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Let us assume that a particularly perverted judge (or a subversive one seeking to make a public case) condemns a convicted criminal to slavery, according to the 13th amendment that seems to allow for such a possibility:

13th Amendment of US Constitution

Section 1. 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.

Setting aside the highly hypothetical details of what that slavery would actually entail, but assuming it is distinct from classical imprisonment, is there anything that could prevent the judge from doing so? And how would one appeal against this decision?

My (overly simplistic) reasoning as a person without background in law is that this article being in the constitution, it would be hard to over-turn it, even on the basis of the US adherence to the Convention to Suppress the Slave Trade and Slavery?

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  • 2
    Nothing but the judge's conscience. Convicts are routinely given sentences that include slavery, thought it is of course never labeled that way.
    – bdb484
    Nov 22 '20 at 20:13
  • Does Convict Leasing google.com/… meet your definition of slavery as court imposed punishment?
    – DJohnM
    Nov 22 '20 at 21:24
  • My question is more about something we would think as slavery (say involving tradability, ownership from a master, forced labor, etc), and not whether some forms of actual sentencing (imprisonment, convict leasing) are a sort of slavery.
    – Matifou
    Nov 22 '20 at 21:49
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A judge can only impose sentences as prescribed by law.

Suppose, as a random example, that a person is convicted in federal court of fraudulently mutilating coins, in violation of 18 USC 331. That section of the statute states the punishment for such a violation:

...Shall be fined under this title or imprisoned not more than five years, or both.

The scale of fines is to be found at 18 USC 3571; for this crime, which is a felony, the maximum fine would be $250,000 (with certain exceptions, which let us suppose do not apply here).

So in principle, the judge may sentence the offender to any of the following:

  • Five years in prison and a fine of $250,000

  • Five years in prison and no fine

  • Three days in prison and a fine of $6.25

  • No prison and a fine of $5000

You get the idea. (In practice, the judge is likely to follow official sentencing guidelines, but is not legally required to do so.)

But the judge may not sentence the offender to any of the following, because the statute does not authorize it:

  • Death

  • A fine of $250,000.01

  • Five years and one day in prison

  • Wearing a silly hat for a week

  • Slavery

I do not know of any federal criminal statute authorizing slavery as a punishment for any crime, so therefore, a federal judge cannot impose this sentence. Congress could in principle create such a law, and if they did it would not violate the Thirteenth Amendment, but they have not done so. (The Eighth Amendment might be a separate question, as slavery might very well be considered a cruel and unusual punishment by today's courts. And as you point out, such a law might also be in violation of treaty obligations.)

(I assume here that "slavery" is understood to be something distinct from "imprisonment", although I know some would disagree.)

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  • yes indeed, my question (which you address very well) is separate from the question of whether prison is a sort of slavery, I edited the text accordingly.
    – Matifou
    Nov 22 '20 at 21:01
  • 1
    and I love the silly hat example!
    – Matifou
    Nov 22 '20 at 21:03
  • Silly hats would violate the eighth ammendment. Nov 22 '20 at 23:33
  • Judges are indeed required to follow the guidelines to the extent required by 28 USC 3553. Also, "US judge" includes state judges, which I mention mostly because "hard labor" is a sentence that has been (and as far as I know still is) authorized under the laws of some states.
    – phoog
    Oct 12 '21 at 9:19
  • 1
    @phoog Hard labor is also a common sentence under the Uniform Code of Military Justice for serious offenses.
    – ohwilleke
    Oct 12 '21 at 19:14
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They can and do (arguably)

Because prison inmates can be forced to work (involuntary servitude) a sentence of imprisonment is de facto a sentence of slavery.

When people think of slavery in the context of the United States they think of chattel slavery as practiced in the antebellum South. However, while this type of slavery is at one of the extremes, slavery is a continuum running from owning other people as property to acquiring the output of their labour in more subtle ways such as debt bondage.

Certainly, with the recent rise in anti Modern Slavery laws around the world, many jurisdictions have seen the need to explicitly carve out prison labour because otherwise it would be captured by the definition of slavery used in those laws. It remains to be seen if, for those that didn’t carve it out, the use of prisoner labour in the supply chain will fall foul of these laws.

Of course, the United States is not unique in forcing prisoners to work against their wishes for little or no pay.

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In this answer I am using the term "slavery" as it was understood in legal writing when the 13th amendment was passed. Other forms of forced labor or involuntary control would not have been covered by that term at that time, even though the term slavery may be applied to them in modern use.

At the time that the 13th amendment was passed, it was common to sentence criminals to "imprisonment with hard labor". This is now less common, prison jobs being regarded as something of a privilege, but that is a change of policy, not of law.

Forced prison labor is, arguably, a form of involuntary servitude, but not a form of slavery. For one thing, a slave (in US practice) could be freely sold. Prisoners may not be sold, although in the past their labor was often rented out by governments to private parties.

For a second thing, slavery was permanent, there was no such thing a slavery for a term of years or any limited period of time.

For a third thing slaves retained few if any rights, and had no way to present a legal appeal or to challenge their enslaved status; prisoners do.

For a fourth thing, the children of female slaves were also slaves, there is no such thing as hereditary criminality in the US.

For a fifth thing, any person could,own slaves, only the government (or those contracted to act for it) may hold convicts in prison.

Section 1 of the 13th amendment reads:

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.

Whether the exception for "as a punishment for crime " applies to "slavery" as well as to "involuntary servitude", is to the best of my understanding, and unsettled question in US law. This is because no US State or Federal legislature has, since the 13th was ratified, passed a law imposing a sentence of slavery for any crime. Thus there has been no occasion for any US court to take up the question of whether such a sentence is constitutional under the 13th, or under the 8th's prohibition of "cruel and unusual punishment". I rather suspect that such a law would be struck down, but no one can be sure of that unless such a case is brought to court. I am confident thsat any law imposing hereditary slavery as a punishment for crime would fall afoul of the prohibition on "corruption of the blood" (hereditary forfeiture for treason or other serious crimes).

A US Judge, state or federal, may only sentence a criminal to a penalty authorized by law. There being no law providing for such a sentence, any such sentence would be blatantly unlawful, just as a death sentence for jaywalking would be. Any convict can appeal a sentence not authorized by law, and such an appeal would normally be granted if the judge had in fact gone beyond what the law permits in the way of a sentence. Even if such a sentenc is permitted unde the constitutioin, it is not permityed for a judge to impose it in teh absence of a specific law authorizing that sentence.

If any such law were ever passed, then and only then could a judge lawfully sentence someone to slavery, subject to a challenge to the law as being unconstitutional.

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