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American voters in five states will soon decide whether to close loopholes which led to modern day slavery in the form of forced prison labor for individuals convicted of specific crimes.
The effort is part of a national push to amend the 13th Amendment to the U.S. Constitution that banned enslavement or involuntary servitude except as a form of criminal punishment. That exception has long permitted the exploitation of labor by convicted felons.
According to a report by the Sentencing Project, Black Americans are incarcerated in state prisons at nearly 5 times the rate of white Americans. Nationally, one in 81 Black adults in the U.S. is serving time in state prison. Wisconsin leads the nation in Black imprisonment rates; one of every 36 Black Wisconsinites have been in prison. In 12 states, more than half the prison population is Black and in seven states maintain a Black/white disparity larger than 9 to 1.
The 13th amendment of the US constitution, ratified in 1865, abolished slavery and involuntary servitude. However, it contained an exception for “a punishment for crime whereof the party shall have been duly convicted.”
This exception clause has been wielded to exploit prisoners in the US as workers, paying them little to nothing to perform jobs ranging from prison services to manufacturing or working for private employers where the majority of their pay is deducted for room and board and other expenses by the jurisdictions where they are incarcerated.
Wages for inmates are well below the federal minimum wage. According to a 2022 ACLU report, inmates in state prisons are paid on average between 13 cents and 52 cents per hour for a “non-industry job,” such as janitorial work or maintenance and repairs, which make up the majority of prison jobs. In Wisconsin, for non-industry jobs, the pay was between 12 and 42 cents per hour.
“We have a system that forces people to work and not only forces them to work but does not give them an adequate living wage,” said Johnny Perez, a formerly incarcerated activist. “Slavery by any name is wrong. Slavery in any shape or form is wrong.”
According to AP News, nearly 20 states have constitutions that include language permitting slavery and involuntary servitude as criminal punishments. In 2018, Colorado was the first to remove the language from its founding frameworks by ballot measure, followed by Nebraska and Utah two years later.
This November, versions of the question go before voters in Alabama, Louisiana, Oregon, Tennessee and Vermont.
Alabama is asking voters to delete all racist language from its constitution and to remove and replace a section on convict labor that’s similar to what Tennessee has had in its constitution.
Vermont often boasts of being the first state in the nation to ban slavery in 1777, but its constitution still allows involuntary servitude in a handful of circumstances. Its proposed change would replace the current exception clause with language saying “slavery and involuntary servitude are forever prohibited in this State.”
Oregon’s proposed change repeals its exception clause while adding language allowing a court or probation or parole agency to order alternatives to incarceration as part of sentencing.
Louisiana is the only state so far to have its proposed amendment draw organized opposition, over concerns that the replacement language may make matters worse. Even one of its original sponsors has second thoughts — Democratic Rep. Edmond Jordan told The Times-Picayune/The New Orleans Advocate last week that he’s urging voters to reject it.
Scrutiny over prison labor has existed for decades, but the 13th Amendment’s loophole in particular encouraged former Confederate states after the Civil War to devise new ways to maintain the dynamics of slavery. They used restrictive measures, known as the “Black codes” because they nearly always targeted Black people, to criminalize benign interactions such as talking too loudly or not yielding on the sidewalk. Those targeted would end up in custody for minor actions, effectively enslaving them again.
Today, many incarcerated workers make pennies on the dollar and inmates who refuse to work may be denied phone calls or visits with family, punished with solitary confinement and even be denied parole.