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Print Vol. 104, Issue 4

Article

The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration

Michele Goodwin, University of California, Irvine School of Law

, , , , ,

15 May 2019

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.

Thirteenth Amendment (1865)

Introduction

On August 31, 2017, The New York Times published a provocative news article, “The Incarcerated Women Who Fight California’s Wildfires.” California is particularly known for its wildfires. 11 Jaime Lowe, The Incarcerated Women Who Fight California’s Wildfires, N.Y. Times, (Aug. 31, 2017), https://www.nytimes.com/2017/08/31/magazine/theincarcerated-women-who-fight-californias-wildfires.html?mcubz=1&_r=0 [http://perma.cc/BE86-FDUA]. The dry-air, hot-weather conditions that persist much of the year and limited rainfall create the conditions that make pockets of the state ripe for devastating wildfires. Strong winds, often referred to as the Diablo (or the devil), radiate in the northern part of the state, exacerbating the already vulnerable conditions. The Santa Ana winds do the same in southern counties. Fighting these fires can be a matter of life or death.

In fact, Shawna Lynn Jones died in 2016, only hours after battling a fire in Southern California. She was nearly done with a three-year sentence—barely two months remained of her incarceration. However, the night before, at 3 a.m., she and other women had been called to put out a raging fire. Tyquesha Brown recalls that the fire that night required traversing a steep hillside of loose rocks and soil. 22 Id. This made their task even more challenging. Another woman told a reporter that Jones struggled that night—the weight of her gear and chain made it difficult for her to establish footing to hike up the hill where the fire blazed. 33 Id.

However, she and the other women of Crew 13-3 performed their duties, holding back the fire so that it did not “jump the line.” 44 Id. By doing so, they saved expensive properties in Malibu. However, Jones was dead by 10 a.m. the next morning. 55 Id. For “less than $2 an hour,” female inmates like Shawna Jones and Tyquesha Brown “work their bodies to the breaking point” with this dangerous work. 66 Id. The women trudge heavy chains, saws, medical supplies, safety gear, and various other equipment into burning hillsides surrounded by intense flames. On occasion, they may arrive “ahead of any aerial support or local fire trucks,” 77 Id. leaving the prisons in the peak of night, when it is pitch black, arriving before dawn to the color of bright flames and intense heat. Sometimes the women are called upon to “set the line,” meaning they clear “potential fuel from a six-foot-wide stretch of ground” between the source of the fire (or whatever is burning) and the land or property in need of protection. 88 Id. They dig trenches, moving toward the fire with tools in hand, keeping about ten feet apart from each other while calling out conditions. 99 Id. The women cut wood, clearing it before the flames lick at its brittle brush. After, they scrape or shovel—all in syncopation—while clouds of smoke envelope them. For protection, thin bandanas or yellow handkerchiefs cover their mouths. They operate in a frightening rhythm of sorts: saw, hook, shovel, and rake charred earth, trees, or whatever remains from the blazing fire. To the naked eye, the women could appear to represent progress. For too long, state, federal, and local agencies excluded women from professions that demanded the service of their bodies at the front lines of anything other than childbearing, motherhood, and domestic duties. Women waged legal battles to become firefighters and police officers. 1010 See Janice D. Yoder & Patricia Aniakudo, When Pranks Become Harassment: The Case of African American Women Firefighters, 35 SEX ROLES 253, 266 (1996); Janice D. Yoder & Patricia Aniakudo, “Outsider Within” the Firehouse: Subordination and Difference in the Social Interactions of African American Women Firefighters, 11 GENDER & SOC’Y 324, 327 (1997) (citing a 1990 survey of 356 career women firefighters that found “fully 16 percent [of the women surveyed] reported that they gained entry to the fire service as the result of a successful equal employment opportunity complaint”); Petula Dvorak, Female Firefighters Still Get Harassed By Misogynistic Co-Workers. Why Is That Okay?, WASH. POST (May 5, 2016), https://www.washingtonpost.com/local/female-firefighters-stillget-harassed-by-women-hating-co-workers-why-is-that-okay/2016/05/05/ d15873a2-12ca-11e6-93ae-50921721165d_story.html?utm_term=.7062f29f1050 [https://perma.cc/G5QG-FVJX] (describing how “Fairfax County firefighter Nicole Mittendorff hanged herself in Virginia’s Shenandoah mountains and her department launched an investigation into a series of lurid, degrading posts allegedly written by her co-workers in an online forum”) Thus, a glance at the women battling California’s fires might convey a message of hope and that the only battles left are the fires themselves—and not the persistent claims of institutional and private discrimination, 1111 Justin Jouvenal, Female Firefighter’s Suicide Is a ‘Fire Bell in the Night,’ WASH. POST (Aug. 22, 2016), https://www.washingtonpost.com/local/publicsafety/female-reghters-suicide-is-a-re-bell-in-the-night/2016/08/22/11c73a16-
3956-11e6-a254-2b336e293a3c_story.html?utm_term=.3391adaab18b [https://perma.cc/4WWX-XUCT].
such as colleagues urinating on their beds, 1212 SF Firefighters Accused of Peeing in Bed of Female Firefighter in ‘Egregious Harassment’ Case, CBS SF BAY AREA (Sept. 21, 2016, 12:03 PM), http://sanfrancisco.cbslocal.com/2016/09/21/sf-firefighters-accused-of-peeing-in-bed-of-female-firefighter-in-egregious-harassment-case/ [https://perma.cc/B27C-MVLS] (reporting that “[a] female firefighter reportedly suffered six months of verbal taunting and at least one of her co-workers even urinated in her bed, according to a city human resources investigation”); Michael Bodley, New Details Emerge in Alleged Harassment of Female SF Firefighter, SFGATE (Sept. 22, 2016, 6:49 PM), http://www.sfgate.com/bayarea/article/New-details-emerge-in-alleged-harassment-of-9240490.php [https://perma.cc/X577-AWZH] (“Investigators found credible claims that the harassment included urination in the female firefighter’s bed and feces left on the floor of the women’s bathroom at the station, among other incidents Hayes-White deemed ‘egregious.’ After the woman reported it, her co-workers retaliated by branding her a ‘rat,’ the report says.”). sexual harassment, 1313 John C. Griffith et al., Bullying at the Fire Station? Perceptions Based on Gender, Race and Sexual Orientation, 5 AM. INT’L J. SOC. SCI. 34 (2016) (finding that “[w]ith regard to sexual harassment, 31.9% of female firefighters indicated they had been verbally harassed and 18.6% were victims of sexual harassment”). and retaliation for performing their jobs well. 1414 Michelle Roberts, Two Women Firefighters Sue San Jose for Gender Discrimination, NBC BAY AREA (June 1, 2017, 6:09 PM), http://www.nbcbayarea.com/news/local/Two-Women-Firefighters-Sue-San-Jose-for-Gender-Discrimination425803943.html [https://perma.cc/Z9VJ-DKRD] (reporting on litigation that claimed discrimination in the case of Battalion Chief Patricia Tapia who had “applied for 10 promotions in the last five years and been denied each time”).

