Saturday, August 11, 2012

Twenty First Century Slavery

I suppose everyone has an opinion on the prison system and incarceration. Some view it as the New Jim Crow and of course there are others who see nothing is wrong with the system at all. My view is that it makes you wonder about the fairness received by some, namely minorities, whether it works for those unable to afford justice and I think everyone will agree that it is a cash cow.

As it is report in news reports daily people are released after spending years incarcerated for crimes they did not commit. Then, there is the sad irony of people being put to death who may fall into this category and more shameful; executions of the mentally disabled and life sentences for minors. In addition, there is the fact that once released the convicts voting rights are taken away forever - in most cases.

There is a long history of lynching’s, chain gangs, and the free labor derived from this system in this country. It was not until recently that the disproportionate sentencing in crimes such as cocaine and crack clearly was unfair! Let me say again that it is not my position that laws and punishment is not necessary. What is disparaging is that it disproportionately affects the minority population of the citizenry.

I read an article recently where a Vermont man is suing the state under the 13th Amendment for the labor he was forced to perform while awaiting trial. A one-time grad student, Finbar McGarry, was arrested for allegedly firing a gun in his home and threatening to kill his family and an official at the university. In a lawsuit McGrarry alleges that the state violated his rights under the 13th Amendment -- which abolished slavery and involuntary servitude after the Civil War -- when he was forced to work in the laundry for minimal pay as an inmate.

In his $11-million lawsuit pro se, said he was forced to work three days a week for six weeks washing other inmates' laundry. He was paid a wage of 25 cents per hour and developed a bacterial infection on his neck because he was not provided sanitation in the laundry room. He says, prison officials threatened to put him "in the hole," where inmates are shackled and locked up for 23 hours per day in solitary confinement, if he refused to work.

Portions of the following was reported by Alon Harish and Alexis Shaw for ABC.

It is important to note that McGarry was released in June 2009, and all charges against him were dropped. McGarry's anti-slavery case was thrown out in November 2009 by a federal court in Brattleboro, Vt. In his opinion, U.S. Magistrate Judge John Conroy wrote that McGarry's 13th Amendment claim was without merit because his laundry work "was nothing like the slavery that gave rise to the enactment of that amendment."

But on Friday, a panel of judges from the U.S. Court of Appeals for the Second Circuit overruled the lower court's dismissal of the case, arguing that McGarry did not have to prove that his experience was akin those of African slaves before abolition.

"Contrary to the district court's conclusion, it is well-settled that the term 'involuntary servitude' is not limited to chattel slavery-like conditions," appellate judge Barrington Parker wrote in the court's opinion. "The amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery." Supreme Court precedent has established that the constitutional rights of pretrial detainees are distinct from those of convicted inmates, because criminal convictions can justify certain punishments, Parker argued.

The appellate panel remanded McGarry's case to the district court, where he will get a new trial. The state has 90 days to appeal the panel's ruling to the U.S. Supreme Court. "If you haven't been convicted at all, your pretrial detention is not a form of punishment," said Columbia Law School professor Jamal Greene. "The degree to which his liberty can be restricted is directly tied to the needs that required him to be detained. So if he was detained only to secure himself for trial, he can't be detained for punishment."

McGarry pointed to a 1986 policy under which the department developed employment programs designed to help inmates gain employable skills and reduce the cost of incarceration. The policy did not distinguish between convicts and pretrial detainees.

"At that facility, that's what was happening. It was a 'rehabilitative' labor policy, and all inmates were expected to participate in it," he said. "It was a practice that affected a lot of pretrial detainees."
In a separate lawsuit he filed while he was in jail, McGarry's chief concern was not the Constitution; it was getting injunctive relief to prevent the state from forcing him to do more labor. During his 14-hour shifts, he said, he was unable to contact his public defender, causing him to fear that his case would not be handled properly.

While all inmates may be expected to clean up their cells or wipe down tables in the mess hall, Greene said, the poorly paid, unsafe work McGarry alleged he was forced to do may have crossed a legal boundary.

Did you know the clothing worn by our soldiers are made by the cheap labor of the incarcerated? In closing, let me suggest that you read Michelle Alexander’s book “The New Jim Crow”. And that’s my Thought Provoking Perspective…

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