Prison Rape and the 13th Amendment
The state has an 8th Amendment duty to protect those it incarcerates from brutality, a duty which it quite often fails to carry out because of indifference and the hiring of "corrections officers" who are often of incredibly low intellectual caliber and moral character.
Kamal Ghali raises an interesting question in the current issue of the UCLA Law Review.
This Article is about the hidden complexity of the textual exception to the Thirteenth Amendment. The amendment mandates that there shall be no slavery “except as a punishment for crime.” At first glance, the exception seems insignificant: The drafters sought to free the slaves, but did not want to curtail the power of state governments to sentence criminals to imprisonment or hard labor. Some courts, however, have interpreted the punishment clause more broadly, holding that prisoners are categorically exempt from the Thirteenth Amendment’s protections. Are these courts correct? The question is not merely academic. The extensive documentation of sexual slavery in American prisons makes resolving the scope of the punishment exception critical. This Article argues that despite the explicit wording of the punishment clause, prisoners retain Thirteenth Amendment rights while in prison. Drawing on multiple approaches to constitutional interpretation, this Article concludes that the Thirteenth Amendment protects prisoners against sexual slavery.
The article’s behind a subscription wall, so I’m relying on the abstract. One presumes he’s talking about cases like that of Roderick Johnson, a gay prisoner who was considered the “property” of the Gangster Disciples. Allegedly, “gang members could rape Mr. Johnson at will. They could, he said, also rent him out for sex, and they did, daily.”
It strikes me as a stretch to term systematic rape of inmates by other inmates “slavery” in a 13th Amendment sense. A prison gang’s claiming “ownership” does not actually confer title.
The state has an 8th Amendment duty to protect those it incarcerates from brutality, a duty which it quite often fails to carry out because of indifference and the hiring of “corrections officers” who are often of incredibly low intellectual caliber and moral character. That’s a national disgrace but giving it the name “slavery” strikes me as too cute.
Hat tip: Concurring Opinions