Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Penal Servitude: A Reminder about the U.S. Constitution’s 13th Amendment Exclusion Clause

by Charles Sullivan and Barbara Koeppel

The U.S. Congress banned slavery in America 150 years ago on December 18, 1865 when the 13th Amendment became the law of the land (after a 250-year run).

But it didn’t, at least not entirely. It added an exclusion clause: Slavery would be allowed as punishment for a crime.

To reaffirm the penal servitude, Virginia’s Supreme Court declared prisoners “slaves of the state” in 1872.

Thus, prisoners have few legal rights. Theoretically, they can appeal sentences, enjoy limited free speech through the First Amendment and get limited medical care through the Eighth Amendment. All are violated daily.

Except for two states (Maine and Vermont), prisoners cannot vote while incarcerated. In two states (Kentucky and Virginia), they cannot vote even after being released from prison, despite having paid their “debt to society.” Nor can they organize, support families, get their children health benefits or contribute to social security, all job-related benefits.

Most important, they can’t refuse to work, choose jobs or negotiate wages. As the U.S. Department of Justice, federal Bureau of Prisons’ 2008 program states, “Sentenced inmates physically and mentally able to work are required to participate in the work program.” Nearly all state prisons follow suit.

Such was the rationale for the chain gang “work” programs in many states, especially throughout the South, from 1865 to 1955, and revived in 1995 in Phoenix, Arizona by Sheriff Joe Arpaio. And these programs were not just for men and women. Participation in Arpaio’s chain gangs is unpaid and “voluntary,” and juveniles may also join.

Even if prisoners could refuse to work, they do not, for several reasons. First, punishment is certain. They are put in solitary confinement or lock-down (23 hours a day in a cell). Or moved to a cell with eight prisoners instead of two. Or their access is blocked to family visits, TV, phone calls, the prison commissary, outside yard time and education programs. Or they lose good time, which reduces a prisoner’s sentence. If they file grievances, they go to the same people making the prisoner’s life miserable.

Many current and formerly incarcerated men and women say that nearly everyone wants to work. It’s hard to sit in a cell doing nothing.

Most important, prisoners need money and most prisoners’ families are too poor to send any. They might get $20 a year from a relative, but that does not go far. And everything in prison is for sale.

Prisoners must buy all their necessities at prison commissaries. As one example, the cheapest soap is a 4-pack of Ivory for $3.50, Aspirin is $1.50, a small container of peanut butter is $2.90 and toothpaste is $2.90. Emergency medical care is free and 12 states provide other medical services at no cost. But the others slap on a $2 to $5 co-payment.

Even uniforms and shoes have price tags. If prisoners want ones that fit, they must tip the prisoner who dispenses them.

Most prisoners’ cash comes from prison wages (called gratuities) set by Level 1-5 pay scales. Two states (Georgia and Texas) pay nothing. Others pay next to nothing.

Unskilled Level 5 prisoners mop floors, wash windows, shovel snow or scrub pots for eight to 13 cents an hour, or $5 to $12 a month, based on how many hours worked. Level 1 skilled prisoners (say, plumbers or mechanics) get $1.50 to $8 a day, perhaps $300 a month. But Level 5 jobs are scarce.

State and federal prisons also have on-site factories that sew prison uniforms or military goods (jackets and body bags), or build office furniture for government agencies. They pay prisoners hourly or piece rates (for example, 12 cents for sewing three dozen T-shirts), totaling $2 to $8.50 a day, for seven-hour days, with no overtime pay. UNICOR, the quasi for-profit federal prison industry, hasn’t raised rates since 1987.

With such low wages – just a fraction of the federal minimum, which is being raised in several states and cities to what is considered a living wage – prisoners can’t support their families or save for when they’re released.

Prisoners do better in the Prison Industry Enhancement (PIE) program through which private firms build in-prison factories, train prisoners, and pay minimum wage and Social Security contributions. Prisoners can designate a percent for child support. For example, in Nevada, prisoners restore cars. In Washington, they pack Starbucks coffee beans.

Although PIE began 40 years ago, authorities don’t welcome it, since they see it as just one more task to do. Thus, PIE affects only 5,000 of the 2.3 million prisoners in the U.S.

The 13th Amendment’s exclusion clause, which sanctions these low wages, hurts the economy. Before prisoners were incarcerated, 50 percent were employed. If they were paid more in prison, they’d still be in the economy and could send money to their families, who’d spend more, thus helping the economy grow.

Slavery is the parent of this clause. It springs from the same culture. After the Civil War, Jim Crow laws were passed to imprison former slaves – you could get arrested just for looking at a white woman – and get them to work for free. Thus, to save on labor costs, industries contracted with the state for prisoners that they then sent back to the fields; some were also sent to mines. Others were sent to railroad companies, such as the C&O, to dig a tunnel to West Virginia through the mountains. Many died.

Prisoners are humiliated, brutalized and denied human rights. But that’s not the job of prisons. Persons convicted of crimes are sent to prison as punishment, not for punishment. They are imprisoned to take away their freedom, not to enslave them.

After 150 years of Constitutionally-enshrined slavery, it’s time the U.S. Congress ends this.

Charlie Sullivan is president of International Citizens United for Rehabilitation of Errants (CURE), and Barbara Koeppel is a Washington D.C.-based freelance journalist. This article was originally published in Offender Programs Report, Volume 19, Number 5 (January-February 2016), a publication of the Civic Research Institute; it is reprinted with permission of the authors, with minor changes.


PLN Editor's note: In April 2016, Governor Terry McAuliffe restored the voting rights of convicted felons in Virginia.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login