When slavery is legal in the US: Prison labor and the 13th Amendment

The 13th Amendment of the U.S. Constitution is best known for abolishing slavery after the Civil War, freeing three million Confederate slaves from servitude. Less well known is the second phrase of the Amendment that allows prisoners to be required to perform labor or else face punishment while in custody.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Former slave owners quickly seized on this clause to restore their status over freed slaves by writing laws that criminalized African Americans and forced them into an early form of penal labor. The most common form of these laws, called Black Codes, criminalized Black people who were out of work, or who were not working at a job whites recognized. They were fined and placed into forced labor—slavery by a different name.

In the south, the Freedmen’s Bureau used the same language of free exchange as the northern reformers, insisting that, while newly freed slaves “must and will be protected in their rights, they must be required to meet these first and most essential conditions of a state of freedom, a visible means of support, and fidelity to contracts.” In practice, that often meant the bureau forced workers to enter binding, long-term contracts to work on plantations or face criminal penalties—which might also be a form of forced labor. One Mississippi bureau agent warned former slaves that if “you are found idle you may be taken up and set to work where you will not like it.”

Soon, southern governments realized they could lease their convicts to local planters or industrialists who would cover the cost of their housing and food.

As the demand for cheap labor soared, discriminatory policies and unfair sentencing fed hundreds more prisoners, most of them African American, into the convict lease system. The state granted private businesses complete control over the lives of prisoners, who were overworked, underfed, and abused.

Brutality was a common feature of Georgia’s convict camps, which came under increasing scrutiny toward the end of the nineteenth century. Violence, and the widespread sexual abuse and assault of female prisoners by wardens, were clear indications that slavery in the South continued to exist in a new form.

The 13th Amendment’s penal exception is still in effect today, allowing forced labor in prisons that disproportionately hold people of color. In instances where a rejection of labor is not punished, those who opt to work while incarcerated are paid just pennies an hour.

According to a report by the ACLU, 65% of incarcerated persons report working behind bars, amounting to roughly 800,000 prison workers. 76% of incarcerated workers report facing punishments including solitary confinement or loss of family visitation if they decline or are unable to work.

These workers produce at least $2 billion in goods and $9 billion worth of prison maintenance services annually yet receive on average between 15 and 52 cents per hour for their labor. The government takes up to 80 percent of these wages for “room and board,” court costs, restitution, and other fees like building and sustaining prisons, leaving incarcerated workers with little to no money for hygiene products and phone calls to loved ones.

Seven state prison systems—Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas—pay nothing for the vast majority of prison work.

In a single year, over $22.5 million was deducted from the wages of incarcerated workers employed by private corporations through the PIECP program nationwide, more than 60 percent of which went to room and board. In Minnesota, 77 percent ($3.48 million) of wages earned by incarcerated workers was deducted in fiscal year 2021, about two-thirds of which went to “cost of confinement.” At the state level, wage deductions have also been used to sustain and expand incarceration. For example, Florida has created a Prison Industries Trust Fund to collect and administer funds for the “construction or renovation of its facilities or for the expansion or establishment of correctional work programs.”

Food service lawsuit

A group of incarcerated persons at Santa Rita Jail in Dublin, California, sued the county, the sheriff, and Aramark Correctional Services for allegedly selling their labor with no compensation. Aramark is the largest provider of food services to U.S. prisons and was worth $16 billion at the time of the 2019 lawsuit. The incarcerated persons allege that their unpaid kitchen jobs were forced labor, a violation of the Constitution, the federal Trafficking Victims Protection Act, and a 1990 California law that requires private companies to pay prisoners fair wages.

Aramark sells the food prepared by plaintiffs to third parties for a profit. Aramark receives an economic windfall as a result of the uncompensated labor of prisoners confined in Santa Rita Jail.

The contract between Aramark and the County of Alameda permits prisoner labor to be used for the profit of a private company without compensation to the workers. Therefore, defendants County of Alameda and Sheriff Gregory J. Ahern know or should have known that they are providing uncompensated labor in violation of state and federal law…

Plaintiffs and other prisoner-employees of Aramark are coerced to work. County of Alameda Sheriff’s deputies threaten plaintiffs and other prisoner-employees of Aramark that if they refuse to work, they will receive lengthier jail sentences or be sent to solitary confinement, where they would be confined to a small cell for 22 to 24 hours a day. County of Alameda Sheriff’s deputies also threaten to terminate prisoners’ employment if they need to take a sick day or are injured.