In fact, no special symbol adorns their uniforms announcing the prisoners’ status. Make no mistake however; these women are inmates, performing arduous labor for cents on the dollar 1515 The Prison Policy Initiative (“PPI”) provides a comprehensive study of the payments that prisoners earn. Its work is vital for research such as this Article. See State and Federal Prison Wage Policies and Sourcing Information, PRISON POLICY INITIATIVE (Apr. 10, 2017) [hereinafter Prison Policy Initiative, State and Federal
Prison Wage Policies], https://www.prisonpolicy.org/reports/wage_policies.html [https://perma.cc/Q9AE-6EQT]. A separate study was conducted for this Article, updating PPI’s results, canvassing each state, examining non-industry jobs, as well as jobs in state-owned businesses and comparing that data to states’ minimum wage laws. That data is provided in the appendix. See Michele Goodwin, Prison Policy Initiative Wage Study Update (Sept. 18, 2018) (updating Prison Policy Initiative, State and Federal Prison Wage Policies).
and without much training. 1616 Lower, supra note 1. Civilian firefighters typically receive a three to four-year apprenticeship and a competitive wage. 1717 Id.; see also BUREAU OF LABOR STATISTICS, HOW TO BECOME A FIREFIGHTER, OCCUPATIONAL OUTLOOK HANDBOOK (Apr. 24, 2018), https://www.bls.gov/ooh/protective-service/firefighters.htm#tab-4 [https://perma.cc/V46E-BYEV] (“Those
wishing to become wildland firefighters may attend apprenticeship programs that last up to 4 years. These programs combine instruction with on-the-job-training under the supervision of experienced firefighters. In addition to participating in training programs conducted by local or state fire departments and agencies, some firefighters attend federal training sessions sponsored by the National Fire Academy. These training sessions cover topics including anti-arson techniques, disaster preparedness, hazardous materials control, and public fire safety and education.”).
By contrast, after “as little as three weeks” training, the women who make it into the program are sent out to contain wildfires. 1818 Lowe, supra note 1. Notwithstanding the troubling illnesses and even deaths that occur from inmates performing such dangerous tasks with limited training and incredibly low wages, such programs are perfectly legal. In some prisons and jails, inmates receive no pay or literally only pennies per hour for their labor, engendering analogies to slavery adapted to life behind bars. 1919 See Michele Goodwin, Prison Policy Initiative Wage Study Update, supra note 15; Prison Policy Initiative, State and Federal Prison Wage Policies, supra note 15 (consolidating and reporting the pay scales and wage policies that apply to incarcerated individuals working in state and federal prisons). In Alabama, prisoners earn no pay for what are referred to as “nonindustry jobs,” although for work programs facilitated by the state for private industries (making couches, barbecue grills, and other items), a prisoner can earn $0.25 to $0.75 per hour. 2020 Id.; see also Not Just License Plates: 54 Products Alabama Prisoners Get 25 to 75 Cents an Hour to Make, AL.COM (Apr. 2, 2017, 7:37 AM), http://www.al.com/news/index.ssf/2017/04/not_just_license_plates_produc.html [https://perma.cc/3EWY-E9GA] (displaying photos of and discussing the “varied” products made by prisoners who participate in the Alabama Correctional Industries prison work program). The same is true in Arkansas, Florida, and Georgia. 2121 See Michele Goodwin, Prison Policy Initiative Wage Study Update, supra note 15; Prison Policy Initiative, State and Federal Prison Wage Policies, supra note 15 (reporting that prisoners working in state-owned businesses, “Correctional Industries,” in Arkansas, Florida, and Georgia earn $0.00, $0.25 to $2.00, and $0.00 per hour, respectively, and earn $0.00 per hour, $0.00 to $50.00 per month, and $0.00 per hour, respectively, while working in non-industry jobs); ARK. DEP’T OF CORRECTION, ADC 2016 ANNUAL REPORT 26 (2016), https://adc.arkansas.gov/images/uploads/2016_Annual_Report_Directors_Edits_+_BOC_Approval_2_2_2017x1Final.pdf [https://perma.cc/C72U-ZT5Q] (noting that inmates in Arkansas are not paid wages for performing compulsory work assignments); Adam Crisp, Georgia Inmates Strike in Fight for Pay, TIMES FREE
PRESS (Dec. 14, 2010), https://www.timesfreepress.com/news/news/story/2010/dec/14/georgia-inmates-strike-in-fight-for-pay/36956/ [https://perma.cc/9UCW-8JYC]; Arlinda Smith Broady, Photo Vault: State Inmates Demanded Pay for Work 35 Years Ago, ATLANTA J. CONST. (Sept. 9, 2015), https://www.ajc.com/news/local/photo-vault-state-inmates-demanded-pay-for-workyears-ago/9JVSStFBmeGWzJF5ktjHKP/ [https://perma.cc/JD7H-X2H8] (discussing a prison strike in 1980, but noting that as of 2015 inmates still were not paid for their work).
In other states that pay for “non-industry” jobs, the wages are hardly better; in Arizona, pay can be as little as $0.15 per hour or up to $0.20 in Louisiana—with some exceptions for private industry jobs, which might fetch $1.00 per hour. 2222 See Michele Goodwin, Prison Policy Initiative Wage Study Update, supra
note 15 (reporting that prisoners working in state-owned businesses, “Correctional Industries,” in Arizona and Louisiana earn $0.20 to $0.80 and up to $0.40 per hour, respectively, and earn $0.15 to $0.50 and $0.04 to $1.00 per hour, respectively, while working in non-industry jobs).

