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Sarah Morgan, Civil Rights/constitutional Law--indebted to the State: How the Thirteenth Amendment's Promise of Abolition Holds Protections Against the Modern Debtors' Prisons , 39 Western New England Law Review 327 - 368 (2017) (Note) (321 Footnotes Omitted) (FULL ARTICLE)

SarahmorganSet aside your image of a post-Obama color-blind America. Wipe clean your impression that the Civil Rights Movement of the 1960's solved the “race problem.” And above all, suspend your disbelief that the Emancipation Proclamation abolished slavery. For today's social, political, and especially economic subjugation of people of color flies in the face of America's gauzy, race-neutral ideations. Racism prevails, taking on new forms as implicit and explicit biases against poor people of color, in the minds and hearts of our political and judicial figures. And, as this Note will argue, slavery continues in its new manifestation of the debtors' prison, although, absolutely none of this is truly “new.”

It begins with a minor offense: a moving violation, a citation for jaywalking, or a parking ticket. Before a hearing for the offense has even commenced, booking fees, bail, and defense counsel application fees are attached. In other instances, it arises post-conviction: monthly probation payments, installation costs for an automobile interlock device, or required contribution for court-appointed counsel. To anyone with a steady income, a deep savings account, or a financially prosperous personal network, these legal financial obligations (“LFOs”) represent nothing more than a momentary hardship--write one check and all returns to normal. For everyone else, the inability to scrounge up sums of cash on the spot could result in an indefinite stay in the county jail, for which additional fines and fees are compounded onto a growing bill. This cycle, from the imposition of LFOs for non-violent minor offenses to indefinite incarceration, repeats in municipalities across the country in a conceptual confine known as the modern debtors' prison.

This Note will argue that the modern debtors' prison is unconstitutional under the Thirteenth Amendment's prohibition against involuntary servitude and peonage. Section II.A. will argue that, in keeping with the expansive spirit of the Thirteenth Amendment, the modern debtors' prison is a violation of the prohibition against peonage. Section II.B. will demonstrate that the modern debtors' prison is not exempt from the protections of the Thirteenth Amendment, because the practices which give rise to it do not constitute “punishment” as used in contemporary legal discussion. Therefore, the Thirteenth Amendment provides a source of constitutionally-guaranteed rights from being subjected to the modern debtors' prison.

Section II.C. will explore the remedies available for violations of constitutionally guaranteed rights to not be held to conditions of peonage. In Section II.D., the Note will assert Congress should take advantage of its broad enforcement powers under section two of the Thirteenth Amendment and enact a prohibition against the modern debtors' prison, providing enhanced civil remedies for imprisonment for criminal debts. Finally, Section II.D. will address anticipated counterarguments: first, it will argue that City of Boerne v. Flores does not restrict Congress's Thirteenth Amendment enforcement powers, and; second, it will demonstrate how federalism concerns do not preclude a remedial statute based on the Thirteenth Amendment.

Candidate for J.D., 2017, Western New England University School of Law.