The 13th Amendment to the United States Constitution didn't prohibit slavery. It simply limited slavery to cases where it was imposed as a punishment for a crime. Sometime in the next decade or two, there is a good chance that this loophole we regain relevance.
Prison labor has never completely gone away. The typical term of incarceration in U.S. military justice has always involved forced labor. Chain gangs all but vanished in the face of rising union power at the heart of the industrial age, driven by concerns that prison labor would undercut union workers. So, prison workers toiled away making license plates and state government furniture where there wasn't strong private sector competition. But, foreign sweatshops ending up killing American factory workers, despite a lack of competition from American prisoners.
Colorado has started offering prisoners the opportunity to volunteer for farm work (for a pitiful pay), and "community service" has long been a common sentence for misdemeanors.
Prisons like Angola, a prison run more or less like a plantation, illustrate the problems and benefits of prison labor. In that setting, guards put a premium on breaking down the dignity of prison workers and the formal trappings of servitude, but prisoners also win in exchange less extreme boredom and greater autonomy, than simply being locked up and kept idle.
But, in hard economic times, like the current ones, Colorado faces more temptation than most states to turn to prison labor. TABOR and related state constitutional provisions make it very difficult to raise taxes in Colorado. Several measures that would have financed more transportation spending were defeated by voters in the 2008 election. Declining tax revenues have prompted Governor Ritter (even before the latest economic projections) to proposed a dramatic cut of about two-thirds in transportation spending for the 2009 budget year.
Expenses meanwhile continue to grow, and among the line items that has been squeezing everything else in the state budget has been the corrections budget. The state spends about $30,000 per inmate per year to incarcerate more than 20,000 people, with the numbers growing steadily a few percent each year.
Road construction and maintenance has traditionally been work that has been considered something that prisoners are suitable for, and because the state is constitutionally forbidden from raising taxes to give road construction work to a sufficient number of private contractors, prison labor devoted to road construction would not be competing with private enterprise.
Even if prison labor is worth just $5,000 per inmate (after nominal wages paid to inmates for their work), because some inmates don't want to (or can't) participate, because they have fewer skills, because they have to be monitored more heavily by guards, the revenue source would be roughly $120 million a year, which isn't chump change, even though it is too small to be a panacea.
Despite abuses of prison labor in the past, there is also reason to think that inmates who work are less prone to being disciplinary problems than those who do not, and that the minimal skills learned and retained habit of working a straight job would improve re-entry success. But, like all aspects of corrections policy, budgetary pressure seems to be a more powerful political consideration than meting out fair sentences or treating inmates appropriately.
Perhaps the biggest political barrier to such a program is that the image of a group of men, mostly minority, in public, working under the supervision of guards, is something that the public is not comfortable with, because it echos the images of plantation slavery, and the widespread use of chain gangs in the South afterwards. This political reality is one reason that most prison work now is conducted either in prison workshops, or on isolated farms at the request of the farmer.
But, budget pressures can change public attitudes. Few people who don't see it up close, for example, associate "community service" as a punishment for a misdemeanor with slavery or indentured servitude, although that is essentially what it amounts to in practice.
While American policy makers are aware that somehow countries in Europe and industrialized Asia manage to have relatively law abiding societies with dramatically lower incarceration rates than in the U.S., due both to more sparing use of incarceration, and to shorter sentences, Americans are at a loss to see how it could work here.
This is in part because Americans have not adopted the German and Scandinavian punishment of the "day fine" in which a prison sentence is determined, but instead of serving it in prison, the convicted person is ordered to pay a fine equal to one day's income for each day that would have been served in prison and is kept in the community working at a job to pay that fine, in the face of the threat of incarceration if payments are not made as required. The resulting fines are much larger than those typically imposed in U.S. felony cases. A car thief, for example, might face a $40,000 day fine, rather than a two year prison sentence, in addition to any restitution obligation.
But, that isn't the whole story. The European welfare state has created a society in which are fewer people face the intense economic pressure that can make economic crime irresistible, and most countries with more lenient sentencing, while having clear class divides in their society, don't have what American sociologists in the 1980s called an "underclass."
The alienation of the American underclass system works two ways.
First, it undermines the sympathy and sense of common humanity that most Americans feel for someone basically like them who has made a mistake in life, a subtle sort of racism that makes Americans more comfortable with harsh treatment of people who are defined as criminal members of an underclass, often with code words like "gang member" or "drug kingpin."
Second, it undermines that sense of obligation, shame and membership in a common community, that people who are convicted of crimes who come from that underclass, feel towards the larger society.
In Japan, almost every criminal conviction is accompanied by a not entirely insincere apology from the convicted individual to the victim of the crime. And, Japanese popular culture portrays even those who have absolutely hit bottom in life as having a strong sense of obligation to family and to strangers in need, compared to the heartless, seemingly family-less, gangster rap icon.