Ironically, the very first female firefighter, Molly Williams, was a slave, forced to put out fires in New York in the early 1800s. 2323 Ginger Adams Otis, Molly Williams, a Black Woman and a Slave, Fought Fires Years Before the FDNY Was Formed Was a Pioneer for Fellow Female SmokeEaters, N.Y. DAILY NEWS (Apr. 26, 2015, 12:01 AM), http://www.nydailynews.com/new-york/woman-slave-molly-williams-fought-fires-early-1800s-article1.2197868 [https://perma.cc/M28M-R9AF] (“Molly Williams fought fires in the
city even before the FDNY was organized 150 years ago.”).
A chilling, undated rendering of Molly depicts a Black woman without a coat and seemingly no gloves, pulling an engine (also known as a “pumper”) through thick snow, while white men in coats and top hats flee. 2424 Id.

Molly’s owner and city officials referred to her as a “volunteer” firefighter; she doused flames while still tethered to the bondage of slavery and a strange, gendered uniform consisting of nothing but her apron and calico dress. 2525 Id. Molly’s owner, a wealthy New York merchant, Benjamin Aymar, 2626 2 JOSEPH ALFRED SCOVILLE, THE OLD MERCHANTS OF NEW YORK CITY 72–79 (1866). conscribed her to this duty. Like the California inmates, Molly could not simply walk off the “job.”

For inmates, sometimes the labor is for the state—such as California harnessing prison labor to build roads, or to clear fires. According to Lt. Keith Radey, “[a]ny fire you go on statewide, whether it be small or large, the inmate hand crews make up anywhere from 50 to 80 percent of the total fire personnel.”2727 Lowe, supra note 1. And it is not just women who make up these fire crews— incarcerated men comprise the bulk of those who fight California’s fires. 2828 Id.; see also German Lopez, California Is Using Prison Labor to Fight Its Record Wildfires, VOX (Aug. 9, 2018, 12:20PM), https://www.vox.com/2018/8/9/17670494/california-prison-labor-mendocino-carr-ferguson-wildfires [https://perma.cc/W43A-HSWZ] (“The California Department of Corrections and Rehabilitation (CDCR) recently boasted about the use of prison labor for firefighting on Twitter: ‘Today, more than 2,000 volunteer inmate firefighters, including 58 youth offenders, are battling wildfire flames throughout CA.’”).

