Hundreds of thousands of incarcerated people work in US prisons as part of their sentences, often without basic protections and for little to no pay

For more than two decades imprisoned in California, Samual Brown worked more than a dozen different jobs and was transferred between penitentiaries throughout the state – earning less than a dollar per hour. At the beginning of the pandemic, he worked as a healthcare facility worker tasked with disinfecting areas where inmates with Covid had been held. He wanted to quit his job – he had asthma and risked his life – but was told he “had no choice”. By the time Brown was released in December 2021, he had paid just $3,000 of the more than $37,000 in restitution he owed the state.

“That is tied directly into the same type of practices from slavery,” Brown, who is co-founder of the Anti-Violence Safety and Accountability Project, says. “That’s the same practice, the same energy, the same spirit that you see in this prison setting. A person can be on one plantation, and then they’ll be moved to another plantation, and you’ll never see the people who you were with ever again. They can separate you from your wife, separate you from your children, from your family. It’s the same way in the modern-day carceral setting.”

More than 150 years after slavery was outlawed in the US, California remains one of dozens of states in the country that allows slavery and indentured servitude as a punishment for a crime in its state constitution, a vestige of the US Constitution’s 13th amendment. In 2021, an estimated 791,500 incarcerated people worked in US prisons as part of their sentences in 2021, often without basic workplace protections and under dangerous working conditions for little to no pay, according to a June report by the American Civil Liberties Union and the University of Chicago Law School’s Global Human Rights Clinic.

Since 2008, Colorado, Nebraska and Utah have removed such language from their state constitutions. And in November, voters in four states – Alabama, Oregon, Tennessee and Vermont – approved ballot measures that removed such provisions, bringing the number to seven states.

Next year, the Abolish Slavery National Network, a group of organizers involved in movements across the country to end constitutional provisions allowing slavery and involuntary servitude, anticipates that 22 states will have legislation. Their hope is that, as more and more states approve amendments to their state constitutions, so too will Congress and a constitutional convention: removing the language from the US constitution to eliminate the exception. In 2021, Georgia Representative Nikema Williams and Oregon Senator Jeff Merkley reintroduced legislation known as the abolition amendment that would close the slavery loophole in the 13th amendment.

Bianca Tylek, executive director of Worth Rises, a national group lobbying for a federal constitutional amendment, says that removing the exception for slavery and indentured servitude as a punishment for a crime from the US constitution would “establish that all people, especially people who are incarcerated, are deserving the same humanity and dignity”.

“When slavery was legal back in the 1800s, it was rooted in this concept that Black people that were enslaved were less than human,” Tylek says. “When we talk to people who are incarcerated about how they feel are not being protected from slavery by the 13th amendment, the first thing we hear are about feeling less than human – about feeling worthless, about feeling like society doesn’t recognize them.”

Tylek added that the provision’s removal would also “end the brutal practices around prison labor”, a practice enmeshed within the US carceral system since the passage of the 13th amendment in 1865.

An ACLU report from June 2022 about the exploitation of US prison labor noted that the constitutional loophole permitted states to turn to “incarcerated labor as a means of partially replacing chattel slavery and the free labor force slavery provided” and subjected them to brutal conditions that persist today. The loophole gave way to laws during the 19th century such as the so-called Black Codes that empowered authorities to incarcerate Black people for petty crimes and allowed authorities to engage in “convict leasing” where the incarcerated people would work in factories, construction, and elsewhere for long days under threat of brutal punishment.

The threats of punishment have morphed from whipping to solitary confinement and disciplinary notices that could extend people’s prison sentences.

“People incarcerated should not be forced to work under the threat of solitary confinement, under the threat of loss of contact in visits with their loved ones, under the threat of beatings or the denial of parole,” Tylek says. “It means that people who are incarcerated should be privy to the same PPE [personal protective equipment] and training and other types of work conditions that we expect to have a safe and dignified working experience.” That includes, he said, the discussion of minimum wages for work that generated billions of dollars in goods, services, and commodities from their labor in 2021.

Max Parthas, co-director of state operations for the Abolish Slavery National Network, celebrated the wins in November as a “huge historic victory”. He warned that after people serve their time, they remain further disenfranchised as a result of their incarceration: they are not only unable to vote if convicted of a felony, resulting in an estimated nearly 5 million people without that constitutional right, but they also struggle to find work as a result of having a criminal record.

In his experience within the system, Brown says that the continued presence of slavery provisions in state constitutions shows incarcerated people that forced labor “takes precedence over rehabilitation” and public safety. He pointed to the fact that people behind bars can work for years as firefighters and porters yet are unable to find jobs in those professions.

The momentum has been building since Colorado became the first state to remove the slavery and servitude language from their state constitutions. In recent years, widespread prison strikes, most notably in 2018 and most recently in Alabama ahead of the election, have elevated awareness of the harsh conditions that incarcerated people navigate.

An effort in Louisiana faltered in November after the ballot measure’s sponsor asked voters to reject the proposal because of its confusing language. Organizers expect to bring that initiative back to the state’s ballot. In California, an effort to pass the California Abolition Act, which Brown helped write while in prison, failed after lawmakers rejected it.

The measure, introduced in 2020, had mostly navigated through the legislature unopposed until the California department of finance estimated that it would cost the state $1.5bn to pay inmates minimum wage – a projection that Jamilia Land, who co-founded the Anti-Violence, Safety and Accountability Project with her husband Brown, argued missed the point. For her, the action showed that even in an outwardly liberal state, the “vestiges of white supremacy” still persist in California.

“It feels like a slap in the face,” Land says. “Because we are California, we are supposed to be this great liberal state.” Land sees inspiration toward a comeback in successful efforts in states like Alabama and Tennessee, where the deep historic roots of enslavement are better known. Pastor Kenneth Glasgow, the Rev Al Sharpton’s half-brother who helped with the campaign in Alabama, says recent victories show the elimination of such slavery and indentured servitude provisions can cut across political lines through coalition building.

“We take away the slave language and start healing America as a whole,” Glasgow says. “As the South goes, so goes the nation … we are going directly to the wound to address the injury. We’ve got to stop putting bandaids on these lacerations.”

Despite the growing movement, little has changed so far in the states that have already approved constitutional changes. As more and more states consider removing the slavery exceptions, organizers expect the courts to clarify what the changes mean in practice and force correctional institutions to reform. Earlier this year, in February, thousands of prisoners in Colorado sued the governor, Jared Polis, and the state’s department of corrections over its guidelines that require prisoners to work and claimed it violated the state’s amended constitution.

Kamau Allen, who helped organize the Colorado initiative and is former lead organizer of the Abolish Slavery National Network, has taken time away from organizing to go to law school at the University of Wisconsin. Part of what drove him was the fact that the “legal ramifications of ending slavery in the constitution are a little bit unknown”.

But the consequences on people’s lives were clear and resonant: during his work on the Colorado campaign, he often thought of his uncle’s experience incarcerated– “his story of forced labor, his story of maybe being paid sometimes, and even on moments, even on days when he was paid, it was garnished for restitution”. Organizers argue that the possibilities for reform, whether through enfranchisement of incarcerated people and the restoration of their rights after prison or a renewed focus on workplace protections and even wages for those still inside, are vast, and the removal of slavery provisions represent the first step in fulfilling that possibility.

“This is all decided in the courts,” Allen says.“This could also motivate people as well. We received a lot of concern from people about whether or not what we’re doing is just symbolic. And the litigation efforts give this movement teeth. It makes it real. It makes it count for something more than symbolism.”