Tag Archives: incarceration

Private Prisons And The 13th Amendment

If I was compiling a list of policies the next administration needs to change, it would be  truly enormous, and fairness compels me to acknowledge that not all of the entries can be attributed to Trump. Previous administrations got swept up into privatization ideology, and some of the consequences weren’t pretty.

Privatization as practiced in the U.S. wasn’t ever true privatization. In England, for example, Thatcher sold off railroads and steel mills that were then operated as private businesses–they paid taxes, and if they failed, they failed. In the U.S., what we call “privatization” is really “contracting out”–government agencies entering into contracts with private companies or not-for-profit organizations to assume primary responsibility for delivering a government service or performing a government function. Sometimes, that made sense.  Often, however, it has simply been a new form of patronage.

Obviously, there’s a big difference between contracting with a private company for trash removal and authorizing a for-profit company to operate prisons.

Researchers have pointed to the often-horrific consequences of privatizing prisons, so I was interested in a lawsuit that is evidently working its way through the system in Arizona.

The complaint enumerates the issues involved in Arizona’s privatized prisons, pointing out the perverse incentives that govern performance under such contracts. Nothing really new there–the research has long illuminated the extent to which the profit motive is incompatible with proper functioning of penal institutions.

What was new (at least to me) and intriguing was the plaintiff’s assertion of a 13th Amendment claim. The 13th Amendment abolished slavery and involuntary servitude. Here are pertinent portions of the argument from the Complaint.

The amendment prohibits “all forms of involuntary slavery of whatever class or name.” Slaughter-House Cases, 83 U.S. 36, 37 (1872). That means it “denounces a status or condition, irrespective of the manner or authority by which it is created.” Clyatt v. United States, 197 U.S. 207, 216 (1905). The amendment is “a promise of freedom” which includes “freedom to go and come at pleasure and to buy and sell when [one] please[s].” Jones, 392 U.S. at 443 (internal quotation marks omitted). It is certainly not limited to those with African ancestry. “It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag.” Bailey, 219 U.S. at 240-41.

“The most basic feature of ‘slavery’ or ‘involuntary servitude’” is “the subjugation of one person to another by coercive means.” United States v. Nelson, 277 F.3d 164, 179 (2d Cir. 2002). Professor Akhil Amar uses this definition of “slavery”: “A power relation of domination, degradation, and subservience, in which human beings are treated as chattel, not persons.” Akhil Reed Amar, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney, 105 Harv. L. Rev. 1359, 1365 (1992)…

Plaintiffs are being held in cages for the financial benefit of private entities which make billions of dollars in revenue from this captivity.The private prisons receive the “fruits of prisoners’ economic value and labor.” In short: the prisoners have been effectively transformed into property, valued only in terms of their “compensated man-days.” The allegations in the Complaint plausibly state that their status falls within the Thirteenth Amendment’s scope. If holding people in captivity in this way were happening to anyone but prisoners, everyone would call it what it is: slavery. It is at minimum “involuntary servitude.”

This argument gains persuasive power from the national history Americans are only beginning to admit. Books like These Truths by Jill LePore and The New Jim Crow by Michelle Alexander testify to racists’ unremitting efforts to keep African-Americans in servitude. Criminal Justice research supports their recitation of that history, the disproportionate imprisonment of Blacks and poor people, and more recently, the unconscionable behaviors of private prison companies.

Criminals should be jailed. Government clearly has the right  and duty to protect its citizens and to pursue public safety by incarcerating or otherwise sidelining dangerous people. That said, there are few governmental tasks less suited to “privatization” and the pursuit of profit.

Put this reform on our very extensive list.