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

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

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

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

“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

“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

“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.”