Update: Four states — Alabama, Tennessee, Oregon and Vermont — voted Nov. 8 to amend their constitution to close the “slavery loophole,” an exception clause that legalized the treatment of convicted individuals like slaves. Polling showed the measure failed in Louisiana, but the results were expected by voting rights activists, who were concerned that the wording of the ballot question would cause confusion.

Slavery is on the November ballot in five states whose constitutions allow for the forced labor of people convicted of a crime, a nearly 160-year-old legacy of the post-Civil War era.

In Alabama, Louisiana, Oregon, Tennessee, and Vermont, voters will decide next month whether to close the “slavery loophole” in their state constitutions. While the U.S. Constitution’s 13th Amendment is widely credited with ending slavery in 1865, the wording outlawed the practice “except as a punishment for crime.” Rhode Island is the only state that never adopted that language into its state constitution, and 19 states still have the slavery loophole on their books. 

The loophole enabled the Black Codes and Jim Crow Laws, which strictly regulated Black Americans’ behavior and movements, and has influenced the mass incarceration era, funneling millions of Black people into correctional facilities. Incarcerated people are often paid pennies per hour or no wages at all for their labor. When they refuse to work — even in cases of injury or illness — they can be punished by losing visitation privileges, being placed in solitary confinement, or losing good-behavior credits that would lessen their sentences. 

On Election Day, voters in those five states will decide whether to remove the slavery exception, meaning certain labor practices in correctional facilities could be deemed unconstitutional by courts.

“It’s a moral issue. We cannot be living in a society in 2021 where we still think — or have at least legally written into our founding documents — that slavery is still legal under any circumstance,” said Bianca Tylek, founder of Worth Rises, a nonprofit that opposes mass incarceration and the exploitation of incarcerated people. “Imagine the sentence, ‘Slavery is OK, when …’ If it doesn’t make you feel comfortable to finish that sentence, then you have to agree that we need to get rid of any vestige of slavery in our constitution.”

In a 2021 poll, Worth Rises found that nearly 70% of Americans did not know that there is an exception clause in the 13th Amendment. Among the Black respondents, more than 58% were not aware of the forced labor exception for incarcerated people, and nearly 25% said they didn’t know if they supported or opposed the exception.

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Awareness of the slavery loophole grew following the murder of George Floyd in May 2020, which prompted many white Americans to see in real time how Black people are systemically treated by law enforcement. That year, social justice uprisings prompted Confederate monuments to be toppled, schools named after Civil War leaders to be renamed, and the campaign to recognize Juneteenth as a federal holiday to reignite. 

Voters in Nebraska and Utah also moved to eliminate the slavery loophole from their constitutions that year. Federal lawmakers introduced the Abolition Amendment, which calls to ban slavery as a criminal punishment in the U.S. Constitution’s 13th Amendment.

The federal bill has gained support from 175 Democrats and 10 Republicans. Tylek, who has been lobbying for the legislation, said that educating voters and lawmakers that the exception clause exists and is active in jails and prisons nationwide is a major part of the effort. 

Antonio Ingram, assistant counsel for the NAACP Legal Defense and Educational Fund, said limited awareness of the loophole is an example of the hurdles that activists have encountered in trying to right the wrongs of slavery and colonialism. 

“Unfortunately,” he said, “sometimes as a society, we do not always have a strong concept of the ways in which chattel slavery and enslavement of Africans has had a legacy on our current mass incarceration practices.”

The COVID effect

In states that eliminate their slavery loophole, there’s rarely immediate changes in prison labor practices. However, after Nebraska changed its constitution, at least one jail in Lancaster County that did not pay incarcerated people for work started enforcing a salary of up to $30 a week, the Lincoln Journal Star reported.

In more cases, advocates are taking states to court in hopes of convincing a judge that the labor practices are unconstitutional under the new amendment. That can be a challenge when incarcerated people have limited ability to communicate about their experiences and limited access to legal representation. 

In Colorado, voters led the modern abolition movement in 2018, when 66% voted to remove the slavery exception from the state constitution. But the vote sparked little change until COVID-19 seeped into the walls of correctional facilities, said Valerie Collins, an attorney for the Colorado-based nonprofit law firm Towards Justice.

Incarcerated individuals wrote letters to relatives, advocates, and attorneys about dangerous conditions in the prisons, and some filed their own lawsuits alleging that the Colorado Department of Corrections forced labor and threatened disciplinary actions against those who declined to work. 

