Due to an exception clause in the 13th Amendment of the U.S. Constitution, slavery is still technically legal in many states as a punishment for crime.
Slavery may sound like an issue of the past, but the topic was on the ballot in five states — Alabama, Tennessee, Oregon, Vermont and Louisiana — during the 2022 midterm election.
On Election Day, a post on Twitter went viral, announcing that slavery had officially been banned as punishment in Tennessee. Some people who replied to that tweet claimed slavery technically remains legal in the vast majority of states.
THE QUESTION
Are some forms of slavery still legal in most U.S. states?
THE SOURCES
THE ANSWER
Yes, some forms of slavery are still technically legal in most U.S. states.
WHAT WE FOUND
In the United States, the form of slavery most Americans are familiar with is called chattel slavery, which allowed people, who were considered legal property, to be bought, sold and owned. Chattel slavery was abolished in 1865 when the 13th Amendment of the U.S. Constitution was ratified. But the text of the 13th Amendment contains an exception clause that reads:
“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.”
“The 13th Amendment is the amendment that is celebrated for having abolished slavery. However, what most people don’t know is that within the 13th Amendment, there is a short exception clause that says ‘except as criminal punishment,’ essentially,” said Bianca Tylek, founder and executive director of Worth Rises.
This exception means if a person has been convicted of a crime in the U.S., they can still legally be enslaved when incarcerated, Tylek told VERIFY.
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Worth Rises is a nonprofit advocacy organization dedicated to reforming the prison industry. The organization is currently backing legislation to remove the exception clause from the 13th Amendment at the federal level.
An amendment to the U.S. Constitution requires approval by two-thirds of each chamber of Congress, as well as ratification by 38 states. Making that change is a tall order, so some prison reform advocates have been working to change constitutions on the state level, many of which include similar language to the 13th Amendment.
“Across the U.S., there are some states that explicitly allow slavery, according to the same exception clause in the 13th Amendment. Others are silent on the issue, which means that the 13th Amendment basically reigns for all of its citizens,” said Tylek.
This past Election Day, voters in Tennessee, Alabama, Oregon, and Vermont approved ballot measures that will change their state constitutions to prohibit slavery and involuntary servitude as punishment for crime. Louisiana had a similar ballot measure up for a vote, but it was defeated after the bill’s sponsor asked voters to reject it because of ambiguous language that did not prohibit involuntary servitude.
In 2018, Colorado became the first state since 1865 to approve the removal of slavery exception language from its state constitution, followed by Nebraska and Utah two years later. Now, a total of eight states have explicitly abolished slavery in all circumstances, including Rhode Island, which is the only state that fully abolished slavery prior to 1865.
“Outside of those eight states, slavery is certainly legal and permissible in the rest of the states in our nation,” said Tylek.
As for what this means for prisoners in the U.S. — likely not much, at least at first. The four approved ballot measures will not force immediate changes in their states’ prisons, but they may invite legal challenges over the practice of coercing prisoners to work under threat of sanctions or loss of privileges if they refuse the work. In the meantime, Tylek says removing any exceptions and unequivocally banning slavery is an important human rights issue.
“The reality is that even the day that they passed, should nothing else about prison labor change, what changes is the recognition of the humanity of people who are incarcerated, and that has a real tangible impact on their lives, their emotions, their mental states — that should never be ignored,” said Tylek.
The Associated Press contributed to this report.