A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond

Abstract

Child support enforcement is one of several contemporary contexts in which the state threatens to incarcerate people if they fail to work. This symposium essay explores whether this practice violates the Thirteenth Amendment’s ban on involuntary servitude. At first glance, such threats fall squarely within the ambit of the early 20th century peonage cases. There, the Supreme Court struck down criminal enforcement of legal obligations to work off a debt. Several modern courts have declined to reach a similar conclusion when child support enforcement puts obligors to a choice between paying, working, and going to jail. To do so, these courts have invoked the debtor’s freedom to choose for whom he works, as well as a variety of ad hoc exceptions to the Amendment’s reach. Those rationales are criticized and used to illustrate broader questions in the jurisprudence of free labor.

Keywords: Thirteenth Amendment Sesquicentennial Symposium, child support enforcement, peonage cases, criminal enforment of legal obligations