infliction of such unnecessary suffering
is inconsistent with contemporary standards of decency.”).
234
Wilson, 501 U.S. at 300 (emphasis in original). See also Alabama Commentary, supra note 56, at 149
(“Had these conditions of confinement been imposed as part of the punishment for breach of prison rules,
or had juries required them as part of the punishment for criminal acts, their constitutionality would
indubitably be an eighth amendment question.”).
235
Wilson, 501 U.S. at 300.
236
See, e.g., Powell, supra note 53, at 673-74 (“the founders’ purposes, intentions, and concerns – indeed,
the whole of their discussions of matters of high politics – took place in a thought-world, and were
conducted in a political language, distinct from our own…The founders, in short, must be translated before
they can contribute to our conversation.”).

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A Promise the Nation Cannot Keep
judgments pervade[d] the case law”237 under the Due Process clauses of the Fifth and
Fourteenth Amendments238 until 1995, when the Supreme Court in Sandin v. Connor,239
inter alia, rejected an inmate’s argument “that any state action taken for a punitive reason
encroaches upon a liberty interest under the Due Process Clause.”240 As the majority saw
it in Sandin, the “punishment of incarcerated prisoners” has as one of its aims to
“effectuate[ ] prison management and prisoner rehabilitative goals.”241 The Court
accordingly held that the dispositive issue for Due Process purposes was whether the
action taken subjected the inmate in question to “the type of atypical, significant
deprivation in which the State might conceivably create a liberty interest.”242 This
remains the governing rule today.243
While the Court has moved its Due Process jurisprudence away from the focus on
punitive intent that animates so much of its Eighth Amendment jurisprudence, an older
strand of case law construing another portion of the Fifth Amendment squarely addresses
the meaning of punishment under the Constitution, and has not been modified or
overruled. These cases concern the scope of the protections contained in the Fifth
Amendment’s first clause, which states, inter alia, that “[n]o person shall be held to
answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury.”244
In 1885, the Supreme Court observed that, “[f]or more than a century,
imprisonment at hard labor in the state prison or penitentiary or other similar institution
has been considered an infamous punishment in England and America,” for purposes of
the protections of the indictment clause of the Fifth Amendment, because it fell into the
class of punishments that “consist principally in their ignominy.”245 On this basis, a
decade later the Court held, in Wong Wing v. United States,246 that the “imprisonment at
hard labor” of three Chinese immigrants “before [their] sentence of deportation is to be
carried into effect,” was a clear violation of these protections.247 As the Court saw it, if
Congress sought to “subject[ ] the persons of such aliens to infamous punishment at hard
237

Wallace v. Robinson, 940 F.2d 243, 253 (7th Cir. 1991) (Cudahy, C.J., dissenting).
U.S. CONST. amend. V (reads in full that, “No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any
person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just compensation.”); and U.S.
CONST. amend. XIV, § 1 (reads in full that, “All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
239
515 U.S. 472 (1995).
240
Id. at 485.
241
Id.
242
Id. at 486.
243
See, e.g., Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005).
244
See U.S. CONST. AMEND. V, supra note 218.
245
Ex Parte Wilson, 114 U.S. 417, 428 (1885) (citing William Blackstone, 4 Bl. Comm. 377) (quotations
omitted).
246
163 U.S. 228 (1896).
247
Id. at 235-236.
238

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A Promise the Nation Cannot Keep
labor” in furtherance of immigration policy, “we think such legislation, to be valid, must
provide for a judicial trial to establish the guilt of the accused.”248
A later generation of the Court confirmed that the punishment that was infamous
for these purposes was the labor by itself, not the incarceration.
In other words, it was declared that, if imprisonment was in any other
place than a penitentiary and was to be at hard labor, the latter gave it
character; that is, made it infamous and brought it within the prohibition of
the Constitution.249
Because of this prohibition, “Congress could not legally invest the commissioner with
power to make hard labor an adjunct of the imprisonment,” since this was “beyond the
power of legislation to direct, without making provision ‘for a judicial trial to establish
the guilt of the accused.’”250
In the late Nineteenth and early Twentieth Centuries, as described previously,
American prison systems moved from imposing forced labor as punishment in individual
cases to mandating it generally for administrative purposes. In the federal system, these
reforms meant that
the two noncapital infamous punishments lost their character as
punishments imposed by a sentencing court and became part of the
disciplinary regimen and rehabilitative program established by the
Attorney General and the newly created Bureau of Prisons.251
Under the rule of the indictment-clause cases exemplified by Wong Wing, the
discretion that shifted to the executive allowed the Attorney General to “establish a
disciplinary regimen or take punitive action because of the needs of the institution,” but
not to “punish individual prisoners for their crimes.”252 The “punitive element connected
with the crime,” namely “the loss of freedom for some period of time,” remained “the
only element still controlled by the sentencing judge.”253 Therefore, the United States
Court of Appeals for the Ninth Circuit concluded that,
[w]ithin this system punishments can be distinguished, for the purpose of
applying the indictment clause, only in terms of the length of time during
which a prisoner is deprived of his freedom.254
Under this view, as in the Eighth Amendment decisions previously discussed,
“punishment for crime” is, by definition,255 only that which is explicitly handed down by

