Days after the official nationwide abolition of slavery in December 1865, Alabama made it illegal for Black farm employees to sell a long list of foods, including corn, rice, cotton and “animal of any kind.”
Desperate to keep profiting from Black bondage, Alabama’s leaders were exploiting an exception to the 13th Amendment, which outlawed slavery in the United States “except as a punishment for crime.” That caveat stands today, allowing forced labor in prisons that disproportionately hold people of color — even as Americans celebrate emancipation with Juneteenth, newly elevated to a federal holiday.
The same day that President Biden signed into law a bill commemorating the date June 19, Democratic lawmakers reintroduced a proposal they say is long overdue to truly end centuries of bondage: a constitutional amendment to remove the “punishment clause.” With key Biden administration priorities such as voting access and changes to policing stalled in Congress, the renewed push to end forced prison work is one of many changes advocates are framing as necessary to back the symbolic embrace of Juneteenth with national action to address racism and inequality.
“We know that the work of making that vision of a just and equal society a reality is unfinished,” Sen. Jeff Merkley (D-Ore.) said at a Saturday virtual gathering, two days after introducing the proposed “abolition amendment” with Rep. Nikema Williams (D-Ga.). “We know that slavery’s legacy of injustice continues in many ways today.”
Williams said she is “confident” the amendment will pass and noted some states, red and blue, had recently removed similar exceptions from their constitutions.
“We’re in a period of reckoning with our country’s history,” she said Saturday.
Scholars have debated the intentions behind the 13th Amendment’s allowance of forced servitude for people convicted of crimes. But Michele Goodwin, a University of California at Irvine law professor, says Southern lawmakers negotiating the measure were “addicted” to slavery and the White wealth it generated.
The abolitionist lawmaker Charles Sumner from Massachusetts wanted an explicit statement that all men are equal, Goodwin wrote in the Cornell Law Review, and urged his Senate colleagues to “clean the statute book of all existing supports of slavery, so that it may find nothing there to which it may cling for life.”
But other lawmakers beat those ideas back, and a simple statement of equality did not arrive until 1868, when states ratified the 14th Amendment. In the meantime, Goodwin said, Southern states lost no time in creating hundreds of laws targeting Black people for enslavement through the criminal justice system — barring them from gathering on street corners, or staying in town too long, or staying out too late.
New laws paved the way for White people to take Black children into years of servitude by claiming they could care for them better than their own parents, Goodwin told The Washington Post.
“What one finds are these painful letters written by Black parents — who had not been afforded the opportunity to be educated, so they’re writing the best English that they possibly can, the best penmanship — begging and pleading for there to be federal intervention so that they can get their children back,” the professor said.
Plantations in some places actually expanded after the 13th Amendment’s ratification, scholars have found, while Black people convicted of minor offenses were sent to toil on railroads in chain gangs and work deadly jobs in coal mines.
As a Virginia Supreme Court justice put it in 1871: A prisoner is a “slave of the State,” his estate to be handled “like that of a dead man.”
These brazen “Black Codes” and the Jim Crow laws that followed in the late 19th and 20th centuries may be gone, advocates say, but the 13th Amendment’s punishment clause remains consequential for Black Americans far more likely to be incarcerated. That legacy was highlighted in Ava DuVernay’s 2016 documentary “13th.”
Many prison workers earn cents on the hour, if anything, because they are not subject to federal laws on minimum wage. A court held that Congress would need to extend those standards to people in prison.
Some have defended the current system, saying prisoners can do valuable and cheap work for the public good, from making personal protective equipment in a pandemic to fighting fires.
“My prison job made me feel like I was fulfilling my existential duty to society: I was contributing,” Chandra Bozelko wrote in a 2017 Los Angeles Times opinion article.
Those seeking a constitutional amendment also see benefits to work programs but say anything but voluntary, paid jobs continues a dark history. They also raise concerns about dangerous working conditions for inmates, with spread of coronavirus in prisons bringing new scrutiny.
An earlier Democratic proposal to remove the 13th Amendment’s exception for convicted people, introduced in December, did not move forward. Martina McLennan, a spokesperson for Merkley, told The Post in an email that “nothing about this … should be a partisan issue” and the senator “is looking forward to working with his colleagues on both sides of the aisle.”
Goodwin said the issue has gained traction in recent years. Colorado was the first state to repeal its constitution’s exception in 2018.
“I think that we’re still at the point where we still have to really explain it,” the law professor said Saturday. But she sees momentum.
“I think it’s prime time,” she said.