When the United States added the Thirteenth Amendment to the Constitution in 1865, it ended slavery but left a loophole, which allowed involuntary servitude to continue “as a punishment for crime.” Today, state constitutions in places like Georgia, Indiana, Kansas, Michigan, and Mississippi still contain a similar provision.
For example, Article I, Section 37 of Indiana’s Constitution prohibits slavery or “involuntary servitude, within the State, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted.” Article I, Section 9 of the Michigan Constitution says: “Neither slavery, nor involuntary servitude unless for the punishment of crime, shall ever be tolerated in this state.”
However, in recent years, other states have amended their constitutions to close the loophole for penal servitude. They include Colorado (2018), Utah (2020), Nebraska (2020), Alabama (2022), Oregon (2022), Tennessee (2022), Vermont (2022), and Nevada (2024).
Such changes are an important step in the ongoing effort to perfect America’s constitutional democracy. As the political theorist George Kateb explains, “the democratic sentiment that should accompany inflicting punishment should be reluctance. From reluctance should come leniency….”
He adds that “the spirit of democracy hates using (punishment even) when necessity calls for it.”
While the constitutional changes noted above are a step in the right direction, they have not meant that prison officials are no longer treating incarcerated individuals like slaves.
On February 13, a Colorado trial court sought to put an end to that treatment when she ordered the state Department of Corrections to stop engaging in “practices…that amount to involuntary servitude.” Those practices include “the loss of earned time,” solitary confinement in a special housing unit, or confinement in one's own cell for up to 21 hours a day for failure to work.
Before saying more about that decision, let’s recall that making prisoners work or exploiting their labor has a long history in this country. That history is a reminder of how far we have to go to reconcile our practices of punishment and democratic sentiment.
As Yale Law Professor Judith Resnick notes, “During the Civil War, both North and South commandeered prisoner labor through contracts with private sector producers…. The 13th Amendment was seen as licensing prisons to require labor without compensation.”
That the 13th Amendment gave states unfettered power over prisoners was made clear in a 1871 case involving a convict who was “hired to work on a railroad… in attempting to escape, …kill(ed) the man put by the contractor to guard him.” As a judge in Virginia explained, the law in that state allowed the governor “to hire out, as in his judgment may be proper, such able-bodied convicts in the penitentiary, whose terms of service at the time of hiring do not exceed ten years, as can be spared from the workshops therein, to responsible persons, to work in stone quarries, or upon any railroad or canal in this State, or for any other suitable labor.”
Unfortunately, one of the prisoners hired out under the terms of that law killed one of the people guarding him during an escape attempt. As the judge sorted out the procedural and jurisdictional issues in the case, he noted, “The bill of rights is a declaration of general principles to govern a society of freemen, and not of convicted felons and men civilly dead.”
Judge Joseph Christian went on to explain that “For the time being, during his term of service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is, for the time being, the slave of the State.”
He was not alone in that view.
While convict leasing of the kind at issue in the 1871 case mostly disappeared in the early twentieth century, today more than eight hundred thousand inmates in state and federal prisons are forced to work while they are incarcerated.
As the Economic Policy Institute’s Nina Mast observes, “Most of these workers (about 80%) are employed in facility maintenance and operations…tasks that keep the institutions that imprison them running. Of the other roughly 20%, about 17% work for government-run businesses, where they might staff DMV call centers or wash laundry for public hospitals…. The other 3% work for private-sector employers, where they earn meager wages producing goods and services for industries across the U.S. economy.”
Because neither workplace safety nor minimum wage laws apply, incarcerated individuals generally are paid less than a dollar per hour and work in unsafe conditions. And as Mast notes, “In seven Southern states—Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas—almost all work by prisoners remains unpaid.”
An effort to organize a nationwide strike among inmates in 2018 was designed “to highlight exploitative labor practices, inadequate pay, and the lack of basic rights for those behind bars.” However, the strike did little to achieve its goals.
Eight years later, it remains true, as the American Civil Liberties Union reports, “From the moment they enter the prison gates, incarcerated people lose the right to refuse to work.”
That is the case in Colorado.
There, on February 15, 2022, incarcerated individuals filed a class action lawsuit alleging that the state’s use of “compulsory labor” violated the state’s constitutional prohibition of “either slavery or involuntary servitude.” It detailed the experiences of inmates who refused to work for any reason, including illness or disability.
The suit focused on many of the deprivations imposed on those inmates, the most severe of which was being sent to a Special Housing Unit, otherwise known as the “hole,” where they were forced to spend days alone.
The Colorado Department of Corrections responded that “CDOC does not… impose work as a punishment for a crime… our policies are meant to have individuals be engaged in work for rehabilitative purposes…and… Turn out the sentence for the crime.”
Judge Sarah Wallace was not persuaded.
She found that inmates in the state’s prisons are “compel(led) to work.” The threat of the deprivations imposed for refusing to do so is “unconstitutional coercion.”
The prohibition of “involuntary servitude” found in the state constitution “applies with Full force to the administrative extraction of Labor within CDOC.” Judge Wallace characterized the state’s effort to distinguish administrative consequences and imprisonment to be a ”distinction of form rather than substance.”
Those consequences, she said, are designed “to subdue the will of the individual.” They play,” Wallace argued, on “the unique vulnerabilities” of prison inmates.
Wallace’s decision underlines an important fact about punishment in a constitutional democracy. As Resnick puts it, “in democratic orders the acknowledgement of all members' equality must be reflected in the treatment of detained people.”
Failure to act on that premise, Resnick warns, imposes “’lasting injury’” not just on incarcerated individuals but on “the body politic” as well. A commitment to constitutional democracy demands that we work to end that injury.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
