Why a Question About Slavery Is Now on the Ballot in 5 States

Voters in five U.S. states where slavery or involuntary servitude remains legal as a punishment for people who are convicted of crimes will vote next month on whether to ban the practices outright.

If passed, the measures in Alabama, Louisiana, Oregon, Tennessee and Vermont could open a door for prisoners there to challenge forced prison labor, for which most are paid pennies per hour and in some cases not at all.

Legal experts cautioned that the ballot measures would not likely have any immediate legal effects if they passed, but prisoners and their advocates say the measures would send an instant message that Americans’ freedom from slavery does not hinge on whether they have committed a crime.

“Nothing in the Constitution is just symbolic,” said Curtis Ray Davis II, who said he earned 2 cents an hour picking cotton, okra, squash and other crops in Louisiana’s fields while imprisoned. “We do not need to enslave people in order to punish them.”

The measures, which are on the Nov. 8 ballots, have drawn criticism from some lawmakers who say that the changes are unnecessary or confusing. In one state, a former sponsor said the proposal was so ambiguous that he has started urging people to vote against it.

Here’s what to know about the proposed changes.

What is prison labor used for?

The American Civil Liberties Union estimated in a report this year that prisoners produced more than $2 billion in goods annually and provided more than $9 billion worth of services while being paid an average of 13 to 52 cents per hour.

Their jobs vary widely, and include doing laundry, serving food in prisons, building furniture for colleges and schools, and manufacturing license plates. Several states — including Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina and Texas — pay prisoners nothing for most jobs, according to the A.C.L.U.

Mr. Davis, who was imprisoned in Louisiana for more than 26 years, said that he and other prisoners spent long, hot days doing farm work, sometimes without enough access to water. He said he grew so frustrated with being forced to do the job for 2 cents an hour that he intentionally dropped a 25-pound dumbbell on his foot so that he would not have to work. Instead, he said, he was sent to solitary confinement as punishment.

Claudia M. Flores, a law professor at Yale and an author of the A.C.L.U. report, said much of prisoners’ work went toward running the prison itself.

“This is an entire industry of workers that are really maintaining part of our government, part of our state,” Ms. Flores said.

She and other experts noted that many prisoners who worked jobs did not want to get rid of prison work because some had been able to learn skills, make some money and be productive with their time

“Some people might choose to work and really choose to work, but they should be working with wages and safe conditions and proper training, and maybe even gaining skills for when they reintegrate into society,” Ms. Flores said.

Any such proposal would likely come up against opposition from state governments that would be required to either get rid of their work programs or pay a lot more in wages.

In California, a proposal to remove from the State Constitution an exception to its ban on indentured servitude was rejected by the State Senate after officials in the administration of Gov. Gavin Newsom, a Democrat, said it could require the state to pay prison workers the state’s minimum wage of $15 an hour.

What could change in the five states that have ballot measures?

Each of the five states has a constitution that bans slavery or involuntary servitude for everyone except those who have been convicted of a crime.

The exact language differs state by state, but each amendment is focused on eliminating or altering that exception.

In Alabama, for example, the State Constitution would be amended to remove an exception that allows involuntary servitude “for the punishment of crime.”

In some other states, the changes are more complicated.

In Louisiana, the proposal would remove an exception having to do with people convicted of a crime but would add a new clarifying sentence noting that the amendment “does not apply to the otherwise lawful administration of criminal justice.”

The broadness of that phrasing led State Representative Edmond Jordan, who had initially sponsored the bill, to fear that it could actually create more exceptions to the protection from slavery. He told The Advocate that he was urging people to vote against it but hoped to put a clearer measure up for vote in the future.

Legal experts said it was unclear whether the changes would have any effect on the legality of prison labor, though prisoners will probably argue that they are being illegally forced to perform slave labor or involuntary servitude.

The proposed changes — and the lawsuits that would follow — could force courts “to engage a little more deeply with whether this type of labor is prohibited,” said Andrea Armstrong, a law professor at the Loyola University New Orleans College of Law who studies prisons and jails.

Does the U.S. Constitution still allow slavery?

The U.S. Constitution has a nearly identical “exceptions clause” that allows people who are convicted of crimes to be forced into involuntary servitude.

The clause is found in the 13th Amendment, which was ratified in 1865: “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.”

Courts have at times referenced the amendment in denying prisoners the same rights as other workers, but they have more often relied on other laws and justifications to do so.

A group of federal lawmakers has proposed a bill to remove the clause, but the lawmakers have not won enough support to pass it.

Sharon Dolovich, a law professor at the University of California, Los Angeles, said that even if the 13th Amendment was not the primary justification for allowing mandatory prison labor, its existence in the Constitution most likely weighs on the mind of judges who evaluate prisoners’ claims.

“The 13th Amendment, as it’s currently written — and the state’s analogues to the amendment — form a backdrop that infuses the legal regime governing incarcerated people,” said Ms. Dolovich, who leads the Prison Law and Policy Program at U.C.L.A. “It forms the moral atmosphere around which we treat incarcerated workers.”

Other states have already removed exceptions to their slavery bans. What happened there?

Many states’ constitutions do not mention slavery at all, relying on the protections — and exception — of the U.S. Constitution. But three states with constitutions that ban slavery have in recent years voted to remove the clause that created an exception for those convicted of crimes.

Colorado did so in 2018, followed by Nebraska and Utah in 2020.

After Colorado’s decision, a prisoner sued the state, claiming that it was violating its new, absolute ban on slavery and involuntary servitude, but a state appellate court ruled in August that voters had not meant to abolish prison labor. The judges also ruled that the prisoner’s complaint did not support a claim that the prison work program was involuntary servitude.

But in Nebraska, the change has led at least one jail that had never paid its inmates for work to begin paying them $20 to $30 a week, The Lincoln Journal Star reported.

More legal challenges are expected in those states, as well as any that pass similar measures next month.