The Emancipation Proclamation ended slavery in the 11 states of the Confederacy and those areas not under Union control at the time of its signing. The 13th Amendment of the United States Constitution was intended to abolish slavery in the rest of the nation. However, some problematic language remained which has been the subject of debate for many years.

The text of the 13th Amendment is as follows: “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.” Constitution of the United States, Amendment 13, Section 1.

Senators Bernie Sanders, I-VT, Ed Markey, D-MA and Chris Van Hollen, D-MD co-sponsored a joint resolution called the “Abolition Amendment,” which was presented this week by Senator Jeff Merkley, D-OR and Representative William Lacy Clay, D-MO. This resolution would prohibit involuntary servitude as a punishment for crime.

Van Hollen said, “This change to the 13th Amendment will finally, fully rid our nation of a form of legalized slavery.” Clay commented that the resolution would “eliminate the dehumanizing and discriminatory forced labor of prisoners for profit that has been used to drive the over-incarceration of African Americans since the end of the Civil War.”

The labor of inmates in prisons and jails is an estimated $2 billion per year industry. Companies use incarcerated workers for their business operations, including Walmart, Whole Foods and AT&T, among others. The inmates sometimes don’t get paid at all; the high end of their wages seldom exceeds $1 an hour.

Flores A. Forbes, once a senior official in the Black Panther Party, served a 6-8 year sentence for felony murder. He made chairs in a factory for $.15 per hour. The chairs were sold to the State of California for $300 to $400 per chair. He points to the “exception” clause of the 13th Amendment as the reason for his paltry payment and points out that this clause has been used as a means of shortchanging the rights of Black Americans through legal incarceration. Under the Resolution, work programs in prisons would continue but would become voluntary.

A comforting belief exists that enforced labor while in prison is a way to rehabilitate inmates, teach them new trades, and keep them from being idle. However, detractors say that the “punishment clause” was used as a loophole during the plantation years just after the amendment was passed, and continued through the Jim Crow era and into the war on drugs in the 1980s.

At the time of its drafting in 1864, there was controversy over the language of the 13th Amendment. Senator Charles Sumner, MA, proposed this language instead:

“All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States and the jurisdiction thereof.” (Emphasis added.)

His proposal was ultimately withdrawn, and he commented, “I venture to doubt the expediency of perpetuating in the Constitution language which, if it have any signification, seems to imply that ‘slavery or involuntary servitude’ may be provided ‘for the punishment of crime.’”

Thomas Jefferson may have been largely responsible for the intent and wording of the amendment, as the language of the punishment clause hearkens back to a guide he wrote for governing western territory acquisitions. Jefferson’s guide included the words, “there shall be neither slavery nor involuntary servitude in any of the said states, otherwise than in punishment of crimes, whereof the party shall have been duly convicted and to have been personally guilty.”

Later, in 1820, Jefferson wrote in a letter, “A general emancipation and expatriation could be effected . . .But as it is we have the wolf by the ears, and we can neither hold him nor safely let him go. Justice is in one scale and self-preservation in the other.” It seems that Jefferson could not bring himself to let go of the usefulness of enslavement.

In the years right after the 13th Amendment was passed, the language of the amendment led to much higher rates of arrests among Black Americans, who were arrested for such grievous errors as petty vagrancy or having unkempt children. Slave labor had been at the core of the Southern economy, and by using this loophole, legal re-enslavement was possible.

In this time of heightened awareness of racial inequalities of all sorts, Utah and Nebraska have just, by 81% and 68% votes respectively, altered their state constitutions to remove language that allowed slavery or involuntary servitude as criminal punishments. As of 2020, twelve states include language permitting involuntary servitude and slavery as punishment, and nine states allow involuntary servitude.

In order to end the dichotomy enabled by the language in the 13th Amendment, approval by two-thirds of both the House and the Senate is required, as well as ratification thereafter by three-quarters of state legislatures. It is also possible to amend the Constitution by convening a constitutional convention, but throughout the 27-amendment history of the Constitution, no amendment has ever been added in this way.

The resolution on the 13th Amendment may not be taken up before the legislature prior to the end of their current session. Merkley intends to reintroduce the resolution after the next session begins in January. A new lead sponsor from the house will be needed for such an action, as Clay was defeated in the Democratic primary and lost his seat to Cori Bush, a Black Lives Matter activist and nurse.

Merkely said in a statement, “As we take on the long and difficult challenge of rooting out systemic racism in our nation, ending the slavery loophole in the 13th Amendment is critical step in that challenge.”