End of slavery exception in state constitutions could reform prison labor

In the days when the COVID-19 virus was new, less understood and more deadly, officials in Louisiana turned to state prison inmates to produce essential but scarce products to slow the rapid spread of the virus.

There were occupational hazards and health concerns for the imprisoned people mixing chemicals to create hard-to-find hand sanitizer. For state officials, it was an efficient and incredibly inexpensive solution. Louisiana's state constitution allows the government to force inmates to work for free. In practice, they can receive some compensation, but it can be as little as pennies an hour when the effective minimum wage in the state is $7.25 an hour.

Prison labor practices, seen by many as a 21st century version of 19th century slavery, were on the ballot on Election Day in Louisiana and four other states — Alabama, Oregon, Tennessee and Vermont. Voters decided on whether to remove the slavery loophole from their state constitutions; the exception that legally permits slavery or involuntary servitude as punishment for those convicted of a crime.

The measures passed in every state but Louisiana, with 61% of voters in opposition. Opposition in various parts of the country has come from law enforcement and other state officials who fear the economic loss of free labor. But in Louisiana, the proposed referendum failed in large part because its sponsor, a Black state legislator from Baton Rouge, asked voters to oppose it so that it could be reworded to fix technical issues and put forward for approval again in the future.  inbox? Subscribe to our Watchdog newsletter.

These ballot questions address some of the state's oldest and most racist laws. They're part of a national push to amend the 13th Amendment of the U.S. Constitution, which abolished slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.” They're gaining momentum amid growing national awareness of systemic racism and the modern relevance of its historical underpinnings.

None of these proposed measures across states are outright prohibition on prison labor. But prisoner advocates say the measures draw attention to the harsh conditions of forced labor and leave room to push for worker protections while challenging incarcerated people's meager earnings.

Advocates have been calling for an end to mass incarceration that has disproportionately harmed Black and Latino people and communities. They're drawing greater attention to the quality of prisoners' incarcerations, including how they serve their time, whether they learn any marketable skills through job training programs, and whether their civil rights, such as voting, are restored once they are released.

Today's prison labor practices are seen by many as direct descendants of post-emancipation Black Codes and convict leasing systems that disproportionately arrested, convicted and imprisoned Black people, and then leased them to private contractors and landowners or used them as a captive and woefully underpaid work force for public works projects and services. It was a system designed to continue slavery after it was abolished.

There's no meaningful comparison between the conditions of today's prison labor system and the brutality of convict leasing. Nor is prison labor a critical part of the economy as it was 125 years ago, said Douglas A. Blackmon, author of “Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II.” Still, some things haven't changed.

“Personal profit in the system is an opening for justice to be corrupted,” Blackmon, a professor at Georgia State University in Atlanta, said in an interview.

Every year, prison laborers produce more than $2 billion in goods and commodities and more than $9 billion in services to maintain the prisons where they are incarcerated, according to a 2022 report by the American Civil Liberties Union and the University of Chicago Law School Global Human Rights Clinic.

“Prisons are run by incarcerated people,” said Bruce Reilly, deputy director of Voice of the Experienced, a nonprofit focused on criminal justice reform in Louisiana that's led by the formerly incarcerated. “[Louisiana prisons] would have to double their budget if they hired staff.”

In those early days of the pandemic, the Brennan Center for Justice at New York University School of Law reported, more than a dozen states were using prisoners to overcome shortages of badly needed essentials.

“This time of national emergency requires that everyone do their part to slow the spread of coronavirus,” the center said. “But if the states and the federal government are going to rely on correctional labor to manufacture this equipment, they need to improve the wages and labor protections of our incarcerated workers. To fail to do so is not far off from the devaluation and brutalization of slave labor that was ostensibly abandoned a century and a half ago.”

In 2020, Nebraska and Utah removed the language of slavery and involuntary servitude from their state constitutions.

Colorado made a similar change in 2018, but it didn't stop a state appeals court this year from rejecting an inmate's ensuing constitutional challenge that prison labor amounted to involuntary servitude.

But in Nebraska, a county jail is now paying inmates for work it used to receive for free, according to the Lincoln Journal-Star.

California is among more than a dozen states whose constitutions explicitly permit slavery, involuntary servitude or both as punishment for a crime. Earlier this year, California lawmakers rejected a ballot proposal to end forced prison labor after the state Department of Finance opposed the measure because it would cost roughly $1.5 billion to pay prisoners minimum wage.

In Oregon, which is still counting votes but where the measure is on track to pass, the Oregon State Sheriffs' Association similarly opposed it for economic reasons. While the group said it does not condone or support slavery or involuntary servitude in any form, the measure could have “unintended consequences,” such as the “elimination of all reformative programs and increased costs to local jail operations.”