The Costs of the Punishment Clause

By Cortney E. Lollar. Full Text.

In recent years, scholars and advocates have drawn attention to the problematic use of fines and fees to keep those convicted of crimes enmeshed in the criminal legal system. A visible thread connects the imposition of modern criminal court debts to the costs inflicted on formerly enslaved individuals convicted of violating the Black Codes. The coercive imposition of criminal court costs on Black individuals as a mechanism to simultaneously keep them under state control and profit financially from their labor continued through the “convict labor” practices that built much of the infrastructure of the Southeastern United States, the forced labor required of inmates throughout the twentieth century, and the work/pay/jail trilemma our current fines and fees system dictates. Central to this evolution is the Thirteenth Amendment’s Punishment Clause. Although the Amendment is recognized for abolishing slavery and involuntary servitude, the Punishment Clause allows for involuntary servitude so long as it is imposed as punishment for a crime. Since immediately post-slavery, governments and third parties have used this loophole to create a system that requires those convicted of a crime to work to pay off their criminal debts, sometimes as a part of a carceral sentence, sometimes as part of a probated sentence.

This Article traces the evolution of criminal financial obligations from slavery to our modern system of fines and fees, illustrating how these penalties have continued to keep convicted individuals financially tethered to the state. Ultimately, the Article advocates that slavery and involuntary servitude be abolished outright, and that Congress use the powers vested in it through Section 2 of the Amendment to define the terms “slavery” and “involuntary servitude” in a manner that prohibits fines and fees from being a source of revenue-generation for states and private entities, calibrates financial penalties according to ability to pay, and pays a fair wage to those in carceral facilities who elect to work.