Appeals court says prohibition on involuntary servitude not applicable to prison labor

Colorado voters who made slavery and involuntary servitude unconstitutional in 2018 did not mean to abolish the state Department of Corrections' prison labor program, the Court of Appeals ruled last week.

A three-judge panel for the appellate court turned away the constitutional challenge of inmate A. Mark Lamar, who argued the general requirement that prisoners perform labor while incarcerated ran afoul of Amendment A, which passed with two-thirds of the vote four years ago. The Colorado Constitution originally forbade slavery and involuntary servitude “except as a punishment for crime,” but Amendment A removed that exception.

However, “the voters did not intend to abolish the DOC inmate work program by virtue of passing Amendment A,” wrote Judge Sueanna P. Johnson in the appellate panel's Aug. 18 opinion. Furthermore, she added, the state's use of prison labor does not amount to involuntary servitude.

Lamar litigated the case himself from prison in Cañon City. Christie Donner, executive director of the Colorado Criminal Justice Reform Coalition, expressed concerns that the Court of Appeals had not appointed counsel for Lamar given the complexity of the issue.

“One of the more important claims, which is there's a lot of different ways to be coerced besides the threat of physical violence or legal consequences — that was not ruled on by the court because it wasn't adequately briefed,” she said.

The appellate court's opinion was designated as unpublished, meaning it will not set a precedent. David Maxted, a civil rights attorney who is currently pursuing a class action lawsuit also challenging the constitutionality of prison labor, said the decision gave him hope that a more sophisticated legal argument will gain traction.

“The deeper meaning of the lawsuit is if they do what the constitution says and don't forcibly require work, it's actually going to improve conditions and improve the experience of staff and be more rehabilitative,” he said.

Colorado law and the Department of Corrections' administrative regulations envision that inmates will perform labor unless they are assigned to an educational program or have medical issues. Lamar filed suit in El Paso County District Court in December 2020 describing how he was “ordered to work” in food service for shifts of eight to 13 hours.

“CDOC has threatened the use of ‘Restricted Privileges' to compel plaintiff to work. Hence the ‘involuntary servitude,'” he wrote. Lamar later elaborated to the appeals court that a refusal to work could result in solitary confinement, loss of phone or visitation privileges, and removal of earned or good time.

District Court Judge Frances R. Johnson dismissed Lamar's lawsuit, explaining he did not allege how he was forced to work by “threatened physical or legal coercion.” She also noted Lamar had failed to show that low wages or loss of privileges amounts to involuntary servitude.

The Colorado Attorney General's Office echoed Johnson's reasoning in response to Lamar's appeal.

“Mr. Lamar made no allegations of physical compulsion to participate in the inmate work programs,” wrote Assistant Attorney General Ann Stanton. “Because inmates have no entitlement to these privileges, withholding them as a consequence for not working is not so coercive as to constitute slavery or involuntary servitude.”

While Lamar's appeal was pending, Maxted and lawyers for the nonprofit law firm Towards Justice filed a class action lawsuit in Denver District Court outlining more fully the contours of Colorado's prison labor program. Because the law and the corrections department's regulations generally mandate labor from inmates, they argued, the practical effect is that prisoners do not actually choose whether to work.

Taking away privileges, including through solitary confinement or removal of earned time credits, serves to exploit a “captive population of laborers,” the lawsuit added.

In June, the ACLU of Colorado filed a brief in support of the class action, alleging prison labor has roots in the practice of “convict leasing,” in which southern states after the Civil War took money from companies and individuals and, in exchange, provided them with labor from their Black prison populations.

“The new language in Colorado's constitution has a clear, literal meaning: no more slavery or involuntary servitude, within prisons or without. Defendants nonetheless defy this clear directive, and ask this court to nullify the will of Colorado voters by deeming forced prison labor constitutional still,” the ACLU wrote alongside lawyers for the Roderick & Solange MacArthur Justice Center.

The text of Amendment A informed voters that prison labor can assist with rehabilitation or teach practical skills. Although the amendment clarified it would not eliminate “opportunities to work” for inmates, the ballot information book did not describe the consequences for a refusal to work.

The Court of Appeals agreed with the trial court there was no threat of physical or legal coercion against Lamar. Although Lamar claimed on appeal that solitary confinement and even “handcuffing” were consequences for a refusal to work, the appellate panel could not consider those late-breaking allegations in its decision.

Donner, of the Colorado Criminal Justice Reform Coalition, said a voluntary program for prison labor is different from the current system that punishes those inmates who decline to participate.

“There's a lot of different ways to have a gun to somebody's head,” she said.

The class action lawsuit in Denver is awaiting a judge's ruling on the government's motion to dismiss. If it succeeds, it could ultimately provide relief for Lamar, as well.

The case is Lamar v. Williams.