Modern Day Slavery?

by Mehjabeen S. Rahman

A recent case heard by the 2nd Circuit has made headlines using a term that has crept its way from the shadows of a rather grim period of American history. Is “slavery” still alive in the domestic U.S.? Whether or not the argument can be made that it does, the issue had not been within the scope of modern-day jurisprudence—until now.

In December of 2008, Finbar McGarry, a Ph.D student of chemistry at the University of Vermont, was arrested for charges including domestic assault, assault of a law enforcement officer, and resisting arrest.[1] He was detained at Chittenden Regional Correctional Facility (CRCF) in Burlington, Vermont. After his arrest, McGarry’s application for bail was denied, and he remained at CRCF until his release in June of 2009.[2] During his detainment, McGarry alleges that he was forced to work in the prison laundry room for up to fourteen hours a day, for a chuckle-worthy $0.25 per hour.[3]

All of the charges were then dismissed against McGarry, and subsequent to his release, McGarry sued CRCF and several correctional officers in their individual capacities, seeking $11 million in damages, alleging that his forced labor at the prison was akin to slavery abolished by the U.S. Constitution.[4] The issue that made it to the U.S. Court of Appeals, 2nd Circuit is whether or not this forcible labor of pretrial detainees is in violation of the 13th Amendment to the U.S. Constitution—the amendment adopted at the end of the Civil War abolishing slavery, at least, as what we categorically remember “slavery” to mean.[5]

Undoubtedly, the subject matter requires a somewhat layered textual, historical, and practical analysis of what Congress and the framers of the amendment had in mind when it was passed. The relevant text 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.”[6] U.S. District Judge Garvan Murtha in Vermont ruled state immunity applied because McGarry had failed to show that the prison work was sufficiently akin to African slavery.[7]

Interestingly however, the U.S. Court of Appeals for the 2nd Circuit disagreed with this reasoning. The Court, in its opinion, concluded that the 13th amendment, though enacted in 1865, was enacted to prohibit all forms of slavery, not just “chattel slavery.”[8] Based on McGarry’s allegations, correctional officers at the prison coerced him into working in the prison’s laundry facilities, threatening to “throw him in the hole” (i.e. solitary confinement) or file damaging Interdisciplinary Reports “DRs” against him that could affect his eligibility for release.[9] Citing United States v. Kozminski,[10] the Supreme Court defined involuntary servitude as “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.”[11] Based on this rule of law, the Court concluded that McGarry had a legitimate claim under the constitutional amendment, and remanded the case back to the District Court in Vermont. [12]

What is particularly important to note here is that which the Court emphasized: “The Supreme Court has unambiguously and repeatedly held that a state’s authority over pretrial detainees is limited by the Constitution in ways that the treatment of convicted persons is not…”[13] The amendment explicitly provides that it shall not apply to persons who have been “duly convicted” of a crime.[14] This is not the case for pretrial detainees who are not eligible for bail. The interesting question we are left with, however, is whether, as some scholars argue, the 13th amendment allows forced inmate labor only when the labor approximates the conditions of involuntary servitude, rather than conditions of slavery.[15] The textual distinction here is key, and will surely be a focal point of debates to come surrounding controversies, such as penal plantations in many southern states such as Louisiana and Tennessee.[16]

[1] Basil Katz, Appeals court reinstates Vermont prison forced labor case, REUTERS (Aug. 3, 2012, 4:10 PM),

[2] See id.

[3] See id.

[4] See id.

[5] McGarry v. Pallito, 637 F.3d 505 (2nd Cir. 2012).

[6] U.S. CONST. amend. XIII, § 1.

[7] Supra note 5, at 510.

[8] Id at 511.

[9] See Katz, supra note 1.

[10] 487 U.S. 931 (1988).

[11] Kozminski,487 U.S. at 952.

[12] Supra note 5, at 514.

[13] Id at 513.

[14] Supra note 6.

[15] See Andrea C. Armstrong, Slavery Revisited in Penal Plantation Labor, SEATTLE U. SCH. L. DIGITAL COMMONS (2012),

[16] See id.

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