Abstract

Excerpted From: Michael L. Smith, State Constitutional Prohibitions of Slavery and Involuntary Servitude, 99 Washington Law Review 523 (June, 2024) (225 Footnotes) (Full Document)

In November 2022, four states approved measures to amend their constitutions' prohibitions of slavery and involuntary servitude. The state constitutions of Alabama, Oregon, Tennessee, and Vermont already contained provisions prohibiting slavery and involuntary servitude--all of which were modeled after the language of the Thirteenth Amendment to the United States Constitution. These preexisting prohibitions, however, were qualified. Like the Thirteenth Amendment, they prohibited slavery and involuntary servitude, “except as a punishment for crime whereof the party shall have been duly convicted.” This exception, known as the “Punishment Clause,” has had profound, lasting effects on incarceration practices and racial disparities in criminal punishment.

In the immediate aftermath of Reconstruction, the exception allowed states to impose harsh criminal regimes targeting African Americans that rebuilt much of the preexisting system of slavery through the apparatus of criminal law and punishment. Michele Goodwin writes that “while the Thirteenth Amendment granted freedom for Blacks trapped under slavery's extreme, burdensome weight, southern legislators, law enforcement, and private businesses reinvented the practice through new forms of servitude, bondage, and threat.” She goes on to describe practices including the Black Codes (restrictions on ownership of land, business operations, and harsh criminal laws targeting Black people) and convict leasing (allowing counties and businesses to hire prisoners to do hard, dangerous work) that enabled private parties to effectively re-enslave people through transfers of Black people's debt, and other practices.

The Punishment Clause's impact pervades modern incarceration practices as well--leading to expansive incarceration and forced employment of both men and (as Goodwin emphasizes) women. Those who aren't physically incarcerated may also find themselves forced into work through the imposition of fines and fees--the nonpayment of which may result in rearrest and further penalties. Narrow interpretations of the Thirteenth Amendment tend to exclude the Amendment as a feasible means of challenging these practices, as prevailing interpretations tend to restrict slavery's definition to the “worst instantiation” of chattel slavery, rather than broader potential definitions.

These discussions and critiques of mass incarceration and labor by incarcerated persons center around the Thirteenth Amendment. The Thirteenth Amendment, its Punishment Clause, and courts' narrow interpretation of the Amendment tend to be the focal points for proposed solutions. But this focus on the U.S. Constitution neglects state constitutional prohibitions on slavery--an area of law that demands more attention in light of recent state constitutional amendments.

In this Article, I survey these recent reforms and analyze the merits of potential state constitutional challenges to forced labor practices. Within the past several years, multiple states have amended their constitutional provisions regarding slavery and involuntary servitude--with many states seeking to eliminate language permitting the imposition of involuntary servitude as a punishment for a crime. Several of these reforms have resulted in absolute prohibitions of slavery and involuntary servitude--prohibitions that may grant new, stronger constitutional support to those seeking to reform forced labor practices. Those arguing for constitutional, legislative, and administrative reforms to punishment practices would do well to incorporate state constitutional arguments into their efforts.

Part I briefly summarizes the Thirteenth Amendment, its origins, and the state of constitutional law relating to prison labor. In line with much of the commentary on the subject, I acknowledge that federal constitutional challenges to forced labor sentences have little chance of success in light of the Thirteenth Amendment's Punishment Clause that permits the imposition of involuntary slavery upon those convicted of crimes. In Part II, I survey state constitutional provisions relating to slavery and involuntary servitude. While many of these provisions track the language (and exemptions) of the Thirteenth Amendment, several states take a more absolute approach. With the exception of Rhode Island, these are all relatively recent developments, with the earliest absolute provision enacted in 2018.

There is a fair amount of variation in state constitutional prohibitions of slavery and involuntary servitude. Part III delves into those states with absolute prohibitions or recently amended provisions. I conclude that several of these state constitutions likely provide no meaningful additional support for constitutional challenges to forced labor sentences. Rhode Island, for example, has a longstanding provision that absolutely prohibits slavery, but early precedent from the Rhode Island Supreme Court takes a restrictive, narrow view of what counts as prohibited slavery, and permits the imposition of sentences requiring those convicted of crimes to engage in forced labor. Other recent reforms also miss the mark. While some states have enacted amendments removing explicit authorization of slavery or involuntary servitude as a punishment for a crime, they have enacted additional qualifying language that, at best, neutralizes the substantive impact of these reforms and, at worst, broadens the range of permissible slavery and involuntary servitude beyond even that permitted by the Thirteenth Amendment.

Alabama, Colorado, and Nebraska, however, recently enacted absolute prohibitions of slavery and involuntary servitude. Each of these amended provisions replaced earlier versions with punishment clauses similar to the Thirteenth Amendment's. These recent enactments and their explicit rejection of the punishment provision provide a new, potentially significant source of state constitutional authority for those seeking to challenge forced labor practices in prisons and jails. Part V situates this discussion in a broader context, urging additional states to implement similar, absolute reforms while avoiding qualified reforms.

One clarification is warranted at the outset: In discussing and critiquing systems of forced labor, this Article does not oppose systems of incarceration that provide opportunities for those convicted of crimes to maintain gainful employment, pursue educational degrees, or develop skills that may aid in their ultimate reentry to society. Such opportunities, if implemented in a non-coercive manner, may ultimately aid in the rehabilitation and reentry of those convicted of crimes. Rather, my concern is with the profit-motivated state of prison labor, in which hundreds of thousands of inmates are forced into labor not for rehabilitative purposes, but to lessen the costs of an unsustainable system of mass incarceration and increase the profits of those running or contracting with penal institutions.

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Mass incarceration is a complex phenomenon, perpetuated by a myriad of social, political, and legal structures and incentives. No single solution will undo the entrenched systems of prosecution and punishment that affect millions of people each year. Still, in the face of a complex problem, the more potential solutions and arguments, the better. While much has been written on mass incarceration, and many solutions proposed, state constitutional prohibitions on slavery and involuntary servitude have emerged as an unnoticed mechanism for reform. Challenging sentences that force people into involuntary servitude may reduce the harshness of punishments for those sentenced to forced labor. Additional states should take notice of the growing trend of state constitutional amendments and adopt provisions similar to Alabama, Colorado, and Nebraska to remove the vestiges of slavery and Jim Crow from their constitutions and to lend state constitutional support to meaningful reform. Those states that have enacted qualified reforms should take stock of their mistakes and try again.

The Thirteenth Amendment exempts those punished for crimes from its prohibition on slavery and involuntary servitude. This has played a significant role in establishing a federal constitutional regime that is of little meaningful assistance to those subjected to harsh punishment and forced labor. State constitutional prohibitions of slavery and involuntary servitude provide a much-needed alternative, and courts should take state constitutional challenges seriously to give effect to recent amendments that reflect a desire for serious change.

Assistant Professor, St. Mary's University School of Law.