How a 13th Amendment Loophole Created America’s Carceral State

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A clause in the 13th Amendment effectively turned African-American convicts, like these inmates of Angola Prison in 1934, into second-class citizens. Photo via Wikipedia

While I was serving a six- to-eight year sentence in the California Department of Corrections for felony murder, I became a participant in what was then the Pell Grant college education program for incarcerated individuals at Soledad State Prison.  One day, my counselor told me I needed to give him power of attorney in order to cash my Pell Grant check.

The reason, he explained, was that my signature had no legal value. As prisoner C-72851, I had no rights as a person.

The justification for that, it turned out, was in the U.S. Constitution—more precisely the “exception” clause of the Thirteenth Amendment, which reads (with the clause boldfaced):

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.

 After a year, I was transferred to San Quentin. At the time, there was no education programming at the Q—just work. The prison was on a general lockdown because a guard had been killed, so they were bringing in people to keep their furniture factory going. I made chairs for 15 cents an hour. The total cost of labor and material for each chair was $75.00.

But the chairs were sold to the State of California—universities, state, county and local agencies—for $300 to $400 per chair. How did they get away with paying me in effect slave wages?

Answer (again): the “exception” clause of the Thirteenth Amendment, which justifies treating human beings, in effect, as slaves if they have been “duly convicted” of a crime.

I’m not the first to point out the irony that a 154-year-old landmark law that formally ended the institution of slavery in the U.S. perpetuated it by other means.

13th amendment

Celebration in the House of Representatives following passage of the 13th Amendment. Courtesy Wikipedia

Nor to emphasize how it is no accident that it has been used today as a means of shortchanging the rights of African Americans through legal incarceration.

In a 2007 article in the UC Davis Law Review, William “Chip” Carter, professor of law at the University of Pittsburgh, and one of the foremost experts on the 13th Amendment, underlined the point.

“Because the institution of slavery was about the interaction of race, power and group status,” he wrote, “the 13th Amendment should be expressly construed in terms of race, power and group status.”

The movement to eliminate the Thirteenth Amendment exception clause isn’t new, but too few people take it seriously. Some may think it is an overly legalistic sidetrack to the campaigns against institutional bias in our justice system.

I disagree.

The clause is essential to understanding how our justice system developed into an extension of the “Jim Crow” system, through convict leasing, black codes, and the emergence of hyper-incarceration in the 1990s.

Charles Sumner

Charles Sumner via Wikipedia

The danger was actually recognized at the time. As recounted by Dennis Childs in his book, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary, then-Massachusetts Sen. Charles Sumner argued that the version of the Thirteenth Amendment presented to Congress in 1865 was a loophole to reestablish slavery by another name. He wanted the amendment to include the phrase, “All persons are equal before the law.”

He was unsuccessful.

That loophole created today’s carceral state.

It reflected fears that predated the Civil War. In fact, it’s possible to argue that it was introduced into the nation’s DNA by one of our Founding Fathers: Thomas Jefferson.

In letters and documents that read today like 18th -and 19th- -century versions of emails, Jefferson expressed his and others’ anxieties about the prospect of banning slavery in America’s new territories as the nation expanded westward.

In 1784, a report that Jefferson was drafting to provide guidelines for governing the newly acquired western territories advised adding the clause “…after the year 1800 of the Christian Era, 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.”

It’s no coincidence that the wording of the 1865 amendment echoes almost exactly Jefferson’s 81 years earlier.

The topic apparently continued to be uppermost in Jefferson’s mind in the early years of the 19th century.

In an 1820 letter to John Holmes, entitled “The Fire Bell in the Night,” he wrote the following:

A general emancipation and expatriation could be effected; and gradually; and with due sacrifices, I think it might be. 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.

 The rhetoric, which I find terrifying, anticipates the kind of rhetoric that was used through the 20th century to raise fears about black criminality.

Because the framers of the Thirteenth Amendment had access to the Jefferson letters and documents, and even adopted his language in their draft, I believe there can’t be any doubt that insertion of the “exception” clause was tied to the intent of controlling black bodies post-emancipation.

