Thirteenth Amendment, Section 1

. . . except as a punishment for crime whereof the party shall have been duly convicted, . . .

Although the Supreme Court has long recognized limited historical exceptions to the Thirteenth Amendment’s ban on involuntary servitude,1 the Amendment also contains a specific, textual exception that permits the government to compel a person convicted of a crime to perform labor.2 The Thirteenth Amendment’s drafters borrowed this exception from Article 6 of the 1787 ordinance governing the Northwest Territory.3 That ordinance provided that “[t]here shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes whereof the party shall have been duly convicted.” 4

In the 1911 case Bailey v. Alabama, the Supreme Court clarified that the Thirteenth Amendment’s exception for criminal punishment does not permit a state to compel a person to perform a contract for personal services by imposing criminal sanctions for nonperformance.5 In Bailey, an Alabama law established a presumption that a worker intended to commit criminal fraud if he did not perform a labor contract and failed to return property he had received as compensation to his employer.6 Under the statute, fraud was punishable by a fine or, alternatively, “hard labor.” 7 The Court held that the law indirectly compelled workers to perform labor in violation of the Thirteenth Amendment’s prohibition on involuntary servitude and federal laws prohibiting peonage.8

Footnotes

1

See Amdt13.S1.3.2 Historical Exceptions.

2

U.S. Const. amend. XIII, § 1.

3

An ordinance for the government of the territory of the United States, North-west of the river Ohio, Libr. of Cong., https://www.loc.gov/resource/bdsdcc.22501/?st=gallery.

4

Id.

5

219 U.S. 219, 244 (1911) ( “The State may impose involuntary servitude as a punishment for crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt.” ).

6

Id. at 227. The Court also noted that, under the Alabama Rules of Evidence, the accused worker was unable to rebut this presumption by testifying about his “uncommunicated motives, purpose or intention” for ceasing to perform work and keeping the compensation already paid to him. Id. at 228.

7

Id. at 231.

8

Id. at 243–44. See also United States v. Reynolds, 235 U.S. 133, 149–50 (1914) (holding that a person convicted of a crime is held in a condition of peonage when he faces arrest for violating a contract to perform services for a surety that payed fines resulting from his conviction to the state).