248

Id. at 237.
United States v. Moreland, 258 U.S. 433, 437 (1922).
250
Id. at 439-40 (citation omitted).
251
United States v. Ramirez, 556 F.2d 909, 914 (9th Cir. 1977) (withdrawn on rehearing).
252
Id. at 920.
253
Id. at 921.
254
Id. The court then held “that a criminal defendant who is subject to confinement for more than one year
must be prosecuted by an indictment.” Id.
249

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the judiciary as such. This is also the generally accepted meaning of the concept of
“punishment.”256 The judges in these cases drew upon this broadly-held societal norm to
hold that prison officials lack the ability in themselves to “punish individual prisoners for
their crimes”257 This means that the distinction between forced labor for rehabilitative
purposes and for punishment is a meaningful one,258 and mandates that the only
involuntary servitude of prisoners that would not be prohibited by the Thirteenth
Amendment is that to which they are sentenced by a judge or jury.
What distinguishes the cases construing the Fifth Amendment’s indictment clause
from the Eighth Amendment cases is that the Eighth Amendment cases dealt primarily
with the question of official intent in the absence of a sentence, while the Fifth
Amendment cases addressed the substance of the sentence in question. Civil challenges
to sentences259 are a type of claim to which the doctrine of prison deference properly has
no application, as sentencing has always been one of the judiciary’s essential functions.260
This may be the reason why courts have felt more inclined to parse the meaning of
“punishment” in these two contexts – so as to establish boundaries of authority between
the separate branches261 – than they have been in construing the protections of the
Thirteenth Amendment.

255

The formulation is somewhat redundant by its terms, and dates back in usage at least as far as the
Roman Empire. See Punishment, Stanford Encyclopedia of Philosophy, available at
http://plato.stanford.edu/entries/punishment/ (hereinafter, the “Stanford Encyclopedia”) (referencing “the
classic norms of Roman law, nulla poena sine leges and nulla poena sine crimen (no punishments outside
the law, no punishments except for crime).”).
256
See STANFORD ENCYCLOPEDIA (“Harms of various sorts may befall a wrong-doer, but they do not count
as punishment except in an extended sense unless they are inflicted by personal agency,” since “not all
socially authorized deprivations count as punishments; the only deprivations inflicted on a person that
count are those imposed in consequence of a finding of criminal guilt.”).
257
United States v. Ramirez, 556 F.2d 909, 920 (9th Cir. 1977).
258
Cf. STANFORD ENCYCLOPEDIA (“What marks out nonpunitive deprivations from the punitive ones is that
they do not express social condemnation.”). But see id. (“no single explicit purpose or aim is built by
definition into the practice of punishment. The practice, as Nietzsche was the first to notice, is consistent
with several functions or purposes.”).
259
See generally Adams v. United States, 372 F.3d 132, 134-35 (2d Cir. 2004) (“Title 28 U.S.C. §§ 2241
and 2255 each create mechanisms for a federal prisoner to challenge his detention, but the two sections
offer relief for different kinds of perceived wrongs. Section 2255 provides relief in cases where the
sentence: (1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was
entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention
authorized by law; or (4) is otherwise subject to collateral attack. We have held that § 2255 is the
appropriate vehicle for a federal prisoner to challenge the imposition of his sentence…Section 2241 by
contrast is the proper means to challenge the execution of a sentence. In a § 2241 petition a prisoner may
seek relief from such things as, for example, the administration of his parole, computation of his sentence
by parole officials, disciplinary actions taken against him, the type of detention, and prison conditions in
the facility where he is incarcerated.”) (citations omitted).
260
Cf. Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (disagreeing “that the Judicial Branch must defer to
Executive and Legislative Branch decisionmaking,” where “the issue we address is whether aliens that the
Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment
within the United States.”), superseded by regulation as stated in Hernandez-Carrera v. Carlson, 547 F.3d
1237, 1244-56 (10th Cir. 2008).
261
Accord United States v. Moreland, 258 U.S. 433, 441 (1922) (“When an accused is in danger of an
infamous punishment, if convicted, he has a right to insist that he be not put upon trial, except on the
accusation of a grand jury.”) (citations omitted).

