The new abolitionists: Voters in a handful of states close the ‘slavery loophole’ in 2022

The new abolitionists: Voters in a handful of states close the ‘slavery loophole’ in 2022


By:  Susan Ferrechio

If you thought the slavery question in America was settled more than 150 years ago, think again.

Among the hundreds of referenda passed across the country in the midterm elections, voters in four states approved provisions making slavery and involuntary servitude unconstitutional.

While slavery was abolished in the U.S. in 1865, proponents of these ballot initiatives argued that remnants of legal slavery remained on the books. And they say this isn't about righting past wrongs but about stamping out modern-day forced labor.

Advocates for the change to state laws say it is needed to protect incarcerated individuals who they say are being exploited for their labor and should be able to challenge working conditions and pay that often amounts to less than $1 an hour or nothing at all.

The 13th Amendment bans slavery and involuntary servitude "except as a punishment for crime whereof the party shall have been duly convicted." 

Voters in Alabama, Oregon, Tennessee and Vermont amended their state constitutions in November to abolish those words and ban involuntary servitude and slavery. They follow Colorado, Nebraska and Utah, which have passed similar amendments in recent years. Rhode Island amended its constitution banning involuntary convict labor in 1842. 

In Colorado, which approved making slavery and involuntary servitude unconstitutional in 2018, prisoners are now challenging their working conditions in court, although they haven't gotten very far. 

In August, the Colorado Court of Appeals rejected inmate Mark Lamar’s argument that he cannot be required to work under the state’s new amendment. 

The court ruled the amendment "did not intend to abolish the Department of Corrections inmate work program." The court also rejected Lamar’s argument that the work program requirement amounted to involuntary servitude. 

More legal challenges are coming in Colorado, however, including a class-action lawsuit aimed at ending forced work in the state’s prison system.

Advocates of the change say prisoners are being exploited by labor practices that harken back to the post-Civil War efforts to keep Black people enslaved. Southern states during the Reconstruction era would convict Black people of petty crimes and force them to work for free in jails and prisons or loan them out to companies that paid fees to the states. 

Criminal justice advocate Bianca Tylek, executive director of Worth Rises, is leading an effort to amend the Constitution to get rid of the convict labor clause.

She told The Washington Times that the impact of the amendment on prison labor remains unknown. 

"Just because you’ve been convicted of a crime does not and should not remove your basic human rights to be protected from slavery," Ms. Tylek said. "The concern about what this means, what constitutes slavery … in many ways is going to be decided in the coming years by the courts."

The courts, she said, have not defined slavery or involuntary servitude but litigation could result in prisoners getting paid real wages for labor while incarcerated, or it could put an end to forced labor.

"Could it be that ending involuntary servitude means that you can’t force people to work?" Ms. Tylek said. "It could perhaps, and in fact, we hope it does."

Law enforcement officials and critics of the amendments say it could end work training and rehabilitative programs that often pay nothing, or it could require prisons to greatly expand their budgets to pay wages to prisoners who do much of the work to run the facilities.

California’s Democrat-led legislature in June rejected a ballot proposal to end involuntary servitude for prisoners after the state Department of Finance warned it would cost $1.5 billion to pay prisoners the minimum wage.

In Oregon, voters approved the referendum over the objections of the state Sheriff’s Association, which argued that the change would create unintended consequences by relabeling as involuntary servitude the voluntary work programs that pay little or nothing but often reduce jail time. 

"Sheriffs will have no choice but to suspend all reformative programs due to this inherent coercion," the association wrote in November. "Local funding will have to be allocated for all of the vital positions currently held by [inmates]."

The association did not respond to a request for an interview about the new amendment. 

Advocates for ending free and forced prison labor are expanding their efforts to pass amendments in states while Ms. Tylek’s organization is working with Congress members on the much more difficult task of passing an amendment to the Constitution that would eliminate the 14 words that permit involuntary servitude for incarcerated individuals.

Sen. Jeff Merkley, Oregon Democrat, introduced legislation in the Senate while Rep. Nikema Williams, a Georgia Democrat, sponsored a House version. 

"The loophole in our constitution’s ban on slavery not only allowed slavery to continue but launched an era of discrimination and mass incarceration that continues to this day," Mr. Merkley said. "To live up to our nation’s promise of justice for all, we must eliminate the Slavery Clause from our constitution."

The legislation went nowhere in the 117th Congress. It is likely to stall again in the Republican-run House. 

The Constitution was last amended in 1992. The process first requires passage of the amendment by two-thirds of both chambers of Congress followed by the approval of 38 states.

Ms. Tylek isn’t discouraged, pointing out the red states that passed referendums banning involuntary servitude for prisoners, including 80% of voters in Tennessee. 

"This is an issue that everyone can get on board because if we remember, it was the Republicans that actually abolished slavery the first time," Ms. Tylek said.  "The reality is that everyone across the board can say slavery is wrong. All of the time."