Today, there are still incarcerated Black Americans picking crops on plantations across the country. Currently, there are 19 states with constitutions that explicitly permit either slavery, involuntary servitude, or both as punishment for a crime. Regardless of whether it’s through agricultural work or otherwise, the prison labor system creates a lack of control over one’s labor and freedom — particularly for Black people. It’s no surprise, then, to find that in some states, incarcerated workers are not paid at all.
In the “land of the free,” the states of Alabama, Louisiana, Oregon, Tennessee and Vermont have an opportunity to vote to abolish slavery, as part of an effort by the criminal justice reform movement effort to end prison labor.
Read the not-so-fine print in the13th Amendment to the U.S. Constitution to understand the problem. That amendment, which was ratified in 1865 and thankfully ended slavery for millions of Black people in America, has a loophole that amounts to a gaping hole if you care about criminal justice reform and ending prison labor: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
3th, the 2016 Netflix documentarydirected by Ava DuVernay, explored the “intersection of race, justice, and mass incarceration in the United States”—with a focus on the troubling language of the amendment. The film, which was a boost for the Black Lives Matter movement, shines a light on the ongoing criminalization of Black people by exposing the linkages between the 13th Amendment, Jim Crow subjugation and the prison industrial complex.
Under slavery, the slave codes criminalized enslaved Black people, controlled their movement and deputized white men to police the plantation, hunt them down and even kill them. Under the Jim Crow regime of racial terrorism and forced labor, vagrancy laws targeted Black people for prison for minor or imaginary offenses and funneled Black people into a convict-leasing system of free labor to build white wealth. It is no accident that prison farms in the South are former slave plantations. And today’s mass incarceration and drug war craze built on criminalizing and warehousing Black bodies has devastated Black communities.
ENDING SLAVERY BY BALLOT MEASURE
The ballot initiatives facing voters in 2022 reflect the continued growth of a promising state-level trend of closing this Thirteenth Amendment loophole. In 2016, Colorado first considered a ballot initiative that asked voters whether to remove language from the state’s constitution that permitted slavery and involuntary servitude. Amendment A eventually passed in 2018 after 65% of voters in Colorado approved its adoption. It was the first state to explicitly abolish slavery without exception in its constitution since Rhode Islanddid so in 1842. This momentum continued in 2020, as successful ballot initiatives in Nebraskaand Utah also removed language in their constitutions that permitted slavery as a criminal punishment, receiving 68% and 80% of the vote, respectively.
WHY BALLOT MEASURES MATTER, DESPITE THEIR LIMITATIONS
Currently, there are 19 states with constitutions that explicitly permit either slavery, involuntary servitude, or both as punishment for a crime. We cannot assume that people and state governments are wholly against slavery and involuntary servitude, as states are clearly taking advantage of these constitutional exceptions.
Ballot measures, while imperfect, are an important first step toward a full-throated repudiation of the slavery and involuntary servitude that continues in these states. Indeed, while some critics may characterize these measures as symbolic, they are important because the shift in the legal status of incarcerated workers may allow prison laborers’ claims to certain worker protections and rights. Previous challenges by prison laborers for worker protections have failed, in large part, due to slavery and involuntary servitude loopholes.
However, following the passage of Amendment A, incarcerated workers in Colorado are now testing the extent to which the removal of their status as “slave” laborers affords them legal protections. Two men filed suit in February 2022, alleging that the state forced them to work despite their health conditions and, in doing so, violated the ban on slavery and involuntary servitude in Colorado’s constitution. They are asking the courts to allow for a class-action lawsuit so that other incarcerated people can join this action.
Oregon will also provide another reflection point regarding the importance of passing state amendments to abolish slavery. On one hand, Senate Joint Resolution 10 (SJR 10) in Oregon – which is on the ballot in November – highlights why the state also must revise other existing state laws, such as Measure 17, which mandates 40 hours of weekly, involuntary labor by incarcerated individuals, and allows both private and public sectors to use that labor. However, as Riley Burton, the co-founder of the Oregonians Against Slavery and Indentured Servitude (OASIS) coalition, emphasized in a February 2022 Esquire interview, passing SJR 10 is still an imperative step toward eradicating codified slavery as the basis of the criminal justice system.
