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Let us assume that a particularly pervert 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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    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
  • and I love the silly hat example! – Matifou Nov 22 '20 at 21:03
  • Silly hats would violate the eighth ammendment. – Studoku Nov 22 '20 at 23:33
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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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I think that one ought to recall that the constitution was drawn up during a time that slavery was practised and approved in the United States. Hence its not surprising to see this language being used within the constitution. It just shows how far, as an institution, slavery had pervaded the minds of citizens of the Jnited States and why it took a civil war to finally uproot it.

One suspects if it was drawn up in modern times such language would be eschewed.

If prison labour can be thought of as slavery; then so can being working for a living by another be also thought of as slavery - we do, for example, have the term wage slavery, often used ironically. But can we describe, for example, working for a Corporation as corporate slave labour? And hence the Corporation as a slave-owning entity ...?

Although I'm not particularly keen about corporations, given their scale and the abuses of corporate power and privilege, I do not think that labour that is freely enjoined should be called slavery. Far from. It's a different question altogether of course when it is not freely enjoined. And it's this that ought to be under scrutiny.

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  • Working at a corporation does not make one a slave because they are free to leave at any time and for any reason. – forest Apr 25 at 1:46

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