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

Abstract

The 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." In this case, uncompensated prison labor inures economic benefits to the state and the companies capable of extracting it.

The Article argues that this preservation of the practice of slavery through its transformation into prison labor means only that socially, legislatively, and judicially, we have come to reject one form of discrimination: antebellum slavery, while distinguishing it from marginally remunerated and totally unremunerated prison labor, which courts legitimate. The Article tells the story of post-slavery convict leasing; fraud and debt peonage; as well as the heinous practices imposed on children through coercive apprenticeship laws throughout the American south. The Article then addresses modern slavery's transformations, including federal and state prison labor and the rise of private prisons. It concludes by offering pathways forward.