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H.J.Res. 104 (116th): Proposing an amendment to the Constitution of the United States to prohibit the use of slavery and involuntary servitude as a punishment for a crime.


Think that America abolished slavery completely? Think again.

Context

In 1865, mere months after the end of the Civil War, the Thirteenth Amendment formally abolished slavery. Or did it? Although that’s what is often taught in school, the amendment actually left a loophole allowing slavery “as a punishment for crime.” What it actually banned was slavery for any other reason, notably the color of one’s skin.

The result is that in practice, compelled forced labor for no wages — or for less than one dollar an hour — is the norm for prisoners in many states. As of 2017, according to the Prison Policy Initiative, the highest that any state paid its prisoners was Nevada at up to $5.15 per hour. This, even as the federal minimum wage for anybody in the regular workforce was $7.25/hour. And some states, particularly in the south, don’t have a minimum wage for their prisoners at all.

On Election Day last month, Nebraska and Utah both abolished such provisions in their state constitutions, joining a number of states which have outlawed the practice — but more than 20 states still allow it.

What the constitutional amendment does

A proposed constitutional amendment would abolish slavery as punishment for a crime, eliminating any legal avenue for the practice in the United States.

The House version was introduced on December 2 as House Joint Resolution 104, by Rep. Lacy Clay Jr. (D-MO1). The Senate version was introduced the same day as Senate Joint Resolution 81, by Sen. Jeff Merkley (D-OR).

A previous House version was introduced on June 29 as House Joint Resolution 92, by Rep. Cedric Richmond (D-LA2), but didn’t attract any cosponsors.

What supporters say

Supporters argue that unpaid labor as punishment for a crime is just slavery by another name, and the battle many thought was won more than a century and a half ago has not actually been fully won.

“The exception to the 13th Amendment’s ban on slavery corrupted criminal justice into a tool of racist control of Black Americans and other people of color, and we see that legacy every day in police encounters, courtrooms, and prisons throughout our country,” Sen. Merkley said in a press release. “Slavery is incompatible with justice. No slavery, no exceptions.”

“Our Abolition Amendment seeks to finish the job that President Lincoln started by ending the punishment clause in the 13th Amendment, to 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,” Rep. Clay said in the same press release. “No American should ever be subject to involuntary servitude, even if they are incarcerated.”

What opponents say

Opponents counter that prisoners don’t need to be paid minimum wage — or even anything — since the whole underlying purpose of minimum wage laws doesn’t apply to them.

“Prisoners’ basic needs are met in prison, irrespective of their ability to pay,” the 1992 Seventh Circuit Court of Appeals decision *Vanskike v. Peters *wrote. “Requiring the payment of minimum wage for a prisoner’s work in prison would not further the policy of ensuring a ‘minimum standard of living,’ because a prisoner’s minimum standard of living is established by state policy; it is not substantially affected by wages received by the prisoner.”

“It is true… that some cases have characterized the [federal minimum wage’s] primary purpose more specifically, as aimed at ‘substandard wages and oppressive working hours,’” the decision continued. “The evil of substandard wages, however, as just noted, does not apply where worker welfare is not a function of wages.”

Odds of passage

The House version has attracted 15 cosponsors, all Democrats. It awaits a potential vote in the House Judiciary Committee. The Senate version has attracted three cosponsors: two Democrats and one independent. It awaits a potential vote in the Senate Judiciary Committee.

Rep. Richmond’s version from June has attracted four cosponsors, all Democrats. It awaits a potential vote in the House Judiciary Committee.

Odds of passage in the Republican-controlled Senate are hard to discern. While this sounds like legislation that would achieve bipartisan support on its face, so far all the cosponsors are Democrats.

A constitutional amendment would have to pass both the House and Senate by two-thirds, then be ratified by three-quarters (or 38) of the 50 individual state legislatures.

Last updated Dec 10, 2020. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Dec 2, 2020.


This joint resolution proposes an amendment to the U.S. Constitution that prohibits slavery and involuntary servitude as a criminal punishment.