Criminal punishment pursuant to a facially valid conviction in a court of law is an uncontested exception to the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. After all, the Constitutional text 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.” And yet, beginning almost immediately after the Thirteenth Amendment was adopted, states regularly employed criminal statutes to limit the movement and behaviors of those previously enslaved and subject them to slavery-type labor camps in conditions that closely mirrored slavery. Because neither the Amendment nor its history offers much guidance on how to understand the distinction between illegitimate and lawful uses of “slavery” or “involuntary servitude,” the Thirteenth Amendment’s language has permitted the continued enslavement of Black individuals through this carved out exception for criminal convictions. The overlapping history of slavery and the development of the prison system as a site to maintain control over the labor and economic potential of Black individuals makes this unexplored distinction critical, as we see this system undo for individuals the collective rights the Civil War Amendments bestowed on African Americans (if only in the written law).

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Notes/Citation Information

Cortney E. Lollar, The Costs of the Punishment Clause, 106 Minn. L. Rev. 1827 (2022).



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