Lawmakers seek to end slavery for the incarcerated, which is legal in most states

Story at a glance

• Rep. Nikema Williams (D-Ga.) and Sen. Jeff Merkley (D-Ore.) have offered legislation called the Abolition Amendment.

• The legislation from Williams and Merkley would amend the 13th Amendment to eliminate “the slavery clause.”

• As part of the midterm elections, voters in Tennessee, Alabama, Oregon and Vermont eliminated language allowing involuntary servitude in prisons.

When the 13th Amendment was ratified in 1865, it abolished slavery or, involuntary servitude, in the United States, with one exception: when used as punishment for a crime.

On Nov. 8, voters in four states — Tennessee, Alabama, Oregon and Vermont — cast their ballots to eliminate language that allowed involuntary servitude in prisons.

These states join only three others in taking that step to completely abolishing involuntary servitude. Colorado was the first to approve removal of the language from the state constitution in 2018, followed by Nebraska and Utah in 2020.

The midterm votes followed legislation co-sponsored by Rep. Nikema Williams (D-Ga.) and Sen. Jeff Merkley (D-Ore.) called the Abolition Amendment. This legislation would amend the 13th Amendment to eliminate “the slavery clause.”

“This horrific loophole in our Constitution is a moral abomination that launched the mass incarceration we see continuing to this day,” Merkley said in a statement to The Hill.

He added that voters in November “came together across party lines to say this stain must be removed from state constitutions.”

“Now, it is time for all Americans to come together and say that it must be struck from the U.S. Constitution,” Merkley said. “There should be no exceptions to a ban on slavery, and we need to enact the Abolition Amendment that Rep. Nikema Williams and I have put forward.”

In a statement to The Hill, Williams said that “closing the slavery loophole” would be an accomplishment of a lifetime.

“After seeing voters in four more states decide there should be no exception to the ban on slavery, I am more motivated than ever to work on passing the Abolition Amendment at the Federal level,” she said.

The history of the slavery loophole goes back to the days after the Civil War.

After the ratification of the 13th Amendment in 1865, southern jurisdictions targeted Black Americans under “Black Codes,” arresting them for minor crimes like loitering or vagrancy.

Under the “Slavery Clause,” sheriffs would then lease out imprisoned individuals to work in fields — sometimes the very plantations where prisoners had been previously enslaved.

By 1898, this practice had become so widespread that 73 percent of Alabama’s state revenue came from the forced rental labor of imprisoned Black Americans.

The Slavery Clause incentivized minor crime convictions and drove the over-incarceration of Black Americans throughout the Jim Crow era.

Today, Black residents are still incarcerated at three and a half times the rate of their white counterparts, according to the Bureau of Justice.

Incarcerated workers make well below a liveable wage.

Despite prison workers producing more than $2 billion in goods and more than $9 billion in services to maintain the prisons where they are incarcerated, incarcerated workers earn, on average, between 13 cents and 52 cents an hour.

The government then takes up to 80 percent of those wages for room and board, court costs, restitution and other fees for building and sustaining prisons.

Incarcerated workers have also been forced to work under conditions that have left some mutilated and maimed, and there are no protections for workers or workman’s compensation if they are injured.

In a survey by the American Civil Liberties Union in June, 64 percent of incarcerated workers said they fear for their safety while working.

Bianca Tylek, executive director of Worth Rises, a prison reform advocacy group, said that imprisonment looks a lot like slavery did 150 years ago.

“Today, people who are incarcerated are forced [to work] under the threat of punishment, which can include beatings, solitary confinement, the loss of visits and contact with families, and even the denial of parole for not working,” Tylek said.

“These are punishments that actually date back to antebellum slavery,” Tylek continued.

“Mothers were separated from their children and promised unification if they were obedient. People were placed in what was called ‘a hole’ or ‘the box’ in isolation and darkness without light or any interaction and this is still happening today. Colloquially, solitary confinement is still referred to as the hole or the box in prison.”

Work for incarcerated people can range from janitorial and maintenance jobs — some states even use prison labor to clean governor’s mansions and other governmental buildings — to kitchen or laundry services to working on farms that used to be plantations.

“Throughout the pandemic, many incarcerated workers were responsible for manufacturing PPE such as hospital gowns, masks and hand sanitizer, and in some of those cases, they actually weren’t even afforded the PPE that they were manufacturing for others,” Tylek added.

Once the slavery loophole is closed, though, Tylek and others believe it will force the country to take a closer look at the criminal justice system — including offering restorative justice programs over incarceration in some cases.

“The Abolition Amendment is a pivotal step in our journey to true justice,” Tylek said in a press release last year. “By challenging these six words in the 13th Amendment, we can take a step back to examine this system and begin to propose even more transformative solutions as alternatives to incarceration.”

Tylek told The Hill that the victories from the midterm elections were important — but Worth Rises and others want the abolition to be enacted in all 50 states, not just a handful.

Still, she acknowledged this won’t be an easy task, even with the Abolition Amendment already introduced.

She also believes that if the amendment is ratified, there will be court challenges to the changes.

Tylek compared the Abolition Amendment to the 14th Amendment — nothing changed right away once it was ratified, and there are still debates over what “equal protection” means.

“Abolishing slavery doesn’t necessarily mean that we’ve even defined what slavery means,” she said. “It will be on the courts, with pressure from the public to define what is slavery and whether prison labor in whatever forms it is currently existing across the country constitutes as slavery.”

But before it even gets that far, it will take three-quarters of both chambers and three-quarters of states to ratify an amendment. That means there needs to be robust bipartisan support for the Abolition Amendment to pass.

Thus far, that bipartisanship has started to come together.

In the House, a bipartisan group of 172 members have co-sponsored the amendment, so Tylek is optimistic the Slavery Clause will eventually be eradicated and re-entry to everyday life for formerly incarcerated people will become a more positive experience.

“This fight is for the humanity of people who are incarcerated and the dignity for incarcerated workers,” said Tylek. “Ninety-five percent of people in prisons are coming to our communities. It doesn’t serve anyone for us to exploit them [or] dehumanize them. We want people to come back healed and whole, not angry and resentful.”

This story was updated at 9:04 a.m.

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