In 2020, a district judge ruled that the incarcerated persons have standing to sue the County and Aramark for potential violations of the Trafficking Victims Protection Act, California Labor Code, and the 13th Amendment (making a distinction between “claims of unpaid labor” and “claims of forced labor”). The case is now before the 9th Circuit Court of Appeals.

ICE detainees

Incarcerated persons held on criminal charges aren’t the only individuals subjected to penal labor. Immigration detainees, held in civil proceedings, are also paid little to nothing for working while imprisoned.

Last year, Washington State Attorney General Bob Ferguson won a lawsuit against the for-profit operator of Tacoma’s ICE Processing Center for violating minimum wage laws. The AG sued the GEO Group for paying thousands of immigrant detainees just $1 a day to keep the facility running by preparing food, doing laundry, cleaning living areas, or painting walls. In comparison, ICE paid GEO $115.95 per detainee per day to hold the vast majority of the people in the Tacoma detention center.

GEO uses immigration detainee labor to perform virtually all non-security functions at Tacoma’s Northwest Detention Center (NWDC), the only private detention facility in the state. Since at least 2005, GEO has paid thousands of detainee workers $1 per day or, in some instances, snacks and extra food for labor that is necessary to keep NWDC operational…

“A multi-billion dollar corporation is trying to get away with paying its workers $1 per day,” Ferguson said. “That shouldn’t happen in America, and I will not tolerate it happening in Washington. For-profit companies cannot exploit Washington workers.”

The first trial ended in a deadlocked jury. The second, however, resulted in the jury deciding that the GEO Group must pay all its workers, even those held in detention, Washington’s minimum wage of $13.69 or more. Key to the jury’s determination was testimony from GEO executives that despite making $18.6 million in profits from the facility, it would have only cost the company $3.4 million to pay the minimum wage to detainees.

GEO was ordered to pay $17.3 million to the thousands of immigrant detainees in back wages owed. The company appealed the case to the 9th Circuit, where it is still pending.

Colorado anti-slavery law

Colorado voters approved an amendment to the state constitution in 2018 to repeal an exception to the ban of slavery which allowed compulsory labor, involuntary servitude, or slavery if for the punishment of a crime.

Two people incarcerated by the State of Colorado consequently filed a class action lawsuit against the state, Governor Polis, and the Department of Corrections alleging that Colorado is violating the newly-amended constitution by forcing the people it incarcerates to work against their will under threat of punishment.

Mortis, 32, contracted COVID-19 during an outbreak in the prison in October 2020. A few weeks later, guards told Mortis they needed him to work eight-hour shifts in the prison’s kitchen because of staff shortages…because he was still suffering symptoms from the virus, he turned down the job. He asked if he could do something else that was lower risk and didn’t require him to be around as many people.

The answer was, essentially, no.

Officials warned him that he’d be removed from the incentive living program if he didn’t work in the kitchen. And because he challenged their decision, officials stripped him of two days of earned time, which means he’ll spend more time in prison than he otherwise would have, for declining to work.

The lawsuit asks the court to declare the Colorado regulations requiring people to work while incarcerated unconstitutional and prevent jails from continuing to enforce the policy.

Angola plantation

One of the starkest parallels between slavery and modern penal labor can be found on the site of a former slave plantation in Louisiana called “Angola” or, more properly, Louisiana State Pneitentiary.

Angola is a maximum security prison with the largest number of incarcerated people serving life sentences in the country. Prisoners are put to work in the cotton fields that were once manned by Black slaves under he watchful eye of white overseers. The situation today is not much different: Hundreds of incarcerated people, largely African Americans, are forced to toil in the agricultural fields while prison guards stand watch, often armed on horseback.

Work at Angola is grueling, Ron explained. The prisoners spend long hours doing manual labor—such as fieldwork harvesting produce—that requires a lot of bending down in the hot sun. Prisoners complain of a lack of water to keep them hydrated and cool…

Pastorick acknowledged the presence of armed guards who patrol the fields where men work. “Because some of our offenders have jobs outside of secure areas, we have a use of force policy which authorizes our staff to use the amount of force necessary to maintain custody and control, and public safety,” he said.

Once cleared by a prison doctor, prisoners at Angola can be legally forced to work under threat of severe punishment, including solitary confinement. Even prisoners with physical impediments may still have to work. “Angola frequently fails to accommodate men with disabilities—often forcing them to work in dangerous factories or in the fields,” said Mercedes Montagnes, executive director of the Promise of Justice Initiative.

Watch Angola for Life by The Atlantic for more information.