WI: The 13th Amendment Has No Criminal Punishment Clause

Delta Force

Banned
The 13th Amendment to the United States Constitution allows for involuntary servitude as punishment for a crime:

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.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

What if the criminal punishment clause did not exist, with the 13th Amendment reading like this:

Section 1. Neither slavery nor involuntary servitude shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.
 
Chain gangs are out immediately. So too are prison terms.

Judicial punishments would be limited to fines, corporal punishment, banishment/exile, and death. The other one would be related to fines and that would be professional restrictions, such as a felony preventing you from becoming an attorney, CPA, or doctor.

You'd probably end up seeing Hawaii or Alaska set up as penal colonies with the restriction being closed borders and maybe internal travel restrictions.

A dark butterfly is that you might see a disturbing increase in prosecutorial efforts to institutionalize mentally ill criminals, since they can be held indefinitely for their benefit.
 
Chain gangs are out immediately. So too are prison terms.

Judicial punishments would be limited to fines, corporal punishment, banishment/exile, and death.

You'd probably end up seeing Hawaii or Alaska set up as penal colonies with the restriction being closed borders and maybe internal travel restrictions.

A dark butterfly is that you might see a disturbing increase in prosecutorial efforts to institutionalize mentally ill criminals, since they can be held indefinitely for their benefit.

Interesting consideration of the ramifications. The problem with the original OP is that imprisoning people and making them perform an unpaid service to society is a humane middle ground between fines and corporal punishment (which are temporary and tell the offender that he/she is still an accepted member of society now that the "lessoned is learned"), and banishment or execution, (which is permanent and essentially tells the offender, "you no longer deserve to be one of us.")
 
The problem is that the quoted language actually dated back to the Northwest Ordinance: of 1787:

Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

http://avalon.law.yale.edu/18th_century/nworder.asp

This language had become customary in enactments and proposals forbidding slavery in given areas. For example, the Missouri Compromise:

"SEC. 8. And be it further enacted. That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or service is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid." http://www.ourdocuments.gov/doc.php?flash=true&doc=22&page=transcript

Again, the proposed Wilmot Proviso:

"Provided, That, as an express and fundamental condition to the acquisition of any territory from the Republic of Mexico by the United States, by virtue of any treaty which may be negotiated between them, and to the use by the Executive of the moneys herein appropriated, neither slavery nor involuntary servitude shall ever exist in any part of said territory, except for crime, whereof the party shall first be duly convicted." http://en.wikipedia.org/wiki/Wilmot_Proviso

In short, the exception for crime could not have been omitted by accident, or without attracting attention--and making the passage of the Amendment, already difficult, much more so.
 
Also, it just occurred to me that the change suggested by the OP might also be interpreted to prohibit sentences of community service or other such restitution work for minor crimes. This makes a bad idea even worse.
 
But when the amendment was written, prison labor was an established and completely non-controversial idea that made more sense than just housing people.

Sure, which is why the OTL amendment made an exception for it.

But there would be a pretty easy way around the problem. Pay the convicts--in food and clothing. The legal argument would be that the confinement is involuntary, but the working is voluntary. You choose to work because you choose to eat, just like outside prison. It's a cheap argument, but it will do because no one would have passed this amendment meaning to abolish the prison system, so any excuse will do.
 
Also, it just occurred to me that the change suggested by the OP might also be interpreted to prohibit sentences of community service or other such restitution work for minor crimes. This makes a bad idea even worse.

It would only prohibit forced Community Service. Minor criminals would instead be given a choice between Fines and Community Service.
 
I wish Delta Force would step up and give some background for why he asked this question. Does he have some modern practice in mind that he'd like to see banned as unconstitutional?
 
There's a guy I saw briefly on C-SPAN. I have not yet read his book Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II by Douglas Blackmon.
http://www.amazon.com/Slavery-Anoth.../185-3020842-1625222?ie=UTF8&showViewpoints=1

I think one of the points he was arguing was that the penal system in the South provided a lot of free labor, as well as being a mechanism of social control. And of course it was used differentially against African-American persons, which should not really be a surprise.
 
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Delta Force

Banned
It would only prohibit forced Community Service. Minor criminals would instead be given a choice between Fines and Community Service.

Making it an option could work, although some might argue that the state is being coercive by doing so, since some people may be left with no practical choice.

I wish Delta Force would step up and give some background for why he asked this question. Does he have some modern practice in mind that he'd like to see banned as unconstitutional?

The punishment as a crime clause was historically used to round up African Americans and other disadvantaged groups on trumped up charges to be used as labor on state infrastructure projects. States would also lease prisoners out to private interests in a situation akin to slavery.

Also, in more modern times prisoners are leased out to corporations in order to produce various goods and services, including many for government use. Ironically enough, it would be illegal to import those same goods and services under the Smoot-Hawley Tariff Act, which forbids importing things made with slave or prison labor.
 
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