By: Molly Launceford

The Thirteenth Amendment was allegedly enacted to put an end to slavery in the United States; however, it is also the only legal justification that allows the practice of slavery to continue to this day. Under the Thirteenth Amendment, slavery and involuntary servitude were abolished, “except as a punishment for crime whereof the party shall have been duly convicted.” By creating an exception to abolition for people convicted of a crime, the government reserved for itself the remaining right to enslave people.

This exception was the justification for oppressive laws post-Civil War, like the Black Codes, which made it possible for law enforcement to incarcerate Black people for petty crimes like vagrancy. Once incarcerated, these individuals would be forced to perform prison labor without pay. In this way, the Thirteenth Amendment acted, and continues to act, as a slavery loophole. In several states, incarcerated people are still paid nothing for the majority of prison labor, while in most other states, the pay is extraordinarily low.

In the recent midterm election, citizens of four states voted to remove language from their state constitutions that permitted enslavement as punishment for a crime: Alabama, Oregon, Tennessee, and Vermont. A few other states have voted to make similar changes to their state constitutions before this year. Proponents of abolition argue that constitutional amendments will establish basic rights for incarcerated people, particularly with regard to conditions of prison labor.

Under Arizona law, compensation for prison labor is mostly decided by the Director of the Department of Corrections, with few limitations on that discretion. The Director is appointed by and serves at the pleasure of the Governor. Incarcerated people who are assigned to work within state prisons make between 10 and 35 cents per hour. Assignments at state agencies and municipalities have wages of 50 cents to $1.50 per hour. The relatively higher paid positions are with Arizona Correctional Industries (ACI), which leases incarcerated laborers to certain private companies. It gives these private companies access to below-minimum-wage workers for whom they do not have to provide benefits, insurance, or taxes. Many incarcerated people in Arizona are even assigned to dangerous jobs, and if they are injured on the job, they receive no workers’ compensation.

The ACI and other prison work assignments purport to have a goal of job training and reducing recidivism. Unfortunately, formerly incarcerated people in Arizona state prisons have reported a lack of sufficient job training. Furthermore, many work assignments held by prisoners while incarcerated are not jobs available to them immediately upon release, or at all, because of their criminal record. It is difficult to see how the ACI is creating a path forward. As far as the purpose of reducing recidivism goes, reports show very little difference in recidivism rates between workers who participated in ACI work placement, and those who did not.

There are three main arguments against abolishing slavery for incarcerated people. The first is that these work assignments are technically voluntary. Incarcerated people are not forced to take any employment, and they are paid. Of course, this pay is incredibly low, and mainly used to purchase basic hygiene items that are not provided in prison, like soap. Additionally, former inmates have reported being punished for refusing to work.

Second, many believe that people who are convicted of crimes deserve the punishments of prison, including the work conditions. Based on the research presented that prison labor does not presently train, prepare, or encourage formerly incarcerated people to obtain employment post-release, this argument seems out of tune with the alleged goal of Arizona prisons to rehabilitate. After all, the name of the state agency in charge is the Arizona Department of Corrections, Rehabilitation and Reentry.

Third, many people oppose removing this exception to abolition because it would be expensive. The Arizona Department of Corrections Director was even quoted as saying that communities would “collapse” without cheap prison labor. This argument only acknowledges the corruption inherent in enslavement of incarcerated people. It also mirrors pre-Civil War arguments against abolition of slavery, which were both morally reprehensible and legally insufficient.

The Arizona State Constitution does not mention slavery, which means the rights in this area default to those protected by the United States Constitution in the Thirteenth Amendment. The federal constitution creates a floor for protected rights, and states may go beyond that floor so long as they do not contradict the federal requirements. Arizona recently demonstrated a willingness to go beyond federal constitutional requirements to ensure fairness in the justice system when it eliminated peremptory challenges in jury selection. The state should do so again.

Arizona has one of the highest incarceration rates in the country, and a higher-than-average recidivism rate. One of the main goals of incarceration in Arizona is rehabilitation, but clearly that goal is not being met. Many attribute that to a lack of basic rights for incarcerated people. This leads into struggles faced by many after release from prison, like poverty, homelessness, and barriers to employment.

Abolishing the criminal exception to slavery in Arizona will not necessarily or immediately cure state prison issues, particularly because prison labor is technically voluntary and paid. However, this is an important and arguably necessary first step in establishing basic rights for incarcerated people and it is considered by some to be the “crown jewel of criminal justice reform.”

Molly is a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Her legal interests include criminal justice reform and the impact of the criminal justice system on children. Outside of law school, Molly enjoys cooking, short stories, strong coffee, and playing pickleball.