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Today we celebrate Juneteenth, the day when word of the Emancipation Proclamation reached the farthest outpost in America. Many people do not realize that Emancipation did not legally end slavery in the United States, however. The 13th Amendment — the culmination of centuries of resistance by enslaved people, a lifetime of abolitionist campaigning and a bloody civil war — prohibited involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”
In the North, that so-called Exception Clause was interpreted as allowing the private contracting of forced prison labor, which was already underway, and in the ex-Confederacy it gave rise to the much more brutal system by which freed men and women were routinely arrested under false charges and then leased out to plantation owners and industrialists to work off their sentence. Some historians have described this convict leasing system as “worse than slavery,” because there was no incentive to avoid working those people to death.
Over time, courts accepted that all people who are incarcerated lose the protection against slavery or involuntary servitude. The legacy of that legal deference is a grim one. Today, a majority of the 1.2 million Americans locked up in state and federal prisons work under duress in jobs that cover the entire spectrum, from cellblock cleaning to skilled manufacturing, for wages as low as a few cents per hour or, in several states, for nothing at all. And though members of Congress denounce imported goods made with prison labor in places like China’s Xinjiang province, the offices of many government agencies in Washington and elsewhere are stocked with furniture and supplies made by prisoners in this country. In fact, federal agencies are mandated to purchase goods from federal prisons, just as state or municipal agencies, including public schools and universities, often must consider sourcing from state penitentiaries. In many states, prison-made goods are freely available on the open market and shipped overseas.
Labor that people have no meaningful right to refuse and that is enforced under conditions of total control is, unquestionably, slavery. It’s a different model from the chattel slavery over which the Civil War was fought, but by all norms of international law it is a violation of fundamental human rights.
The nation that deigns to teach the rest of the world lessons in liberty should ban this practice on its own shores rather than integrating its products into the economy. For those who want to work while serving their sentence, we should guarantee fair pay for their labor.
The prisoner rights movement of the late 1960s and early ’70s called for raising prisoners’ hourly pay. One of the top demands during the 1971 Attica uprising was to “apply the New York State minimum wage law to all state institutions.” More radical Black nationalists saw the nation’s overcrowded penitentiaries as akin to modern slave ships and argued that even if they were to offer prevailing wages, collective bargaining and workplace protections, they would still be instruments of racial capture and control.
More recently, some prison abolitionists — encouraged by the widespread influence of Michelle Alexander’s book “The New Jim Crow” and Ava DuVernay’s documentary “The 13th” and coordinated through the Abolish Slavery National Network — have focused on getting the Exception Clause repealed through state and federal amendments. Beginning in 2016, campaigns in seven states — Colorado, Utah, Nebraska, Vermont, Oregon, Tennessee and Alabama — succeeded in passing amendments that banned slavery without exception, not even for forced prison labor. Amendment initiatives are currently underway in as many as 20 states and also at the federal level, where a joint bill was introduced in Congress in 2020 and at every session since. These measures only outlaw forced labor. They do not stipulate that prison labor has to be paid at the prevailing wage, and so, in states such as Colorado and Alabama, incarcerated people have had to go to court to sue for higher pay. In New York, advocates have sought an additional bill that guarantees the minimum wage and the right to organize.
Resistance to the amendments has been surprisingly strong. In some cases, the opposition is from “law and order” legislators who say these measures would coddle criminals. But the overriding concern is cost. This objection became more prevalent after lawmakers punted on the California Abolition Act (which included no wage provisions) in response to a Department of Finance estimate that the cost of paying minimum wage would be $1.5 billion. Ever since then, legislators in other states have been on notice. If the amendments result in substantial wage increases, how much will their states be burdened?
That kind of question is in a direct line of descent from the complaints of slave owners about the prospect of having to compensate workers for picking their cotton and sugar cane. Then as now, there is a price to be paid for abolishing slavery, but the benefits of paying a fair wage far outweigh the fiscal costs.
We have interviewed many formerly incarcerated men and women who spoke about the difference it would have made in their lives to earn surplus income that is not swallowed up by the purchase of necessities from the prison commissary store; of being able to spare their debt-burdened families from having to support them; of saving enough money to re-enter society on a stable footing; of contributing, through a standard wage arrangement, toward future benefits such as Medicare, Social Security or unemployment insurance; and of freeing themselves from the need to participate in the risky trade in contraband goods that is a direct byproduct of ultralow pay.
For its part, the state would save on the welfare services related to health care, housing and unemployment that are currently expended on people exiting prison with empty pockets. And it would be a boost to public safety because there would be less economic need for people to resort, on re-entry, to illegal activities to support themselves. According to one estimate, paying incarcerated people a minimum wage would produce a net national benefit of up to $20.3 billion per year.
But dwelling on the cold numbers alone does not account for the moral cost of prolonging this nation’s historical tolerance of coerced labor. The basic human dignity that comes from being protected from slavery can be attained only when everyone is free to refuse work assignments, especially when they are unsafe and ill paid. More than 160 years after Lincoln’s proclamation, it is high time to take care of the unfinished business of Emancipation.
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