A Badge of Slavery: How Private Prisons are Unconstitutional Under the Thirteenth Amendment

Abstract

This paper argues that prisoners held in private penal institutions may successfully challenge the constitutionality of private prisons under the Thirteenth Amendment. To prove a Thirteenth Amendment claim against private prisons, a plaintiff must first demonstrate that: 1) private prisons are not included in the crime exception and 2) that private prisons are equivalent to slavery, involuntary servitude or a “badge of slavery.” Furthermore, this paper promotes a two-part test, which seeks to aid potential plaintiffs and courts in articulating what constitutes a “badge of slavery.” The “Badge of Slavery” test analyzes whether: 1) The controlling party had extensive control over the subjected party; and 2) whether the subjected party profits from that control. Lastly, this paper puts forth a hypothetical to further demonstrate how the badge of slavery test can be used to illustrate the unconstitutionality of private prisons.