Still Fighting Slavery in the Midterms? (2022)
Through ballot measures in this past week’s midterm elections, four states—Alabama, Vermont, Oregon & Tennessee—amended their state constitutions to outlaw slavery as a form of criminal punishment.
Prior to November, twenty states legally permitted forced, unpaid labor for incarcerated individuals. In states that effectively allow for slavery or involuntary servitude, workers under the employment of companies like Federal Prison Industries, Inc. (see prior post) can make as little as 23 cents/hour. Parasites know the law, and organizations like FPI have even been criticized by industry counterparts for establishing an impossible-to-match competitive advantage brought about by their 19th-century labor costs.
But what exactly is the law? What is the underlying justification for 21st-century slavery behind bars— and how do we stop it?
Slavery lives on in state constitutions
At the Civil War’s end, three-quarters of U.S. states ratified the 13th Constitutional Amendment, Section 1 of which states:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Derived from this federal amendment, states adopted similar-same language within their own state constitutions. Until this past week, Article 1, Section 32 of Alabama’s State Constitution read:
That no form of slavery shall exist in this state; and there shall not be any involuntary servitude, otherwise than for the punishment of crime, of which the party shall have been duly convicted.
This is the legal basis for day-to-day practices like “convict leasing”, where incarcerated individuals are forced to perform all sorts of work, some of which can be grueling, for a patronizingly small wage, if any. The Marshall Project and Prison Policy Initiative reported that of the four states which recently removed this language from their state constitutions, Vermont’s wages topped the list at $1.25/hour. Legal action is almost certainly forthcoming, and arguments may be put forth highlighting the disparity with minimum wage, the coerced nature of work, and more.
To give an idea of how this language was revised post-amendment, Article 1, Section 32 of Alabama’s State Constitution now reads:
That no form of slavery shall exist in this state; and there shall not be any involuntary servitude.
Nice and simple — Article 32’s “and there shall not be any involuntary servitude” now rings like a societal warning label reminding us all not to shower with our toasters.
Incredibly, though Louisiana had this same issue on the ballot (Louisiana Amendment 7), they somehow managed to botch the within-ballot phraseology so badly that State Representative Edmond Jordan (D) actually advocated against his own ballot measure during the voting process , stating, “Regardless of what happens, we’re going to have to bring it back to get it cleared up either way.” The bar’s been raised.
More broadly, of the 20 states that have relics of involuntary servitude reserved for the formerly incarcerated within their state constitutions, Ballotpedia distinguishes three main categories:
Slavery as criminal punishment [9 states]
Involuntary servitude as criminal punishment [10 states]
Involuntary servitude as “punishment to pay a debt, damage, fine or cost” [Vermont]
1. Slavery as criminal punishment
According to Ballotpedia, the following constitutional provisions were added to state constitutions between 1850 and 1900:
These provisions allow for zero-compensation work for those convicted of a crime for the duration of their sentences. Ominously, certain states leave out the clause “whereof the party shall have been duly convicted”, opening the legal-conceptual door for punishments in other areas of the carceral system beyond prison walls.
2. Involuntary servitude as criminal punishment
Seeing California on this list is a great reminder that criminal justice — despite garnering some of the most widespread, bipartisan support of any issue—knows no bounds.
It’s also worth recalling that this category is effectively the same as the first. Whitney Benns of The Atlantic rightly documented in her 2015 piece that practices like the aforementioned “convict leasing” could actually be cheaper than slavery in places like Louisiana’s Angola Prison (a former slave plantation), since “farm owners and companies did not have to worry at all about the health of their workers.” This is one of the most shameless instantiations of modern Jim Crow — prison industry players doing the math to determine it was ultimately profitable to pay a few pennies per hour for backbreaking work in lieu of pure slavery, knowing that those few pennies allowed them to leave out healthcare.
Given Rep. Jordan apparently drafted his ballot measure with a fountain pen, those Louisiana prisoners will just have to wait a little longer before they can stop being slaves.
3. Involuntary servitude to pay off debt
Chapter 1, Article 1 of Vermont’s constitution is a somewhat unique case, effectively binding a debtor to his/her creditor:
"... therefore no person born in this country, or brought from over sea, ought to be holden by law, to serve any person as a servant, slave or apprentice, after arriving to the age of twenty-one years, unless bound by the person's own consent, after arriving to such age, or bound by law for the payment of debts, damages, fines, costs, or the like."
Putting aside the Stockholm-esque problems of being “bound to someone by one’s own consent,” the notion that someone can be legally “bound” to another for “the payment of debts, damages, fines, costs, or the like” is so extreme as to lose general coherence.
It is actually much broader than the previous categories, allowing for someone “to serve any person as a servant, slave or apprentice” once a debt is born by one party. Tacking on “…or the like” adds the absurd complication that many more items/currencies/forms of compensation can enter the category of debt, and therefore require compensatory collateral to avoid one’s bondage to his creditor. The ensuing complications and problematic circularities allowed for when someone can claim another as their “servant” once a debt is owed—and potentially never let them go via near-zero compensation—can only provoke a collective sigh of relief that Vermont was one of the four states that got it together this time around.
How can these laws change?
Voting on ballot measures is the primary means for everyday individuals to do their part in advancing state-level legislation — but that is merely the final stage of the process. State legislatures are where power is concentrated, and it’s where a considerable fraction of legal changes take place in the modern United States.
