The recent Red Scare by the Left in declaring that slavery is still legal in five of the United States needs some cautious reflection and analysis on at least one question it raises. Allegedly, the landmark 13th Amendment to the U.S. Constitution, which was ratified on December 16, 1865, saw the official abolishment of slavery. It is said, however, that it was allowed to continue as a punishment in prison against convicted felons.
Semantic interpretations of the 13th Amendment aside, and of how it has been and will continue to be applied, there is one moral question that frames the issue and gives it moral heft, so to speak: whether convicted felons ought to be paid for their labor while in prison. These felons include, but are not limited to, wider groups of individuals. They are rapists, murderers, armed robbers, pedophiles, carjackers, child-sex traffickers, and terrorists.
In being incarcerated, such individuals are not simply being punished for their crimes; they are also removed from society as they often pose incalculable harm to individuals and to public safety. They have violated the individual rights of others and have, in some respects, ejected themselves from the ambit of certain rights.
Society pays for their physical, psychological, and medical upkeep through taxation. Taxpayers pay a lot for private prisons. Various reports claim that in the 2018 fiscal year, Immigration and Customs Enforcement (ICE) spent over $800 million of taxpayer money on privately-owned or -operated detention facilities.
Someone breaks the law, commits a gratuitous crime against others, and has his or her upkeep maintained by law-abiding individuals. In essence, we are paying them not to commit crimes by keeping them off the streets.
But the responsibility should never have been shouldered by the taxpayer in the first place. Criminals should pay their way in prison for their upkeep. A case can be established that not paying them for their labor could be redolent of slave labor. A better solution would be to pay all prisoners a salary for work that they do, tax them on the income they earn, and charge them rent for their residency in prison.
The moral arc of the argument rests on the assumption that rights violation and the lawful penal administration of justice should never absolve one of fiscal responsibility for one’s life.
I do not believe that more people are incentivized to commit more crimes because prison costs them nothing financially. What seems more reasonable to assert is that, while in prison, one has a moral responsibility to be fiscally responsible for one’s physical and medical upkeep. One has to pay for it. The shift of fiscal responsibility ought never have been the prerogative of law-abiding citizens for whom the only justification now for assuming financial responsibility for another person’s life is that he or she broke the law and harmed another or others. The criterion is dubious. A criminal need only invoke the Harm Principle and he is exonerated from fiscal self-responsibility.
The case I make here has absolutely nothing to do with expediency of any sort. That is, it matters not one jot whether working and being paid a salary gives the prisoner a continued sense of purpose, raises self-esteem, or makes him more assimilable when and if he returns to civilian life. These are purely incidental advantages he may incur.
The morally salient factor here is that no person shall be absolved of the requirement to be financially responsible for his life—even if he is incarcerated. If created work that has market value is a condition for the financial upkeep of one’s life, then every prisoner has to be made to work—some at harder labor than others. By the latter I mean the following: depending on the nature of the crime and the degree of harm inflicted against another or others and, in keeping the punishment commensurate to the crime (as is reasonably possible), some prisoners will have more labor extracted from them and will, concomitantly, pay a higher cost in rent for their physical maintenance. This is because they may pose an additional threat to the general prison population, or they may require extra security monitoring.
A just and judicious prison reform initiative cannot aim at anything as ludicrous as the abolition of prisons. It can, however, examine the extent to which “victimless crimes” are even a proper category to begin with. Prison reform can address the punishments meted out for acts that violate laws which themselves might be unjust. I speak here of laws that are in violation of mores and cultural norms, but which do not violate anyone’s individual rights, nor can they ostensibly be shown to harm anyone.
Regardless of the manner in which real criminals are forced into exemption from assuming fiscal responsibility for their lives, the primary and fundamental issue is that prison is a form of involuntary servitude. Even if prisoners were not paid for their labor, so long as one could properly show that the proceeds from their labor were used to support them physically, one could regard moral objections to such unpaid labor as I have described it as an extension of the defense of welfarism. Indeed, if they are paid a wage for their labor one may recommend that their wages be garnished for child support, credit debt, and any outstanding fiscal responsibilities they have to others.
Tax-funded prisoner upkeep is an unfair burden to place on private citizens who should not have to double pay for their safety. Their taxes are already paying law enforcement agents who are responsible for enforcing the law. Why should citizens then have to pay for the welfare of the very agents who are threats to, menaces to, and violators of rights? If private citizens are working up to 60 hours a week to make ends meet by allocating their labor among three jobs, then why should incarcerated criminals not have to work as many hours as is necessary to exempt them from being a financial burden to society?
Slavery is never all right nor morally justifiable even against criminals; but neither is involuntary taxation legitimate when used to provide a way of life for most American prisoners who enjoy accoutrements and benefits of a middle-class existence that many a free person in an impoverished Third World country simply lacks.
The terminology surrounding the 13th Amendment may be rectified at the ballot box. The moral principle that makes it contentious is not that controversial. Criminals forfeit certain rights when they have wantonly violated the rights of others. A transfer of certain responsibilities one has for one’s life (responsibility for one’s fate, destiny, and fiscal upkeep) does not automatically happen when one is ethically removed from the public sphere which one has contaminated by harming others. One is still a participant in one’s self-preservation because there are other ways to bring the marketplace into the domain of the penal system. This will undoubtedly enrage and unhinge prison abolitionists.
Let’s clean up the language of the 13th Amendment if such a feat is required. Agreed. And then let us remind criminals entering the penal system: There are no free lunches. You will pay as you go.