In other instances, inmates labor for private, multi-million and billion-dollar industries, earning very little or what might be described as “slave-like” wages. The most famous case of this was in the 1990s, when inmates sewed the merchandise sold by Victoria’s Secret, J.C. Penney, and other retailers. 2929 Emily Yahr, Yes, Prisoners Used to Sew Lingerie for Victoria’s Secret – Just
Like in ‘Orange is the New Black’ Season 3
, WASH. POST (June 17, 2015), https://www.washingtonpost.com/news/arts-and-entertainment/wp/2015/06/17/yesprisoners-used-to-sew-lingerie-for-victorias-secret-just-like-in-orange-is-thenew-black-season-3/?utm_term=.8b0e0e322858 [https://perma.cc/LA92-VTEP].
Sometimes inmates work for the state, and in other instances, private businesses essentially lease their labor. 3030 Id. The employers, whether private industry, the state, or private prisons, would be correct in pointing out that in the traditional sense, these women and men are not slaves; in fact, California refers to them as “volunteers.” 3131 See Annika Neklason, California Is Running Out of Inmates to Fight Its Fires (Dec. 7, 2017), https://www.theatlantic.com/politics/archive/2017/12/howmuch-longer-will-inmates-fight-californias-wildfires/547628/ [https://perma.cc/4WLV-6YLV] (“To join the squad, inmates must meet high physical standards and complete a demanding course of training. They also have to volunteer.”). After all, American slavery was a specific, racialized institution abolished with the ratification of the Thirteenth Amendment in 1865. 3232 U.S. CONST. amend. XIII; see, e.g., Michele Gillespie, The Sexual Politics of Race and Gender Mary Musgrove and the Georgia Trustees, in THE DEVIL’S LANE: SEX AND RACE IN THE EARLY SOUTH 187 (Catherine Clinton & Michele Gillespie eds., 1997) (expanding the literature on slavery to include the experiences and perspective of Black women, particularly in relation to sexual abuse, assaults, and rapes on plantations); WILLIAM H. HARRIS, THE HARDER WE RUN: BLACK WORKERS SINCE THE CIVIL WAR (1982) (connecting slavery and Jim Crow, explaining how the dire conditions under slavery were exacerbated under the arch of Jim Crow); ROBERT WILLIAM
FOGEL & STANLEY L. ENGERMAN, TIME ON THE CROSS: THE ECONOMICS OF AMERICAN NEGRO SLAVERY (1974) (providing a groundbreaking account of the economics of slavery); JOHN W. BLASSINGAME, THE SLAVE COMMUNITY: PLANTATION LIFE IN THE ANTEBELLUM SOUTH (1972) (exposing the inordinate and unyielding hardships enslaved Blacks encountered in the Antebellum south); RICHARD C. WADE, SLAVERY IN THE
CITIES: THE SOUTH, 1820–1860 (1964) (detailing accounts of slave life in the southern cities, diversifying the literature on slavery, expanding beyond research of enslaved Blacks’ lives on plantations).

For some rehabilitation programs and prison systems, employment is a key part of allowing inmates to develop skills, prepare for the workforce, and shape a positive life within and one day beyond prison walls. As social “reentry” and “ban the box” programs emerge, even more industries are open to assisting the formerly incarcerated upon their release. 3333 Reentry and “ban the box” programs focus on preventing recidivism, by assisting formerly incarcerated women and men as they reenter society after their
incarceration. Reentry refers to reentering society, finding and obtaining housing, employment, educational opportunities and other resources. Banning the box refers to a movement to end questions on employment, housing, and university applications (among others) that inquire about prior convictions, as these inquiries may trigger biases against qualified individuals who are formerly incarcerated. See TRONE PRIVATE SECTOR & AM. CIVIL LIBERTIES UNION, BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOB SEEKERS BENEFITS YOUR COMPANY 12 (2017),
https://www.aclu.org/sites/default/files/field_document/060917-trone-reportweb_0.pdf [https://perma.cc/H5DZ-TELB].
However, whether these programs represent progress by producing outcomes that benefit rather than exploit inmates or serve as a “chokehold,” fitting within the narrow exception of the Thirteenth Amendment, which permits forced, uncompensated servitude or slavery of those convicted of crimes is a question that deserves debate and scrutiny. 3434 See PAUL BUTLER, CHOKEHOLD: POLICING BLACK MEN 12 (2017) (“The Chokehold is something like an employment stimulus plan for working-class white people, who don’t have to compete for jobs with all the black men who are locked up, or who are underground because they have outstanding arrest warrants, or who have criminal records that make obtaining legal employment exceedingly difficult.”). Arguments that a low wage is better than no wage, and thus not slavery at all, fall short and fail to address the substantive quality of slavery embedded in the prison economy and how pernicious forms of servitude are ritualistically reimagined, reified, and re instantiated in the American criminal justice system. 3535 See, e.g. , Tamar R. Birckhead, The New Peonage, 72 WASH. & LEE L. REV. 1595, 1630 (2015) (examining what the author terms the “new peonage,” arguing that the reconfiguration of the state judicial systems in the American South, following the Civil War, trapped African Americans into cyclical coerced labor
systems that now emerge in the myriad ways that Blacks are “taxed” in the criminal justice system through various court fines and fees).
Nor do such arguments shed light on the economic motivations of contemporary slavery. From an unpaid laborer’s perspective, the conditions and terms that instantiate her condition may seem unfair, inhumane, and downright abusive. However, situated from the view of the state as “holder” of the labor, slavery of this sort is quite simply profitable and legal.

This Article argues that cries for penal reform, while important, do not speak to the urgent issue of slavery behind bars and the externalities that pervade the broader consequences of prison labor markets. 3636 See generally DOUGLAS BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II (2008) (discussing the growth and use of the convict lease system from the American Civil War to World War II). Second, although recent attention to private prisons raises questions about whether states should contract with firms that seek to maximize profits in relation to incarceration, this work argues that slavery’s fundamental importance to U.S. capitalism and the American economy extended beyond bankrolling private business interests in the 18th and 19th centuries.