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This does not mean that prisoner-claimants have encountered increased success in
litigation based on the courts’ usage of this definition of punishment. There are no
significant published indictment-clause decisions of more recent vintage than the 1970s,
other than those pertaining to immigration detainees,262 but those cases have not led to
the greater effectuation of detainees’ rights in this context.263 Nor are inmate civil
challenges to their sentences generally an area of greater success than so-called
“conditions of confinement” cases.264 Notwithstanding the notion that no “iron curtain”
exists between the Constitution and prisons,265 this rate of failure is illustrative of the
modern approach to our generally-despised incarcerated class.266
If the return to the Hard Road that is argued for in this article similarly does not
lead to meaningful differences in the application of the Thirteenth Amendment’s
protections to prisoners, it will be for reasons that go beyond the meager winning
percentage of prisoner constitutional claims in the court system; reasons that link to the
roots of the penitentiary system, and the role forced labor plays in it.
VI. The Importance of Properly Applying the Thirteenth Amendment in Prison
a. The Difference Between Forced Labor as Punishment and “Hard
Labor”
As this article has explored, the notion that criminals should be forced to work as
part of their punishment is a long-standing pillar of collective morality, with an ancient
foundation. We teach our children that, to the extent such labor is useful and publicly
humiliating, it serves its purpose.267 The infliction of pain as an incident to, or necessary

262

See, e.g., Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981) (citing Wong Wing
in support of holding that “an excluded alien in physical custody within the United States may not be
‘punished’ without being accorded the substantive and procedural due process guarantees of the Fifth
Amendment,” and therefore alien’s “continued incarceration [for no reason] other than the fact that no
country has agreed to take him” was “insufficient reason to hold him further.”).
263
See, e.g., Carrera-Valdez v. Perryman, 211 F.3d 1046, 1048 (7th Cir. 2000) (“The only arguably
contrary decision [to the majority rule that “an excludable alien may be detained indefinitely when his
country of origin will not accept his return”], Rodriguez-Fernandez v. Wilkinson...has not garnered
adherents and is of doubtful vitality in its own circuit.”) (citations omitted). In the earliest stages of the
“War on Terror,” neither was there much concern with such individuals’ rights as a general rule. See, e.g.,
United States Department of Justice, Office of the Inspector General, The September 11 Detainees: A
Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the
September 11 Attacks, June 2003, available at http://www.usdoj.gov/oig/special/0306/index.htm (detailing
abuses of force and process committed against individuals detained on immigration charges following
terrorist attacks of September 11, 2001).
264
See, e.g., John Scalia, Federal Criminal Appeals, 1999 with Trends 1985-99, Bureau of Justice Statistics
Special Report, April 2001, NCJ 185055 at 5 (noting that, “during 1995, 65% of habeas and § 2255
motions were dismissed.”).
265
Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
266
See Foucault, supra note 2, at 287 (quoting Michele Perrot) (“At the dawn of the twentieth
century…surrounded by contempt, the highest of walls, the prison finally closed in on an unpopular
people.”).
267
Cf. CARS (Walt Disney Pictures 2006) (Lightning McQueen is made to re-pave the main road in town
that he has destroyed using “Bessie,” an old paving machine, as punishment).

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component of,268 such labor has a separate identity and distinct value.269 The additional
notion that such work can be beneficial to the administration of the prison270 or the
welfare of the inmate, to the degree that it actually provides useful education or
training,271 is of a more recent vintage, but still as old as penitentiary confinement in
Western Europe and the New World.272
This rehabilitative concept never intruded very far into the public consciousness,
in the same way that the rehabilitative model of corrections as a whole failed to do so.273
Thus, it seems entirely possible that any public examination of the current prison labor
regime in the United States would result in a public demand for more grueling prison
work programs.274 What would be interesting to know would be whether the phrase
“working hard,” as used by former Governor Hunt,275 means something different in the
context of prisoners than it does in the free world.
Webster’s defines “hard labor” as “[c]ompulsory physical labor assigned to
criminals as part of a prison term.”276 Black’s Law Dictionary defines it more precisely
as “[w]ork imposed on prisoners as additional punishment, usu. for misconduct while in
prison,”277 and notes that it can be imposed as a sentence in “[s]everal states” and “in
military sentencing.”278 Neither definition explicitly contemplates forced labor programs
for rehabilitative, administrative, or educational purposes, reflecting the absence of such

