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 work—and be punished by solitary confinement.) Inmates worked on labor-intensive Southern crops– cotton, soybeans, and rice, among others—and raised chickens, pigs, and cattle. Work in the fields went on rain or shine—in 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.

[COVID gives us a chance to close prisons. Here’s why and how.]

Nonetheless, Smith wrote, there was no violation of the 13^th Amendment. Life at Cummins wasn’t 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 Amendment’s exception manifested a Congressional intent not to reach such policies and practices.”

Clinching the state’s 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 Mitchell’s 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 Amendment’s 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 didn’t make much difference to the outcome that the court cited one amendment rather than another—“cruel 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 confinement—to live or die—when 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 Amendment—which Americans revere as a shining moment of American freedom–permits forced labor without pay, in dangerous and inhumane conditions? What is most infuriating about Judge Henley’s 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 King’s 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 Lincoln’s death—days before the Amendment in fact was actually even ratified—Chicago 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 isn’t open effort, to make the penal code take [Black Southerners] back into the condition of slavery. It’ll be called  ‘involuntary servitude for the punishment of crime,’ but it won’t differ much from slavery.”

So it proved—and, 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 plantations—notorious 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.

[Bryan Stevenson Says Slavery Didn’t End; It Just Evolved.]

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 hour—plus “good time” credits to reduce their sentences. They are trained as firefighters—but 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 governor’s 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 violations—who 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 book The 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 Jefferson’s 16-year extension of slavery—but 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 Sumner’s language as a potential threat to the status of husbands as masters of their wives and children.

Opponents attacked Sumner’s 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 prohibited—but 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 Henley’s opinion might be correct.) And it is pungently ironic that the “king’s 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 21^st century’s new movement against mass incarceration has arisen a desire to cleanse the Constitution of this affirmation of slavery. In December 2020, as the 116^th 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 Merkley’s 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 13^th Amendment until I saw Ava DuVernay’s incredible documentary,” 13^th, 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.

[America’s 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 prison—both as preparation for re-entry and as a means of staying sane while still inside. Instead, they say, work programs would have to be voluntary—and 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 today–a genuinely serious and systemic problem–does 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 used much more powerful and overt legal devices than slippery language in the Thirteenth Amendment. Jim Crow and mass incarceration would’ve 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.” 

It’s 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 didn’t 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 constitutions—as 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 constitutions—but 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.”