Colorado’s Amendment T and the Meaning of Involuntary Servitude

How did slavery and involuntary servitude become active issues in the 2016 Colorado election? What is the significance of Amendment T, the ballot measure that addresses slavery and involuntary servitude with respect to criminals? Would Amendment T affect current criminal justice practices regarding in-prison work, work release, community service, or mandatory employment for parolees?

My take, in brief, is that Amendment T would remove troublesome language sanctioning the enslavement of prisoners without affecting today’s work-related programs for convicted criminals. Below I explore the background and implications of the measure in more detail.

No one needs reminding of America’s history of slavery. Almost immediately after the Civil War, in 1865, the federal Thirteenth Amendment was ratified. It states, “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 is among the most important pieces of anti-slavery legislation in world history.

The state of Colorado was formed a few years later, and its constitution was approved in 1876 (hence the “Centennial State”). Unsurprisingly, the state’s constitution often mirrors the language of the federal constitution. Colorado’s Bill of Rights, Article II, includes Section 26, titled “Slavery Prohibited.” It states, “There shall never be in this state either slavery or involuntary servitude except as a punishment for crime, whereof the party shall have been duly convicted.”

Although the language in the federal and state constitutions is in the main profoundly anti-slavery, obviously it admits an exception for convicted criminals.

It is an exception that Will Dickerson of the nonprofit group Together Colorado sought to remove. Dickerson said (by phone) that, while reading The New Jim Crow by Michelle Alexander, he and his then-colleague Jukome Emery-Brown became inspired to look more closely at Colorado’s constitutional language.

Together Colorado brought the idea for a constitutional change to state senator Jessie Ulibarri, who introduced Senate Concurrent Resolution 006 during this year’s legislative session. Remarkably, the resolution passed both houses unanimously, sending to the Colorado ballot the measure now called Amendment T. The measure, quite simply, strikes out the slavery and involuntary servitude exception for criminals.

By most accounts—including the favorable argument for the measure included in the legislatively prepared Blue Book, Amendment T is a “symbolic statement” against slavery.

Voters can reasonably ask, though, what purpose would be served by passing the measure and whether it would have any impacts on existing criminal justice practices.

Historically, the enslavement of criminals was a meaningful issue. In The New Jim Crow, Alexander points to the 1871 Virginia case Ruffin v. Commonwealth, in which the state’s Supreme Court declared a criminal “a slave of the State.”

The Atlantic reports:

[T]he proliferation of prison labor camps grew during the Reconstruction era following the Civil War, a time when southern states established large prisons throughout the region that they quickly filled, primarily with black men. Many of these prisons had very recently been slave plantations, Angola and Mississippi State Penitentiary (known as Parchman Farm) among them. Other prisons began convict-leasing programs, where, for a leasing fee, the state would lease out the labor of incarcerated workers as hired work crews. Convict leasing was cheaper than slavery, since farm owners and companies did not have to worry at all about the health of their workers.

Jim Liske points out in USA Today that, following the Civil War, black men could be convicted of such vague and arbitrary crimes as “vagrancy” and then effectively sold by government into slavery.

Liske quotes Frederick Douglass on the problem:

[States] claim to be too poor to maintain state convicts within prison walls. Hence the convicts are leased out to work for railway contractors, mining companies and those who farm large plantations. These companies assume charge of the convicts, work them as cheap labor and pay the states a handsome revenue for their labor. Nine-tenths of these convicts are negroes.

Today courts presumably would rule out flagrantly abusive punishments because of the Eighth Amendment’s prohibition of “cruel and unusual punishment” and because of equal protection concerns. But obviously the slavery exception for criminals was abused in America’s history—although I am not aware of any abuse in Colorado.

It’s easy to see how the slavery exception for criminals could create a perverse incentive for governments to wrongfully convict people of crimes and to overpunish criminals. Generally it’s a bad idea to turn government’s criminal justice system into a money-making venture for the government and its cronies.

On these grounds, I think Amendment T is a worthy statement, if a symbolic one, against such corruption of the criminal justice system.

The puzzle about Amendment T, and the controversial aspect of it, pertains to the difference between slavery and involuntary servitude. How broadly should involuntary servitude be interpreted, and would a change in the constitutional language affect current legal practices in Colorado?

The Blue Book’s “Argument Against” mentions potential “legal uncertainty around current offender work practices in the state.” The Blue Book outlines the main ways that prisoners may be subjected to “work requirements”: Prisoners can be compelled to work on pain of “loss of privileges or a delayed parole eligibility date”; judges may impose community service; and judges may require that parolees “maintain suitable employment” or the like. Are such practices properly included under the umbrella of involuntary servitude?

