Repealing the 13th Amendment

The text of the 13th Amendment to the Constitution states, in Section I, that “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.” This Amendment was said to “abolish” slavery in the United States, but it clearly states that slavery is permissible as a justification for criminal punishment. I believe that the second part of Section I, the clause permitting slavery as criminal punishment, has had a severely detrimental effect on communities of color in this country through the criminal justice system.

This Amendment was created during the Civil War to provide for a quick, and permanent, end to the institution of slavery. At the time, it was a very controversial political issue. The Amendment was passed in Congress and signed by Abraham Lincoln. The text of the Amendment was modeled after a provision in the Northwest Ordinance, which was a document designed to charter a government for new territory towards the Pacific Ocean, and provided a method for admitting new states. The language was basically copied from Article 6 of the Northwest Ordinance document. However, Senator Sumner from Massachusetts offered a different draft for this Constitutional Amendment. His version provided that “everywhere within the limits of the United States, and of each state or territory thereof, all persons are equal before the law, so that no person can hold another as a slave” (Stanley, “Instead of Waiting for the Thirteenth Amendment” (2010), pp. 741–742.) Unfortunately, Congress elected to go with the language of the Northwest Ordinance.

Fast forward to modern times, and this Amendment still has a significant impact on our country’s legal system. I think people on the right and the left will agree that our criminal justice system is in desperate need of reform. These problems are numerous, but one of the problems that relates to the 13th Amendment is the utilization of prison labor as an aspect of punishment. For example, prisoners in the Florida Department of Corrections are in the midst of a strike against their “slave arrangement”. These prisoners can make, at most, between thirty-five to fifty-five cents per hour (https://www.prisonpolicy.org/blog/2017/04/10/wages/). In today’s economic climate, this is akin to slavery-like relationship. While it cannot be cast under the textbook definition of slavery because they do make some income, this income is nominal at best and should be considered, for all practical purposes, as zero. We expect prisoners to serve their debt to society by spending time in prison which are supposedly “correctional” facilities. If these prisoners are not paid for the labor they perform in prison, it is very difficult to survive once released from prison. Some argue that this prison labor gives the prisoners an opportunity to learn skills and gain work experience. While this may be true, it is also necessary to leave prison with some capital in order to reintegrate into society. This increases recidivism, and creates a vicious cycle that disproportionally affects racial minorities.

Furthermore, many of the beneficiaries of prison labor tend to be large corporations (http://affinitymagazine.us/2017/06/29/heres-a-list-of-corporations-that-use-prison-labor/) . These corporations often subcontract their labor costs to prisons where they can have raw goods made for extremely low costs, which yields greater profit margins. Prisoners are not subject to minimum wage laws, so they do not enjoy the protections of these labor laws. Since corporations benefit from this arrangement, they have no incentive to find a solution to the criminal justice problem. In fact, they have an incentive to send more people to prison to increase their “workforce”.

I believe, that if Congress had adopted the language proposed by Senator Sumner of Massachusetts as the text of the 13th Amendment, these problems may have been avoided. His language incorporates an equal protection clause of sorts, which would have served as a tool against the Black Codes, and Jim Crow that came after the Civil War. African-Americans would have been able to invoke the language of “all persons are equal before the law” to guard against acts of racial discrimination. However, even with this language, it is very possible that the evolution of legislated racism such as Jim Crow could have come to fruition. The “all persons” language could be compared to the language in the Declaration of Independence, and could therefore be analyzed within the historical context it was written. But, alas, we are left with the current language of the 13th Amendment. In tackling the harmful ramifications of the 13th Amendment, I believe that we should strive for a solution that helps to restore justice to African-Americans. It is about time that America comes to atone for its original sin of slavery. I think America has realized that slavery was wrong, but it has never made an attempt to make African-Americans whole again. I believe there are several practical steps this country could take to work towards a more equitable future.

