Man Forced to Work in Prison Sues Under Anti-Slavery Amendment

Aug. 10, 2012 — -- A Vermont man suing the state under the 13th Amendment for the labor he was forced to perform while awaiting trial in jail will get his day in court.

Finbar McGarry was a graduate student at the University of Vermont in December 2008 when he was arrested for allegedly firing a gun in his home and threatening to kill his family and an official at the university, where he had recently lost his job. His lawsuit 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 the Chittenden Regional Correctional Facility in South Burlington, Vt.

McGarry, who filed the $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 told ABC News in an interview Thursday.

Prison officials threatened to put McGarry "in the hole," where inmates are shackled and locked up for 23 hours per day in solitary confinement, if he refused to work, he said.

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."

David McLean, an assistant attorney general for Vermont, said it has never been the policy of the state's Department of Corrections to compel pretrial detainees to perform manual labor, but he refused to comment on McGarry's case.

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."

The Chittenden Regional Correctional Facility does not only house inmates awaiting trial. Unlike larger states, where county jails house the accused and state prisons house convicts, Vermont's correctional system mixes the two.

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. Other pretrial detainees had similar concerns, he said.

As a result of his lawsuit, which became moot upon his release, prison officials placed a hold on him to allow him to avoid labor, though he was still mistakenly forced to work on two occasions.

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.

"There is no distinct line here," Greene said. "But the closer [the job] gets to being something you do as part of the group, the more likely it is to be upheld by a court. The further away you get -- like being subjected to something unusual or forced labor -- it sounds like he might very well have a legitimate claim here."

Greene said that, in the past, the lower federal courts have rejected claims that general housekeeping prisons required of inmates qualified as forced labor, but the Supreme Court has yet to weigh in on cases involving additional labor, like McGarry's laundry work.