268

See Bentham, supra note 58, at 155 (“It is manifest, therefore, that when a punishment of the laborious
kind is appointed, another punishment must necessarily be appointed along with it. There are, therefore, in
every such case, two different punishments at least necessarily concerned.”).
269
Cf. Pearce, supra note 1, at 262-65 (Cool Hand Luke is made to repeatedly dig and fill in a hole, and is
also beaten. When he ultimately pretends to submit, he only asks not to be beaten, without mention of the
task.).
270
See Misrahi, supra note 81, at 414 (arguing that open-population “Auburn” prison model that is norm
today won out, over competing “Walnut Street” total-segregation model in the early 1800s, because a
“system of complete isolation…places great constraints on the ability to introduce industrial techniques into
the prison setting because labor is necessarily limited to handicraft of an artisan nature.”); and Dougherty,
supra note 20, at 486-87 (“the Walnut Street Jail had difficulty sustaining itself economically,” while “[t]he
Auburn Penitentiary was economically self-sufficient and made a profit for the government by producing
goods such as footwear, clothing, carpets, barrels, harnesses, and furniture.”).
271
See PIRA Survey, supra note 108, at Ch. 1 (listing, as one “basic concept[ ] of a modern State penal
system,” the provision of “[u]seful work for every prisoner, both to preserve and develop his own capacity
for work and through his labor to reduce the cost to the taxpayers of keeping him in prison.”).
272
See Foucault, supra note 2, at 242 (“The prison is not a workshop; it is, it must be of itself, a machine
whose convict-workers are both the cogs and the products; it ‘occupies them continually, with the sole aim
of filling their moments’…If, in the final analysis, the work of the prison has an economic effect, it is by
producing individuals mechanized according to the general norms of an industrial society.”).
273
See Garland, supra note 25, at 10 (arguing that the “penal-welfare framework” represented “the
aspirational values of political elites rather than the sensibilities of the general public,” and “they no longer
set the emotional tone for public discourse about crime and punishment.”).
274
See Id. at 9 (“Punishment – in the sense of expressive punishment, conveying public sentiment – is once
again a respectable, openly embraced, penal purpose.”).
275
See supra note 89.
276
WEBSTER’S II NEW COLLEGE DICTIONARY 505 (1986).
277
BLACK’S LAW DICTIONARY 721 (7th ed. 1999).
278
But see Berger, supra note 99, at 1 n.5 (noting that “[c]urrent military dictionaries do not define hard
labor.”) (citations omitted).

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non-punitive considerations in the traditional understanding of labor as punishment,279
however much of a role those considerations played in the development of such programs
in this country.280
The term “hard labor” presumably embodies a set of properties that can be
contrasted with a different set of properties embodying a separate condition, that of “nonhard,” but nonetheless forced, labor.281 The latter condition is also presumably less harsh
from the perspective of the inmate,282 to a degree that would ideally correlate to whatever
“the punishment’s intended punitive impact”283 is meant to be. This is consistent with the
originating purpose of punishment by forced labor as, in part, an act of public shaming,284
which has both a deterrent goal285 and a symbolic, “expressive” one.286
But how much more harsh should forced labor be than what non-incarcerated
working people endure? The question can be answered by looking at two of the
penological justifications that are used for the labor.287 Most criminologists “devolve
into two broad camps: the retributive and the consequentialist.”288 As Campos explained,
[t]he retributive view is founded on the idea of desert – we punish the
criminal because the blameworthiness he has incurred through his actions
279

See, e.g., McGinn, supra note 79, at 7 (“When man disobeyed and was driven from the Garden of Eden
for his sins, his punishment mandated that ‘in the sweat of thy face shalt thou eat bread.’ From the
beginning omniscient wisdom chose labor as the first means to restore fallen man.”).
280
See Id. at 7 (“incarcerated labor chiefly began with the rise of the workhouses. Having studied Dutch
workhouses, [William] Penn advocated a similar system of labor for punishment which he hoped would
lead to reformation of the criminal.” However, “[a]lthough both [the Auburn and Pennsylvania] systems of
punishment were initially oriented around reformation, both soon revolved around economic concerns.”).
281
See Berger, supra note 99, at 3 (“What was legally permissible [as of 1886], however, was arduous,
physical labor that, although it may have caused some physical suffering or pain, was commensurate with
the full demands of justice.”). The Army Major who made these observations offered examples of hard
labor that he believed would be constitutionally permissible today, “includ[ing] strictly punitive tasks such
as repetitively filling and emptying sandbags,” and “hav[ing] the Soldier dig fighting positions…for the
sole punitive purpose of having the Soldier fill them back in.” Id. at 12.
282
Id. at 6 (“Since the establishment of the [Uniform Code of Military Justice], at least one court has
recognized that when executed, the ‘labor required of present-day prisoners [sentenced to hard labor] is
often no more strenuous than the cutting of grass or leaf raking.’”).
283
Id. at 7.
284
See Foucault, supra note 2, at 109 (“Public works meant two things: the collective interest in the
punishment of the condemned man and the visible, verifiable character of the punishment. Thus the
convict pays twice; by the labour he provides and by the signs that he produces.”).
285
See, e.g., Berger, supra note 99, at 8 (“The performance of meaningful hard labor in post stockades
would have the distinctively desirable effect of making the prisoner remember his time spent in the
stockade and instilling in him a strong desire never to return.”).
286
See, e.g., Pugsley, supra note 44 at 401 (describing “what Professor Feinberg has termed ‘the expressive
function of punishment’” as requiring, inter alia, that “condemnation is expressed by hard treatment, and
the degree of harshness of the latter expresses the degree of reprobation of the former,” such that “[p]ain
should match guilt only insofar as its infliction is the symbolic vehicle of public condemnation.”) (citing J.
Feinberg, DOING AND DESERVING 98, 117 (1970)).
287
But see Huigens, supra note 26, at 439 (describing as “[o]ne of three pervasive confusions in
commonplace punishment theory” the “conflat[ion of] two different things: the ends of punishment and
theories of punishment.”).
288
Campos, supra note 28, at 1931. See also Alice Ristroph, Respect and Resistance in Punishment
Theory, 97 CAL. L. REV. 601, 603 (2009) (describing, inter alia, “the two main camps in punishment
theory, retributivism and consequentialism.”).