For these reasons, now is an important time to consider these matters in order to develop a more robust jurisprudence in exile. 3737 Mark A. Graber, Rethinking Equal Protection in Dark Times, 4 U. PA. J. CONST. L. 314, 314–15, 317 (2002); Richard M. Re, The New Supreme Court and the Jurisprudence In Exile, PRAWFSBLOG (Feb. 17, 2016), http://prawfsblawg.blogs.com/prawfsblawg/2016/02/the-new-supreme-court-and-the-jurisprudence-inexile.html [https://perma.cc/Q4QZ-A3MY] (“During the past 20 or so years, the
Supreme Court’s more liberal justices have created a kind of jurisprudence in exile.”).
Even though political interest and efforts to address the lingering consequences of legalized slavery may not be at the forefront of congressional or state legislative debate (if present at all), it is nevertheless important to grapple with this important issue. To answer Stephen Sachs’ question, “[i]f law is a matter of social practice, as most seem to agree, can there be social practices that hardly anybody in society knows about?” 3838 Stephen E. Sachs, The “Constitution in Exile” as a Problem for Legal Theory, 89 NOTRE DAME L. REV. 2253, 2255 (2014) (footnote omitted) (challenging the notion of a constitution in exile, but acknowledging that “the ‘exile’ pejorative can’t be dismissed so easily; it stands for a serious criticism that deserves response . . . . [A] constitution in exile might be the ‘real’ or ‘true’ law, obscured by
usurping courts and officials; or it might be just a plan for law reform, an attempt to revise the law under the cover of restoring it. If a constitutional theory asks us to substantially change our practice—if it makes important legal questions turn on the esoteric views of academics, historians, or political philosophers—can it really be an accurate statement of our law?”)
: yes, the prison slave economy.

This Article makes two conceptual contributions. First, it tells a story about the Thirteenth Amendment forbidding one form of slavery while legitimating and preserving others. Of course, the text does not operate absent important actors: legislatures and courts. Yet, as explained by Reva Siegel, despite “repeated condemnation of slavery,” such united opposition to the practice “may instead function to exonerate practices contested in the present, none of which looks so unremittingly ‘evil’ by contrast.” 3939 See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving
Forms of Status-Enforcing State Action
, 49 STAN. L. REV. 1111, 1113 (1997).
In this case, uncompensated prison labor, including that of the dangerous work of female firefighters, inures economic benefits to the state and the companies capable of extracting it. 4040 Lowe, supra note 1; Yahr, supra note 29; Angela F. Chan, America Never Abolished Slavery, HUFFINGTON POST (May 2, 2015), https://www.huffingtonpost.com/angela-f-chan/america-never-abolished-slavery_b_6777420.html [https://perma.cc/HD9K-VZBF] (“[P]eople incarcerated in America . . . are forced to work for pennies an hour with the profits going to countries, states and private corporations, including Target, Revlon and Whole Foods.”). This Article argues that this preservation of the practice of slavery through its transformation into prison labor means that socially, legislatively, and judicially, we have come only to reject one form of discrimination—antebellum slavery—while distinguishing it from the marginally remunerated and totally unremunerated prison labor that courts legitimate.

Second, this Article argues that the promises of the Thirteenth Amendment may actually fill in gaps of the Fourteenth Amendment. For example, the Fourteenth Amendment has been interpreted only to prohibit purposeful/intentional consequences of the purposeful/intentional production of disparate burdens. 4141 Siegel, supra note 39, at 1113, 1125; Lea S. VanderVelde, Labor Vision of the Thirteenth Amendment, 138 U. PA. L. REV. 437, 437–41, 448 (1989). Yet, the Thirteenth Amendment is different textually and historically.

This Article demonstrates that not only is the prison slave system vibrant, it produces profits and wealth for those who exploit prison labor. 4242 SVEN BECKERT & SETH ROCKMAN, SLAVERY’S CAPITALISM: A NEW HISTORY OF AMERICAN ECONOMIC DEVELOPMENT (2016). Part I establishes the framework of this Article. Part II examines the preservation of slavery through the ratification of the Thirteenth Amendment and the Punishment Clause. Part III examines the scale of modern incarceration and forced labor. It argues that just like traditional forms of slavery, the modern system functions according to certain fundamental principles, such as the laws of supply and demand, creating perverse incentives in criminal justice. Part IV turns to the question of reform and offers recommendations to eradicate modern vestiges of slavery.

To read the entire Article, click here: The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration.