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Andrew Mark Lamar, an incarcerated person who filed one of those lawsuits, argued that the state’s inmate work program illegally required him to work in food service under the threat of solitary confinement or losing visitation privileges. A state court of appeals judge ruled against Lamar, saying the amendment didn’t view the prison labor program as involuntary servitude because the program provides skills that incarcerated people can use after release. 

But Lamar’s lawsuit paved the way for a proposed class action lawsuit that Towards Justice filed in February alleging the state uses coercive and cruel tactics to compel incarcerated people to work. 

“There were people who had other underlying health issues and asthma and, like, all of these medical reasons why they were literally physically incapable of working in the way that the Department of Corrections was requiring them to,” Collins said. “So when people are like, ‘My option is either do this thing I don’t want to do or not see my family and have to stay in prison longer,’ that’s not a real option. It’s just inherently coercive, and that’s what the state continues to do.”

While revising constitutions may not have an immediate effect on the incarceration system, eliminating slavery loopholes galvanizes support and raises awareness about what goes on inside correctional facilities, Ingram said.

“Linguistically, looking at these constitutions, we can see the legacy of these systems in our country that have mutated while still oftentimes impacting the same population that they impacted in the antebellum times,” Ingram said. “There may not be a purely legal advocacy that can stem from this hopeful revision of these flaws of unconstitutional provisions, but I do think that there may be an important moment for advocates to really uplift the humanity of incarcerated individuals.”

Modern-day slavery

Curtis Davis describes his experience in the Louisiana State Penitentiary as modern-day slavery. During his time on the 8,000 square foot former slave plantation known as Angola, he worked in the fields where incarcerated people still pick cotton and other crops. Davis picked okra.

One day, he told a white prison guard that he wasn’t feeling well and needed to see a doctor, but the guard told him to get back to work, Davis said. 

“I’m like, ‘Man, I know my rights. I need medical attention.’ And he said, ‘You don’t have any rights,’” said Davis, 47, noting that he felt “on the verge of dying.”

A medical examination later found he was suffering from severe heat exhaustion and dehydration, Davis said. But prison officials accused David of malingering — pretending he was too ill to work — and sent him to solitary confinement. Once released, Davis spent a lot of time at the prison library, learning America’s history and the law.

“I studied how they can treat us like this. … I couldn’t win a lawsuit because I was considered something beneath a regular human being without the rights of a regular human being,” said Davis, who was released in 2016 and wrote a book, Slave State: Evidence of Apartheid in America. “Human beings are suffering in the United States of America. We’re losing the moral high ground, and slavery is still real.”

Next month, Louisiana’s voters will decide whether to remove the slavery loophole from their state constitution, which would open a pathway for lawsuits in situations like Davis’. But the measure has some unlikely opponents.

The Louisiana Black Caucus and House Democrats, including the measure’s lead sponsor, Rep. Edmond Jordan, are encouraging voters to oppose the amendment because of the ballot measure’s confusing wording. 

It’s not the first time a slavery loophole measure has experienced such criticism. The first time Colorado put the question on its ballot, voters expressed confusion about whether voting in favor of the measure meant they supported or opposed the loophole. 

This will be Louisiana’s second time voting on such an amendment, and Davis — now executive director of Decarcerate Louisiana and a member of the Abolish Slavery National Network’s steering committee — fears they won’t get another opportunity.

“Louisiana is a dark-red state. They have a supermajority in the House, and they have a supermajority in the Senate. They will never give us another chance to do this,” Curtis said.

Capital B reached out to Jordan for comment, but didn’t receive a response.

Savannah Eldrige, co-director of state operations with Abolish Slavery National Network, said getting voters to understand the proposition’s wording is a large barrier. Many don’t grasp that slavery is still legal in certain situations and how that looks in their communities. That can be particularly difficult in the South, where the slavery and the antebellum period is romanticized.

“I’ve tried to help my coalition partners understand that the South is different and when you’re in the deep Bible Belt of the South, the strategy has to be different because the opposition is going to look different,” Eldrige said. “What appeals to our community is going to be different.” 

Eldrige said she remains optimistic that Louisiana will ultimately follow the lead of Colorado and other states that have eliminated the slavery loophole from their constitutions. 

“In Louisiana, once we’re able to help people understand what this language really means for the people of Louisiana, they’ll be on board as well,” she said.

Christina Carrega is a criminal justice reporter at Capital B. Twitter @ChrisCarrega