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makes it morally fitting (perhaps imperative) that we do so. The
consequentialist position is essentially utilitarian: Punishment is justifiable
to the extent that the good results that flow from it (primarily deterring
future violations of the law) outweigh the evil consequences that result
from inflicting pain on the individuals who are punished.289
The two “camps” represent abstractions of the opposite ends of the penological theory
spectrum, and correctional policies will usually employ some mix of both in their
purposes and justifications.290
Either the retributive or consequentialist views of punishment can be employed to
provide a floor, a minimum amount of “hardness” that will qualify forced labor as
punishment. Under retributive principles, to the extent such labor is forced upon the
convict for that convict’s own betterment, it may be ignominious but it does not,
philosophically at least, constitute punishment for crime.291 Consequentialist principles
impose a comparable demand that the labor be sufficiently “hard” to deter individuals
from committing prohibited acts.
The ceiling on the severity of such punishments can similarly be located in either
school of thought. The retributive limitation on the power to punish is contained in the
modern understanding of the meaning of the adjectives “cruel and unusual” in the Eighth
Amendment.292 As previously discussed, when the Supreme Court first pronounced on
the Eighth Amendment’s protections in the Twentieth Century, it focused on whether
certain punishments “might be so disproportionate to the offense as to constitute a cruel
and unusual punishment.”293 This is the essence of retributivism, which “demands a
reciprocity of suffering.”294 Consequentialist principles, for their part, foreclose the use
of particular punishments where their utility is deemed to have sufficiently diminished in
comparison to the harms they visit.295
The question that naturally follows the setting of these upper and lower limits is
whether the meaning of “punishment for crime,” as understood in the Thirteenth
Amendment, takes up the entirety of the space between these limits. One could
reasonably observe that the practice of forced labor as punishment actually extends
further in many instances today, downwards into the category of “non-hard” forced

289

Campos, supra note 28, at 1931.
See generally Paul H. Robinson, Commentary, Criminal Justice in the Information Age: A Punishment
Theory Paradox, 1 OHIO ST. J. CRIM. L. 683, 685 (2004) (“Desert commonly has more influence than crime
control in assigning criminal liability, but the two share control of sentencing.”).
291
Cf. Garland, supra note 25, at 36 (“In contrast to the judicial power to punish, which had long been
subject to scrutiny and review, the powers of social workers and psychologists were regarded in a more
benign, apolitical light…Their mission was viewed as an uplifting, civilizing one that tried to distance itself
and its objectives from the penal mechanisms in which it operated.”).
292
But see Howe, supra note 48, at 40 (arguing that “[t]he thirteenth amendment clause is more easily
understood as bounding future growth in the application of the eighth amendment language rather than
yielding to it.”).
293
Weems v. United States, 217 U.S. 349, 367-68 (1910).
294
Campos, supra note 28, at 1936.
295
See Huigens, supra note 26, at 442 (“The imposition of a draconian penalty can upset the proper balance
between society, the victim, and the offender just as surely as the crime itself has done.”).
290

