Henderson, Taja-Nia Y. (2013). The ironic promise of the Thirteenth Amendment for offender anti-discrimination law. Lewis & Clark Law Review, 17(4), 1141-1189. Retrieved from https://doi.org/doi:10.7282/T35M67J6
AbstractPolicymakers and legal scholars agree that persistent private discrimination against persons convicted of crimes is a significant public policy concern. Persons convicted of crimes are routinely shut out of legitimate labor and housing markets, precipitating recidivist behavior and other social ills. In an attempt to curtail these practices, local and state governments have enacted anti-discrimination legislation designed to protect offenders’ access to these markets. Local legislative efforts have, however, proven inadequate to quell discrimination against this group, prompting calls for a federal response. This Article identifies a source of law supporting broad-ranging federal anti-discrimination legislation in this area—the Thirteenth Amendment. The goal of this Article is to provide a historical basis for linking market exclusion to slavery and other forms of citizen subordination. Its scholarly contributions lie at the intersection of two previously disparate academic projects: The call to expand the categories of private conduct that Congress is empowered to curtail under Section 2 of the Thirteenth Amendment and the call to consider seriously the historical antecedents in civil death, slavery, and Jim Crow for modern trends of hyper-conviction and incarceration, and collateral and incidental consequences. This Article links these important scholarly conversations and posits that the anti-subordination principles explicit in the Amendment’s text and history can inform more aggressive efforts to dismantle some of the private barriers to reintegration for convicted persons. By examining the pernicious effects of private discrimination on offenders, it shows that these forms of discrimination mimic characteristics of American chattel slavery and warrant swift
SubjectsUnited States. Constitution. 13th Amendment, Discrimination—Law and legislation, Ex-Offenders, Slavery, Market exclusion, Offender Reentry
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