Why slavery as a punishment for crime was just on the ballot in some states

Voters in five states this election season were tasked with deciding whether their state constitution should continue to allow slavery and involuntary servitude as punishment for a crime. Tennessee, Alabama, Oregon and Vermont chose during the Nov. 8 midterms to make changes, while Louisiana did not.

What led up to these votes? Ratified in 1865, the 13th Amendment abolished slavery in America, “except as punishment for a crime whereof the party shall have been duly convicted,” and many states adopted the same language.

Today, the U.S. incarcerates 1.2 million people in its state and federal prisons, and incarcerated workers produce more than $2 billion in goods and commodities annually, according to a recent ACLU report. According to those findings, incarcerated people earn an average of 13 to 52 cents per hour. Some states, like Alabama and Arkansas, do not pay incarcerated workers at all.

The 13th Amendment is based on Article Six of the 1787 Northwest Ordinance, which stipulated that the states that were formed from the Northwest Territory – present day Illinois, Indiana, Michigan, Ohio, Wisconsin, and part of Minnesota– would be free states. But it included loopholes to allow enslavers in slave-holding states to reclaim runaways seeking safe harbour in free states, and it used the language saying that people who had been convicted could also be forced into labor.

Pro-slavery sympathizers living on the borders of free and slave states interpreted the loophole in Article Six as an opportunity to keep slavery in tact by creating and enforcing laws that disproportionately penalized Black Americans.

When the 13th Amendment adopted language reminiscent of the Northwest Ordinance, many states followed suit, in essence creating a pathway to legally enslave people through incarceration and imprisonment, and leading to labor practices that advocates decry as exploitative.

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Some states are reevaluating the moral and ethical implications of maintaining a penal system rooted in American slavery. Raumesh Akbari, the Tennessee state senator who proposed the amendment in her state, said that while passing the amendment won’t have a direct effect on the lives of incarcerated people, “it begins a conversation, and I think it humanizes the experience of those who are incarcerated. They deserve to be paid a fair wage.”

Claudia Flores, a Yale law professor and co-author of the ACLU report, said making meaningful changes to America’s prison system and the ways incarcerated people are treated would require additional protections, as well as “another decision made by the state really to include prison workers in their state labor laws.”

“The really tricky part here is that a lot of prison labor is actually dedicated to maintaining the prison itself,” Flores said.

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Incarcerated people produce $9 billion per year in services for the maintenance of the prisons for little to no pay, according to the ACLU. The financial implications of changing the labor rules for incarcerated people has given some states pause, and forced others to grapple with the severity of their financial dependency on cheap or free prison labor. In June, California rejected proposed amendments to their state constitution after learning it would cost an estimated $1.5 billion a year to pay prisoners minimum wage.

In Tennessee, where voters just cast ballots to amend their state constitution, Akbari acknowledged that tackling budgetary challenges will be an uphill battle, but sees amending the state constitution as “the spark that’s going to light the fire to continue to have these discussions.”