Rare 13th Amendment Lawsuit Takes On Prison-Industrial Complex

Picture: Jacob Lawrence (PD)

As previously reported, a Vermont man is currently suing in Federal Court claiming that his forced labor as a pretrial detainee was in violation of the 13th Amendment. From Yahoo via Boing-Boing

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.
. . .
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.
. . .
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.
. . .
“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.

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  • charlieprimero

    Interesting.   I hope the guy wins.  MRSA is no joke.  The line between “charged” and “convicted” grows fuzzier by the day.

  • hileewood

    In 1982-’83 the Committee to Abolish
    Prison Slavery (CAPS) requestionr permission to enter the Washington, DC jails
    and prisons to register inmates and prisoners to VOTE.   Requirements included that they had not been
    DULY CONVICTED, and/or had not EXHAUSTED THEIR APPEAL REMEDIES. 

     

    Together with a similarily
    coordinated San Francisco voter registration effort, we registered thousands of
    men and women inmates/prisoners to vote.

     

     

     

    The Thirteenth Amendment actually
    provides for all Constitutional rights previously denied to chattel slaves,
    “EXCEPT as a punishment for crime whereof the party shall have been DULY
    CONVICTED…”  If an inmate/prisoner
    has not been DULY CONVICTED then they retain all of their Citizenship, Labor,
    Human, Civil, Economic rights until all appeals have been exhausted. 

     

     

    The real problem is the
    “suspect EXCEPTION” itself. 
    Without this EXCEPTION proviso America has the victorious Abolition of
    ALL slavery that we were taught in Junior High School was represented in the
    Thirteenth Amendment.  For years public
    school texts stated the Thirteenth Amendment as:

     

     

        
    “Neither slavery nor involuntary servitude…shall exist within the
    United States,                                        or any
    place subject to their jurisdiction.”

     

     

     The EXCEPTION (AS A PUNISHMENT FOR CRIME
    WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED) was completely removed to
    Conceal the lie. 

     

     

     

     We were not taught that there was an EXCEPTION
    for SLAVERY.  This nation fought a great
    Civil War with the loss of 750,000 Americans to Abolish ALL SLAVERY; not to
    insert a hidden EXCEPTION FOR SLAVERY! 

     

     

     

    As this nation, and the world sees,
    the EXCEPTION FOR SLAVERY continues to predominately apply to black American
    males; most definitely to poor people of all ethnic groupings; and absolutely
    not to the wealthy 1%ers. 

     

     

     

    The most negative torturous and
    murdering conditions are, in fact, those of PRISON SLAVERY.    

     

     

     

    SLAVERY AS A PUNISHMENT is the
    ULTIMATE CRIME IN AMERICA!

     

     

     

     

     

        
    This proviso, for the denial of all Citizenship, Labor, Civil, Human,
    Economic, and Family Rights, includes: 
    the denial of humane living conditions, over-crowding (remember the
    slave ship drawings that show captured Africans stacked on top of each other –
    haunting similar over crowding exists today); denial of healthful food,
    clothing, shelter, medical and dental needs, freedom not to die from excessive
    heat conditions (like is now happening in Texas), freedom to sunlight, and
    abolition of solidarity confinement, freedom from freezing cold temperatures,
    rights to habilitative and rehabilitative programs, education, rights to
    register and cast voting ballots, etc. 
    Then there are other rights such as freedom from cruel and unusual
    punishment, due process, equal protection, freedom of speech, freedom of press,
    freedom of religion; right to just and due compensation for any person’s labor,
    right to own one’s self, and not to be hypothecated to banks and insurance
    companies; et al.      

     

     

     

    Failure to fully expose this Slave
    practice allows False Pride in the swelling vanity  slogan, 
    “Land of the Free, Home of the Brave”, when in reality it’s
    most appropriate to state “Land of the Slave, Home of the Brave”
    (this was actually an old Abolitionist banner).

     

     

     

    The National and International
    disgrace of the 13th Amendment must be changed so as to remove the Offensive
    EXCEPTION for SLAVERY and INVOLUNTARY SERVITUDE AS A PUNISHMENT FOR CRIME.

     

     

     

    Here are three primary options for
    the rewording of the 13th AMENDMENT:

     

     

     

    1. “Neither slavery nor
    involuntary servitude shall exist within

     

         
    the United States, or any place subject to their jurisdiction.”

     

         
    (Note:  the EXCEPTION PROVISO is
    simply removed).

     

     

     

    2. “Neither slavery nor
    involuntary servitude, NOT EVEN AS A PUNISHMENT FOR

     

         
    CRIME, shall exist within the United States, or any place subject to
    their jurisdiction.”

