The War Over the 13th Amendment and Modern Day Slavery – Washington Monthly

A guard watches a prisoner do field work at Cummins Prison Farm, Lincoln County, Arkansas, 1971 (Eugene Richards).

In the late 1960s, a group of Arkansas prison inmates sued the state Commissioner of Corrections over conditions in what was then called the Cummins Farm, a 16,500-acre Old South-style plantation staffed by gangs of prisoners. Among their claims was one that life on the Farm was slavery, and thus a violation of the 13th Amendment, which prohibits slavery or involuntary servitude, except as a punishment for crime.

In a 1970 opinion, Federal District Judge J. Smith Henley summarized the evidence before him. The inmates at the Farm worked ten hours a day, six days a week. (The guards and trustees had until 1967 forced this labor by beating the inmates with a four-foot leather strap; a court order blocked the strappings in 1967, however, and now inmates were free to refuse to workand be punished by solitary confinement.) Inmates worked on labor-intensive Southern crops cotton, soybeans, and rice, among othersand raised chickens, pigs, and cattle. Work in the fields went on rain or shinein summer no matter how hot it got, in winter on any day above freezing. The prisoners were not issued rainwear or cold-weather jackets. Some were required to work without shoes.

The prison farm operation generated well over $1 million a year for the state. The inmates received no pay. If they needed money, prison authorities explained, they could make $5 a week as blood donors.

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Nonetheless, Smith wrote, there was no violation of the 13th Amendment. Life at Cummins wasnt slavery, because [t]he State does not claim to own the bodies of its prisoners. Work on the Farm was servitude, to be sure, he wrote, and there is no doubt whatever that the servitude is involuntary. But it is equally clear that this servitude has been imposed as punishment for crimes whereof the inmates have been duly convicted. The framers of the Amendment must have been aware of generally accepted convict labor policies and practices, and the Court is persuaded that the Amendments exception manifested a Congressional intent not to reach such policies and practices.

Clinching the states case was expert testimony from a former director of the federal Bureau of Prisons. Prison labor, the expert testified, is as old as American penology. One of the best depictions of this traditional Southern practice, the judge noted, is to be found in Margaret Mitchells Civil War novel, Gone With The Wind.

Henley was not a bull-necked Southern judge consigning prisoners to their fate. After dealing with the slavery issue; he actually found that conditions at the Farm (and indeed in the entire Arkansas prison system) violated a different constitutional provision, the Eighth Amendments prohibition on cruel and unusual punishment:

It is one thing for the State not to pay a convict for his labor; it is something else to subject him to a situation in which he has to sell his blood to obtain money to pay for his own safety, or for adequate food, or for access to needed medical attention. However constitutionally tolerable the Arkansas system may have been in former years; it simply will not do today as the Twentieth Century goes into his eighth decade.

From a practical lawyers point of view, it probably didnt make much difference to the outcome that the court cited one amendment rather than anothercruel and unusual punishment rather than slavery or involuntary servitude.

Half a century later, Cummins is still a hellhole, despite persistent attempts to reform it. In a long article last year, Rachel Aviv of The New Yorker described the feeble and sadistic response of staff at the facility to the onset of the COVID crisis. Inmates told of being jammed into barracks with no social distancing, being falsely told they were negative so they could go on working, and, in some cases, being shunted into solitary confinementto live or diewhen they became too sick to work. As of April 2020 (when cases peaked), 670 inmates had tested positive (the prison holds up to 1725). On one day, April 21, 2020, the entire state reported a total of 304 new cases of COVID. Of those 304, fully 262 were at the Cummins Unit.

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Is it possible that this treatment of human beings is not slavery because [t]he State does not claim to own the bodies of its prisoners? That the brutal involuntary servitude at Cummins is constitutional because it matches something in Gone With the Wind? That, in other words, the Thirteenth Amendmentwhich Americans revere as a shining moment of American freedompermits forced labor without pay, in dangerous and inhumane conditions? What is most infuriating about Judge Henleys opinion is that, as a matter of law, it was probably right.

When the Thirteenth Amendment was proposed in 1864, Abraham Lincoln portrayed it as a Kings cure for all the evils [of slavery]. It winds the whole thing up. But did it? Cool heads in the slave states did not agree. Seven months after Lincolns deathdays before the Amendment in fact was actually even ratifiedChicago Tribune correspondent Sydney Andrews reported a trip to Savannah, where he met a politically connected Georgia lawyer. He warned Andrews of what was to come: [T]here ll be private talk this session, even if there isnt open effort, to make the penal code take [Black Southerners] back into the condition of slavery. Itll be called involuntary servitude for the punishment of crime, but it wont differ much from slavery.

