Why Outlawing Slavery Won’t Outlaw Slavery—Yet

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Mary Harris: In all the coverage of the red wave that wasn't this midterm cycle. There's this one thing the voters weighed in on that I'm not sure people have talked about enough. That thing is slavery. Five states voted on whether to outlaw slavery this November. And yes, it is 2022.

Speaker 2: I was seeing all over the media in different places that slavery was on the ballot this November, and it perked my ears up. And I said, Excuse me, I'm sorry. Say that again.

Mary Harris: Candace Bond-Theriault is a legal scholar at Columbia University. And I got to say, I was a little relieved. It was not just me who was surprised to see slavery on the ballot 150 years after the Civil War ended.

Speaker 2: And then I had to look deeper into what people were actually talking about, and they were talking about this exemption that allows for forced prison labor.

Mary Harris: Candace says this exemption, it's baked right into the 13th Amendment, the one that technically abolishes slavery. It reads neither slavery nor involuntary servitude, except as punishment for crime shall exist within the United States. State constitutions often mimic this language. And the result is that more than half of all prisoners in the U.S. report being forced to work, sometimes in grueling or dangerous jobs.

Speaker 2: I think sometimes even just saying slavery still exists is just not enough, because we have to talk really into specifics.

Mary Harris: Yes. So talk in specifics for me. Like when you say slavery still exists, what do you mean?

Speaker 2: When you think of compulsory prison labor, you think of the chain gangs where people are digging ditches and doing construction, and that still does exist. That is not a former piece of slave. That's not a former vestige of slavery that still lives with us, that actually still exists. People who are incarcerated are forced to pick and harvest crops, including cotton.

Mary Harris: I mean, some work on plantations, right?

Speaker 2: Yes. People are still working on plantation people of color. Black people are still being forced to work on plantations in 2022 to pick cotton and are still required to wake up at unreasonable hours at 4 a.m. so that they can be outside to pick cotton at first light and are picking cotton till dusk.

Mary Harris: If incarcerated people refuse to work, they can be punished. Losing phone calls or family visits. They can even be thrown in solitary confinement. More than $2 billion worth of goods are produced this way every year. What's left Candace with this lingering question.

Speaker 2: A lot of the ballot initiatives say that if passed, they're going to completely get rid of the exemption to force prison labor. But do they really?

Mary Harris: Yeah. I was going to ask. Like the majority of ballot measures went through this month, they passed. We're talking about Alabama, Tennessee, Oregon, Vermont, saying that they want to remove this language from their state constitution that allows incarcerated people to perform forced labor. Does that mean that forced labor in prisons is going to be ending?

Speaker 2: I wouldn't go that far. I think this is a first step, a very important first step. I think even the bigger step is that the public is now talking about this issue, something that's been legal since. The Civil War. People are talking about it 150 years later. I think that is incredibly important in of itself.

Mary Harris: Today on the show why ballot measures around the country won't end slavery just yet. I'm Mary Harris. You're listening to what next? Stick around.

Mary Harris: Okay. So these four states Alabama, Tennessee, Oregon and Vermont, voted to eliminate prison slavery exemptions from their state constitutions. The main thing I thought when I heard about this was that seems like a lot of states. So can you just lay out why now? Like, why are we seeing so much movement around this issue at this moment in time?

Speaker 2: So I think for me, as I was really thinking about this and thinking through the same exact question, it really comes to me of this racial justice reckoning that we all experience in 2020 with the murder of George Floyd at the hands of of police. I think that was a really pivotal moment for racial justice. And this is not new. It just has recently gained momentum. There's even a federal bill that has been reintroduced, and it was reintroduced in 2021 on Juneteenth to really talk and grapple with the reality that slavery is still a part of our contemporary life. It is not a vestige of the past.

Mary Harris: But Candace says putting a stop to prison slavery, it won't be like flipping a light switch. Instead, one by one, these ballot initiatives are going to be ironed out by judges and more importantly, by prisoners themselves.

Speaker 2: I think that it's important to really show that now that that people who are incarcerated, who are being forced to work, have the ability to make a legal claim to determine whether the state prison systems that they are incarcerated within are required to pay them a living wage, a minimum wage, are required to adhere to the Fair Standards Labor Act and ensure a safe workplace or a safe work environment. And people will be able to sue to determine whether the Pregnancy Discrimination Act will apply to incarcerated pregnant people.

Mary Harris: Because their employees.

Speaker 2: Right. Right. Right now, we don't know. The Family Medical Leave Act does not apply to people who are incarcerated, but maybe they could. And now there is a legal question that has been opened that was not available prior to Tuesday in four states.

