Most would assume that after the Civil War ended in 1865 and the 13th Amendment was passed that slavery was prohibited in the United States. Unfortunately, there is a loophole in the amendment that allowed a form of slavery to exist after the war that is still legal to this day.
The 13th Amendment states: “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 “involuntary servitude” caveat allowed for a form of pseudo-slavery to continue after the war during Reconstruction and beyond.
“What we see after the passage of the 13th Amendment is a couple of different things converging,” Andrea Armstrong, a law professor at Loyola University in New Orleans, told History.
“First, the 13th Amendment text allows for involuntary servitude where convicted of a crime,” she continued. At the same time, “black codes” in the south created “new types of offenses, especially attitudinal offenses—not showing proper respect, those types of things.”
This led to a prison boom in the 19th century and the practice of “convict leasing” where states would lend prisoners to plantation owners and industrialists to use for labor. This meant that countless imprisoned Blacks were forced to work for no compensation in the decades after the war.
The death toll caused by this practice was so high that after 3,500 Texas prisoners died between 1866 and 1912, the state outlawed the practice.
These days, private companies continue to benefit from free or low-wage labor provided by prisoners. According to NPR, the annual value of labor provided by prisoners is $2 billion and big companies, including Walmart, AT&T, Whole Foods, and Victoria’s Secret, profit from involuntary labor.
The State of California saves $100 million every year by using prisoners as volunteer firefighters.
The huge benefit that involuntary servitude has for major companies means amending the 13th Amendment will be a tough task. However, Democrats Senator Jeff Merkley of Oregon and Representative William Lacy Clay of Missouri have taken up the challenge.
On Wednesday, they proposed a joint resolution for the House and Senate to craft an amendment saying that “neither slavery nor involuntary servitude may be imposed as a punishment for a crime.”
“America was founded on beautiful principles of equality and justice and horrific realities of slavery and white supremacy, and if we are ever going to fully deliver on the principles we have to directly confront the realities,” said Merkley.
“The exception to the 13th Amendment’s ban on slavery corrupted criminal justice into a tool of racist control of Black Americans and other people of color, and we see that legacy every day in police encounters, courtrooms, and prisons throughout our country,” Merkley continued.
“Slavery is incompatible with justice. No slavery, no exceptions,” Merkley said.
“Our Abolition Amendment seeks to finish the job that President Lincoln started by ending the punishment clause in the 13th Amendment to eliminate the dehumanizing and discriminatory forced labor of prisoners for profit that has been used to drive the over-incarceration of African Americans since the end of the Civil War,” Clay added.
“No American should ever be subject to involuntary servitude, even if they are incarcerated,” Clay said.
Merkley and Clay have been joined by 17 co-sponsors in introducing the legislation, including Senator Bernie Sanders of Vermont.
Laura Pitter, deputy director of the U.S. program at Human Rights Watch, believes that it’s a much-needed step to finally put an end to an ugly remnant of the black-code era.
“The punishment clause in the 13th amendment is a legacy of slavery that has allowed people incarcerated, disproportionately Black and brown, to be exploited for decades. It is long past time that Congress excise this language from the US Constitution which should begin to put an end the abusive practices derived from it,” Pitter said.
For the new amendment to pass, it would have to be approved by a two-thirds majority of both the House and Senate or by a constitutional convention in which two-thirds of the state legislature vote to support the measure.
After that, three-quarters of the state conventions or legislatures must approve of the change.
