COMMENT – A Push to Ban U.S. Involuntary Servitude Under the 13th Amendment
Posted under: Olivia de Paschalis, Loyola Marymount University – Los Angeles, California
COMMENT – A Push to Ban U.S. Involuntary Servitude Under the 13th Amendment
The 13th Amendment to the U.S. Constitution banned slavery, yet thousands of prisoners in the United States are forced into involuntary servitude because its “Punishment Clause” allows forced labor to be used as criminal punishment. This practice is rooted in racial prejudice and violates human rights protections against involuntary servitude and discrimination. It is necessary to change the language of the 13th Amendment, using the “Abolition Amendment” to permanently end involuntary servitude in the U.S.
The 13th Amendment to the U.S. Constitution is credited with banning slavery and similar forms of bondage in the United States, yet it contains a stipulation that allows involuntary servitude to be used as a form of criminal punishment. This so-called “Punishment Clause” creates a legal loophole enabling thousands of prisoners to be forced to work within the U.S. prison system, continuing the country’s legacy of slavery due to its racially discriminatory application and its violation of fundamental human rights. Not only does this practice violate the principles of freedom and liberty that many Americans consider central to national identity, but it also infringes on human rights such as freedom from discrimination, freedom from slavery, and the right to free choice of employment and desirable work (United Nations, 1948, Articles 2, 4, 23).
This essay proceeds in four sections: First, it outlines the history of slavery in the U.S. and highlights how this practice connects to present-day forced labor practices made possible by the 13th Amendment’s “Punishment Clause.” Second, it presents theoretical arguments in defense of forced labor as punishment and disputes these assertions. Third, it provides a rationale for banning involuntary servitude, partly by connecting this issue with earlier national debates about the War on Drugs that contributed to this problem. Lastly, this essay recommends changes to permanently end the use of forced labor as punishment in the United States, urging support for an “Abolition Amendment” that rectifies the shortcomings associated with the 13th Amendment.
A History of Involuntary Servitude in the United States
The United States’ legacy of involuntary servitude began with its historical reliance on slavery, which predates the country’s establishment and later violated U.S. ideals proclaimed following its Revolutionary War. While Northern U.S. states generally pursued abolition, slavery became deeply entrenched in the Southern economy and society, especially in relation to its agricultural industries. Tensions between the North and South over slavery led to the U.S. Civil War (1861-1863), and Northern victory resulted in the passage of the 13th Amendment (Gudmestad, 2023).
Ratified in 1865, the 13th Amendment formally abolished slavery and involuntary servitude – but it contained a contingency allowing for involuntary servitude to be used as punishment for a crime. Section 1 of the Amendment reads: “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” (Library of Congress, n.d.). This “Punishment Clause” was supported by most white Americans at the time, who were inclined to preserve penal slavery for personal gain and maintain normalized racial inequities (Goodwin, 2019; see also Alexander, 2010). So-called “Black Codes” and Jim Crow laws, both aimed at discriminating against Black Americans, also marked the late nineteenth and early-to-mid-twentieth century. Such strict restrictions punished Black people for petty crimes, causing them to be imprisoned and forced to work under the 13th Amendment’s loophole (Hoffer, 2022). Starting in the 1970s, the U.S. “War on Drugs” campaign and its focus on punishing Black communities for illicit drug use led to the emergence of mass incarceration, which disproportionately affected Black American men (Fernandez, 2022).
Involuntary servitude means permitting the laboring of an individual against their will, for the benefit of another person or entity (Cornell Legal Information Institute, 2023). In these instances, an individual may face punishment if they refuse to engage in such work. In the United States, imprisoned individuals are coerced into labor in conditions synonymous to involuntary servitude; more than 76% of incarcerated workers report they are forced to work under the threat of additional punishment (American Civil Liberties Union, 2022). Given that such involuntary servitude is permitted under the 13th Amendment’s “Punishment Clause,” forced prison labor remains constitutionally protected. It has evolved into a multi-billion-dollar industry that profits more than 4,100 private corporations who utilize such involuntary servitude (Corporate Accountability Lab, 2020). Prison work is a method of production throughout corporate America, used by a wide range of industries from agriculture to clothing (Corporate Accountability Lab, 2020). Incarcerated workers undertake laborious tasks such as making military equipment, working in call centers, or doing 3D printing work (NPR, 2020). Prisoners have no control over which occupation they are assigned to, negating any freedom of choice as laborers.
