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Prison Inservitude


The United States Constitution recognizes American prisons as forced-labor camps. The Thirteenth Amendment, enacted in 1865 to outlaw slavery and involuntary servitude, includes an exception. It reads,

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. (emphasis added)

Thus, the Constitution banned private slavery while at the same time it established involuntary servitude in prisons.

Former detainee Finbar McGarry is challenging the rules through which prison slavery may be enforced. He is suing various officials at Chittenden Regional Correctional Facility as well as the State of Vermont for forcing him to labor while in prison awaiting trial for a domestic-dispute arrest; bail was denied to him.

According to his $11-million lawsuit,

McGarry alleges that in mid-February 2009 defendants … required him to work in the prison laundry over his repeated objections. He alleges that he had no choice because defendants told him that his refusal to work would result in his being placed in administrative segregation or “put in the hole,” which, he alleges involves lock-up for 23 hours-a-day and the use of shackles.”

McGarry was also threatened with an “inmate disciplinary report” that would affect his eligibility for release if found guilty at trial. And so he “chose” to work at 25 cents an hour. As it happened, he was released after approximately six months with all charges dropped.

In November 2009, McGarry sued in federal court. The most important grounds were that “forcing him to work constituted involuntary servitude under the Thirteenth Amendment,” and that the Department of Corrections was liable under the Fair Labor Standards Act to pay him minimum wage. Otherwise stated, since the Constitution only authorizes forced labor from prisoners who have been convicted of a crime, his pretrial labor was unconstitutional and a violation of statutory labor law. (The steep compensation sought by McGarry undoubtedly reflects a recurring staph infection he developed due to the unsanitary conditions of the prison laundry.)

The State of Vermont countered by arguing that McGarry’s forced labor was appropriate because of its rehabilitative nature. The judge sided with Vermont, stating that prison labor “was nothing like the slavery that gave rise to the enactment of that amendment [the Thirteenth].”

The appeal

Earlier in August, a panel of judges from U.S. Court of Appeals for the Second Circuit overturned the lower-court ruling and opened the door for McGarry’s lawsuit to proceed. The opinion written by Judge Barrington Parker stated that shortly after the Thirteenth Amendment’s passage,

the Supreme Court held that the Amendment “is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Contrary to the district court’s conclusion, it is well-settled that the term “involuntary servitude” is not limited to chattel slavery-like conditions. The Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery.

The opinion also sustained the difference between the constitutional rights of pretrial detainees as opposed to convicts. “The Supreme Court has unambiguously and repeatedly held that a state’s authority over pretrial detainees is limited by the Constitution in ways that the treatment of convicted persons is not.”

History of prison labor in America

Prison slavery has existed in America at least since the 18th century. Debate on the practice has raged for as long. In his essay “Hanging Not Punishment Enough: The Story Behind Prison Slavery,” voluntaryist historian Carl Watner wrote of Thomas Jefferson,

By the end of 1778, he had already completed his “Bill for Proportioning Crimes and Punishments in Cases heretofore Capital.” In his autobiography, Jefferson noted that this proposed legislation was not passed by the Virginia Legislature, even though … other writers on crimes and punishments, had satisfied the reasonable world of the unrightfulness and inefficiency of the punishment of crimes of death; and hard labor on roads, canals, and other public works, had been suggested as a proper substitute. (PDF)

Note: much of the earlier debate revolved around using the labor of those convicted of capital crimes — that is, crimes for which the punishment was or could be death. The logic was that if it was legal to take a man’s life, then it was legal to impose the lesser penalty of taking his labor.

The popularity of imposing a more general slave labor on other convicts spread during the Civil War (1861–1865), when prisoners not only worked for the federal and state governments but also were leased out to private business. Perhaps due to the vicious treatment of “leased” slaves, the language of the Thirteenth Amendment was debated by a Senate Judiciary Committee in 1864. Specifically, they considered whether there was a meaningful distinction between chattel “slavery” and “involuntary servitude.” If the terms were identical, then it made no sense to prohibit one while legalizing the other. The final language included both terms.

McGarry’s judicial path

Since 1864, federal and state courts have consistently ruled in favor of the Thirteenth Amendment’s proviso allowed forced labor for convicts. Sometimes the courts have altered the rules of procedure — for example, by requiring wages to be paid — but the principle has been upheld. The labor of unconvicted detainees, however, has a more checkered judicial past, and this fact offers McGarry a possibility of success.

Success is likely to rest on three points.

First: Was the labor required of McGarry excessive? In their answer to McGarry’s suit, lawyers for the defense stated,

In order to state a claim under the Thirteenth Amendment, a plaintiff must demonstrate he has been subjected to “compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results.” … In evaluating claims under the Thirteenth Amendment, a court must take a “contextual approach,” considering such factors as the nature and amount of work demanded, and the purpose for which it is required.

Here, the plaintiff could fall back on the appeals-court decision that stated the Thirteenth “Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery.” He could also invoke the legal right of “innocent until proven guilty.” In other words, until he was convicted of a crime, McGarry was an innocent man and not subject to any work demand.

Second: Did the laundry duty required of McGarry constitute punishment or rehabilitation? In their answer to McGarry’s suit, lawyers for the defense cited Bell v. Wolfish. “In Bell, the Supreme Court held that pre-trial detainees may be subjected to ‘the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.’”

Here, the plaintiff needs to demonstrate that the state stepped outside its jurisdiction in rehabilitating a man who had been convicted of no crime. Judge Parker’s opinion found, “It was clearly established that prison officials may not rehabilitate pretrial detainees, and it was not ‘objectively reasonable’ for defendants to conclude otherwise.”

Playing out these first two points is likely to resemble a court-precedent slugging match.

Third: The state officials being sued are immune under the Eleventh Amendment which, as the answer stated, “prohibits suits for damages brought in federal court against unconsenting states or state officials sued in their official capacities.” Here, the bar is higher.


McGarry’s lawsuit addresses only prisoners who are unconvicted detainees. Nevertheless, such prisoners represent a significant portion of the population. For example, they include everyone imprisoned for civil contempt, including “deadbeat” parents. McGarry now claims to be speaking with a lawyer about the possibility about pursuing a class-action suit in the name of detainees. Even as an individual case, however, the lawsuit is a window into the heavily veiled practice of prison labor.

No one knows the extent to which unconvicted prisoners are being used as slave labor. But the general demand for prison workers is increasing sharply. For example, prison laborers are now being used as substitutes for public employees. The watchdog periodical Prison Legal News reported,

With state and local governments facing budget deficits due to the continuing economic downturn … they are looking for ways to reduce costs and fulfill government obligations in the face of hiring freezes and layoffs of public employees. For some government officials, prison slave labor is viewed as a partial solution.

Prison labor seems equally popular among corporations. The social activist site Alternet (July 21, 2011) stated,

There is one group of American workers so disenfranchised that corporations are able to get away with paying them wages that rival those of third-world sweatshops. These laborers have been legally stripped of their political, economic and social rights and ultimately relegated to second-class citizens. They are banned from unionizing, violently silenced from speaking out and forced to work for little to no wages. This marginalization renders them practically invisible, as they are kept hidden from society with no available recourse to improve their circumstances or change their plight.

They are the 2.3 million American prisoners locked behind bars where we cannot see or hear them. And they are modern-day slaves of the 21st century.

Those circumstances almost guarantee widespread abuse. McGarry’s court case is a small step taking us away from America’s modern slavery. But all paths begin somewhere.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).