John W. Odenheimer summarizes an important aspect of the concern in a letter to the Denver Post:

Tens of thousands of people are court-ordered every year to perform community service as part of their sentence to various crimes. That’s involuntary servitude. Amendment T would jeopardize that process and those tens of thousands of defendants could be subject to jail time if the option of community service were not available.

Is that right? Is any sort of work involving a criminal conviction a form of involuntary servitude?

I think the answer is that the narrow legal meaning of involuntary servitude should not be confused with the much broader category of what we might call “involuntary service.” In the legal sense, things like community service and work release normally are not involuntary servitude.

Think of it this way. If someone commits a crime worthy of a jail or prison sentence, then in-prison work, work release, community service, or court-mandated employment for parolees constitutes an alternative to the basic sentence. Essentially, the courts offer people a choice: work or sit in a cage. In that sense, the work is voluntary and not servitude; most people would rather do the work than sit in the cage.

In a broader sense the criminal is forced into a decision he’d rather not make—he’d rather just go free—so the work is involuntary. But it isn’t servitude.

If we were to to conflate involuntary servitude with involuntary service, then things like paying taxes and answering a jury summons would be included. Yet no one thinks Article II, Section 26 bans taxation or the like.

Involuntary servitude in the legal sense does not mean anything that a government compels a person to do; it means treating a person in a meaningful sense like a slave.

The etymology of the term servitude supports this narrow interpretation; the Latin servitudo means slavery.

Nathan Woodliff-Stanley of the state ACLU dismisses the fear that Amendment T might affect criminal sentencing. He writes:

It is fair to ask what Amendment T will accomplish, although it is a statement worth making even if it has no practical effect. States have a variety of language around slavery and involuntary servitude, and all states have similar criminal justice systems with work programs and community service programs, so there is no reason to believe Amendment T would affect those programs. Courts have defined slavery and involuntary servitude narrowly enough that typical work programs or community service would not fall under those definitions.

Woodliff-Stanley pointed me (by phone) to the 1998 Supreme Court case United States v. Kozminski. That decision discusses “physical or legal coercion” used to compel someone to work, which is fairly broad. Yet the decision also cites another case (Butler v. Perry) that describes involuntary servitude as “compulsory labor akin to African slavery.” (As an aside, it seems insane to me that the Supreme Court ruled that the military draft is not involuntary servitude; the draft is strikingly like slavery.)

Ulibarri, the measure’s lead legislative backer, is also confident that Amendment T would leave intact current criminal justice practices:

I did research through our legislative drafters, with our Department of Corrections, and with community partners, and we could not find any examples of existing practices that would be modified by Amendment T. Twenty-five states do not have this type of exception clause in their state constitution, and the federal case law is clear in this regard.

My reading is that, without an exception for criminal punishment, a prohibition of involuntary servitude would permit governments to offer work as an alternative to a default sentence of incarceration, but it would prohibit governments from creating punishments specifically to compel work.

Of course, as Woodliff-Stanley granted, working out the legal details might involve some legal challenges under the modified law.

I would be surprised if any current practices in Colorado had to be changed as a result of Amendment T (if it passed). That said, I am not too familiar with the details of in-prison work programs and the like.

I do think the language of Amendment T would ban certain practices of other states. For example, the Atlantic reports that, in Angola Prison in Louisiana, inmates “can be forced to work under threat of punishment as severe as solitary confinement.”

I regard solitary confinement as a form of psychological torture properly barred by the Eighth Amendment. Certainly the threat of it to force people to work constitutes involuntary servitude. So, if this practice from Louisiana were employed in Colorado, I suspect that lawyers would successfully challenge it under Amendment T. And I think that’s a good thing.

It is worth noting here, as Woodliff-Stanley pointed out to me, that the legislature included explicit language in drafts of the resolution concerning current sentencing practices. The May 4 draft sates:

The state recognizes that allowing persons convicted of a crime to perform work incident to such convictions, including labor at penal institutions or pursuant to work-release programs, assists in such persons’ rehabilitations, teaches practical and interpersonal skills that may be useful upon their reintegration with society, and contributes to healthier and safer penal environments. . . . Because work provides myriad individual and collective benefits, it is not the intent to withdraw legitimate opportunities for persons convicted of a crime to work, but merely to prevent compulsory labor from such persons. . . .

I suspect that, if courts take up challenges under Amendment T, they will consider this explicit legislative intent behind the measure proffered for voter consideration.

My mind is put at ease that Amendment T would not wreak havoc on existing legal practices in Colorado concerning the treatment of criminals. Most likely the passage of Amendment T would have no effect; if it did have a minor effect it would probably be a good one. And Amendment T would safeguard against potential future abuses.

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