The 13th Amendment to the U.S. Constitution abolished slavery back in the mid nineteenth century, but it included an important exception: Neither slavery nor involuntary servitude shall exist, it declares, except as punishment for a crime. Some lawyers claim this exception allows for forced labor in prisons even if the forced labour not not specified in the original sentence.
But does this apply in Colorado, a state that changed its own constitution to say no one could be forced to work, not even prisoners?
Five years ago this month, Colorado became the first state in modern U.S. history to enact this constitutional change. (Rhode Island banned slavery without exception in 1842.)
Since then, there has been a growing movement across the U.S. to get rid of what’s become known as the “exception clause.” Nebraska, Utah, Alabama, Oregon, Tennessee and Vermont have all changed their constitutions in the past three years. At least nine more have introduced legislation, including Nevada, where residents will vote on this issue in 2024.
But in Colorado, the daily lives of people behind bars don’t seem to have changed at all.
“Unfortunately, here we are five years later, and we have not seen the change happen inside of our prisons. It’s been business as usual,” says Kym Ray, a community organizer with Together Colorado, a multi-faith community organization. “It was never intended to be a symbolic sort of thing, like we removed it from our constitution with no expectation of change. We actually did, in fact, expect there to be some level of change.”
A spokesperson for Colorado’s Department Of Corrections declined NPR’s request for an interview and declined to comment, because of pending litigation.
There are more than a million people in state and federal prisons across the country. Most of them work, and three quarters say they’re required to, according to the most recent numbers from the federal Bureau of Justice Statistics.
“The reality is that once people enter the prison gates, they lose the right to refuse to work,” says Jennifer Turner, a human rights researcher at the ACLU and the lead author on a report released last year on prison labor.
Most prison workers maintain the institutions where they’re held. In New York, prisoners also staff DMV call centers. In Michigan, they make license plates. In Louisiana, they serve lawmakers food. In North Carolina, they work on highway crews. In 14 states including California, prisoners fight wildfires. In Texas, some prison farms are located on the same land as former slave plantations.
Colorado used to sell goat cheese to Whole Foods, though the company stopped amid public outcry. In 2020, the state generated more than $6 million selling to around 100 private companies.
Nationwide, prisoners often make less than a dollar an hour, and courts have ruled that laws protecting workers outside of prison, like the Fair Labor Standards Act, do not apply inside.
“They’re stripped of every legal right, virtually, that workers outside of prisons and jails have,” Turner says.
Andrea Armstrong, a professor of law at Loyola University New Orleans, says penalties for refusing work can vary widely.
“You could get a disciplinary write-up and that might be what we think of as a ticket. Maybe you can’t use the commissary service or maybe you can’t have visitation for a week or two. And that’s one end of the spectrum,” she says. “The other end of the spectrum is that you can be sent to solitary confinement and the time that you spend alone in a cell is 23 hours a day.”
In 2018, Colorado’s constitution went from this: “There 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.”
To this: “There shall never be in this state either slavery or involuntary servitude.” Full stop.
In fact, data obtained by NPR from the Colorado Department of Corrections indicates that more than 14,000 prisoners have been written up for failing to work since 2019, the year after the amendment passed. Hundreds of them were reprimanded, including being assigned more work or losing other privileges.
The Colorado Supreme Court has already ruled that the change of wording in the amendment was never intended to abolish the work programs in the state’s prison, nad that this was not a case of involuntary servitude, but that hasn’t stopped inmates for bringing up new challenges.
Their lawyers argue that “failure to work” inside the prison is a class 2 violation — which can result in the loss of up to 30 days of good time. Punishing people for deciding not to work by holding them in prison longer than the original sentence, they said, amounts to servitude.
Lilgerose, a man assigned to his prison’s kitchen, and another prisoner filed a lawsuit last year, saying Colorado is violating its newly amended constitution.
The state has argued the lawsuit should be dismissed and that taking away privileges is not the same as punishment. The case is now in discovery.
Sources: NPR, CRR.org.