Mary Harris: Those pregnant prisoners are of special interest to Candace. She looks at this slavery issue through a reproductive justice lens. And if that seems a little fringe to you, consider that right now women are the fastest growing population in state prisons. You might have seen those stories about pregnant prisoners who are forced to give birth in shackles. But for Candace, it's not just the way prisoners deliver babies. That's shocking.

Speaker 2: People who are pregnant are being forced to perform labor throughout their entire pregnancies up until the moment they give birth. And then when they're when they give birth, sometimes people are are required within 36 hours, within 24 hours to literally go back into a field to perform labor like harvesting crops and picking cotton. 24 hours after giving birth, which is just unconscionable. And so a measure that is approved by voters that would prohibit compulsory prison labor would also impact a lot of different people, a lot of different incarcerated workers, including those pregnant and postpartum workers who may be able to sue for reasonable accommodation.

Speaker 2: When you're incarcerated, your self determination is very, very minimal. And being forced to perform labor, being forced to wash dishes so clothes harvest crops while you're pregnant. And our postpartum is so eerily close to the antebellum South that it's really, really important to really realize how we're still looking and living with slavery, because that is an experience that black women, black slaves knew very well. And that it is an experience that black women are still experiencing today.

Mary Harris: It sounds like part of what you're saying is that the effectiveness of these ballot measures are going to be determined by the courts, by lawsuits that are brought by prisoners who are arguing that now that slavery is abolished and now that forced labor for them is no longer allowed, they're going to need to fight for what their rights are as employees. And I think part of what you and I should do is define slavery for our listeners. And I say that because like 99% of adult prisons have work programs for incarcerated people. And so lots of prisoners are working. Almost all of them. And how much of that counts to you as slavery? Because almost anything you do in prison is coerced.

Speaker 2: Yes, coercion is definitely an aspect of what it's like to be incarcerated. But I would say that in my definition of forced prison, labor would be without someone's consent, being forced to work at all, being forced to work a particular job, being forced to work particular hours. I think that you're right, that it is really important that people are able to work within prison systems if they want to work.

Speaker 2: These bills, these ballot initiatives, these measures are not trying to eradicate the ability of people to work. That is not the point of these initiatives. Instead, it's to ensure that people are not forced to work against their will. You know, a lot of people are requesting medical exemptions from certain work and are not being granted them fair pay. So I think it's it's bigger than than just work itself.

Mary Harris: Yeah, it's interesting because the whole idea of going to prison is you are being forced to do something. And so I think that's. What might challenge some people of like, where do you draw the lines about what is forced? Because part of the project of prison is restricting your options.

Speaker 2: Yeah, I mean, I think it's it's going to be very dependent and it's going to be very personal to the individual. We are all subject to to working and work environments and work timelines. Even those of us who like you and I who are talking right now outside of the prison system. However, we have the ability to determine which jobs that we are able to take. And capitalism requires all of us to work if we want to be able to live, to provide food to ensure that we have a roof over our heads. Capitalism is the bigger limitation. But within prison systems, you still should have the human right to be able to decide what type of work you spend your day performing.

Mary Harris: After the break, a state by state breakdown of what abolishing slavery will really entail. Candace says. For an idea of what happens now, it's helpful to look at states that have already passed ballot initiatives that close their constitutions prison labor loopholes. In Nebraska, which passed its new language in 2021 county that forced inmates to do laundry and clean bathrooms without any compensation, started paying prisoners 20 to 30 bucks a week for that work. In other states, it's more than just compensation that's being renegotiated. Take Colorado.

Speaker 2: And so in Colorado, it passed in 2018. And there is currently a lawsuit by two Colorado incarcerated workers who are suing the prison system because they were forced to perform work, mainly cooking within the prison system during the rise of the COVID 19 pandemic and were really worried that they would become infected, were infected, and are suing the state prison system to receive remedies for for that really feeling of the the prison systems.

Mary Harris: It's so interesting because I think of this provision as being about money. You know, prisoners are so frequently paid pennies on the dollar, just really like a small fraction of what they would make outside of prison walls. But what's so interesting about this lawsuit is that it's not about money so much. It's about choice, it's about health. It's about these other things that come when you have self-determination, about what you're doing.

Speaker 2: Exactly. I think it's it's really important for many, many incarcerated workers in Colorado to join together to really say that their their rights as humans, the rights is incarcerated, workers are being violated. And they were indeed forced to perform labor. Slave labor within the prison system, which violates now would violate the Colorado Constitution since the ballot measure was approved in 2018.

Mary Harris: Federal prisons, they're still going to be able to use involuntary labor, right? Even if they're in a state that says in the state constitution, we don't allow that here anymore.

