Election Watch: Cannabis legalization is on the ballot in five states – and so is slavery

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Ten years ago, Washington and Colorado were the first states to legalize cannabis for recreational use when voters approved ballot measures in 2012. Since then, 19 states and the District of Columbia have followed suit. Should just two of the current measures pass then around half of all Americans will live in a recreational use state (all five permit medical use).

Interestingly, four of the five states on the ballot – N & S Dakota, Arkansas and Missouri – are traditionally conservative; they each have two Republican senators and either complete or majority GOP representation in the House. And given that the movement for federal legalization appears to be at a standstill, state level reform “could significantly change the calculus for their federal representatives as to how to approach cannabis at the national level,” says the former director of NORML.

Related to the cannabis proposals is another citizen-led initiative on the ballot in five states that should have received more attention: a measure to prevent people – those in custody – from being “forced to perform slave labor or involuntary servitude.”

The 13th Amendment to the US Constitution, ratified in 1865 in the aftermath of the Civil War, outlawed slavery in general, but has never applied to people in jail or prison. It reads as follows (my emphasis):

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

There are still some 40 000 people in custody in the US for cannabis offenses. As the New York Times reports, the anti-slavery initiative on the ballot in Alabama, Louisiana, Oregon, Tennessee and Vermont, would allow these people – disproportionately people of color –  to challenge the practice of being forced into labor for little or no pay. Here’s the Times describing their prison working conditions:

Mr. Davis, who was imprisoned in Louisiana . . . said that he and other prisoners spent long, hot days doing farm work, sometimes without enough access to water. He said he grew so frustrated with being forced to do the job for 2 cents an hour that he intentionally dropped a 25-pound dumbbell on his foot so that he would not have to work. Instead, he said, he was sent to solitary confinement as punishment.

The Times also tells us, citing an ACLU report, that the slavery/involuntary servitude exception remains in force because of its economic incentive:

[P]risoners produced more than $2 billion in goods annually and provided more than $9 billion worth of services while being paid an average of 13 to 52 cents per hour.

According to the Yale law school professor who wrote the report, this exploitation operates on a massive scale: “This is an entire industry of workers that are really maintaining part of our government, part of our state.

In other words, the ballot initiatives to legalize cannabis would do more than simply permit people to use cannabis; if passed, they’d also prevent people from being exposed to one of the remnants of America’s Original Sin. As Sharon Dolovich, who runs the Prison Law and Policy Program at the UCLA Law School, told the Times:

The 13th Amendment, as it’s currently written, and the state’s analogues to the amendment, form a backdrop that infuses the legal regime governing incarcerated people. It forms the moral atmosphere around which we treat incarcerated workers.

POST-ELECTION UPDATE:

The measures legalizing cannabis passed in Maryland and Missouri though not in Arkansas and the Dakotas. But with two more states on board it brings the number of fully legal states to 21, plus the District of Columbia, which represents almost half (48%) of the American public (a further 18 states – 39 in total – have previously legalized medical cannabis).

The measures prohibiting slavery and involuntary servitude as punishment for crime passed in Alabama, Tennessee, Vermont and Oregon, but not in Louisiana – the state with the high incarceration rate and one of the few that still permit hard labor.

These four states now join Utah, Colorado, Nebraska (all since 2018) and Rhode Island (1842) as the only ones that ban the forced exploitation of custodial labor as punishment for crime – just 42 more to go.

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