Arguments in Defense of Involuntary Servitude
Support for the 13th Amendment’s “Punishment Clause” is based on several lines of reasoning. Some are based on perceptions that do not reflect political (or human rights) reality. Some argue, for instance, that forced labor promotes rehabilitation or serves as a justified means of punishment. Other logic centers on preventing recidivism (that is, offenders committing new crimes and returning to prison after their initial release) and increasing financial gain. What these arguments all lack is empathy and respect for universal, inalienable human rights – which posit that everyone, including convicted criminals, have the same fundamental rights (Donnelly & Whelan, 2020).
Among the popular justifications for involuntary servitude is the so-called “Eye for an Eye” argument. This argument maintains that prisoners lack certain human rights because they committed crimes and therefore deserve forced labor. The view was reflected in a 1996 U.S. Second Circuit Court decision in Danneskjold v. Hausrath, where the Court declared that involuntary servitude can be seen as a “method for seeing that prisoners bear the cost of their incarceration” (United States Court of Appeals, Second Circuit, 1996). Politicians such as Democratic Senator Steve Glazer of California agree; Glazer argues that individuals give up certain liberties when they commit serious crimes, justifying prison labor (quoted in Lyons, 2022). These views represent the “Eye for an Eye” argument because they focus on reciprocal justice, with forced labor being a form of payment for crimes committed.
Another common claim is that forced labor is beneficial for rehabilitation and skills development. This argument is based on the idea that prisoners reap a variety of benefits, such as important experience and skills, thereby making involuntary servitude a tool of rehabilitation. This idea was also referenced in Danneskjold v. Hausrath, with the Court stating that forced labor “trains prisoners in discipline and skills of work” (United States Court of Appeals, Second Circuit, 1996). Policymakers often argue that this work prepares prisoners for life outside of incarceration (Lyons, 2022). Essentially, this argument maintains that the problems associated with involuntary servitude are offset by the benefits it produces. Some advocates of forced labor argue it can reduce recidivism rates and improve job skills. There is some evidence to support this argument, such as a study that found prisoners who worked during their time in prison had more employment prospects after release and experienced lower rates of recidivism – although this study was based on a program that was markedly different from traditional prison labor initiatives, and which centered more squarely on creating benefits for prisoners (Duwe, 2015). However, it is important to note that the benefits for forced labor are frequently attributed by external agents, rather than the people experiencing forced labor, and fail to account for issues such as poor working conditions and lack of equal protection.
A related argument stems from “Opportunity Theory,” an idea within the field of criminology which holds that offenders commit crimes based on the possibilities available to do so. Therefore, if forced labor is mandated as a form of punishment, it would reduce the amount of free time prisoners have and thus reduce moments of criminal opportunity (Osgood et al., 1996). One study found that spending more hours doing structured activities was negatively associated with instances of violent misconduct among inmates (Woolredge, 1998). This idea was also referenced in the Danneskjold v. Hausrath decision, with the Court stating that forced labor was an “occupation of a prisoner’s time that would otherwise be filled with mischief” (United States Court of Appeals, Second Circuit, 1996). Yet it is important to note that such research data is complex; the same study that found a negative association between forced labor and violent misconduct also found that involvement in structured activities was correlated with a higher likelihood of theft (Woolredge, 1998). The assertion that crime is less likely to occur simply because a prisoner fills their time is a seemingly flawed one.
Lastly, there is a financial argument in favor of involuntary servitude. This argument holds that the “Punishment Clause” of the 13th Amendment should be maintained because it would be too costly to eliminate it. Paying voluntary laborers a fair wage for the same work would negatively impact various industries and the profitability of the U.S. prison system. The California Department of Finance estimates it would cost $1.5 billion to pay prisoners minimum wage in California alone (Lyons, 2022). Ian Urbina (2007) discusses the American profitability of private prisons and the hundreds of corporations he calls “prisoner profiteers,” which benefit from involuntary servitude – including the U.S. government itself. During World War II, prison factories produced more than $75 million worth of war materials, and in 2002 alone they produced $30 million worth of wires for communication systems (Urbina, 2007). Many corporations reap the benefits of forced labor by paying prisoners little or no wages, building wealth for U.S. businesses and generating lower-priced goods for American consumers.
Arguments for Banning Involuntary Servitude
Opponents of involuntary servitude urge the modification of the 13th Amendment to exclude the “Punishment Clause.” These pushes for change are rooted in a variety of arguments, including those related to discrimination, morality, and human rights protections. First and foremost, it is necessary to acknowledge that forced labor in prisons is inherently inequitable. There are a multitude of factors which severely increase an individual’s chance of being imprisoned and subjected to forced labor, including poverty, mental illness, illiteracy, and drug abuse (Coates, 2015). Each of these circumstances is associated with systemic shortcomings. One study found that roughly half of the individuals in U.S. prison facilities suffer from a mental illness (Kim et al., 2015). It is unjust that factors outside of one’s control, which are often exacerbated by structural failings (such as inadequacies in U.S. educational and health care systems), may render one more at risk for being incarcerated subject to involuntary servitude.
