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As it turns out we’re wrong to think – as I was taught in law school – that slavery and involuntary servitude were completely abolished by the passage of the 13th amendment in 1865 in the aftermath of the Civil War. Here’s the amendment and notice the fine print:
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.
The “except as a punishment for crime” clause has real world meaning: It forces prisoners to work by threatening them with such things as loss of time earned off their sentences, caging them up to 21 hours a day in their cell, or by limiting phone calls, visitors and time for meals.
Five states sought to remedy this injustice through ballot measures that would prohibit slavery and involuntary servitude as punishment for crime. They 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 labor in vulnerable people, disproportionately Black and Brown, as punishment for crime.
The punishment has pedigree. In the Civil War’s aftermath the planter class didn’t take kindly to the loss of their “property,” their slaves, and so mounted a self-interested “legal” counter-revolution – the enactment of Black Codes throughout the South, laws designed to incarcerate Black people for petty crimes such as vagrancy, and then force them to work. Black Codes were followed by the Jim Crow laws that accomplished much the same and remained on the books until the Civil Rights Act of 1964.
And the beat goes on. A recent New York Times report reminds us that the slavery-involuntary servitude exception remains in force for reasons the Southern planter class would well recognize:
Prisoners 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.
Hence the added significance of Tuesday’s midterms where ballot 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).
Two more states legalizing cannabis may not sound like much but each one of them have been arresting over 20 000 people annually for cannabis offenses – that’s about 40 000 people a year who should now be spared the possibility of exploitive incarceration.
As one prison reformer told Bloomberg, “The 13th Amendment didn’t actually abolish slavery – what it did was make it invisible,” by sweeping it behind prison walls – along with some 40 000 people a year – also invisible – sent there for cannabis “crime.”
(The picture is a supervised prison work crew in Florida preparing sandbags for the impending arrival of Hurricane Dorian in 2019.)