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labor,296 which is understandable given the primarily consequentialist justifications that
are used for modern prison labor programs.297 The courts are not correct that such labor
can rightfully be called punishment, for the purposes of escaping the Thirteenth
Amendment’s prohibitions, simply by virtue of it occurring in prison.
b. The Potential of the Thirteenth Amendment in the Alternate Universe
of the Hard Road
If the Thirteenth Amendment jurisprudence had followed the historical arc that
the Constitutional Due Process jurisprudence has described, it too would have arrived at
the question of substance as the crucial one, as the case law recently did in that line of
cases. This article argues that the protections of the Thirteenth Amendment should
rightfully have been applied by courts using the same distinction between disciplinary
and rehabilitative/administrative actions that historically animated the Due Process
cases,298 until the test changed in 1995, in Sandin v. Connor.299 In such a world, Judge
Wiener’s view that convicted prisoners still retain some Thirteenth Amendment rights
would have been the governing rule, rather than an outlier statement. With the
abandonment of the punitive/administrative distinction in the Due Process context postSandin, this alternate-universe Thirteenth Amendment jurisprudence would likely also
have seen a shift towards looking at the nature of the inmate’s deprivation as the
dispositive issue. Any such substantive inquiry would follow, as the Due Process cases
ostensibly follow,
the principle of minimalism (less is better), that is, given any two
punishments not ruled out…and roughly equal in retributive and
preventive effects for a given offense and class of offenders, the less
severe punishment is to be preferred to the more severe.300
Indeed, the existing Thirteenth Amendment cases of this universe look at that
very issue of substance, in instances where the individuals whose constitutional rights are
claimed to have been violated are not incarcerated.301 In the governing case in this area,
296

See Lafer, supra note 117, at 121 (listing as examples of modern prisoner labor, inter alia,
“telemarketing,” “pack[ing] and ship[ping] thousands of copies of Windows software,” and “clean[ing] the
stock shelves” at local stores.)
297
See, e.g., N.C. GEN. STAT. 148-26(a) (“Work assignments and employment shall be for the public
benefit to reduce the cost of maintaining the inmate population while enabling inmates to acquire or retain
skills and work habits needed to secure honest employment after their release.”).
298
See, e.g., Hewitt v. Helms, 459 U.S. 460, 468 (1983) (holding, inter alia, that no due process right
implicated in “the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive
reasons,” because “administrative segregation is the sort of confinement that inmates should reasonably
anticipate receiving at some point in their incarceration.”).
299
515 U.S. 472 (1995).
300
STANFORD ENCYCLOPEDIA, supra note 236.
301
The exceptions to this rule are when the Supreme Court in the early Twentieth Century held the labor
being compelled to have been known to the common law prior to the ratification of the amendment. See
Butler v. Perry, 240 U.S. 328 (1916) (denying Thirteenth Amendment challenge to road work conscription,
since “[f]rom Colonial days to the present time conscripted labor has been much relied on for the
construction and maintenance of roads,” and the amendment “introduced no novel doctrine with respect of

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United States v. Kozminski,302 the defendants were criminally prosecuted for keeping
“two mentally retarded men” as unpaid laborers on their farm, “in poor health, in squalid
conditions, and in relative isolation from the rest of society.”303 In addition to holding the
men in these conditions, the government also argued that the Kozminskis used those
same conditions “to cause the victims to believe they had no alternative but to work on
the farm.”304 The Supreme Court took this opportunity to define involuntary servitude
for the purposes of criminal liability under the Thirteenth Amendment as “a condition of
servitude in which the victim is forced to work for the defendant by the use or threat of
physical restraint or physical injury, or by the use or threat of coercion through law or the
legal process.”305 Congress subsequently expanded this definition to include coercion
through threats of “psychological, financial, or reputational harm.”306
Any existing non-voluntary prison labor program, whether supported by an
administrative requirement or a sentence, would likely qualify under the Kozminski test
as at least a form of legal coercion, as the Court itself acknowledged in that opinion:
The express exception of involuntary servitude imposed as a punishment
for crime provides some guidance. The fact that the drafters felt it
necessary to exclude this situation indicates that they thought involuntary
servitude includes at least situations in which the victim is compelled to
work by law.307
It does not matter for these purposes whether an individual claiming to be held in
involuntary servitude was paid for this work,308 but that detail would probably matter to
the average citizen, as would the type of work that was being required of inmates.
Garland has noted how
the fact that the language and affect of punitiveness disappeared from
official discourse while remaining strongly present in popular culture and
common sense would re-emerge as an important source of tension in the
1980s and 1990s.309
services always treated as exceptional, and certainly was not intended to interdict enforcement of those
duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.”) (citations
omitted). See also The Selective Draft Law Cases, 245 U.S. 366, 390 (1918) (“Finally, as we are unable to
conceive upon what theory the exaction by government from the citizen of the performance of his supreme
and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war
declared by the great representative body of the people can be said to be the imposition of involuntary
servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the
conclusion that the contention to that effect is refuted by its mere statement.”).
302
487 U.S. 931 (1988).
303
Id. at 934.
304
Id. at 936.
305
Id. at 952.
306
18 U.S.C. § 1589(c)(2) (2008).
307
Kozminksi, 487 U.S. at 942.
308
See Kathleen A. McKee, Modern-Day Slavery: Framing Effective Solutions For An Age-Old Problem,
55 CATH. U. L. REV. 141, 160 (2005) (“in order to prevail in a suit alleging a violation of Section 1 of the
Thirteenth Amendment, a plaintiff will have to prove that he was ‘compelled by force, coercion, or
imprisonment and against his will to labor for another whether or not he is paid.’”).
309
Garland, supra note 25, at 41.