References   [ + ]

1. 1 Jaime Lowe, The Incarcerated Women Who Fight California’s Wildfires, N.Y. Times, (Aug. 31, 2017), https://www.nytimes.com/2017/08/31/magazine/theincarcerated-women-who-fight-californias-wildfires.html?mcubz=1&_r=0 [http://perma.cc/BE86-FDUA].
2. 2 Id.
3. 3 Id.
4. 4 Id.
5. 5 Id.
6. 6 Id.
7. 7 Id.
8. 8 Id.
9. 9 Id.
10. 10 See Janice D. Yoder & Patricia Aniakudo, When Pranks Become Harassment: The Case of African American Women Firefighters, 35 SEX ROLES 253, 266 (1996); Janice D. Yoder & Patricia Aniakudo, “Outsider Within” the Firehouse: Subordination and Difference in the Social Interactions of African American Women Firefighters, 11 GENDER & SOC’Y 324, 327 (1997) (citing a 1990 survey of 356 career women firefighters that found “fully 16 percent [of the women surveyed] reported that they gained entry to the fire service as the result of a successful equal employment opportunity complaint”); Petula Dvorak, Female Firefighters Still Get Harassed By Misogynistic Co-Workers. Why Is That Okay?, WASH. POST (May 5, 2016), https://www.washingtonpost.com/local/female-firefighters-stillget-harassed-by-women-hating-co-workers-why-is-that-okay/2016/05/05/ d15873a2-12ca-11e6-93ae-50921721165d_story.html?utm_term=.7062f29f1050 [https://perma.cc/G5QG-FVJX] (describing how “Fairfax County firefighter Nicole Mittendorff hanged herself in Virginia’s Shenandoah mountains and her department launched an investigation into a series of lurid, degrading posts allegedly written by her co-workers in an online forum”)
11. 11 Justin Jouvenal, Female Firefighter’s Suicide Is a ‘Fire Bell in the Night,’ WASH. POST (Aug. 22, 2016), https://www.washingtonpost.com/local/publicsafety/female-reghters-suicide-is-a-re-bell-in-the-night/2016/08/22/11c73a16-
3956-11e6-a254-2b336e293a3c_story.html?utm_term=.3391adaab18b [https://perma.cc/4WWX-XUCT].
12. 12 SF Firefighters Accused of Peeing in Bed of Female Firefighter in ‘Egregious Harassment’ Case, CBS SF BAY AREA (Sept. 21, 2016, 12:03 PM), http://sanfrancisco.cbslocal.com/2016/09/21/sf-firefighters-accused-of-peeing-in-bed-of-female-firefighter-in-egregious-harassment-case/ [https://perma.cc/B27C-MVLS] (reporting that “[a] female firefighter reportedly suffered six months of verbal taunting and at least one of her co-workers even urinated in her bed, according to a city human resources investigation”); Michael Bodley, New Details Emerge in Alleged Harassment of Female SF Firefighter, SFGATE (Sept. 22, 2016, 6:49 PM), http://www.sfgate.com/bayarea/article/New-details-emerge-in-alleged-harassment-of-9240490.php [https://perma.cc/X577-AWZH] (“Investigators found credible claims that the harassment included urination in the female firefighter’s bed and feces left on the floor of the women’s bathroom at the station, among other incidents Hayes-White deemed ‘egregious.’ After the woman reported it, her co-workers retaliated by branding her a ‘rat,’ the report says.”).
13. 13 John C. Griffith et al., Bullying at the Fire Station? Perceptions Based on Gender, Race and Sexual Orientation, 5 AM. INT’L J. SOC. SCI. 34 (2016) (finding that “[w]ith regard to sexual harassment, 31.9% of female firefighters indicated they had been verbally harassed and 18.6% were victims of sexual harassment”).
14. 14 Michelle Roberts, Two Women Firefighters Sue San Jose for Gender Discrimination, NBC BAY AREA (June 1, 2017, 6:09 PM), http://www.nbcbayarea.com/news/local/Two-Women-Firefighters-Sue-San-Jose-for-Gender-Discrimination425803943.html [https://perma.cc/Z9VJ-DKRD] (reporting on litigation that claimed discrimination in the case of Battalion Chief Patricia Tapia who had “applied for 10 promotions in the last five years and been denied each time”).
15. 15 The Prison Policy Initiative (“PPI”) provides a comprehensive study of the payments that prisoners earn. Its work is vital for research such as this Article. See State and Federal Prison Wage Policies and Sourcing Information, PRISON POLICY INITIATIVE (Apr. 10, 2017) [hereinafter Prison Policy Initiative, State and Federal
Prison Wage Policies], https://www.prisonpolicy.org/reports/wage_policies.html [https://perma.cc/Q9AE-6EQT]. A separate study was conducted for this Article, updating PPI’s results, canvassing each state, examining non-industry jobs, as well as jobs in state-owned businesses and comparing that data to states’ minimum wage laws. That data is provided in the appendix. See Michele Goodwin, Prison Policy Initiative Wage Study Update (Sept. 18, 2018) (updating Prison Policy Initiative, State and Federal Prison Wage Policies).
16. 16 Lower, supra note 1.
17. 17 Id.; see also BUREAU OF LABOR STATISTICS, HOW TO BECOME A FIREFIGHTER, OCCUPATIONAL OUTLOOK HANDBOOK (Apr. 24, 2018), https://www.bls.gov/ooh/protective-service/firefighters.htm#tab-4 [https://perma.cc/V46E-BYEV] (“Those