As enlightened as I thought I was back in the day, I am embarrassed to say I was in a fog and did not have a clue as to how much trouble I was in because of the exception clause.

But we know better now. The campaign to amend the Thirteenth Amendment has been percolating and growing at the grassroots, beginning with a few formerly incarcerated folk, then hundreds, and now thousands.

Our ultimate target is the millions of formerly incarcerated people who are treated like former slaves and, following their emancipation from prison, like second-class citizens. We are collaborating with the civic, private and public sectors to organize an effort that is not just about social justice, but economic justice.

The “exception” clause represents, in essence, an economic detour to a people’s real freedom.

As we head into the 2020 election campaign, several candidates have begun to address criminal justice reform, specifically ways to reduce mass incarceration, which has disproportionately impacted African Americans.

We are challenging them to embrace “Amend the 13th” in order to adjust that narrative from “reform” to “change.”

Flores Forbes

Flores A. Forbes

Amending the Thirteenth, and removing the “exception” clause, would be a good way to signal that the nation is willing to put the legacies of slavery and Jim Crow in the historical dustbin where they belong.

Flores Forbes is Associate Vice President for Strategic Policy & Program Implementation in the Office of Government & Community Affairs at Columbia University. A former senior official in the Black Panther Party, he is the author of Will You Die with Me? My Life and the Black Panther Party (published 2006) and Invisible Men: A Contemporary Slave Narrative in an Era of Mass Incarceration (winner of the 2017 American Book Award). He welcomes comments from readers.

7 thoughts on “How a 13th Amendment Loophole Created America’s Carceral State

  1. I would advise the author and let him know that no federal amendment can be amended. like the 18th amendment which was supplanted by the 21st amendment, it must be repealed and replaced. In effect removing the 14 offending words and instituting the new language as the 28th amendment.

  2. The author goes on about how its harming African Americans and how it’s not fair he made $.15 an hour… is it fair to the person you murdered that he wont see his family again? No sympathy at all for you.

    • Do you think every soldier who killed a combatant deserves the same scorn? Women who have had abortions? Executioners? Drunk drivers who kill someone?

    • Are you assuming that everybody in prison murdered someone? What about the legions of people who are serving life without parole for a drug crime.
      Were they duly convicted “ because congress decided to criminalize drugs instead of treating it as a health problem? Should they be making 15 cents an hour for producing profit for the state or private corporations. There are plenty of manufacturing jobs in the US. The problem is many of them are sourced from the prison system. As Bryan Stevenson says “Slavery didn’t end; it evolved”.

  3. Yes – replace!

    No sympathy – so prisoners have no rights (ex. minimum wage)? Are we implying that the vast majority of African-American prisoners are murders? If only “lesser” crimes were committed, then those who could afford bail should have their rights taken away…but of course that wouldn’t be rational.

    If all else fails, cripple the prison system, financially. Law only moves as fast as th money does.

  4. The claim seems historically accurate. As Eric Foner recently commented, the clause in the 13th Amendment was pretty much “boilerplate” language by the time of the amendment’s consideration. Its roots are traced back to Jefferson’s inclusion of it in the NorthWest Ordinance. However, the larger substantive claim is incorrect. The exception clause in the 13th Amendment is superseded by the “equal protection” clause of the 14th Amendment which made former slaves US citizens and bestowed upon them–as a matter of law if not practice–the range of citizenship rights, which no slave enjoyed. Being paid low wages in prison is not tantamount to slavery; however, if your children were put in the same prison with you at birth then that would be closer but still wouldn’t approximate the chattel slavery that the 13th Amendment ended. No prisoner today is treated as chattel as slaves were; and such claims truly minimize the horrific institution of American chattel slavery. Even a death row prisoner, among other things, has a right of habeaus corpus–no slave ever had that, for that matter.

  5. Repealing the 13th ammendment is imperative. Considering prisons were invented after slavery ended and after reconstruction was demolished by white supremacists. A vast majority of people who are in jails and prisons are there for low level crimes due to laws and policies set up against minorities and the poor.

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