Slavery Is Still a Legal Punishment in the U.S. But Not in This State Anymore

In 2016, Coloradoans voted against abolishing slavery as punishment for a crime. This year, they had a change of heart.
by | November 7, 2018
A close-up of a copy of the Colorado Constitution.
A close-up of a copy of the Colorado Constitution. (AP/P. Solomon Banda)

For results of the most important ballot measures, click here.

Americans learn about the 13th Amendment as the signature measure outlawing slavery throughout the country. But what most Americans likely don't know is that slavery is still legal in the U.S. Constitution as “a punishment for crime whereof the party shall have been duly convicted.” In other words, slavery is legal in federal prisons.

Similar language exists in a number of states' constitutions, including Nevada, North Carolina, Tennessee and Wisconsin. There have been attempts to change this -- most unsuccessful.

But on Tuesday, Colorado voters opted to abolish this language from theirs. The vote comes two years after Colorado voters rejected a similar ballot measure.

While the vote will not affect the state's prison labor programs -- corrections facilities pay inmates for their work, albeit less than minimum wage -- proponents of the measure say the change is necessary.

“Similarly to the Confederate monuments coming down across the country, this action to me is in the same vein,” said Jumoke Emery from Abolish Slavery Colorado, one of the advocacy groups behind the push for change. “Bringing down these monuments of our past … is incredibly important to moving forward and healing racial divides.”

Richard Collins, a constitutional law professor with the University of Colorado, Boulder, said most constitutional amendments have some sort of immediate legal change -- Amendment A in that sense is a “very rare case.” But, he adds, it could empower some inmates to take legal action.

“I don’t doubt that ... some prisoners would invoke the change to try to challenge some conditions in prisons,” he said. “What the courts do with that is then another question.”

This year, prisoners in several states went on strike to protest work conditions and low pay. Some characterized it as a form of modern-day slavery.

The Colorado Department of Corrections doesn't take official positions on ballot measures, but its public information officer, Mark Fairbairn, said, "The Correctional Industries programs will comply with the law. The offender population benefits from these opportunities to learn a trade. There is currently a long wait list for offenders requesting to participate in CCI jobs. We are committed to maintaining this valuable program."

The U.S. Constitution's 13th Amendment, and state amendments like it, have been a target for criminal justice advocates who tie the loophole to the country’s billion-dollar prison labor system. The Oscar-nominated documentary "13th" analyzed the connection between the amendment and the prison-industrial complex. 

While Abolish Slavery Colorado said it has prison labor concerns, the group sees this vote as ultimately about Colorado’s values as a state.

The vote is "an incredibly important message to send to the country,” said Emery. “Even with the state of politics being divided, there are some things we can still agree upon on both sides of the aisle.”

Abolish Slavery attributes the 2016 failure in part to the question’s wording.

“The language that was written was extremely confusing,” said Kamau Allen of Abolish Slavery. “This time we wanted to make it absolutely clear that a ‘yes’ vote was a vote to abolish the exception.”

The language on the 2016 measure read:

“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 punishment for persons duly convicted of a crime?”

The wording for 2018 read:

“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?”

For results of the most important ballot measures, click here.