Amendment A: Shall there be an amendment to the Colorado constitution that prohibits slavery and involuntary servitude as punishment for a crime and thereby prohibits slavery and involuntary servitude in all circumstances?

On November 6th, 2018—153 years since the 13th Amendment is said to have abolished slavery in the United States—voters in Colorado will go to the polls to determine whether their state’s constitution should be amended such that it will no longer permit compulsory labor as punishment for individuals convicted of a crime. Section 26 of article II of the state’s constitution currently states, “[t]here shall never be in this state either slavery or involuntary servitude except as a punishment for crime, whereof the party shall have been duly convicted” (emphasis added). If 55% of the electorate votes “Yes/For,” this section will end after the word “servitude” and slavery will be formally abolished within the borders of Colorado.

This is not Colorado’s first attempt at a ballot measure to remove this language from the state constitution. In 2016, a similar measure was rejected by voters: 1.28 million Coloradoans voted to keep the language of the constitution as is. However, supporters believed that this failure was due in large part to the way in which the ballot question was worded: “Shall there be an amendment to the Colorado constitution concerning the removal of the exception to the prohibition of slavery and involuntary servitude when used as a punishment for persons duly convicted of a crime?”

As Peter Hessler wrote in the New Yorker in the aftermath of the 2016 election, “Does yes mean yes, or does yes mean no? The election of 2016 disturbs me in many ways, and one of them is that I honestly cannot remember whether I voted for or against slavery.” This year, given the bipartisan support for (and lack of organized efforts in opposition to) the amendment, it appears that, come next month, slavery will no longer be permitted in any form at all under Colorado’s constitution.

This will be a positive development. As the organization Abolish Slavery Colorado puts it, “The Constitution is not a symbolic document. It is the moral and legal foundation of our state.”

And yet, it will not change the fact that the Constitution of the United States itself—in addition to the constitutions of at least fifteen other states—continues to allow slavery in certain circumstances. These constitutional exceptions to the prohibition on slavery are not mere words, or never-invoked relics of the 19th century: for incarcerated individuals, compulsory labor is a fact of life.

As Kevin Rashid Johnson, an incarcerated individual serving a life sentence wrote in The Guardian: “Though I’ve always refused to engage in this modern slavery myself, I’ve witnessed plenty of examples of it. The most extreme were in Texas and Florida, where prisoners are forced to work in the fields for free, entirely unremunerated.” In other instances, “inmates are paid meagerly—as little as two cents per hours—for their full-time work in the fields, manufacturing warehouses, or kitchens.” Estimates suggest that “[u]p to 800,000 prisoners a day are put out for work” without having any meaningful say in the matter.

Response to this modern-day slavery is coming through the ballot box in Colorado. It has also taken the form of the 2018 prison strike, a nineteen-day national prison strike launched “in response to the riot in Lee Correctional Institution, a maximum security prison in South Carolina.” Up to 24,000 incarcerated workers struck to protest the abysmal conditions in prisons across the country. Second on their list of demands was: “An immediate end to prison slavery. All persons imprisoned in any place of detention under United States jurisdiction must be paid the prevailing wage in their state or territory for their labor.”

According to research compiled by the Prison Policy Initiative, incarcerated individuals earn a mere fraction of the prevailing wage in their state or territory. Their findings suggest that “the average maximum daily wage for prisoners working non-industry jobs is $3.45,” and that in “Alabama, Arkansas, Florida, Georgia, and Texas, prisoners are traditionally paid nothing at all for regular prison jobs.”

The consequences of the prison strike remain to be seen, although there is hope that it will contribute to a victory in Florida, where voters will decide whether or not to restore the voting rights of individuals with felony convictions this November. With the exception of Colorado, however, forced labor is not on the ballot this year; nor is there reason to believe at this point that it is likely to become a hot-button electoral issue within the next few years.

However, there remain paths forward for those who hope to eliminate coercive labor practices in prisons. In 2017, the Attorney General of Washington state brought a lawsuit against The GEO Group, Inc., one of the largest private prison providers in the country, “for not paying its workers [detained immigrants] the minimum wage, netting the company millions in ill-gotten profits.” The lawsuit proceeded on the grounds that, although state prisons had been found to be exempt from paying the minimum wage to those who were incarcerated, there had been “no such determinations [made] about private detention centers . . . While keeping labor costs down at a state prison benefits taxpayers, keeping them down at the private detention center benefits only GEO.” The lawsuit is far from perfect, as it explicitly condones paying individuals in state prisons next-to-nothing. However, given that private prisons house 7% of state prisoners and 18% of federal prisoners, litigation to end these practices in private prisons could have a significant impact on the lives of tens of thousands of incarcerated individuals.

Outside of traditional legal channels, unionization of incarcerated workers could be a powerful remedy for many of the intolerable prison labor conditions. As Chandra Bozelko wrote,

The way to protect workers is the same inside and outside: unionization. It’s a misconception that inmate unions are against the law. The Supreme Court held 40 years ago that wardens don’t violate prisoners’ 1st Amendment rights when they bust inmate unions, but at the same time, nothing prohibits prison administrators from allowing unions to form. That’s where the pushback against prison labor should be aimed, toward persuading wardens to allow physical and organizational safeguards for inmate workers, protections they can negotiate for themselves.

Further, as my colleague wrote in Amicus earlier this month, comprehensive efforts to end slavery and near-slavery conditions in prison must also include an overturning of the Prison Litigation Reform Act.

 As the prison strike powerfully demonstrated, and the efforts to amend the Colorado constitution draw attention to, the United States did not abolish slavery in 1865. For decades, we have accepted that there are exceptions to the prohibition on slavery at both the federal and the state levels. A “yes” vote on Amendment A will be a powerful step is one step in the right direction. Much more is needed before we can truly call ourselves a country that has ended slavery.

Written by

Molly is a second year student at Harvard Law School. She is originally from Saint Paul, Minnesota, and is a graduate of the University of Wisconsin. Her focus is on the intersection of racial justice, education, and the law. Find her on Twitter @molly_coleman.

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