Ballotpedia documents these procedures extensively, noting the different routes each proposal takes before it reaches the ballot box (See the “path to the ballot” section under each amendment listing):
In Oregon, “to put a legislatively referred constitutional amendment before voters, a simple majority is required in both the Oregon State Senate and the Oregon House of Representatives.”
But in a state like Louisiana, “a two-thirds vote is needed in each chamber of the Louisiana State Legislature to refer a legislatively referred constitutional amendment to the ballot for voter consideration.”
In Oregon’s case, for Measure 112 to “Remove Slavery as Punishment for Crime from Constitution Amendment (2022)”, the amendment underwent the following steps:
January 11, 2021 | Introduced as Senate Joint Resolution 10 (SJR 10)
April 14, 2021 | State Senate passed SJR 10 in a vote of 27-2 with one excused.
June 22, 2021 | State House passed SJR 10 with amendments in a vote of 51-7 with one excused
June 24, 2021 | Senate concurred with the House amendments by a vote of 25-4 with one excused
Only after a multi-year process did Oregon voters ever see this item on their 2022 ballot, which appeared as follows:
Amends Constitution: Removes language allowing slavery and involuntary servitude as punishment for crime
Result of 'Yes' Vote: 'Yes' vote amends constitution to remove language allowing slavery and involuntary servitude as punishment for crime; allows programs to be ordered as part of sentencing.
Result of 'No' Vote: 'No' vote retains current language that generally prohibits slavery and involuntary servitude but allows slavery and involuntary servitude as punishment for crime
While this is generally clear, linguistic changes, such as the addition of “…for incarcerated persons” at the tail end of each vote-result description may have provided additional clarity as to who is presently affected by the state constitution’s existing language. Ballot language is often debated upon extensively, and what appears in front of voters is extremely deliberate (given there is ample evidence that simple reframing can drastically change voter sentiment or interpretations of policy).
Oregon’s legislative bodies also offered the following summary of their ballot’s aims:
Amends Constitution. Article I, section 34 of the Oregon Constitution currently prohibits slavery and involuntary servitude but allows an exception to that prohibition as a punishment for crime. Measure removes language that allows slavery and involuntary servitude as a punishment for crime. Under measure, a court or probation or parole agency is allowed to order a person convicted of a crime to engage in education, counseling, treatment, community service, or other alternatives to incarceration, as part of sentencing for the crime. Ordered programs must be in line with programs that historically, or in the future, have been in place to provide for accountability, reformation, protection of society, or rehabilitation. Effect on current constitutional provisions requiring inmate work programs unclear.
Article 1, Section 34 of the Oregon Constitution has changed accordingly:
This is all to say that the process of revising even the most outdated policies takes deliberate time and effort — but there are highly-motivated parties on both sides. In Oregon’s case, the Oregon State Sheriffs’ Association was the primary opponent to Measure 112, with the following statement issued by their executive director:
Oregon Sheriffs do not condone or support slavery and/or involuntary servitude in any form. With this being said, Oregon Sheriffs cannot support Measure 112 as drafted-it creates unintended consequences for Oregon Jails that will result in the elimination of all reformative programs and increased costs to local jail operations. ... Oregon Sheriffs do not condone or support slavery and/or involuntary servitude in any form but cannot support Measure 112 due to the unintended consequences it creates."
Increased costs to jails? Ah - scrap it then! Good to know this practice may have been in place even in local jails where individuals have yet to be convicted! Lane Magill, a County Sheriff added:
Measure 112 is the elimination of using slavery for punishment under the Oregon Constitution. While on the surface I would generally support this type of measure, as I do not condone or support slavery and/or involuntary servitude at all. However, with that said, I can’t support Measure 112. When digging deeper into Measure 112 there is clear evidence this would directly affect most, if not all, of our work programs at NORCOR. Some of these programs would be cleaning the facility, laundry, public space clean up, etc. As always there is the argument Adults In Custody (AIC’s) are forced to work in Oregon jails. All work programs are voluntary.
Again, it’s great to hear you’d “generally support this type of measure” to curb slavery — thanks, Lane! The argument that “work programs” will be impacted and/or “costs would rise” is simply to say “we don’t want to pay more money to get our work done.” Lobbying entities across the country operate under the same logic. Each state needs to wrestle with how to minimize the influence of such groups in order to get these measures passed. Particularly in states like Louisiana, which require a two-thirds majority to even bring such amendments to a vote, the importance of this task cannot be underemphasized.
Voting in state and local elections for representatives intent on handling these issues remains as important, if not moreso, than coming out for presidential or Congressional elections. If nothing else, it’s worth remembering that the local voter’s influence is drastically inflated (think 1 / 1,000,000 vs. 1 / 330,000,000), and seemingly small, but concentrated voting blocks have the potential to significantly influence policy in one’s own backyard.
The path ahead
Small policy changes at the local level can inspire other states to follow suit, and in this case, win the war against slavery-era policies that disproportionately punish an already vulnerable population. In a survey of likely voters across the political aisle, FWD.US found “81% of voters support allowing people in prison to earn additional time off their sentence for following prison rules and participating in rehabilitation programs.”
Criminal justice is a multi-level battleground, but the body politic is in widespread agreement that a movement toward fair, proportional, and rehabilitative justice is long overdue. Ensuring the illegality of incarceration-based slavery and involuntary servitude nationwide hardly requires a moral argument, and for the betterment of society at large, we need to help the incarcerated make the most of their time behind bars—and beyond.
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