The year was December 2008, and University of Vermont graduate student Finbar McGarry faced a dilemma. An inmate in a Vermont county jail, McGarry was required by correctional authorities to work in the jail laundromat for 25 cents per hour. If he refused to work, McGarry would have been thrown in solitary confinement—otherwise known as “the hole.” Not a pleasant alternative.
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McGarry’s charges were ultimately dropped, and he was released. In 2009, he pressed a suit against his former captors in Brattleboro, Vermont, federal court for $11 million—claiming he was made a slave in violation of his 13th Amendment rights. The Brattleboro judge ruled that McGarry’s constitutional rights had not been violated, but that finding was overturned on appeal last week.
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Vermont federal magistrate Judge John Conroy threw out McGarry’s case because doing the laundry in jail “was nothing like the slavery that gave rise to the enactment of that [the 13th] amendment.”
However, just last week, upon appeal, Conroy’s original ruling was overturned.
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“Contrary to the district court’s conclusion, it is well-settled that the term ‘involuntary servitude’ is not limited to chattel slavery-like conditions,” stated the appeals court’s opinion. “The amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery.”
The lawsuit raises important issues surrounding conditions for the incarcerated that rarely the rounds of mainstream news services. although much of MSNBCs weekend programming is given over to reality shows about them. Suffice it to say, conditions in America’s jails and prisons, while never good, are particularly abysmal at the moment. Earlier this year, the Roberts Court, which is not particularly sympathetic to 8th Amendment claims, ruled in favor of the Class Action suit filed by California inmates that demonstrated repeated gross violations of the State’s duty to provide medical care to prisoners stretching back to California’s 3 strikes law and attendant over-crowding in the early 90s. Trial documents referenced during oral arguments in front of the Supreme court relate tales of sick and injured inmates being packed in groups of a dozen or more into steel cages designed to temporarily hold one or two people, and wait weeks or months for urgent medical care.
McGarry’s suit, which is still in the very early stages, raises another issue of inmate abuse that receives too little attention. When an accused person is denied bail or otherwise can’t afford to bond for their release while awaiting trial, they are usually held in county jail facilities which are themselves often grossly overcrowded. Conditions in jails, as revealed in recent stories about Louisiana and in the ongoing civil rights action against infamous Arizona Sheriff Joe Arpaio.
Because pre-trial detainees haven’t been convicted, they legally have greater civil rights under the 5th and 14th Amendments than a convicted person who has had adequate due process provided prior to the reductions in their various freedoms. The 13th Amendment is different. Not only is it the only part of the Constitution that protects liberties against private citizens and therefore is exempt from the otherwise necessary State action requirement, but it also serves as part of the Constitutional basis for the Fair Labor Standards Act which establishes the Federal minimum wage in the United States.
Jail and Prison inmates are statutorily exempted from the FLSA. The 13th Amendment, however, only exempts “punishment for crime of which the person has been duly convicted” from the protections against involuntary servitude. So chain gangs for convicts are one thing. Making a pre-trial detainee work for a quarter an hour is something else altogether under the constitution. It’s well settled that prisoners who have been convicted have very little in the way of protections from forced labor. However, as the jail populations increase and prevailing “tough on crime” attitudes render jails housing non-convict inmates more and more inhospitable to human life, McGarry’s case (in which he is apparently representing himself) may be an important first step in trying to shove back some of the deprivations instituted by the prison-industrial complex in pursuit of profits.
Whether McGarry’s case is successful or not, however, is still too early to tell. There are a variety of possible defenses that could still end his lawsuit without reaching the actual merits of his complaint. But in the meantime, at least in the 2nd Circuit, it is now established that jails can potentially violate the rights of pre-trial detainees by forcing them to work. And that may give the corrections industry the jolt they need to start treating all the people in their custody a little better. Or it may not. The only real certainty at this point is that McGarry’s suit stands for the opening salvos in what will no doubt be a long series of battles against what America’s jails and prisons have become. And at least for now, the 2nd Circuits ruling that “[i]t is clearly established that requiring hard labor of pretrial detainees — persons not “duly convicted” — violates the Thirteenth Amendment” remains a step in the right direction.