This is the first in what I hope to be a series of opinion posts regarding amendments to the Constitution of the United States. The entire enterprise of the Constitution is to create a more perfect union, and amendments are designed to serve that purpose. While amendments are (rightly) difficult to enact, it is entirely plausible that our fundamental system of law is in need of more perfection and, when that is the case, we are obliged to amend to make a more just and free country.

Abolition

The 13th Amendment was ratified on December 6, 1865, and certainly made the country more just and free. While by no means did it even come close to make this a country where “We the People” meant all the people, it is hard to argue that it was unambiguously a good thing for society, particularly those who were freed by it (because the Emancipation Proclamation only applied to rebelling states, it wasn’t until the 13th Amendment that the northern slave-states of Kentucky, Delaware, and New Jersey abolished slavery officially). Just for reference, the amendment itself says, “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.” Maybe a little heavy on the commas, but pretty good, right? I am nowhere close to the first person to observe this, but that second clause is a little troubling.

Post-Slavery Slavery

“Except as a punishment for crime” leaves a lot to be desired. If you were a racist, bitter about the crushing defeat of the Civil War, looking for ways to extend white hegemony, this clause gives you an opportunity to extend slavery, just with the additional step of criminal conviction. That is, in fact, exactly what happened. “Black Codes” made mundane things, such as not showing respect, crimes, and many states enacted laws governing the types and extent of employment black Americans could engage in. For instance, South Carolina “prohibited blacks from holding any occupation other than farmer or servant,” and if you broke that law? Slavery. I don’t need to go into all the ways reconstruction was bungled by the United States, but it should be clear that from the beginning, the 13th Amendment continued to enslave people, particularly black people.

Industrial Prison

But we don’t live in that world anymore, right? I believe in systematic racism (that’s…sort of what this entire opinion is about), but I don’t believe that most people in state legislatures actively miss slavery. While this change is a good one, it has done nothing to reduce the extremely perverse incentive for states looking to get more free labor. This, of course, is used for states to get more from shrinking budgets (the cliché example of license plate manufacturing comes to mind) and for manufacturing military equipment, but it prison labor is also used to manufacture all sorts of products for private companies as well. If prisoners are paid at all, ”federal inmates earn 12 cents to 40 cents per hour for jobs serving the prison, and 23 cents to $1.15 per hour in Federal Prison Industries factories.” This system targets black people disproportionately in part because the systemic racism has ripped away the voice and power of black individuals, meaning that a case for reform is much harder to effect. According to the NAACP, “One out of every three Black boys born today can expect to be sentenced to prison, compared 1 out 6 Latino boys; one out of 17 white boys.” I cannot do justice to exactly how corrupt and racist the prison system is (you could read The New Jim Crow if you’re interested in reading more), but slavery should simply not exist anymore, in any fashion.

Command-X

What is the solution? Amend the Constitution. Simply delete “except as a punishment for crime whereof the party shall have been duly convicted” from the Constitution. This wouldn’t be the first time the phrasing and meaning of specific parts of the Constitution was amended, it wouldn’t even be the first time an amendment amended another amendment. It also wouldn’t fix systematic racism, but it will begin the massive undertaking of prison reform. In 2018, I voted in my state of Colorado to amend our constitution to ban slavery, even in cases of criminal punishment, but this change needs to take place federally to have long-lasting, wide-ranging effects. If we live in a society dedicated to rehabilitation, we need to begin treating prisoners like humans, and that includes paying them for any work they do, and not forcing them to work against their will. If we don’t live in a society dedicated to rehabilitation, we need a new society.