Former Vermont detainee wins appeal in forced prison labor case

A Vermont man who says he was forced to work at a prison in Burlington has won an appeal based on the 13th Amendment, which prohibits slavery and involuntary servitude.

Finbar McGarry was a pre-trial detainee who was held on charges of aggravated domestic assault, assaulting a law enforcement officer and resisting arrest in December 2008. The charges were later dropped and he was released in June 2009.

While he was detained in the Chittenden Regional Correctional Facility, McGarry says he was forced to work in the prison laundry for up to 14 hours a day at a rate of 25 cents per hour. Prison guards threatened him with solitary confinement if he refused to work, according to the appellate court ruling.

McGarry claims he worked in the prison laundry for long periods of time without access to a bathroom. Because he was not able to wash his hands or wear gloves to protect himself from unsanitary clothing, he says he developed a staph infection known as MRSA. At one point, he says he had a lump the size of grapefruit on his neck.

McGarry sued Department of Corrections officials and employees of the state in June of 2009, claiming his right to be free from involuntary servitude under the 13th Amendment. He named Anthony Pallito, the commissioner of the Department of Corrections, and other prison officials in the pro se lawsuit. McGarry also says the department is liable for failing to pay minimum wage, under the Fair Labor Standards Act, among other claims, including abridging his First Amendment rights (he says guards confiscated reading materials).

He is seeking $11 million in damages.

In U.S. District Court, the Vermont Attorney General’s Office argued that the “housekeeping” work in question was not punitive. The state’s attorney said the former prisoner didn’t have evidence to prove that he was treated like an African slave.

The U.S. District Court Judge Garvan Murtha upheld the state of Vermont’s claim of immunity from McGarry’s allegations and dismissed his constitutional claims. Murtha said the 13th Amendment claim is “clearly without merit, as his work three days in the prison laundry was nothing like the slavery that gave rise to the enactment of that Amendment” and any other outcome of the case would “trivialize the pain and anguish that the Thirteenth Amendment sought to remedy.”

Three judges in the 2nd U.S.Circuit Court of Appeals reversed and remanded Murtha’s decision on Friday.

The appellate court ruled that state officials violated the 13th Amendment when they forced McGarry, who had not been convicted, to work in the laundry. It also ruled that the state cannot treat detainees the same way it does convicted prisoners.

“The Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery,” the judges wrote. They cited the 1988 U.S. Supreme Court case, United States v. Kozminski, in which the court concluded that “work obtained or maintained by the use or threatened use of physical or legal coercion is ‘akin to African slavery.’” McGarry’s allegations that guards threatened to “put him in the hole” (solitary confinement) they ruled, were plausible.

As for the state’s immunity defense, the appellate judges ruled that the Supreme Court has “unambiguously and repeatedly held  that a state’s authority over pretrial detainees is limited by the Constitution in ways that the  treatment of convicted persons is not.”

The matter now goes back to the district court.

At the time he was arrested, McGarry was a chemistry Ph.D. student at the University of Vermont. He was denied bail. All of the charges were dropped after McGarry says he hired a private attorney who gave him “zealous representation.”

McGarry grew up in Burlington and graduated from UVM in 1990. For 18 years, he ran clinical tests for large pharmaceutical companies, including Pfizer and Wyeth. McGarry was laid off in 2008 and sought a master’s degree at UVM that year. He was hoping to go back into the industry or teach college level chemistry at the Community College of Vermont. McGarry, who lives in Colchester, was most recently employed at Lowe’s.

Thomson Reuters news service and Time magazine have both published stories about the case, McGarry v. Pallito, et al., 2nd U.S. Circuit Court of Appeals, No. 10-669.

McGarry was defended by court-appointed attorney Daniel McLaughlin, who represents financial institutions and specializes in Wall Street securities litigation for the international law firm Sibley Austin, based in Manhattan. The appellate court, McLaughlin said, receives hundreds of appeals. This particular case caught the interest of the judges. The pro se 13th Amendment claim was unusual, he said.

“Clearly there is case law in this area, but it’s not something you see every day,” McLaughlin said.

David McLean, assistant attorney general for the State of Vermont, could not be reached for comment by press time.