     

         
    (1912 proposal from the National Committee on Prisons and Prison Labor)

     

     

     

    3. “All persons are equal
    before the law so that no person can hold another as a   slave; 
    and Congress shall have power to make all laws necessary and proper to
    carry this decision into effect everywhere within the United States and the
    jurisdiction thereof.” 

     

         
    (This is fashioned from the French Revolution, and was the alternative
    proposal

     

           made by Abolitionist Senator Charles
    Sumner of Massachusetts, April 1864).

     

  • hileewood

    n 1982-’83 the Committee to Abolish Prison Slavery (CAPS)
    appealed for permission to enter the Washington, DC jails and prisons to
    register those inmates and prisoners to VOTE that either had not been DULY
    CONVICTED, and/or had not EXHAUSTED THEIR APPEAL REMEDIES.  Together with a similarly coordinated San
    Francisco voter registration effort, we registered thousands of men and women
    inmates/prisoners to vote. 

    The Thirteenth Amendment actually provides for ALL
    Constitutional rights previously denied to chattel slaves, “EXCEPT as a
    punishment for crime whereof the party shall have been DULY
    CONVICTED…”  If an inmate/prisoner
    has not been DULY CONVICTED then they retain all of their Citizenship, Labor,
    Human, Civil, Economic rights until all appeals have been exhausted. 

    The real problem is the “suspect EXCEPTION”
    itself.  Without this EXCEPTION proviso,
    America has the victorious Abolition of ALL Slavery that we were taught in
    Junior High School was represented in the Thirteenth Amendment.  For years public school texts stated the
    Thirteenth Amendment as:

         “Neither slavery
    nor involuntary servitude…shall exist within the United States, or any place
    subject to their jurisdiction.”

     We were not taught
    that there was an EXCEPTION for SLAVERY. 
    This nation fought a great Civil War with the loss of 750,000 Americans
    to Abolish ALL SLAVERY; not to insert a hidden EXCEPTION FOR SLAVERY! 

    As this nation, and the world sees, the EXCEPTION FOR
    SLAVERY continues to predominately apply to black American males; most definitely
    to poor people of all ethnic groupings; and absolutely not to the wealthy 1%ers. 

    The most negative torturous and murdering conditions are, in
    fact, those of PRISON SLAVERY.     

    SLAVERY AS A PUNISHMENT is the
    ULTIMATE CRIME IN AMERICA!

     

        
    This proviso provides for the denial of all Citizenship, Labor, Civil,
    Human, Economic, and Family Rights, including:  humane living conditions, over-crowding
    (remember the slave ship drawings that show captured Africans stacked on top of
    each other), healthful food, clothing, shelter, medical and dental needs, freedom
    not to die from excessive heat conditions (like is now happening in Texas),
    freedom to sunlight, and abolition of solidarity confinement, freedom from
    freezing cold temperatures, rights to habilitative and rehabilitative programs,
    education, rights to register and cast voti9ng ballots, etc.  Then there are other rights such as freedom
    from cruel and unusual punishment, due process, equal protection, freedom of
    speech, freedom of press, freedom of religion; right to just and due
    compensation for any person’s labor, right to own one’s self and not to be
    hypothecated to banks and insurance companies; et al.       

     

    Failure to fully expose this Slave
    practice allows False Pride in the swelling vanity  slogan,  “Land of the Free, Home of the
    Brave”, when in reality it’s most appropriate to state “Land of
    the Slave, Home of the Brave” (this was actually an old Abolitionist
    banner).

    .

    The National and International
    disgrace of the 13th Amendment must be changed so as to remove the Offensive
    EXCEPTION for SLAVERY and INVOLUNTARY SERVITUDE AS A PUNISHMENT FOR CRIME.

     

    Here are three primary options for
    the rewording of the 13th AMENDMENT:

     

    1. “Neither slavery nor
    involuntary servitude shall exist within

         
    the United States, or any place subject to their jurisdiction.”

         
    (Note:  the EXCEPTION PROVISO is simply removed).

     

    2. “Neither slavery nor involuntary servitude, NOT EVEN
    AS A PUNISHMENT FOR

          CRIME, shall exist within the United States, or any place subject
    to their jurisdiction.”

          (1912 proposal from the National
    Committee on Prisons and Prison Labor)

     

    3. “All persons are equal
    before the law so that no person can hold another as a slave; and

         
    Congress shall have power to make all laws necessary and proper to carry
    this decision

         
    into effect everywhere within the United States and the jurisdiction
    thereof.”

         
    (This is fashioned from the French
    Revolution, and was the alternative proposal

           made by Abolitionist Senator Charles
    Sumner of Massachusetts, April 1864).