While the Scooter Libby's of the world who are convicted of crimes, are able to retain their upper middle class identities and re-enter society with a sense of being able to credibly say to pre-conviction friends and colleagues that he is basically good person who made a mistake. In contrast, a young black man who otherwise had his life together and then gets thrown into the criminal justice system after a bar fight is likely to be deeply stigmatized as a criminal. In Europe and Japan, people are likely treat most convicted criminals more like Scooter Libby, and less like a typical American felon.
There is a movement towards continue to take a tough stance against the violent criminals that scare us, while being more lenient towards non-violent criminals, most of whom are incarcerated for drug offenses (usually either some form of drug dealing, or repeat possession of largeish amounts), or for property offenses.
The problem with that movement, however, is that non-violent offenders are mostly more likely to reoffend than the violent criminals. Most non-violent offenders committed their crimes as a means of making, or helping to make, a living, and don't really have good economic options in the traditional economy. In contrast, a large share of violent offenders acted impulsively or while drunk in a seriously harmful way, but aren't career criminals and are capable of holding down a straight job, at least if they can manage to stay clean and sober. As a result, easing non-violent offender sentencing may run up against practical limits created by recidivism risks associated with short sentences, if not accompanied by really vigorous re-entry programs.
One way that practical concerns about recidivism for non-violent but professional criminals may end up being reconciled with a desire for leniency towards non-violent offenders, may be to replace existing prison sentences for many non-violent felonies with "community service" sentences of a year to several years, served in half-way houses, under house arrest, or in minimum security facilities, at a considerably lower net cost to the public per inmate.
Prison could be reserved largely for escapees from less restrictive programs, and for criminals who actually post a threat to the public, while long community service sentences or large fines would reassure the public that offenders were really being punished for a felony in a way that a mere probation sentence accompanied by fines that are typically fairly modest do today.
No country in the developed Western world more uniformly criminalizes prostitution than the United States. A few counties near Reno and Las Vegas, Nevada have legal and regulated brothels, but that's it. Even uber-liberal San Francisco rejected a 2008 ballot initiative to decriminalize prostitution there, despite having one of the nation's most organized prostitute's rights group.
But, I suspect that this hard line will break in the next decade or two. While prostitution has been universally criminalized for a very long time in the United States, this vice, when it does not involve children or sex slaves, has not been the subject of the same kind of hysteria that spawned the counterproductive war on drugs.
Enforcement is primarily limited to street walkers who are causing a neighborhood nuisance. Arrested prostitutes are often sentenced to time served and a fine, and almost never end up in prison, even if they have a long string of arrests. Johns similarly receive modest fines, and sometimes the shame of a "John's TV appearance." Pimps that manage to avoid pimping children, often receive short felony sentences or probation, although they often face significant asset forfeitures. In part because enforcement is relatively lax, prostitution is less tightly controlled by gangs and organized crime than other vices like the drug trade.
But, sooner or later, the dam is going to break. Most states have some sort of legalized escort services, which are not closely supervised by regulators in practice, permit paid pornography shoots and topless and/or nude entertainment (and even lap dances) already. The Internet has brought hard core porn (and sex match making sites) into every home, sex has grown far less taboo in the media, adultery has been widely decriminalized (outside the military), and no city of any size claims that prostitution isn't going on every day.
Perhaps a state hard pressed for tax revenue and tired of spending money cracking down on prostitution, will copy the Las Vegas model, in which the state allows certain localities to permit it on a regulated basis. Atlantic City, the San Fernando Valley (which is the epicenter of the American pornography industry), the Chicago suburb whose economy is based largely on strip clubs, or perhaps an Oklahoma Indian Reservation, will open the flood gates and be mimicked, bit by bit, just as gambling once was before it. The economic boon the move would offer for early adopters would probably be significant.
Probably the main reason that the U.S. has resisted legalized prostitution as long as it has, is that prostitution is an extreme form of servitude, which is a cousin to indentured servitude and a distant relation of slavery. The American aversion to slavery was burned into is national psyche in the wake of the Civil War, and the image was reinforced a century later by the civil rights movement.
Indeed, situations where slavery and prostitution intersect have driven increased European efforts to regulate prostitution in Europe. New Zealand recently chose to decriminalize prostitution without heavy regulation in an effort to undermine the authority of pimps that can lead to slavery-like situations.
I suspect that prostitution, like casino style gambling, sports betting, and horse and dog racing, will be decriminalized piecemeal. Most, but not all states, will have small enclaves where it is decriminalized, within certain boundaries and conditions. But, it will remain illegal and those punishments will be enforced in the vast majority of the geographic area of each state.