wishing to become wildland firefighters may attend apprenticeship programs that last up to 4 years. These programs combine instruction with on-the-job-training under the supervision of experienced firefighters. In addition to participating in training programs conducted by local or state fire departments and agencies, some firefighters attend federal training sessions sponsored by the National Fire Academy. These training sessions cover topics including anti-arson techniques, disaster preparedness, hazardous materials control, and public fire safety and education.”).
18. 18 Lowe, supra note 1.
19. 19 See Michele Goodwin, Prison Policy Initiative Wage Study Update, supra note 15; Prison Policy Initiative, State and Federal Prison Wage Policies, supra note 15 (consolidating and reporting the pay scales and wage policies that apply to incarcerated individuals working in state and federal prisons).
20. 20 Id.; see also Not Just License Plates: 54 Products Alabama Prisoners Get 25 to 75 Cents an Hour to Make, AL.COM (Apr. 2, 2017, 7:37 AM), http://www.al.com/news/index.ssf/2017/04/not_just_license_plates_produc.html [https://perma.cc/3EWY-E9GA] (displaying photos of and discussing the “varied” products made by prisoners who participate in the Alabama Correctional Industries prison work program).
21. 21 See Michele Goodwin, Prison Policy Initiative Wage Study Update, supra note 15; Prison Policy Initiative, State and Federal Prison Wage Policies, supra note 15 (reporting that prisoners working in state-owned businesses, “Correctional Industries,” in Arkansas, Florida, and Georgia earn $0.00, $0.25 to $2.00, and $0.00 per hour, respectively, and earn $0.00 per hour, $0.00 to $50.00 per month, and $0.00 per hour, respectively, while working in non-industry jobs); ARK. DEP’T OF CORRECTION, ADC 2016 ANNUAL REPORT 26 (2016), https://adc.arkansas.gov/images/uploads/2016_Annual_Report_Directors_Edits_+_BOC_Approval_2_2_2017x1Final.pdf [https://perma.cc/C72U-ZT5Q] (noting that inmates in Arkansas are not paid wages for performing compulsory work assignments); Adam Crisp, Georgia Inmates Strike in Fight for Pay, TIMES FREE
PRESS (Dec. 14, 2010), https://www.timesfreepress.com/news/news/story/2010/dec/14/georgia-inmates-strike-in-fight-for-pay/36956/ [https://perma.cc/9UCW-8JYC]; Arlinda Smith Broady, Photo Vault: State Inmates Demanded Pay for Work 35 Years Ago, ATLANTA J. CONST. (Sept. 9, 2015), https://www.ajc.com/news/local/photo-vault-state-inmates-demanded-pay-for-workyears-ago/9JVSStFBmeGWzJF5ktjHKP/ [https://perma.cc/JD7H-X2H8] (discussing a prison strike in 1980, but noting that as of 2015 inmates still were not paid for their work).
22. 22 See Michele Goodwin, Prison Policy Initiative Wage Study Update, supra
note 15 (reporting that prisoners working in state-owned businesses, “Correctional Industries,” in Arizona and Louisiana earn $0.20 to $0.80 and up to $0.40 per hour, respectively, and earn $0.15 to $0.50 and $0.04 to $1.00 per hour, respectively, while working in non-industry jobs).
23. 23 Ginger Adams Otis, Molly Williams, a Black Woman and a Slave, Fought Fires Years Before the FDNY Was Formed Was a Pioneer for Fellow Female SmokeEaters, N.Y. DAILY NEWS (Apr. 26, 2015, 12:01 AM), http://www.nydailynews.com/new-york/woman-slave-molly-williams-fought-fires-early-1800s-article1.2197868 [https://perma.cc/M28M-R9AF] (“Molly Williams fought fires in the
city even before the FDNY was organized 150 years ago.”).
24. 24 Id.
25. 25 Id.
26. 26 2 JOSEPH ALFRED SCOVILLE, THE OLD MERCHANTS OF NEW YORK CITY 72–79 (1866).
27. 27 Lowe, supra note 1.
28. 28 Id.; see also German Lopez, California Is Using Prison Labor to Fight Its Record Wildfires, VOX (Aug. 9, 2018, 12:20PM), https://www.vox.com/2018/8/9/17670494/california-prison-labor-mendocino-carr-ferguson-wildfires [https://perma.cc/W43A-HSWZ] (“The California Department of Corrections and Rehabilitation (CDCR) recently boasted about the use of prison labor for firefighting on Twitter: ‘Today, more than 2,000 volunteer inmate firefighters, including 58 youth offenders, are battling wildfire flames throughout CA.’”).
29. 29 Emily Yahr, Yes, Prisoners Used to Sew Lingerie for Victoria’s Secret – Just
Like in ‘Orange is the New Black’ Season 3
, WASH. POST (June 17, 2015), https://www.washingtonpost.com/news/arts-and-entertainment/wp/2015/06/17/yesprisoners-used-to-sew-lingerie-for-victorias-secret-just-like-in-orange-is-thenew-black-season-3/?utm_term=.8b0e0e322858 [https://perma.cc/LA92-VTEP].
30. 30 Id.
31. 31 See Annika Neklason, California Is Running Out of Inmates to Fight Its Fires (Dec. 7, 2017), https://www.theatlantic.com/politics/archive/2017/12/howmuch-longer-will-inmates-fight-californias-wildfires/547628/ [https://perma.cc/4WLV-6YLV] (“To join the squad, inmates must meet high physical standards and complete a demanding course of training. They also have to volunteer.”).
