The Thirteenth Amendment provides, “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.”1 Professor Adam Davidson examines the Thirteenth Amendment’s Except Clause in his article, Administrative Enslavement.
Recent attention to the harms of mass incarceration and mass criminalization has included scrutiny of the Except Clause with many critics concerned that it permits the enslavement of incarcerated people. However, Davidson’s critique is a little different than the more common, wholesale disavowal of this clause. Davidson examines how courts have interpreted this clause, critiquing their reimagination of forced labor as merely a prison administrative matter.
Davidson argues that through the ordinary processes of developing common law and passing legislation, judges and legislatures have reinterpreted this clause to allow prison administrators to assign incarcerated people to forced labor without the formality of treating slavery as a separate form of punishment. Davidson describes this phenomenon as administrative enslavement, “a constellation of judicial and legislative choices that places the punishment of enslavement outside the scope and processes of our traditional criminal punishment structure and into the hands of prison administrators.”
This interpretive shift from “slavery as punishment” for a crime to “slavery as an administrative matter” assigned by prison officials is significant for several reasons. Punishment requires specific substantive and procedural safeguards in its administration. Punishment should be based on facts that are proven beyond a reasonable doubt. Punishment should be proportional to the crime of conviction. Punishment should be properly explained to the defendant. Punishment should be announced in open court and be based upon the specific facts of the case. This is not the case for administrative matters.
Many of the safeguards that we require for punishment are nonexistent for matters that are conceptualized as administrative rather than punishment. Accordingly, by transforming the forced labor that incarcerated people engage in into an administrative rather than punitive category, courts and legislatures prevent incarcerated people from receiving the procedural protections that we require for punishment.
This development means that when a defendant is making a choice about whether to accept a plea, they do not have full information about the nature of their incarceration before them because the enslavement they might face is not punitive, according to courts and legislatures. Defendants might not be aware that their incarceration means that they will be risking their lives to prevent fires, or that they will be spending their time manufacturing products for various corporations for pennies on the dollars of profits that the businesses garner.
Defendants might not be aware that they will be engaging in labor for sums that are substantially lower than minimum wage, and in most cases, for compensation that is much less than even a dollar an hour. Defendants might accept a plea that requires a particular term of incarceration and lack of freedom, certain fines, or restitution, and limitations on their activities as determined by required probation or parole conditions; but courts generally do not inform defendants that they might also work for their term of incarceration.
The judge generally won’t inform defendants that specific facts, found beyond a reasonable doubt, mean that forced labor is suitable punishment in their case as would be the case for other forms of punishment. In fact, it’s usually not a judge that is sentencing the defendant to prison labor as “punishment for a crime.” It is usually a prison warden or other prison official who decides that such labor is suitable. This development contradicts the very language and intent behind the Thirteenth Amendment.
Davidson’s article is notable because this aspect of how the Except Clause has been interpreted by courts and legislatures has received relatively little criticism. The transformation of enslavement from punishment to administrative relies on a legal fiction concerned more about carceral convenience and administration than the general ban on enslavement otherwise reflected in the Thirteenth Amendment. This interpretation prioritizes the orderly administration of prisons over the moral compass of a society that otherwise prohibits slavery. Moreover, Davidson “shows that our current system of prison slavery is built on the sorts of mundane processes and decisions that seem small and unimportant individually but, in the aggregate, create a regime” that facilitates enslavement. Administrative Enslavement illustrates the ways that ordinary processes of lawmaking can produce extraordinary cases of injustice that should have no place in a civilized society.