Fewer people are marrying, and many of those marriages end in divorce. At the heart of this trend is a combination of the end of the legal servitude of wives, and the dramatic decline in the economic dependence of wives upon their husbands, particularly in working class couples.
Historically, marriage has undergone three phases in the course of American history. Until shortly after the Civil War in most places, divorce was basically non-existent, women were property and could be compelled to live with their husbands, and even "separation from bed and board" was granted by a court only for extraordinarily clear cause and often with meager provision for a separated spouse. In this era, adultery was a serious felony that was not infrequently prosecuted.
Then, for almost a century, divorce was available only upon proof of fault by the other spouse justifying a divorce. Women had equal rights in marriage in principal, but some gender distinctions in child custody and alimony awards were formally acknowledged and fault was relevant to the substantive resolution of the issues in the divorce. In 1920, there was about one divorce for every six marriages, but the divorce rate rose gradually, until the late 1960s, when there was about one divorce for every four marriages. In this era, adultery was one of the most common grounds for a divorce.
For the last generation or so, "no fault" divorce has been available, more or less unilaterally, at will, and there has been about one divorce for every two marriages. Fault is, in principal, irrelevant to child custody, child support, maintenance awards and property divisions, although some fault-like circumstances can be considered in custody awards, and in extreme cases where there is intentional waste of marital property, in property divisions. Adultery currently carries almost no civil or criminal penalties, although "the other man" may end up with child support obligations.
But, this doesn't tell the whole story. While divorce has become more common, marriage has grown less popular. There were about 30% fewer marriages per 1,000 people in 2007 than there were in the 1970s and 1980s. Marriage rates are at an all time low, lower now than they were even at the lowest point of the Great Depression, and have been steadily declining for about fifteen years.
As I've noted in a prior post at this blog, the fall of marriage has strong ethnic and socio-economic dimensions.
Only 4% of the children of mothers with college degrees are born out of wedlock. And the divorce rate among college-educated women has plummeted. Of those who first tied the knot between 1975 and 1979, 29% were divorced within ten years. Among those who first married between 1990 and 1994, only 16.5% were.
At the bottom of the education scale, the picture is reversed. Among high-school dropouts, the divorce rate rose from 38% for those who first married in 1975-79 to 46% for those who first married in 1990-94. Among those with a high school diploma but no college, it rose from 35% to 38%. And these figures are only part of the story. Many mothers avoid divorce by never marrying in the first place.
Just 29% of non-Hispanic black mothers are married at the time their children are born. Only about 39% of black children live with both parents. Native American and Hispanic mothers fall in between, while non-Hispanic white and Asian mothers are much more likely to be married, although out of wedlock births have become much more common across the board.
As I explained in my prior post:
[O]ne likely cause of rising unmarried parenting and divorce rates is that women, particularly less educated women, are far less economically dependent upon their spouses than they used to be. . . . It is also true that a majority of divorced people remarry in less than four years. If your current spouse is a high school dropout, or at least, has no college education, the odds that a new spouse will be better educated and more affluent are fairly good, while the odds that a new spouse will be less well education and less affluent are low. But, if your current spouse has a college degree, the risk of remarrying into a less socio-economically beneficial match are much higher, and the odds of securing a more socio-economically beneficial match are lower.
The high likelihood of a fairly prompt remarriage helps explain why women are willing gamble on enduring an expected great drop in standard of living (on average 45%) until remarriage, in exchange for the prospects of securing improved well being in the long term.
Despite the fact that, "College educated women, who often have even formally studied feminist theory, and perhaps even taught it, tend to be much more committed intellectually to the notion of marriage as an equal partnership and economic independence for women," they tend to make more economic sacrifices in marriage and to be more economically dependent upon their husbands, that working class women.
College educated and working class couples alike are better off economically, and have kids that fare better in all but the most extreme circumstances, if they stay married.
A great deal of the "family values" politics attributed to evangelical Christianity has political bite because it addresses the demise of working class marriage, even if only symbolically, rather than in any way that would actually help their marriages. Higher caste secular and liberal Christian Democrats, in contrast, are not very responsive to this message, because they have not encountered the demise of the American marriage as pervasively in their own worlds.
One solution proposed in Southern states where unmarried couples and early divorces are becoming the norm, is to give couples the option of a "covenant marriage" that may be dissolved only for fault grounds, in effect, taking a historically step backwards towards the legal regime that was in place when it was much more common to view a wife as subordinate to her husband -- a view of marriage still held by the Southern Baptist Convention today, despite the fact that this position is seen as absurd by the general culture.
This may not actually solve the problem, whose origins are more economic than legal, but because covenant marriage comes much closer to the nature of the family values crisis than misguided attacks on gays and on free speech, I suspect that it will end up being adopted as an option in much of the South, and that a trend to make covenant marriage the default option will soon follow this development.