32. 32 U.S. CONST. amend. XIII; see, e.g., Michele Gillespie, The Sexual Politics of Race and Gender Mary Musgrove and the Georgia Trustees, in THE DEVIL’S LANE: SEX AND RACE IN THE EARLY SOUTH 187 (Catherine Clinton & Michele Gillespie eds., 1997) (expanding the literature on slavery to include the experiences and perspective of Black women, particularly in relation to sexual abuse, assaults, and rapes on plantations); WILLIAM H. HARRIS, THE HARDER WE RUN: BLACK WORKERS SINCE THE CIVIL WAR (1982) (connecting slavery and Jim Crow, explaining how the dire conditions under slavery were exacerbated under the arch of Jim Crow); ROBERT WILLIAM
FOGEL & STANLEY L. ENGERMAN, TIME ON THE CROSS: THE ECONOMICS OF AMERICAN NEGRO SLAVERY (1974) (providing a groundbreaking account of the economics of slavery); JOHN W. BLASSINGAME, THE SLAVE COMMUNITY: PLANTATION LIFE IN THE ANTEBELLUM SOUTH (1972) (exposing the inordinate and unyielding hardships enslaved Blacks encountered in the Antebellum south); RICHARD C. WADE, SLAVERY IN THE
CITIES: THE SOUTH, 1820–1860 (1964) (detailing accounts of slave life in the southern cities, diversifying the literature on slavery, expanding beyond research of enslaved Blacks’ lives on plantations).
33. 33 Reentry and “ban the box” programs focus on preventing recidivism, by assisting formerly incarcerated women and men as they reenter society after their
incarceration. Reentry refers to reentering society, finding and obtaining housing, employment, educational opportunities and other resources. Banning the box refers to a movement to end questions on employment, housing, and university applications (among others) that inquire about prior convictions, as these inquiries may trigger biases against qualified individuals who are formerly incarcerated. See TRONE PRIVATE SECTOR & AM. CIVIL LIBERTIES UNION, BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOB SEEKERS BENEFITS YOUR COMPANY 12 (2017),
https://www.aclu.org/sites/default/files/field_document/060917-trone-reportweb_0.pdf [https://perma.cc/H5DZ-TELB].
34. 34 See PAUL BUTLER, CHOKEHOLD: POLICING BLACK MEN 12 (2017) (“The Chokehold is something like an employment stimulus plan for working-class white people, who don’t have to compete for jobs with all the black men who are locked up, or who are underground because they have outstanding arrest warrants, or who have criminal records that make obtaining legal employment exceedingly difficult.”).
35. 35 See, e.g. , Tamar R. Birckhead, The New Peonage, 72 WASH. & LEE L. REV. 1595, 1630 (2015) (examining what the author terms the “new peonage,” arguing that the reconfiguration of the state judicial systems in the American South, following the Civil War, trapped African Americans into cyclical coerced labor
systems that now emerge in the myriad ways that Blacks are “taxed” in the criminal justice system through various court fines and fees).
36. 36 See generally DOUGLAS BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II (2008) (discussing the growth and use of the convict lease system from the American Civil War to World War II).
37. 37 Mark A. Graber, Rethinking Equal Protection in Dark Times, 4 U. PA. J. CONST. L. 314, 314–15, 317 (2002); Richard M. Re, The New Supreme Court and the Jurisprudence In Exile, PRAWFSBLOG (Feb. 17, 2016), http://prawfsblawg.blogs.com/prawfsblawg/2016/02/the-new-supreme-court-and-the-jurisprudence-inexile.html [https://perma.cc/Q4QZ-A3MY] (“During the past 20 or so years, the
Supreme Court’s more liberal justices have created a kind of jurisprudence in exile.”).
38. 38 Stephen E. Sachs, The “Constitution in Exile” as a Problem for Legal Theory, 89 NOTRE DAME L. REV. 2253, 2255 (2014) (footnote omitted) (challenging the notion of a constitution in exile, but acknowledging that “the ‘exile’ pejorative can’t be dismissed so easily; it stands for a serious criticism that deserves response . . . . [A] constitution in exile might be the ‘real’ or ‘true’ law, obscured by
usurping courts and officials; or it might be just a plan for law reform, an attempt to revise the law under the cover of restoring it. If a constitutional theory asks us to substantially change our practice—if it makes important legal questions turn on the esoteric views of academics, historians, or political philosophers—can it really be an accurate statement of our law?”)
39. 39 See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving
Forms of Status-Enforcing State Action
, 49 STAN. L. REV. 1111, 1113 (1997).
40. 40 Lowe, supra note 1; Yahr, supra note 29; Angela F. Chan, America Never Abolished Slavery, HUFFINGTON POST (May 2, 2015), https://www.huffingtonpost.com/angela-f-chan/america-never-abolished-slavery_b_6777420.html [https://perma.cc/HD9K-VZBF] (“[P]eople incarcerated in America . . . are forced to work for pennies an hour with the profits going to countries, states and private corporations, including Target, Revlon and Whole Foods.”).
41. 41 Siegel, supra note 39, at 1113, 1125; Lea S. VanderVelde, Labor Vision of the Thirteenth Amendment, 138 U. PA. L. REV. 437, 437–41, 448 (1989).
42. 42 SVEN BECKERT & SETH ROCKMAN, SLAVERY’S CAPITALISM: A NEW HISTORY OF AMERICAN ECONOMIC DEVELOPMENT (2016).

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