Civil and Human Rights

BLOG: Fight to Abolish Slavery Continues in Congress and Federal Court

When most people hear that Congress is currently considering a constitutional amendment to abolish slavery in all instances, their first reaction is: didn’t the Thirteenth Amendment already do that?

The truth is, while the Thirteenth Amendment marked a momentous shift in our nation’s history, it also contains a gaping loophole: it outlaws slavery and involuntary servitude “except as punishment for crime.” That exception allows incarcerated people around the country to be forced to work for little or no pay, often in inhumane conditions, under threat of severe punishment.

Prison labor is part of a long and shameful history of exploiting this exception, predominantly at the expense of Black Americans. After the Civil War, southern states passed laws called “Black Codes” that imposed harsh criminal punishments for minor transgressions. Often, states would arrest people for violating these laws and then “lease” them out to private factories and plantations where they were forced to work for no pay under deadly conditions, sometimes literally chained together.

These practices continue today in the form of forced prison labor. Indeed, at a Louisiana prison, men are still forced to labor in the fields—even pick cotton—for as little as two cents per hour. And at the onset of the COVID-19 pandemic, New York turned to prison labor to supplement production of hand sanitizer, forcing incarcerated people to put their own health at risk to create a public health product.

These practices must end if our country is to live up to its promise of liberty and justice for all. The most enduring solution—one that would ensure that slavery is eradicated from all corners of the country—is a constitutional amendment like the one introduced by Senator Jeff Merkley (D-OR) and Representative Nikema Williams (D-GA) roughly one year ago. But while laudable efforts to pass that amendment continue, we must also fight to make real the Thirteenth Amendment’s protections as they exist today.

One place where this fight has recently come to a head is Lackawanna County, Pennsylvania, where people held in civil contempt for failure to pay child support are jailed until they pay a portion of their arrears. To be eligible for work release—the only way these individuals can pay their debts and walk free—the debtors are forced to work in abominable conditions in the Lackawanna Recycling Center, where they separate trash and recyclables on conveyor belts, frequently breaking out in skin rashes, suffering wounds from sharp pieces of glass, and vomiting from the stench.

Several men forced to labor in these conditions filed a lawsuit alleging violations of the Thirteenth Amendment. Notably, that Amendment’s clause permitting slavery as punishment for crime does not bar the suit because labor in the Recycling Center is imposed on civil contemnors—individuals who have never been convicted of any crime.

A federal trial court dismissed the suit, and the plaintiffs challenged that ruling in the Philadelphia-based Third Circuit Court of Appeals, which heard the case last week.

If that court adheres to the text and history of the Thirteenth Amendment, it will let this important suit go forward. While a chief goal of the Amendment was to bring an end to the institution of chattel slavery, its text goes further, including a bar on “involuntary servitude” that prohibits all forms of labor compelled by physical or legal coercion. Indeed, the arrangement in Lackawanna County closely resembles a system of forced labor that the Supreme Court has affirmatively held violates the Thirteenth Amendment: peonage—that is, compulsory service to secure the payment of a debt.

What the court decides in this case will speak volumes about whether courts are willing to follow the broad constitutional prohibition on slavery that currently exists. But whatever the court decides, the fight in Congress to make that prohibition even broader must continue if we want to end slavery in this country once and for all.

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