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The 13th Amendment Exclusion Clause: Slavery by Any Name

The 13th Amendment banned slavery in America. But it added an exclusion clause: Slavery would be allowed as punishment for a crime.

On December 18, 1865 — 150 years ago — when the 13th Amendment became the law of the land (after a 250-year run), Congress banned slavery in America.

But it didn’t – not completely. It added an exclusion clause: Slavery would be allowed as punishment for a crime. Reaffirming this, Virginia’s Supreme Court declared prisoners “slaves of the state” in 1872.

And so starts a second story of extraordinary exploitation.

Prisoners have few legal rights. Theoretically, they can appeal sentences, enjoy limited free speech (First Amendment) and get limited medical care (Eighth Amendment). However, all these rights are violated daily.

Except for two states (Maine and Vermont), prisoners can’t vote. In two other states (Kentucky and Virginia) they can’t vote even after they’re released. Nor can they organize while incarcerated, support families, get health care for their children, or contribute to social security — all job-related benefits.

Most important, they can’t refuse to work, choose jobs, or negotiate wages. As the Federal Bureau of Prisons 2008 states, “Sentenced inmates physically and mentally able to work are required to participate in the work program.” Nearly all state prisons follow suit.

Such was the rationale for chain gangs from 1865-1955 — although Arizona’s Sheriff Joe Arpaio re-launched these voluntary gangs in 1995. And not just for men and women. They are also open to juveniles, who are permitted to join.

Even if prisoners could refuse to work, they do not, for a few reasons. Punishment is certain: They are put in solitary confinement or lock-down (23-hours a day in your cell). Or moved to a cell with eight inmates instead of two. Or their access is blocked to family visits, TV, phone calls, the prison commissary, outside yard time, and education programs. Or they lose good time, which reduces an inmate’s sentence. If they file grievances, these requests go to the same people making the inmate’s life miserable.

Many current and former inmates say nearly everyone wants to work. It’s hard to sit in a cell doing nothing.

Most important, inmates need money – and most of their families are too poor to send any. They might get $20 a year from a relative, but that doesn’t go far. And everything in prison is for sale.

Inmates must buy all their necessities at prison commissaries. The cheapest soap is a 4-pack of Ivory for $3.50, Aspirin is $1.50, a small jar of peanut butter is $2.90, and toothpaste $2.90. Twelve states give free medical care. But the rest don’t: Emergency visits are free, but others, say, for the flu, slap on a $2-$5 co-pay.

Even prison uniforms and shoes have price tags. If inmates want ones that fit, they must tip theprisoner who dispenses them.

Most inmates’ cash comes from prison wages (called gratuities) set by Level 1-5 pay scales — although two states, Texas and Georgia — pay nothing. Others pay next to nothing.

Unskilled inmates (designated at Level 5) mop floors, wash windows, shovel snow, or scrub pots for 8-13 cents an hour, or $5-$12 a month, based on how many hours they are asked to work. Skilled inmates (Level 1) — say, plumbers, carpenters or mechanics — get $1.50 to $8 a day, perhaps $300 a month. But Level 1 jobs are scarce.

State and federal prisons also have on-site factories that sew prison uniforms or military goods (say, jackets and body bags), or build office furniture for government agencies. They pay inmates hourly or piece rates (say, 12 cents for sewing three dozen T-shirts), totaling $2 to $8.50 a day, for seven-hour days — with no overtime pay. UNICOR, the quasi for-profit federal prison industry, hasn’t raised rates since 1987.

With such low wages — just a fraction of the federal minimum wage — inmates can’t support families or save for when they’re released.

Inmates do better in the PIE (Prison Industry Enhancement) program in which private companies build in-prison factories, train inmates, pay minimum wage and social security, and allow inmates to designate a percent for child support. These industries are varied: For example, in Nevada, inmates restore cars. In Washington, they pack Starbucks coffee beans.

Although PIE began 40 years ago, prison wardens typically don’t welcome it, since they see it as just one more task to do. Thus, PIE affects only 5,000 of the 2.3 million inmates.

The exclusion clause — which allows such low wages — hurts the economy. Before inmates were in prison, 50 percent were employed — paying taxes, contributing to social security, and the like. If they were paid more in prison, they’d still be in the economy and could send money to families, who’d spend more — which would help the economy grow.

Charles Sullivan, president of the International Citizens United for Rehabilitation of Errants (CURE) says,

Slavery is the parent of this clause. It springs from the same culture. After the Civil War, we passed Jim Crow laws to imprison freed slaves—you could get arrested just for looking at a white woman—and get them to work for free. So they were sent back to the fields and mines. Some were sent to theC&O Railroad to dig a tunnel through the mountains. They couldn’t get workers to do it, so they got prisoners, many of whom died.

We accept that prisoners should be humiliated, brutalized and denied human rights. That’s not the job of prison. The punishment should be that they’re sent to prison and lose their freedom. You shouldn’t be sent to be punished.

After 150 years of Constitutionally-enshrined slavery, it’s time Congress ends this.

This article is adapted with permission from “Penal Servitude and Prison Programming: A Reminder About the U.S. Constitution’s Thirteenth Amendment Exclusion Clause,” originally published in Offender Programs Report Volume 19 Number 5, January-February 2016, © Civic Research Institute, Inc.