Behind Anti-Slavery Ballot Measures, Prison Labor Isn't So Simple

Behind Anti-Slavery Ballot Measures, Prison Labor Isn't So Simple
Photo by Kiichiro Sato/AP

On November 8, voters in Alabama, Louisiana, Oregon, Tennessee, and Vermont will decide if they’ll strip their state constitutions of language that allows slavery in cases of a criminal conviction. Nineteen states have constitutions that include such wording that technically permits slavery and involuntary servitude as criminal punishments. In 2018, Colorado voters were the first to remove the language from the state’s founding document by ballot measure, then Nebraska and Utah did the same in 2020.

Taking a stand against slavery isn’t brave nor should it require deliberation. Sometimes these ballot measures do, even though they pass pretty overwhelmingly. Two years ago, Utah’s got 80 percent approval, Nebraska’s garnered 68 percent. Although the ballot measure didn’t pass in Colorado in 2016, it lost by a third of a percentage point‚ it went on to attract approval from more than two thirds of voters; it passed by 66 percent in 2018.

If someone’s looking for advice on how to vote on the amendment in their particular state, voting no won't really change much in the short term, so there isn’t much reason to vote any other way but yes.

Prison labor systems are still operating in Utah and Nebraska, even after the language change, and Colorado inmates are currently litigating whether they can be compelled to work, which begs the question of what the change in language can or will accomplish — and how.

“Whether prison labor changes after the passage of these ballot [measures] will depend entirely on whether correctional administrators believe that their current system is one of slavery and involuntary servitude. Many probably won’t and then it’ll be on advocates again to demand change through litigation. It’ll be up to the courts to eventually decide what is and is not slavery and involuntary servitude,” said Bianca Tylek,executive director of Worth Rises, a non-profit advocacy organization dedicated to changing prisons and the criminal legal system, in a text interview.

Jennifer Turner, principal human rights researcher for the American Civil Liberties Union, says that these revised amendments will prohibit facilities from forcing incarcerated people to work but the question is when.

"While these measures may require administrators to reconsider wages and other labor protections, they are unlikely to automatically confer employment rights to incarcerated people,” said Turner in an email interview.

“Because U.S. law also explicitly excludes incarcerated workers from the most universally recognized workplace protections and courts have often held that incarcerated people are not employees under federal laws such as the Fair Labor Standards Act and National Labor Relations Act," she continued, "securing employment rights for incarcerated workers will likely require additional legislation."

If prison labor is slavery, it’s not clear why changing a state constitution in this way doesn’t have the immediate effect of ending mandatory unpaid prison labor. None of the three states that have changed their constitutions pay nothing to incarcerated workers; they pay penny wages.

One of the five states that may change after taking voters’ temperatures on this issue on Tuesday — Alabama — doesn’t pay at all. A strike is ongoing there in the Yellowhammer State right now, with workers challenging unfair and unworkable sentencing schemes, including parole. Interestingly, none of the strike demands have to do with wages or working conditions. Rather, they demand an end to life without parole sentences, the opening of conviction integrity units, and modifications to other sentencing and parole laws.

If the amendment passes there, immediate closures and stoppages in Alabama may follow. The remaining four states will likely go the way of Colorado, Nebraska, and Utah: prison work opportunities will remain the same.

The reason why little changes as a result of these amendments is that right now, prison labor isn’t chattel slavery; workers aren’t legally considered property. Convict leasing, a practice that assumed the prison owned the worker, has been banned in all 50 states since 1928.

Prison labor may be involuntary servitude but it can’t be if it’s voluntary. Inmates want to work; the federal prison system's 25,000-person waiting list proves that they don’t have enough jobs for those who want one.

There are good reasons for incarcerated laborers to want their jobs. Working maintains sanity in a place that rarely protects it; two-thirds of federal prisoners say they haven’t received any mental health care. The stakes are high for this failure. The risk for suicide in prisons is high; three to ten times higher than the general population. People in prison work to save themselves from the carceral experience.

No one’s clear on whether the law should require prison labor to be voluntary as well as paid, or that involuntary paid labor doesn't constitute involuntary servitude. But if these ballot measures are about securing a minimum or other wage for incarcerated workers as experts believe they might be — indeed, the state of California refused to consider changing the state constitution because Gov. Gavin Newsom’s administration predicted it would cost billions of dollars to pay a minimum wage to 65,000 workers — then governors, sheriffs, and wardens could snatch away programs that benefit prisoners and preserve their sanity.

It’s hard to talk about this or even ask a question about it without being shot down as a racist or someone unfeeling toward people in custody. That’s how people win debates these days; mention slavery to give the issue gravitas — and end up closing off nuanced conversation.

These ballot measures should pass, but anyone who worries about what their ultimate impact will be on incarcerated workers isn’t a bigot or a slavery apologist. If anything, that questioning voter may understand that the confluence of labor, accountability, profit, and harm is a gray area. It’s much more complicated than advocates make it out to be. Providing better answers to the other questions would have made what should be a no-brainer an even easier sell.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.


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