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Similarly, whatever the actual rationales for these programs, members of the
public might not consider the following examples of modern prison labor programs
(compulsory or otherwise) as “hard labor” in any sense: in the federal system, inter alia,
“fleet management and vehicular components,” “recycling activities,” and “services
(which includes data entry and encoding);”310 in Washington state, manufacturing
“aircraft components;”311 or in California, staffing an airline “reservations service” call
center.312 The existence of these strikingly pedestrian categories of labor is not a recent
innovation. In Colorado, as early as 1939, inmates were employed not only in making
license plates, but also “knit goods,” soap, and mattresses, and in farming.313
Accordingly, forcing legislatures to amend their criminal statutes to bring their
jurisdictions’ general work requirements into compliance with the Thirteenth
Amendment bears the heavy risk of making the overall prison labor situation worse, from
the prisoners’ perspectives.314 Garland has warned that the “highly charged political
discourse [that] now surrounds all crime control issues” means that “every decision is
taken in the glare of publicity and political contention and every mistake becomes a
scandal.”315 This often results in pointlessly expressive enactments such as the proposal,
introduced by now-disgraced316 Nevada Senator John Ensign in 2008, “[t]o require a 50hour workweek for Federal prison inmates.”317 Such is the nature of what is “very much
a political process,” to be “governed not by any criminological logic, but instead by the
conflicting interests of political actors and by the exigencies, political calculations and
short-term interests that provide their motivations.”318
However, as this article has argued, we have throughout our history forced
convicted criminals to work as punishment for their crimes, and continue to, although we
have not always clearly understood our motivations for doing so. A return to the Hard
Road would at least clarify that our purpose in compelling this labor is punitive, and that
awareness may by itself constrain our actions in ways that we are not constrained when
we believe (or we are told) that we are acting in the prisoner’s own best interest.319

310

CRS Report at 3.
PAUL WRIGHT, MAKING SLAVE LABOR FLY: BOEING GOES TO PRISON, supra note 171, at 114.
312
Lafer, supra note 117, at 121.
313
See PIRA Survey, supra note 108, at 31-34.
314
See, e.g., Leonard Orland, From Vengeance to Vengeance: Sentencing Reform and the Demise of
Rehabilitation, 7 HOFSTRA L. REV. 29, 37 (1978) (“Is there not a substantial risk that available
rehabilitative programs will diminish or disappear? Would not that danger be even greater to jurisdictions
which adopt the Model Sentencing and Corrections Act of the National Conference of Commissioners on
Uniform State Laws, which guarantees inmates a statutory right not to be rehabilitated, a right not to
participate in treatment programs?”) (emphasis in original).
315
Garland, supra note 25, at 13.
316
See David M. Herszenhorn, Senator Says He Had Affair With an Aide, N.Y. TIMES, June 16, 2009,
available at http://www.nytimes.com/2009/06/17/us/politics/17ensign.html.
317
S. 3695, Prisoner Opportunity, Work, and Education Requirement (POWER) Act, 110th Cong. 2d Sess.
(introduced November 19, 2008). But see Grim, supra note 40.
318
Garland, supra note 25, at 191 (emphasis in original).
319
See supra note 44.
311

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VII.

Conclusion: The Hard Road as One That Is Potentially Less Traveled

The political forces described above could simply prevent any action whatsoever
on these issues, which is different than saying that the number of hard-labor programs in
the country will not increase.320 There is, after all, another long-standing meaning of the
word “punishment” that is consistent with the courts’ Thirteenth Amendment holdings, if
not their Fifth or Eighth Amendment ones, and courts could stand firm on this meaning as
the appropriate one in this instance. Broadly stated, this is the view that
punishment is the imposition upon a person who is believed to be at fault
of something commonly believed to be a deprivation where that
deprivation is justified by the person’s guilty behavior.321
There is no language of intent or invocation of sentencing here, only the notion that
“punishment is an objectively judged loss or burden imposed on a convicted offender.”322
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 It also
obscures the potential for even punitively-motivated forced-labor programs to be less
“hard” than one might initially imagine, but still serve retributive purposes.325
In the same way that the different goals of prison labor are invoked in overlapping
ways that reveal their unimportance,326 so too are the circumstances of such labor’s
imposition glossed over in revealing fashion.327 The ultimate value being served is
simply the “belie[f], in theory at least, that prisoners should work – and work hard.”328
320