First, the 13th Amendment should be repealed to remove the language of permitting slavery as criminal punishment, which is essentially a loophole to keep people of color in bondage. Some may argue that instead of a repeal, we could simply revise the current language. I would caution against this approach. I believe we need to start fresh and establish a new foundation to engage in discourse surrounding the future of slavery and criminal justice punishment in this country. Society has changed drastically since the 1860s, and our understanding of systemic racial problems in our country has developed tremendously. It would be a disservice to racial minorities to attempt to grapple with the context in which the 13th Amendment was drafted. Why not, instead, create a law that best suits the needs of the people at this point in our history, instead of relying on ancient understandings of race and equity. To borrow language from the Republican Party, I believe we need nothing short of “repeal and replace” when it comes to the language of the 13th Amendment. This would be the forward looking part of the solution.

In implementing a new 13th Amendment, I believe it would be necessary to implement a clause that grants reparations to African-Americans. Slavery was one of the most oppressive economic institutions in modern times. A whole class of people were forcibly taken from their homes, brought across the ocean, and made to work so white America could profit. In addition, African-Americans experienced torture, rape, murder, and all types of other barbaric things at the hand of their white slaveholders. The original 13th Amendment was instituted to only contain slavery to a very narrow exception, which at the time was considered a significant step forward in eradicating the institution of slavery. A contemporary 13th Amendment would need to take ownership of the institution of slavery and all the harmful consequences African-Americans have experienced in the years following slavery. African-Americans were forced to sacrifice their bodies, their dignity, and their humanity so that this country could remain profitable. Slavery stunted the economic growth of African-Americans by more than 200 years, therefore it is necessary, not recommended, that reparations are included. However, designing a program that could disperse these reparations would be difficult. But this difficult task should be solved by legislators and should ensure that each African-American in this country receives compensation for the damage inflicted by this country.

Next, I think we need to offset the rates at which African-Americans are charged and sentenced to crimes. I believe one way we can do this is to institute a racial quota system of sorts in the election of state prosecutors. According to a 2015 study from the Reflective Democracy Campaign, over 95% of elected prosecutors in this country are white (https://www.npr.org/sections/itsallpolitics/2015/07/08/420913118/does-it-matter-that-95-of-elected-prosecutors-are-white). Prosecutors are essentially the gatekeepers of prison. They decide who to bring charges against, what charges to bring, and the length of sentence to ask for. If more prosecutors were people of color, I believe they would better empathize with black and brown defendants, which would hopefully lead to more lenient sentencing and more discretion in bringing charges. While this would not be the final solution to the criminal justice problem, I believe it’s effects would be very beneficial.

Lastly, I think private prisons should be prohibited and there should be a minimum wage in effect for prisoners who choose to work. Government has become increasingly privatized in the last two decades, auctioning off its responsibilities to the highest bidding private enterprise. But criminal justice and the administration of the prison system is one responsibility that should not be abdicated. The privatization of prisons lead to perverse incentives and ultimately lead to a moral hazard, where profits are dependent on the criminalization of individuals. Additionally, I think there is a mutually beneficial relationship to be had between corporations and prisoners. Rates of recidivism are very high in the United States, partly due to the fact that prisoners leave prison with no capital to successfully integrate back into society. These prisoners could use the income while in prison to help fund their re-entry into society. Corporations are always looking for a cheaper avenue for production. Legislation could be passed creating a federal minimum wage for prisoners that would be twenty percent less than the federal or state minimum wage. This would allow prisoners to accumulate much more capital than they are currently making at the current thirty cent rate, and would lower rates of recidivism. For corporations, it would remain beneficial to employ prisoners. If the federal minimum wage was extended to prisoners, these corporations would be incentivized to either move these employment opportunities to non-inmates, or overseas. With this special minimum wage, prisoners will be provided with employment opportunities if desire.

These solutions will not solve the complete problem, as racism is deeply entrenched in the foundation of this country. When grappling with the foundation of this country, such as the 13th Amendment, we need to question the whole foundation, rather than simply making small tweaks. Americans have such a reverence for the Constitution, yet unquestioned tradition can have dire consequences.