Constitutional amendment that outlawed slavery and indentured servitude

Why Slavery is Still Legal in America – And How Voters Can Take Action

By Simeon Spencer

Former Thurgood Marshall Institute Research and Operations Associate

Last Juneteenth, members of Congress reintroduced a constitutional amendment to end slavery in the United States. You may be thinking, “Wait? Didn’t the Thirteenth Amendment already do that?” Not exactly.

The Thirteenth Amendment to the U.S. Constitution is recognized by many as the formal abolition of slavery in the United States. However, it only ended chattel slavery – slavery in which an individual is considered the personal property of another. While formally eliminating the most recognizable form of slavery, the Thirteenth Amendment also enabled slavery to be transformed into something else that still has harrowing ramifications for Black people today.

Section I of the Thirteenth Amendment reads:

“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.”

The Abolition Amendment, a joint resolution currently before the Senate Judiciary Committee, proposes amending the U.S. Constitution to include an article reading, “[n]either slavery nor indentured servitude may be imposed as a punishment for a crime,” which would formally close the exception loophole. However, the bar for passing a constitutional amendment is high, requiring a two-thirds vote by the House and Senate, as well as ratification by three-fourths of all state legislatures. Thus, this resolution has not gained much traction.

Because of this federal inertia, states have instead been driving efforts to eliminate slavery through ballot initiatives to amend their own constitutions. This November, voters in Tennessee, Oregon, Alabama, Louisiana, and Vermont will decide whether to revise their constitutions to remove exceptions to the abolition of slavery. If you are a resident in one of these states, you will soon have the opportunity to make your voice heard on this important issue this fall.

Post-1865: An Evolution

Since the Thirteenth Amendment’s passage in 1865, its exception clause has enabled slavery to persist for generations through punitive systems. Following the Civil War, many southern states imposed Black Codes: laws that restricted Black people’s labor by requiring apprenticeships and labor contracts for employment, often with former owners of enslaved people. Black Codes also established systems of convict leasing and vagrancy laws, which incentivized the arrest, incarceration, and subsequent re-enslavement of Black people. These laws criminalized poverty, unemployment, and homelessness in order to meet the labor needs of former owners of enslaved people following emancipation.

Jim Crow laws, which have their roots in Black Codes, further entrenched systems of apartheid for Black Americans in almost every aspect of life in the post-Reconstruction era, including the criminal justice system. These laws legalized racial segregation throughout public life and were further ingrained through the establishment of the “separate but equal” doctrine by the U.S Supreme Court in Plessy v. Ferguson. For Black Americans, noncompliance with Jim Crow laws was often met with imprisonment — and violations of these laws and subsequent arrests could result simply from eating at a kitchen counter or entering a public space through the front door.

Following the end of the Jim Crow era, the War on Drugs fueled mass incarceration by disproportionately filling America’s prisons with Black Americans (Black men, in particular) and enforcing racial control through the criminal justice system. This resulted in a redesign of America’s racial caste system that nominally adhered to the principle of colorblindness following the fall of Jim Crow. Indeed, author and civil rights litigator Michelle Alexander has described this phenomenon as “the New Jim Crow.”  

These are not just dark legacies of the past, however. Today, there are still incarcerated Black Americans picking crops on plantations across the country. 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.

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 Island did so in 1842. This momentum continued in 2020, as successful ballot initiatives in Nebraska and 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.

“We constantly get asked, ‘Well, is this just a symbolic thing?’” Burton told Esquire, “ … and the question is, is the amendment being used as just a symbolic thing? If the basis of your system is built on slavery, then it will have an effect. And if it’s not [built on slavery], then it won’t.’”

What actually ensues if Oregon’s ballot initiative passes is yet to be determined. However, it is still unquestionable that these ballot initiatives matter — especially to those most affected by them. Indeed, the incarcerated people in Oregon who worked on SJR 10 see passing it as a critical step toward fair wages — and as a way to remove their reality from obscurity.

“We constantly get asked, ‘Well, is this just a symbolic thing? And the question is, is the amendment being used as just a symbolic thing? If the basis of your system is built on slavery, then it will have an effect. And if it’s not [built on slavery], then it won’t.’”

Cadets, who were formerly incarcerated, load a fire hose onto a fire truck at the Ventura Training Center in Camarillo, California in July 2022. The program trains individuals who fought fires while incarcerated for careers as professional firefighters.California and other states rely on incarcerated men and women to fight wildfires. They are often paid as little as $2 a day. (Photo by Mario Tama/Getty Images)

Changes Needed Beyond Ballot Measures

Of course, much more still needs to be done to correct carceral systems that have existed for generations and address problematic practices and laws that will remain in place, even if these state ballot measures pass. The limitations of these ballot initiatives highlight the extent to which our systems continue to rely on the cheap, uncompensated labor of people without freedom.

Take, for instance, the changes that might be made to the Tennessee Constitution if its ballot measure passes. The new language would read, “Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”

The second sentence was included at the behest of the Tennessee Department of Correction due to concerns that incarcerated people in Tennessee, who are paid, may fall under the slavery ban. While incarcerated individuals in Tennessee are — technically — paid for working, the rate is a far cry from veritable compensation, at $0.17 to $0.75 per hour before any mandatory deductions.

Moreover, while some might say that some prison labor is technically voluntary, this ignores the fact that, for an incarcerated individual, refusing to work can result in the loss of privileges, solitary confinement, or the denial of parole. It also overlooks the notion that simple necessities sold to incarcerated people are often exorbitantly priced, especially when compared to the wages they earn. Exploitation and coercion are at the heart of it all. The lines between slavery and involuntary servitude and prison labor are, in some cases, distinguished only by a few cents on the dollar.

"The United States cannot in good faith confront the legacy of chattel slavery while still permitting vestiges of that economy to persist. Dehumanization allowed for the evils of chattel slavery. Dehumanization allows slavery and involuntary servitude to continue under the guise of a carceral state. The words in our constitutions matter, and people who are incarcerated remain people. Thus, what we allow to happen behind those walls says more about our humanity than anything they have done."

A Juneteenth flag is raised during the Celebration of Juneteenth at the African American Civil War Memorial event on Monday June 20, 2022 in Washington, DC. (Photo by Matt McClain/The Washington Post via Getty Images)

Some might say that prison labor has its virtues. Perhaps, some speculate, prison labor may help incarcerated people become contributing members of society after they are released. This conveniently disregards many truths. It ignores that incarcerated firefighters in California are barred from being employed as firefighters as free people. It disregards the discriminatory natureof criminal background checks in hiring. To paraphrase writer Mitchell S. Jacksonin a February 2022 Esquire article — what, to a society that is unwelcoming, is the purported virtue of that labor? There are, certainly, incarcerated people who want something to do while serving their time. At the very least, that labor should be voluntary and fairly compensated.

The United States cannot in good faith confront the legacy of chattel slavery while still permitting vestiges of that economy to persist. Dehumanization allowed for the evils of chattel slavery. Dehumanization allows slavery and involuntary servitude to continue under the guise of a carceral state. While it would be unwise to equally conflate the specific horrors of chattel slavery with those of the modern carceral state, we should use the lessons of chattel slavery to inform what we do today. The words in our constitutions matter, and people who are incarcerated remain people. Thus, what we allow to happen behind those walls says more about our humanity than anything they have done.

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