West later clarified, indicating that he meant the amendment should be amended, not abolished. “The 13th Amendment is slavery in disguise,” he tweeted, “meaning it never ended . . . We are the solution that heals.” Later, during a meeting with the president, West referred to “that trap door called the 13th Amendment.” West seems to have been referring to the amendment’s “exception clause,” the part that allows slavery and involuntary servitude to continue “as a punishment for crime whereof the party shall have been duly convicted.” If that is the case, West may have had something of a point.
When Congress debated the amendment, anti-slavery Republican Senator Charles Sumner of Massachusetts spoke out forcefully against allowing slavery to continue in the penal system, urging the Senate Judiciary Committee to remove that language. During floor debates in 1864, Sumner noted that the exact language of the 13th Amendment can be traced to the Northwest Ordinance of 1787, which outlawed slavery in the Northwest Territory—except as a punishment for a crime, at a time when there were no prisons. Why adopt last century’s code of human decency, he asked. He said that in 1787 “it was the habit in certain parts of the country … to doom [people] as slaves for life as a punishment for crime” but in this context, the words “do no good.” [Meagan Flynn / Washington Post]
“Sumner got his told-you-so moment in the years after the amendment’s passage,” writes Meagan Flynn, citing professor Dennis R. Childs, “when states started using the 13th Amendment to re-enslave people convicted of crimes for a term of years, selling them at auction to the highest bidder.” In the Southern states, “tens of thousands of people, overwhelmingly black, were leased by the state to plantation owners, privately owned railroad yards, coal mines and road-building chain gangs and made to work under the whip from dusk till dawn—often as punishment for petty crimes such as vagrancy or theft.” The Oscar-nominated documentary “13th” analyzed the connection between the amendment and the prison-industrial complex. “The 13th Amendment’s exception clause allowed the convict-leasing system to flourish and grow, and it became the dominant form of imprisonment throughout the South,” said professor Robert Perkinson. “[I]t served as a blueprint for the harsh, retributionist imprisonment that became, tragically, the dominant form of American incarceration.” [Meagan Flynn / Washington Post]
Over the summer, prisoners across the country undertook a three-week prison strike, engaging in boycotts, hunger strikes, work strikes and sit-ins. The strikers’ second demand, after improvements to conditions, was “An immediate end to prison slavery,” which was defined as prisoners being paid “the prevailing wage in their state or territory for their labor.” [Incarcerated Workers Organizing Committee]
Every day, more than 800,000 prisoners are put to work, doing cleaning, cooking and lawn mowing. In some states, they are forced to work, and the pay can be as low as 4 cents an hour. The exception clause in the 13th Amendment has been used to defend these practices. [Ed Pilkington / The Guardian]
In 2016, Colorado voters had a chance to remove similar language from their state constitution, but they rejected the ballot measure. A bill with similar goals failed the same year in Wisconsin and stalled in Tennessee. Many took the Colorado vote as a message that slavery is still acceptable. Others “believe it failed not because a majority of Colorado voters approve of slavery, but because of a poorly written and confusing question that voters were asked to decide through a “yes” or “no” vote,” reports the Washington Post. When people don’t understand a ballot measure, they tend to vote “no.” The state voter guide included arguments against the measure, but there was no organized opposition. [Kristine Phillips / Washington Post]
But Coloradans are getting a second chance this November. “The language [on the 2016 measure] was extremely confusing,” says Kamau Allen of Abolish Slavery Colorado. “This time we wanted to make it absolutely clear that a ‘yes’ vote was a vote to abolish the exception.” The vote would not change the state’s prison labor programs because corrections facilities pay inmates for their work, albeit less than minimum wage. But proponents say the change is necessary. Jumoke Emery from Abolish Slavery said this change was akin to taking down Confederate monuments: “Bringing down these monuments of our past … is incredibly important to moving forward and healing racial divides.” [Candice Norwood / Governing]
The 2018 measure has received bipartisan support from lawmakers, and Abolish Slavery Colorado has not seen any organized opposition. Richard Collins, a constitutional law professor with the University of Colorado, Boulder, says there would be no immediate legal change, but it could empower some prisoners to take legal action: “I don’t doubt that if it were to pass, some prisoners would invoke the change to try to challenge some conditions in prisons,” he said. “What the courts do with that is then another question.” [Candice Norwood / Governing]