Furthermore, many scholars have connected the “Punishment Clause” to the ongoing repression and exploitation of Black Americans (see Alexander, 2010). Indeed, some argue that an overwhelming desire from the white majority to sustain the personal benefits of slavery helps explain the current state of the 13th Amendment and assert that true freedom cannot be accomplished without its revision (Goodwin, 2019). The racialization of mass incarceration continues a legacy of discrimination against Black Americans, building from a history of Jim Crow segregation laws and disproportionately targeting Black Americans for minor crimes, funneling them into prisons (Hoffer, 2022). Such criminal justice practices aimed to continue a cycle of enslavement by finding new ways to engage in involuntary servitude, even after the end of legal slavery in the U.S. After Jim Crow and other problematic laws were repealed with the Civil Rights Movement, the “War on Drugs” commenced in the 1970s and again disproportionately targeted Black Americans (Fernandez, 2022). The imprisonment and forced labor of Black men for these drug crimes is reflected in recent statistics; while Black individuals make up around only 13% of the entire U.S. population, their incarceration rate is upwards of 38% (Prison Policy Initiative, n.d.).
Many argue that involuntary servitude is immoral because it denies human dignity and violates fundamental human rights. One of these crucial liberties is the right to voluntary and desirable work, including entitlement to a minimum wage. The American Civil Liberties Union (ACLU) (2022) reports that incarcerated workers earn 13 to 52 cents per hour, and that the U.S. government takes 80% of these earnings for fees. However, forced prison laborers produce $2 billion of goods and $9 billion worth of prison maintenance services (American Civil Liberties Union, 2022). There is clearly an ability to pay these individuals a fair wage, just no incentive to do so because the “Punishment Clause” permits involuntary servitude. These workers are treated as “less than” full citizens (and humans) because they cannot enjoy the same rights as “free” individuals. Indeed, these workers are essentially uncompensated and unprotected by labor laws, such as the U.S. Fair Labor Standards Act (FLSA), which outlines a minimum wage and provisions for overtime pay (U.S. Department of Labor, n.d.). This leaves prison laborers subject to substandard working environments, being unable to organize, and excluded from exercising other rights that free workers are entitled to (Armstrong, 2021).
Proposed Solutions
To remedy the human rights problems outlined in this essay, it is necessary to change the language of the 13th Amendment and ban legal involuntary servitude in the U.S. A proposed “Abolition Amendment” has already been drafted with this aim and was introduced as a joint resolution before the Senate Judiciary Committee in 2021 (Spencer, 2022). It reads that “neither slavery nor indentured servitude may be imposed as a punishment for crime” (United States Congress, 2022). This would effectively eliminate the “Punishment Clause” loophole. However, changes to the U.S. Constitution require a two-thirds vote by the House and Senate, and three-fourths of all state legislatures would need to ratify. While this federal change would be difficult to achieve, fortunately some U.S. states (including Tennessee, Oregon, Alabama, Louisiana, and Vermont) have begun amending their own state constitutions to ban involuntary servitude in their jurisdiction. These efforts include ballot initiatives, which would require voter approval (Spencer, 2022).
Because the power to end involuntary servitude lies in voters’ hands, it is necessary to build political will for changing the 13th Amendment. Activists rallying for change must spread the word and awareness, educating others about the human rights consequences of the “Punishment Clause,” which in turn can lead to putting public pressure on government officials, including lawmakers (American Civil Liberties Union, 2022). Societal pressure can act as a catalyst for constitutional reform, with statewide initiatives potentially leading to federal change in the future. The “Abolition Amendment” solution is feasible, but it requires public support and political will to be enacted by the U.S. Congress. Once involuntary servitude is banned, harmful practices can be justifiably eliminated and labor rights extended to imprisoned individuals. This includes laws identifying prisoners as employees and guaranteeing them the same workplace protections as other workers, such as mandating a fair minimum wage, health and safety standards, the right to unionize, and anti-discrimination protections (American Civil Liberties Union, 2022).
While the common perception is that slavery has been long banned in the United States, the issue of involuntary servitude in prisons shows this is not entirely the case. Thousands of imprisoned individuals are obliged to undertake forced labor that closely resembles indentured servitude to the state. The U.S. Constitution permits these human rights abuses by allowing forced labor as punishment under the 13th Amendment, directly contradicting the norms of equality, freedom, and liberty. Research shows that discrimination and inequality underpin forced labor practices and the U.S. prison system more broadly, disproportionately affecting minorities such as Black men. To uphold basic human rights standards, it is necessary to change the language of the 13th Amendment to ban involuntary servitude once and for all.
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