So it provedand, some argue, so it proves today. Soon after ratification, the all-white legislatures of the South enacted statutes that required Black Southerners to work for white planters under punitive year-long contracts; leaving a contracted job was a crime, and the offenders were to be jailed and then leased out as hired labor to other whites. An apprenticeship program even covered school-age children, who in some states could be sold back to their former owners. As the demand for cheap labor increased (and federal protection of civil rights faded), the use of vagrancy or other mock offenses became a system of convict leasing, by which Black Southerners convicted of crime could be leased like property to Southern planters. Michele Goodwin, a law professor at the University of California at Irvine, recounted this history in a 2019 article, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration. These various types of slaveries transformed from one to another and back again, she wrote. Debt peonage morphed into convict labor, convict labor turned into convict leasing, and these transformed to chain gangs.

Prisoners built and repaired roads, laid railroad tracks, toiled in coal mines, and tended brutal state-run prisoner-run plantationsnotorious hell-holes like Angola in Louisiana (1901), Parchman in Mississippi (1901), and Cummins Farm (1902).

As it had been in the old South, the unfree labor of Black people became, after the end of Reconstruction, crucial to the Southern economy. Goodwin noted that the practice of leasing convicts became so corrupt that it embarrassed even the Jim Crow governments of some Southern states. Alabama was never known for being progressive, she said in an interview, but even the Alabama legislature had to investigate wardens who were just collecting men and women and boys and shoving them down coal mines.

Goodwin, and others who have studied the issue, link the punishment clause of the Thirteenth Amendment to the growth of prison labor and the rise of mass incarceration and private, for-profit prisons. In the era of mass incarceration, convict labor has gone national without losing its racial character. The modern masks of slavery: mass incarceration, pay to play probation, modern chain gangs, and the exploitation of cheap labor emerge along the color line just as Antebellum slavery was anchored in the same, she wrote.

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Today, prison labor abounds in both state and federal prisons. The federal Bureau of Prisons maintains its own for-profit corporation, UNICOR, or Federal Prison Industries. In a report last November, UNICOR said that it has agricultural, industrial and service operations at 63 factories and 2 farms located at 52 prison facilities that employed 9,452 and 10,998 inmates as of September 30, 2020 and 2019, respectively. In fiscal 2020, the company lost $473 million and recorded a loss of $2.9 million, largely because of the pandemic. In 2019, revenues were $ 466,747,000, with net income of nearly $21 million.

Many states also maintain extensive systems of inmate labor, and some systems contract with private companies to produce goods to be sold to the public. In some systems, inmates staff private call centers handling sales or complaints. Some state prisoners, even today, receive no pay for their work; many others are paid well below the market rate for their jobs. California state prisoners who battle the hellish wildfires of the past several years are paid, depending on skill level, between $3 and $5 an hourplus good time credits to reduce their sentences. They are trained as firefightersbut this training was, until recently, worthless to them upon release, as they were not eligible for civilian firefighter jobs. (A state law passed last year now permits released inmates to petition courts to lift this restriction.)

Prisoners staff the state capitols and governors mansions in a number of state capitals. As First Lady of Arkansas, Hillary Clinton recalled managing a household staff on loan from state prisons: we had far fewer disciplinary problems with inmates who were in for murder than with those who had committed property crimes.

For-profit prison companies have also been found to be extorting labor from individuals detained for immigration violationswho have, thus, not been convicted of any crime and thus may not lawfully be subjected to involuntary servitude.

How did we get here? Why does the text of an amendment aimed at freedom include words allowing slavery as a punishment? This language, it turns out, was first written by Thomas Jefferson. In 1784, Jefferson drafted a land ordinance for disposal and management of the Western lands that were being ceded by the original states to the new national government. As historian Eric Foner notes in his bookThe Second Founding: How the Civil War and Reconstruction Remade the Constitution, as a devotee of Enlightenment prison reform, Jefferson felt that labor was good for the character.

His draft Land Ordinance provision read: [A]fter the year 1800 of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said States [formed from the Western Lands], otherwise than in punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty. The final Northwest Ordinance flowing from this draft kept the punishment language. It eliminated Jeffersons 16-year extension of slaverybut added a provision that required slaves escaping from the original states to be lawfully reclaimed by their masters.

By the 1860s, this language had acquired a patina of reverence among politicians and intellectuals. That reverence came to the fore during the last months of the Civil War when it came time to write an amendment ending slavery. Sen. Charles Sumner, the most radical abolitionist member of the Senate, in 1864 offered an amendment providing that, everywhere in U.S. territory, all persons are equal before the law, so that no person can hold another as a slave.