See, e.g., Riederer, supra note 21, at 1453 (noting that, in recent years, “most states have instituted some
form of labor program, and a growing number of states have included hard labor as a component of their
programs. Furthermore, some states are experimenting with new models of prison labor programs, drawing
on historical models.”).
321
Morris, supra note 44, at 482-83.
322
STANFORD ENCYCLOPEDIA, supra note 236.
323
See Sandin v. Connor, 515 U.S. 472, 485 (1995) (“punishment of incarcerated prisoners” has as one of
its aims to “effectuate[ ] prison management and prisoner rehabilitative goals.”).
324
See Ernest van den Haag, Punitive Sentences, 7 HOFSTRA L. REV. 123, 130 (1978) (“Punishment, then,
need not rest on anything but past threats; and it cannot rest on the desire for rehabilitation or incapacitation
both of which refer only to future conduct…however useful punishment is in rehabilitating or
incapacitating, neither is logically related to punishment’s essential function: to deter from crime.”)
(emphasis in original).
325
See, e.g., Riederer, supra note 21, at 1469-1481 (setting forth model statutes for proposed punitive hardlabor program).
326
Cf. Ewing v. California, 538 US 11, 25 (2003) (Constitution “does not mandate adoption of any one
penological theory,” and a “sentence can have a variety of justifications.”).
327
But see Wallace v. Robinson, 940 F.2d 243, 252 (7th Cir. 1991) (Cudahy, C.J., dissenting) (“the inquiry
into intent should not be abandoned simply because a majority of this court may believe that it is not costeffective. The line that Illinois draws between disciplinary and administrative reasons for official action
reflects a deeply-rooted belief in the importance of intent in this context…As Justice Holmes once
observed, ‘even a dog distinguishes between being stumbled over and being kicked.’”) (citation omitted).
328
Berger, supra note 99, at 2.

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The tenacity of this belief can be seen in the doctrinally puzzling argument of the Army
Major who argued that hard labor, with or without imprisonment, remains a
constitutionally permissible sentence under the Uniform Code of Military Justice.329 The
Major also argued that, as the jurisdiction of the Court of Appeals for the Armed Forces
(CAAF) is “confined to ‘the review of specified sentences imposed by courts-martial,’”
the CAAF has no authority to rule on the “nature of the hard labor” to which a soldier is
assigned, as that “is a commander’s decision, not a judicial one…and not a finding or
sentence over which the court can exercise jurisdiction.”330
The jailer in such a world does indeed possess the power to punish that, lacking
punitive intent or “deliberate indifference,”331 the Supreme Court has emphatically
proclaimed he does not possess under the Eighth Amendment. Perhaps a court intending
to make this rule explicit will at least proffer a reason why there are two different
meanings, in two different amendments, of the same word, both times to the detriment of
the rights of prisoners under the Constitution. Courts presented with such a seemingly
inexplicable difference between the two amendments, from the standpoint of the inmates
affected,332 could also reasonably conclude, as courts in the area of administrative law
have, that such a broad grant of power to correctional officials should at least be
tempered by the requirement that there exist intelligible bases for the different actions
they undertake with such power.333
Former Attorney General Ramsey Clark once remarked that “[t]here are few
better measures of the concern a society has for its individual members and its own well
being than the way it handles criminals.”334 The return of the Hard Road that is called for
in this article would provide an opportunity for us to once again measure the extent of an
individual’s rights that we wish to withdraw upon his or her conviction for crime. This is
a question of ongoing and vital importance to those already incarcerated, but its
importance to those of us who remain free is comparably high, and not as attenuated as
we might imagine at first blush.

329

See generally id.
Id. at 16.
331
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
332
Cf. Wilkerson v. Stalder, Civil Action No. 00-304-C, 2007 WL 2693852, at *18 (M.D. La. Sep. 11,
2007) (“If an official’s actions are taken with no legitimate penological basis, it does not matter whether the
claimed violation is under the Eighth Amendment or the Fourteenth Amendment or both amendments, as is
the case here…Changing amendments does not turn improper motivation into proper motivation.”).
333
See, e.g., Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 685-686
(1980) (Rehnquist, J., concurring) (describing non-delegation doctrine as requiring, inter alia, “that, to the
extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an
‘intelligible principle’ to guide the exercise of the delegated discretion.”) (citations omitted).
334
Quoted in Alabama Commentary, supra note 209, at 153 n.50.
330

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