How Is Slavery Still Legal?

It is disturbing that there is even any debate about this. But even some Democrats have supported keeping forced labor legal.

This week I had the rather strange experience of voting to make slavery illegal. Louisiana’s proposed Amendment 7 would “remove involuntary servitude as punishment for a crime.” In fact, five states have “slavery on the ballot” this year, and are considering altering their state constitutions to prohibit the government from extracting forced labor from those convicted of crimes.

The problem is that the United States Constitution does not actually prohibit slavery outright. The 13th Amendment has what we might call a “loophole you could drive a truck through.” While often erroneously called “the amendment that abolished slavery in the United States,” the Amendment actually only abolished private slavery. Its text 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.” That’s a pretty giant “except” because it means the government can enslave someone for committing a crime.1 And since governments are the entities that decide which behaviors constitute crimes in the first place, it’s pretty easy to imagine a scenario consistent with the text of the Amendment in which slavery is still widespread. What the Amendment really provides for, when combined with other constitutional provisions, is due process before enslavement, meaning that the government has to go through a certain formal procedure before enslaving a person, by showing that person has violated a law and giving them a chance to defend themselves, etc. 

In fact, we don’t need to imagine such a scenario, because as David Oshinsky chronicles in “Worse Than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice, after emancipation, once Southern states had successfully rolled back Reconstruction, they established brutal convict labor systems. “Emancipation … will require a system of prisons,” Oshinsky quotes a Mississippi state official as saying. Convicts were leased to private corporations seeking cheap labor. The Library of Congress describes the hideous system:

“Arrests were often made by professional crime hunters who were paid for each ‘criminal’ arrested, and apprehensions often escalated during times of increased labor needs. Even those who were declared innocent in the courts were often placed in this system when they could not pay their court fees. Companies and individuals paid leasing fees to state, county, and local governments in exchange for the labor of prisoners in farms, mines, lumber yards, brick yards, manufacturing facilities, factories, railroads, and road construction. The convict leasing fees generated substantial amounts of revenue for southern state, county, and local budgets, and lasted through World War II. … Forced labor took many forms, including convict labor, debtor’s servitude, and peonage. Self-made industrialists of the southern United States … built their wealth and industries on this labor. Much of the country’s infrastructure, encompassing roads, railroads, buildings, and levees, was built out of this abusive system.”

Alex Lichtenstein, inTwice the Work of Free Labor: The Political Economy of Convict Labor in the New South, notes that “for planters denied recourse to the slave whip, the chain gang served as an important element of rural labor discipline with which to control ‘their’ sharecroppers.” All of it, of course, was perfectly legal, because forced labor and slavery are lawful in the United States as punishment for a crime. 

Of course, prison labor is still very much alive in the United States. A recent report jointly issued by the ACLU and the University of Chicago Law School’s Global Human Rights Clinic shines a light on the exploitative conditions faced by today’s prison laborers. The report notes that two-thirds of the more than 1.2 million people in state and federal prisons are workers, and that the work they do is usually not voluntary: “More than 76 percent of incarcerated workers report that they are required to work or face additional punishment such as solitary confinement, denial of opportunities to reduce their sentence, and loss of family visitation, or the inability to pay for basic life necessities like bath soap.” The ACLU/Chicago report shows that these workers “have been stripped of even the most minimal protections against labor exploitation and abuse,” and a big part of this is because there aren’t constitutional protections in place for those who are forced to labor while in prison. It’s not just the Constitution that has a giant prison loophole, though, because “incarcerated workers are not covered by minimum wage laws or overtime protection, are not afforded the right to unionize, and are denied workplace safety guarantees.” Inmate laborers produce a staggering “more than $2 billion a year in goods and commodities and over $9 billion a year in services for the maintenance of the prisons where they are warehoused.” Needless to say, with remuneration per hour often measured in pennies rather than dollars (when it is paid at all), prisoner-workers do not reap the fruits of their labor. 

Here in Louisiana, there are places where things don’t look very different than they did in 1860. Those convicted of felonies here can be sentenced to “hard labor,” and they routinely are. The ACLU/Chicago report discusses how, at “penal plantations” like the Louisiana State Penitentiary, imprisoned Black workers still pick the same cotton in the same fields as enslaved Black people did in the 19th century: 

“At the Louisiana State Penitentiary, known as Angola, the nation’s largest maximum security prison situated on 18,000 acres of land that was originally the site of slave plantations, incarcerated workers work field crops including cotton, corn, soybeans, and sugarcane for only two cents an hour. Every person incarcerated in Angola, 74 percent of whom are Black—and most incarcerated across Louisiana—starts work in the fields, and switching jobs is difficult. Field laborers work with limited access to water, minimal rest, and no restroom facilities, under the supervision of armed correctional officers on horseback. Workers report being placed in solitary confinement if they are unwilling or unable to perform work in the fields, or if they do not work fast enough. One incarcerated worker in Louisiana reported, ‘In the field each inmate is given a number to a row of crops to be cultivated or pulled and bagged which is about a half mile. The gun guard on the horse said she wanted 30 sacks of greens and was keeping count. I was on sack 23 before the specified time and was transported to segregation.’”

It might seem perverse that there should be a Louisiana ballot amendment in 2022 proposing to ban slavery. Surely this debate should have been settled in 1865, when the treasonous insurrection of slaveholding elites against the constitutional government of the United States was successfully suppressed. But it gets worse: Louisiana’s new amendment doesn’t even ban slavery. The ballot question’s wording is: “Do you support an amendment to prohibit the use of involuntary servitude except as it applies to the otherwise lawful administration of criminal justice?” There’s that “except” again! What the hell does “except as it applies to the otherwise lawful administration of criminal justice” mean? In fact, the state legislator who drafted the amendment originally intended for it to prohibit forced labor, but the wording became so muddied in the process that he now encourages voters to say “no,” because the implications are so ambiguous as written. 

It’s clear that there are those who would actually not like to guarantee basic labor rights to imprisoned workers. These include some Democrats. Earlier this year, a proposal “ aimed at removing the last remnant of slavery from California law” was rejected by the California State Senate “after Gov. Gavin Newsom’s administration warned it could cost taxpayers billions of dollars by forcing the state to pay prisoners a $15-per-hour minimum wage.” California’s existing system “requires inmates to work and often pays them less than $1 per hour.” One Democratic state senator warned that if the proposal passed “inmates will sue claiming their wages are too low, their hours are too high, or that it is unconstitutional to link goodtime credit and early release to their willingness to work.” Yes, they probably would, because the amendment would ban forced labor. But apparently, in the Year Of Our Lord 2022, it is still possible for Democrats to make the argument we can’t ban slavery, because then we might have to pay prison laborers a living wage. (And remember, Democrats are the “soft on crime” ones! Republicans probably think prison laborers should be lucky not to be lined up and shot.)  

The persistence of forced labor in the United States should make every one of us ashamed. As State Senator Edmond Jordan, who proposed Louisiana’s ballot measure, said:  “Anyone of good conscience should be embarrassed by this … should be appalled by this … should want to see this go away. … But I’m not a fool to think that everybody is of good conscience.” What’s disturbing is that not only do the “tough on crime” types believe in prison slavery, but even liberals like Gavin Newsom can’t be counted on to oppose it. But it’s up to the rest of us, those with a functioning moral compass, to work to eradicate slavery once and for all. It’s sad and abused that this should even be a debate. But here we are. This is America in 2022. 

  1. See the documentary 13th for more on the history. 

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