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

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Grewgills says:

    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.

    Does slavery require state sanction and official title in order to qualify as slavery?
    By this narrow definition the women brought into America and Europe from SE Asia, Mexico, and elsewhere then imprisoned and forced to work as prostitutes with all pay going to their captors are not slaves.

  2. James Joyner says:

    By this narrow definition the women brought into America and Europe from SE Asia, Mexico, and elsewhere then imprisoned and forced to work as prostitutes with all pay going to their captors are not slaves.

    We’ve generally used the term “white slavery” to refer to forced prostitution outside the prison context, as in your example. The modifier “white,” in addition to referring to the race of the captive and distinguishing it in that way from African slavery, also seems to indicate that it’s of a separate piece from traditional forms of slavery.

    But prisoners who are being raped aren’t in the same category. They aren’t being captured and having their freedom denied by those accosting them. They’re incarcerated through due process for criminal conduct and then becoming crime victims.

  3. floyd says:

    James;
    Thank you for bringing this subject to light here.
    The State [and the corrections officers by proxy] are in fact accessories to the crimes committed against those in their charge.
    As are those in the public and law enforcement who make a joke of it.
    Incarceration is not proscription.Punishment should be limited to that prescribed by the court.

  4. Grewgills says:

    We’ve generally used the term “white slavery” to refer to forced prostitution outside the prison context, as in your example…They’re incarcerated through due process for criminal conduct and then becoming crime victims.

    Within the legal incarceration they are being further limited in movement and freedom and being treated as property by the gangs that hold and use them. The only substantive difference is the baseline level of freedom they are legally due. In what other way is their life meaningfully different than that of a sex slave?

  5. nhk227 says:

    Prison rape is cruel and unusual punishment enabled by the State (8th amendment violation), sexual slavery committed by the gangs (13th amendment violation), and the actual rape (violation of laws against rape) carried out by the prison rapists.

    But mostly, prison rape is a crime against humanity which is tacitly condoned by We the People.

  6. legal title says:

    I don’t think there has to be “legal title” for it to qualify as slavery. There are criminal statutes that define slavery and involuntary servitude, in cases like US v Kozminski, as encompassing the compelled labor of someone under the threat of physical violence.