Abstract

Excerpted From: Ryanne Bamieh, The New Abolition: The Legal Consequences of Ending All Slavery and Involuntary Servitude, 59 Harvard Civil Rights-Civil Liberties Law Review 245 (Winter, 2024) (366 Footnotes) (Full Document)

From August 21 to September 9, 2018, thousands of prisoners went on strike, refusing to work their assigned jobs. The strikers, represented by the inmate organization Jailhouse Lawyers Speak, issued a list of ten national demands. The second of these demands called for an “immediate end to prison slavery,” requesting that “[a]ll persons imprisoned in any place of detention under United States jurisdiction ... be paid the prevailing wage in their state or territory for their labor.”

Currently, about 55% of the American prison population, or more than 800,000 prisoners, are compelled, both by law and prison discipline, to work while incarcerated. The payment for this work is abysmal: an average of *247 31 cents per hour in federal prisons and 20 cents an hour in state prisons. In some Southern states--all with disproportionately Black prison populations--inmates are not paid for their labor at all. One Louisiana official described the unpaid labor of prisoners as a “necessary evil.”

Frequently, this incarcerated work consists of physical labor in harsh conditions. Prisoners in Texas and Florida are forced to spend hours on the fields, growing the food that they will later eat, using hand-held tools like wooden sticks and hoes. The most common type of prison labor is maintenance jobs such as working in the kitchen, cleaning the grounds, or doing laundry. Some incarcerated individuals are required to work at these jobs for twelve hours a day. Many Occupational Safety and Health Administration (“OSHA”) approved “state plans,” which are meant to provide workplace-safety protections, carve out incarcerated workers--leaving them without regulatory protection.

Such work is required by law. The Bureau of Prisons itself notes that “[s]entenced inmates are required to work if they are medically able” for pay *248 that ranges between “12¢ to 40¢ per hour.” Both federal and state statutes require that prisoners engage in some labor during their incarceration.

Prisons enforce these work requirements via discipline such as solitary confinement, loss of earned good time, and revocation of family visitation. For example, in Florida, those who refuse work “receive a disciplinary report, which can lead to up to 60 days in confinement and the loss of time earned off their sentences. Florida corrections officers write an average of 1,750 disciplinary reports per year for 'refusing to work.”’

The Thirteenth Amendment explicitly allows this type of forced labor, given that it bans “slavery” and “involuntary servitude ... except as a punishment for crime ....” However, Americans are taking a new hostility to this except clause. Recent books, such as The New JimCrow by Michelle *249 Alexander and media features, such as the 2016 documentary “13 have highlighted the negative consequences of the except clause. In late 2020, following a summer of nationwide protests of systemic racism and police brutality, Democrats in the House and Senate proposed a joint resolution that would remove the except clause from the amendment.

While Congress's proposal to remove the except clause from the Thirteenth Amendment went nowhere, hope remains: in recent years, states have taken up the charge to end involuntary prison labor in state prisons. Starting in 2018 with Colorado, seven states with provisions mirroring the Thirteenth Amendment have passed amendments removing the except clause from their state constitutions-- effectively banning allslavery and involuntary servitude within their state's borders.

Given the novelty of these amendments, their effect on prison labor remains uncertain. Some see removing the except clause as purely symbolic. For example, in 2020, Utah's Constitutional Amendment C passed. The constitutional amendment banned all slavery and involuntary servitude, eliminating the previous exception allowing slavery and involuntary servitude when used as a punishment for a crime. The ballot for the amendment indicated the “effect” of the amendment would only be to remove the exception, then stated:

The Amendment also clarifies that the ban on slavery and involuntary servitude does not affect the otherwise lawful administration of the criminal justice system. For example, the Amendment does not impact the ability of a court to sentence someone to prison as punishment for a crime or the ability of prisoners to participate in prison work programs.

Meanwhile, many of the most ardent supporters of such amendments construe them capaciously, claiming their approval would end compulsory prison labor and potentially lead to a minimum wage for incarcerated workers.

Legal challenges exploring these more capacious theories are underway in Colorado and Alabama. While much of the existing legal scholarship and commentary has focused on the current federal landscape, there has been virtually no sustained attention to the legal impact of these new state constitutional efforts. In this Note, I will do just that-- analyze the legal implications of removing the except clause, thereby outlawing allslavery and involuntary servitude. The paper proceeds as follows: Part I charts the history of prison labor and the original except clause in the Thirteenth Amendment. Part II discusses recent state efforts at removing the except clause from state constitutions. Part III examines the legal ramifications of these amendments, contending that they will successfully end forced prison labor and may also enable the establishment of a minimum wage for incarcerated workers. Finally, Part IV discusses the benefits of ending compulsory labor in prisons and paying incarcerated individuals a minimum wage.

[. . .]

While the federal Constitution may have enshrined involuntary prison labor in the Thirteenth Amendment, state efforts and innovation provide a promising way forward for incarcerated workers. Based on federal courts' interpretations of the Thirteenth Amendment, state courts in jurisdictions that totally outlaw involuntary labor appear to be poised to strike down their states' carceral labor regimes.

Granted, judges have historically been an unfriendly audience for prisoners' grievances. However, even conservative judges may be persuaded by the clear text and original intent of these modern-day amendments to state constitutions. In recent years, states such as Arizona and New York have considered raising the pay of incarcerated workers. Litigation surrounding the payment of incarcerated workers may serve to highlight their cause and motivate legislators to take the demands of these workers seriously.

J.D., Yale Law School, 2023; B.A., Stanford University, 2018.