Tuesday, September 15, 2009
Raja Raghunath (University of Denver Sturm College of Law) has posted A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison? (University of Denver Legal Studies Research Paper No. 09-22) on SSRN. Here is the abstract:
The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment - which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed 'as a punishment for crime whereof the party shall have been duly convicted' - has been seen by courts as one brick in this wall. This article makes the novel argument that, properly read, the amendment should instead function as a breach in this wall - one of sufficient size to allow some needed light to shine within.