Speaker 2: Yeah, I think that they will. And that if we want to change the federal law, if we want to change the 13th Amendment to the United States Constitution, to completely excise the loophole that allows for forced prison labor, we'll have to do it through a constitutional amendment process which would require two thirds votes in both the House and Senate, but also ratification of three fourths of all state legislatures. So every state that we are able to get on the record to abolish and get rid of this loophole is one state closer to the threshold of ratification that is needed in order to change the federal constitutional amendment. So this is a we're on parallel tracks working towards abolishing the federal and state prison system amendments.

Mary Harris: I want to talk about a state where a prison labor ballot initiative didn't passed California, because I think it's a really interesting case because I think of California as such a progressive place.

Speaker 2: Well, in California, it's not even that the the measure didn't pass. It wasn't even before voters voters didn't actually have a chance to determine whether to pass it or not. So I think that's an important distinction. But the California Senate ultimately decided against putting the initiative on the ballot after Governor Newsom's administration really was warned and was concerned that it could result in paying incarcerated workers the minimum wage, which is $15 an hour in California. So that was really the sticking point.

Mary Harris: Is it true that passing a ballot measure about prison labor would require that prisoners get the minimum wage of $15 an hour?

Speaker 2: I honestly wish that was the case, but it's really up to legal interpretation in the courts and to be able to decide if that is the case. And I think we'll we'll really see courts in different states make very different decisions about that particular issue.

Mary Harris: One of the reasons why California stood out to me is that California has one of the most remarkable and controversial prison labor programs because prisoners are trained as firefighters. And it is one of the best paying jobs you can get in prison. But, of course, it's also dangerous and the pay is nowhere near as high as it would be if you were on the outside. So the idea that they wouldn't consider something that might actually give these prisoners more when they're doing something so outlandishly dangerous seemed a little crazy to me.

Speaker 2: I'm not surprised, to be honest, but I'm also I would not be surprised at all if, you know, I'm sure advocates are really working in California to ensure that a similar measure will be added eventually to the ballot. I'm a little concerned of what the language would look like, and I wonder if the language would explicitly state that in California, incarcerated laborers are not required to be paid the minimum wage. I think that's something we could see since that was such a sticking point for this measure to be put onto a ballot before voters. But it's really it's all to be seen.

Mary Harris: Yeah. The firefighter case is also interesting to me because even though doing this work is obviously it's coercive, like you want to get the most money when you're in prison for all kinds of reasons. And so maybe you choose the most dangerous job. The prisoners who do this work, they often talk about how meaningful it is to them and how much they enjoyed it. Getting to work on a team, getting to get out of the prison and do something different. And to me, Italy just really exemplifies how prison labor can be positive, can be part of how people rebuild who they think they are after they've been through something pretty awful, which is the justice system. How do you grapple with that when you think about getting rid of prison labor or reworking how the system works?

Speaker 2: I think reworking how the prison labor system works is still incredibly important because it's really about whether someone is coerced to perform labor. If someone wants to work a job, if someone finds fulfillment in performing that job, if someone is working because they're supporting a family, and particularly a lot of people who are in prison in women's prisons who are pregnant and or postpartum are sending money home to their families. And so they're working to support their families, even within the prison system. And so I think that it's incredibly important that people are able to make that choice.

Mary Harris: Yeah, I look at these ballot measures and the thing that I really struggle with is that. It seems to me that prison labor is like just a single piece of the entire carceral system that operates by dehumanizing the people inside of it. And I have this worry that, like, we're fiddling around the edges, you know what I mean?

Speaker 2: This is a piece of a larger strategy to better the working conditions of people who are incarcerated. And so I think every piece matters because every person matters, every incarcerated worker matters. And this is incredibly important to the person who is picking cotton out in the Angola Plantation in Louisiana today. And it might seem minor, but even knowing that people are thinking about them and no longer looking away, no longer invisible, I think the really important work and contribution that people who are incarcerated are providing to this country, I think even that message is incredibly important and incredibly helpful.

Mary Harris: Candace. I'm super grateful for your time. Thanks for coming on the show.

Speaker 2: Thank you so much.

Mary Harris: Candace Bond-Theriault is the director of racial Justice, policy and strategy at Columbia Law School Center for Gender and Sexuality Law. And that is our show, if you like what we're doing here. What next? The best way to show us some love is to join Slate. Plus, it is our membership program. It gives you great stuff like access to all of Slate.com and ad free podcasts, including this one. So to join now, go on over to slate.com. Such what next? Plus and sign up. What next is produced by Elena Schwartz, Carmel Delshad and Madeline Ducharme. We are getting a ton of support right now from Anna Phillips, Jared Downing and Victoria Dominguez. We are led by Alicia montgomery and Joanne Levine. And I'm Mary Harris. I'm going to be back in this field tomorrow. I will catch you then.