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.