Brown University historian Michael Vorenberg writes in Final Freedom: The Civil War, the Thirteenth Amendment, and the Abolition of Slavery that Lincoln and his congressional allies knew the Amendment would not pass without the votes of War Democrats, who had stayed loyal to the Union but were less than enthusiastic about emancipating slaves, much less equality before the law. Some of these conservatives saw Sumners language as a potential threat to the status of husbands as masters of their wives and children.

Opponents attacked Sumners draft because it drew on the wording of the French Declaration of the Rights of Man and the Citizen. Sen. Jacob Howard said he preferred the good old Anglo-Saxon language employed by our fathers. The punishment clause was included without much further debate. The textual result is that slavery is prohibitedbut also that, for the first time, it is recognized by name in the text of the Constitution, and apparently (depending on how you read the sentence) is actually permitted for some Americans duly convicted of crime. (This being why Judge Henleys opinion might be correct.) And it is pungently ironic that the kings cure for slavery retains words first written by an American Founder who wrote that all men are created equal, but who was also, as historian Paul Finkelman notes, a creepy, brutal hypocrite in his treatment of his roughly 200 slaves.

With the 21st centurys new movement against mass incarceration has arisen a desire to cleanse the Constitution of this affirmation of slavery. In December 2020, as the 116th Congress dragged to its contentious and violent end, Sen. Jeff Merkley of Oregon, joined by Sens. Ed Markey (D-MA), Bernie Sanders (I-VT), and Chris Van Hollen (D-MD), along with Rep. William Lacy Clay (D-MO) introduced a joint resolution proposing a 28th constitutional amendment: Neither slavery nor involuntary servitude may be imposed as a punishment for a crime. The proposal was backed by a coalition of criminal justice and reform groups, including the Constitutional Accountability Center, Human Rights Watch, Amnesty International, and Color of Change. A statement issued by Merkleys office said that [t]his amendment would close this loophole that has been used for a century and a half to perpetuate mass incarceration and allow others to profit from the forced labor of their fellow Americans, disproportionately Black Americans and people of color.

In an email, Merkley said that [l]ike a lot of people, I never really thought about that one except clause in the 13thAmendment until I saw Ava DuVernays incredible documentary, 13th, which documents the post-Civil War history of prison labor and mass incarceration as an outgrowth of the antebellum slave system. He later consulted with Goodwin, the UCI law professor, in formulating a proposed constitutional amendment.

[Americas Twentieth-Century Slavery]

The aim of the amendment, proponents say, is not to prevent prisoners from working. Work, and work experience, are clearly valuable in prisonboth as preparation for re-entry and as a means of staying sane while still inside. Instead, they say, work programs would have to be voluntaryand would have to pay genuine market wages.

Historians differ about how much harm the punishment clause has caused. Michael Vorenberg, author of Final Freedom, told me in an email that the state of racial mass incarceration todaya genuinely serious and systemic problemdoes NOT have its origins in the exceptional clause of the Thirteenth Amendment.

In 2016, Patrick Rael, a historian at Bowdoin College, wrote in the Black Perspectives history blog that the punishment clause was not an important source of the Jim Crow labor system: To justify their oppression, white supremacists usedmuch more powerfulandovert legal devicesthan slippery language in the Thirteenth Amendment.Jim Crow and mass incarcerationwouldve happened with or without the exception clause. In an impassioned reply in the same blog, Dennis R. Childs, a literature professor at the University of California at San Diego and the author of Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary, responded, white supremacist law refabricated slavery in both old and updated forms using the exception clause as legal cover. The fact is that a major catalyst of southern industrialization after the Civil War was a product of neo-slave labor in the form of convict leasing, chain gangs, and prison plantations.

Its hard to imagine that changing the punishment clause by itself would put an end to the open scandal of prison labor. (Remember Judge Smith, who didnt see the big deal, slavery-wise, about Cummins.) But Merkley wrote that having this conversation at the national level can help encourage states to remove similar provisions from their state constitutionsas we are already seeing with red and blue states across the nation. A nationwide advocacy group, the Abolish Slavery National Network, reports that, as of today, 19 states have punishment language in their constitutionsbut that since 2018, Colorado and Utah have both removed punishment clauses from theirs. A similar change is pending in New Jersey.

Goodwin also offers slavery abolition as an issue that might bring left and right together even in 2021: If there is any issue where there should be immediate bipartisan support it should be doing away with slavery in the U.S. Constitution, she said. And the change in wording itself would be a good thing: This is a nation that is heavily invested in its symbols. Symbolically we should not want to be linked with slavery.

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The War Over the 13th Amendment and Modern Day Slavery - Washington Monthly