Is Slavery Still Legal in the U.S.? Yes, Under the 13th Amendment Exception

Visitors have described the drive up to the Louisiana State Penitentiary as a trip back in time. With men forced to labor in its fields, some still picking cotton, for as little as two cents an hour, the prison was — and is — a plantation.

If that shocks you, you’re not alone. Like most Americans, you probably missed the day in U.S. history class when the teacher explained that we abolished slavery — except as punishment for a crime. Or more likely, that lesson never happened.

A recent poll commissioned by Worth Rises revealed that 68% of Americans don’t know that there’s an exception in the Thirteenth Amendment to the U.S. Constitution — the amendment celebrated for abolishing slavery. Another 20% think there’s an exception if the sitting president decides, as part of wartime efforts, or in the interest of public safety. Thankfully, these exceptions don’t exist, but slavery very much still does.

So, let’s revisit that history lesson.

Immediately following the passage of the Thirteenth Amendment in 1865, Southern states and localities used this exception to pass Black Codes and other vagrancy laws to criminalize and re-enslave newly freed Black people. These laws prohibited Black people from moving freely, owning land, congregating, being unemployed, and more. Punishment often included incarceration and then forced labor through “convict leasing,” a brutal practice in which governments leased incarcerated people to private businesses.

Remarkably, the conditions created by “convict leasing” could be worse than those during slavery. Starvation and beatings were normal and the human consequences, inconsequential. Throughout the South, annual death rates ranged from 16% to 25% during “convict leasing.” Enslavers no longer had to shell out cash to purchase and care for enslaved people. As one said, in 1883, “But these convicts, we don’t own ’em. One dies, get another.”

And as people suffered — and died — states profited from these lease arrangements. By the late 1800s, some Southern states were bringing in more than 70% of their revenue from “convict leasing.”

The James Prison Camp, which later became the Louisiana State Penitentiary, was one of these labor camps. Commonly referred to by its plantation name, Angola, after the native country of the enslaved people who toiled on the land before the Civil War, much of the 18,000-acre plantation was once owned by one of the largest slave traders in the U.S., Franklin and Armfield. In 1880, after Isaac Franklin’s death, his widow sold the plantation to Samuel Lawrence James, who had a lease with Louisiana to house its incarcerated population in exchange for the profits from their labor. James went on to sublease the incarcerated people to private corporations building levees and railroads. Under James’s “convict leasing” regime, people had a higher chance of dying than they did in slavery.

“Convict leasing” fell out of favor with the public over time, but the enslavement of incarcerated people and the racial subjugation that accompanied it never did. In 1898, Louisiana outlawed “convict leasing.” The state assumed control of Angola shortly after but kept the prison farm going and retained James’s son as plantation manager. And for decades, wardens and other prison staff lived on the plantation with their families and used the incarcerated men as their personal labor force as Clint Smith recently explained in How the Word is Passed. Today, Angola is still a working farm with more than 5,000 incarcerated men — 75% of whom are Black and 74% of whom have life sentences.

As the largest prison in the U.S., and one of the oldest, Angola’s history is critical, but it’s also not uncommon. And more importantly, plantation prisons are no longer the only plantations. Right now, there are roughly 1.2 million people in prisons across the U.S. who can be and often are legally enslaved.

When people are incarcerated, they are forced to labor, under threat of punishment and often in grueling conditions, for little or no pay. The average hourly wage is 14 cents per hour, and five states — all in the South — pay nothing at all for most jobs. Correctional administrators exploit the preference for facility jobs over field jobs in the way that enslavers would grossly demarcate between “house slaves” and “field slaves.” The punishments for refusing to work are again drawn from antebellum slavery, including solitary confinement (then and now more commonly referred to as “the box” or “the hole”) and the separation of families through the denial of calls and visits.

Like Louisiana, Texas still has incarcerated people picking cotton even at a net loss to the state. Why, if not to confirm the proximity of slavery and trigger the trauma that runs through Black people’s veins. Slavery has always been about more than forced labor and wages. It’s about power and control — about establishing supremacy, forcing subordination, and degrading pride. And, as historian Walter Johnson explains, it relies on the recognition of one’s humanity — the ability to feel joy and peace and pain and fear — to do so.

But resiliency has kept the abolition movement alive. And the fight for the abolition of slavery continues — on and off today’s plantations. Last year, the #EndTheException coalition, comprised of more than 80 national organizations, supported Senator Jeff Merkley and Congresswoman Nikema Williams in introducing the Abolition Amendment in Congress. The new amendment simply reads, “Neither slavery nor involuntary servitude may be imposed as punishment for a crime.” A dozen words we should all be able to get behind and tell our Congress members to support.

Will the passage of the Abolition Amendment unravel the intimate relationship between the U.S. carceral system and slavery? It’ll be up to the courts and the will of the people — us — to see it does. And to start, we must accept that a system based on white supremacy and human degradation cannot be the basis of a system of justice. We must abolish slavery without exception, and let the cards fall where they may. Because what we cannot do is be so committed to our carceral system that we now knowingly recommit ourselves to slavery.