When slavery was outlawed in the US in 1865, the 13th Amendment included one exception.
“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,” the amendment reads.
The penalty has remained on the books in more than a dozen states, even though it hasn’t been enforced since the Civil War. But next month, voters in Alabama, Louisiana, Vermont, Oregon and Tennessee will be given the opportunity to exorcise the punishment from their states’ constitutions once and for all, according to a CNN review of pending ballot initiatives.
The proposed amendments would either explicitly rule out slavery and indentured servitude as potential punishments or remove the terms from state law altogether.
Advocates are hailing the initiatives as long overdue and hope that state-level movements will one day lead to the removal of such language from the 13th Amendment altogether, though some argue that the movement underscores a larger need to lift rules permitting forced labor from inmates for little to no pay, a practice that has been likened to indentured servitude. None of the five changes being considered next month would eliminate prison work.
“If their populaces vote for this at the state level, then we have to believe that their congressional representatives will also have to support it as a federal measure,” said Bianca Tylek, the executive director of Worth Rises, a non-profit that is campaigning to remove the clause from the 13th Amendment. “The more states that do this, the more federal support we can garner.”
Alabama voters will have the chance to vote on an overhauled state constitution this November. The revised version includes changes to rid racist language and aims to make the constitution more accessible to Alabama’s citizens, according to Othni Lathram, the director of the Alabama Legislative Services Agency.
Voters will be invited to answer yes or no to this proposed ballot measure: “Proposing adoption of the Constitution of Alabama of 2022, which is a recompilation of the Constitution of Alabama of 1901, prepared in accordance with Amendment 951, arranging the constitution in proper articles, parts, and sections, removing racist language, deleting duplicated and repealed provisions, consolidating provisions regarding economic development, arranging all local amendments by county of application, and making no other changes.”
If the revised constitution is approved, it would prohibit slavery all together by altering this section:
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.
That no form of slavery shall exist in this state; and there shall not be any involuntary servitude.
Louisiana’s current constitution allows slavery and indentured servitude as punishment for a crime.
Louisiana voters will be asked to mark yes or no to the question, “Do you support an amendment to prohibit the use of involuntary servitude except as it applies to the otherwise lawful administration of criminal justice?”
If approved, the new constitution would say: “Slavery and involuntary servitude are prohibited.”
Oregon’s ballot measure aims to remove “all language creating an exception and makes the prohibition against slavery and involuntary servitude unequivocal.”
If approved by voters, the Oregon constitution would be amended to remove the punishment exception and allow “programs to be ordered as part of sentencing,” such as ones for education, counseling, treatment and community service.
Democratic state Rep. Barbara Smith Warner said the intent was not to eliminate the prison industries, though she added, “if this leads to discussions about the prison labor movement, I would say, so much the better.”
Tennessee’s measure asks that slavery and indentured servitude shall be “forever prohibited” while including, “nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”
Tennessee state Sen. Raumesh Akbari, who sponsored the resolution, said that its passage would “move a step closer toward reconciling the consequences of the slavery exception.”
Vermont, which was the first US colony to abolish slavery outright, is seeking to change their constitution by removing the exception clause.
If approved by voters, the Vermont constitution would read, “That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety; therefore slavery and indentured servitude in any form are prohibited.”
When he announced the proposition in June, Republican Gov. Phil Scott called it a “meaningful” move, but Democrat Dick McCormack, the sole nay vote against the initiative in the state Senate, dismissed it as “merely symbolic” and an “underwhelming response to the legitimate demands of Black people.”
McCormack said Vermont’s constitutional clause was “rendered moot by the national outlawing of slavery with the 13th Amendment” and argued that the proposition amounted to putting “a smiley face on the constitution.”
“I think ending prison labor is a reasonable policy proposal, and we should get started on it,” McCormack told CNN. “But Prop 2 doesn’t end prison labor. It doesn’t fix the 13th Amendment.”
The five states are the latest to push to eradicate the punishments. Nebraska and Utah voters decided to remove language allowing slavery as a punishment from their constitutions in 2020’s general election.
And in 2018, Colorado voters approved a ballot measure to amend their state constitution to remove the possibility of enslaving someone for a crime. Like the states voting next month, the amended language didn’t change prison employment allowances, and earlier this year, two prisoners who argued their constitutional rights were violated under the state’s revised constitution sued the state, including Democratic Gov. Jared Polis.
The lawsuit alleges that the plaintiffs were compelled to work by being threatened with punishments like the loss of earned or good time for early release if they did not. The suit argues that the spirit of the amended constitution prohibited “compulsory” prison work, though lawyers for the state have filed for a dismissal of the lawsuit, saying that withholding “privileges” isn’t akin to slavery or indentured servitude.
Polis’ office declined to comment to CNN about the lawsuit, which is still ongoing.
Updating the 13th Amendment is a daunting task requiring two-thirds of both chambers of Congress and three-fourths of state legislatures to agree. But state-level advocates hope their recent efforts can gin up enough momentum to prompt such a change.
“The hope is that a critical mass of states will remove the exceptions in their state constitutions and provide a strong foundation for a movement to repeal and replace the 13th Amendment of the United States Constitution,” Theeda Murphy from No Exceptions Prison Collective told CNN.
In recent years, congressional Democrats have put forth a joint resolution to remove the exception from the 13th Amendment, but the efforts have been unsuccessful.
That has not deterred the effort, which has again been proposed this session and attracted the support of 10 Republican co-sponsors in the House.
“The loophole in our Constitution’s ban on slavery not only allowed slavery to continue, but launched an era of discrimination and mass incarceration that continues to this day,” Oregon Sen. Jeff Merkley, a Democrat who introduced the amendment in Congress this session, told CNN. “To live up to our nation’s promise of justice for all, we must eliminate the Slavery Clause from our Constitution.”