     

    Respectively Submitted,

    Lee Wood

  • http://profile.yahoo.com/YD5YVJJKKKRSQZP4M2XZQEOIOQ Finbar

    JF- I am the plaintiff in this case.  This is the best article about it that I’ve seen.  I filed the initial lawsuit myself, but had pro bono lawyers from Sidley Austin on appeal, and have retained a local lawyer to represent me from now on.

  • hileewood

    Finbar, please email me at prisonslavery@yahoo.com.  I know I can help.  Also, please see http://books.google.com/books/about/Prison_Slavery.html?id=zbTU7QxA7qoC

  • hileewood
  • Lee Wood

    In 1982-’83 the Committee to Abolish Prison Slavery (CAPS) gained permission to enter the Washington, DC jails and prisons to register those inmates and prisoners to VOTE that either had not been DULY CONVICTED, and/or had not EXHAUSTED THEIR APPEAL REMEDIES. Together with a similarly coordinated San Francisco voter registration effort, we registered thousands of men and women inmates/prisoners to vote.  
    The Thirteenth Amendment actually provides for ALL Constitutional rights previously denied to chattel slaves, “EXCEPT as a punishment for crime whereof the party shall have been DULY CONVICTED…” If an inmate/prisoner has not been DULY CONVICTED then they retain all of their Citizenship, Labor, Human, Civil, Economic rights until all appeals have been exhausted.  
     
    As this nation, and the world sees, the EXCEPTION FOR SLAVERY continues to predominately apply to black American males; most definitely to poor people of all ethnic groupings; and absolutely not to the wealthy 1%ers.    The most negative torturous, and murdering conditions are, in fact, those of   
    “…SLAVERY… AS A PUNISHMENT…” IN AMERICA!
      
    This proviso provides for the denial of all Citizenship, Labor, Civil, Human, Economic, and Family Rights, including: humane living conditions, over-crowding, healthful food, clothing, shelter, medical and dental needs, freedom not to die from excessive heat conditions (like is now happening in Texas),  abolition of solidarity confinement, freedom from freezing cold temperatures, rights to habilitative and rehabilitative programs, education, rights to register and cast voting ballots, etc. Then there are other rights such as freedom from cruel and unusual punishment, due process, equal protection, freedom of speech, freedom of press, freedom of religion; right to just and due compensation for any person’s labor, right to own one’s self and not to be hypothecated to banks and insurance companies; et al.

    Failure to fully expose this Slave practice allows False Pride in the swelling vanity slogan, “Land of the Free, Home of the Brave”, when in reality it’s most appropriate to state “Land of the Slave, Home of the Brave” (this was an old Abolitionist banner).
    .
    The National and International disgrace of the 13th Amendment must be changed so as to remove the Offensive EXCEPTION for SLAVERY and INVOLUNTARY SERVITUDE AS A PUNISHMENT FOR CRIME.

    Here are three primary options for the rewording of the 13th AMENDMENT:

    1. “Neither slavery nor involuntary servitude shall exist within  
    the United States, or any place subject to their jurisdiction.”  
    (Note: the EXCEPTION PROVISO is simply removed).

    2. “Neither slavery nor involuntary servitude, NOT EVEN AS A PUNISHMENT FOR 
    CRIME, shall exist within the United States, or any place subject to their jurisdiction.” 
    (1912 proposal from the National Committee on Prisons and Prison Labor)

    3. “All persons are equal before the law so that no person can hold another as a slave; and 
    Congress shall have power to make all laws necessary and proper to carry this decision 
    into effect everywhere within the United States and the jurisdiction thereof.” 
    (This is fashioned from the French Revolution, and was the alternative proposal 
    made by Abolitionist Senator Charles Sumner of Massachusetts, April 1864).This old old Slave Law continues to dominate today: “[T]HE POWER OF THE MASTER MUST BE ABSOLUTE, TO RENDER THE SUBMISSION OF THE SLAVE PERFECT  How Shameful…

  • Lee Wood

    Why do you refuse to post my comments to the
    article “Rare 13th Amendment Lawsuit Takes on Prison Industrial
    Complex”?  Only 2 of my 4 comments
    show, why?

  • Lee Wood

    Okay, I tried to make two comments a week ago, and they didn’t post.  Then, 6 days, I tried again – nothing.  1day ago – nothing.  Then, I write a note asking about it, and today, all of these comments are dumped.  It shows I tried, right?   Now, can you clean it up so that my one article isn’t duplicated three times, so that it doesn’t detract from the great article and struggle?  (If I could have seen the one article I would have corrected the formating.)  Sincerely… 

    • Matt Staggs

      Hey Lee! I found that a bunch of comments were caught in the spam filter and I set them all free today. I would have probably noticed sooner had it not been a pressing meat-space issue. I’ll delete all of these duplicates. Sorry for the hassle. 

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