13th Amendment: The Slavery Continues

Written by Shlok Sharma.

Convicts were leased like property even after slavery had ended

In light of this country's much-needed conversation about its racial problems, it's important to explore a problematic loophole in the Constitution: the 13th Amendment, which — critics argue — allows the exploitation of prisoners, disproportionately Black, through systems descended from convict leasing.

The 13th Amendment officially abolished slavery in 1865, but with a caveat: "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." That "except as a punishment for crime" clause is the loophole that has been exploited for over a century. About 25% of the world's prisoners live in US prisons — one of the few things America leads the world in — and prisoners remain a source of labor for industries.

In a convict-leasing program, prisons lent prisoners to corporations, plantations, coal mines, and other industries. The prisoners worked for free, corporations got cheap labor, and private prisons made money. It was a way to continue treating Black Americans as slaves. Convict leasing was especially popular in the South; it was officially abolished in the early 20th century (and fully outlawed by 1941), though many argue its spirit lives on in today's prison-labor systems, where inmates often earn a pittance — sometimes just cents per hour.

Ava DuVernay's Netflix documentary 13th — watchable here — covers the evolution of mass incarceration in this country, detailing how slavery as a system of exploitation progressed into sharecropping, then into over-incarceration. The film points to many causes: the incentives to lock people up for corporate labor, the 1994 crime bill passed under Bill Clinton, and "three strikes" rules that turned minor drug offenses into long sentences — with racism at the root.

As the Marshall Project has documented, when crack cocaine spread in the 1980s, Black people were arrested in disproportionately high numbers. Politicians on both sides — including former Presidents Bill Clinton and Ronald Reagan — made "tough on crime" their banner. Clinton later cited falling crime rates as justification, but crime had already begun to wane.

BP (British Petroleum) — when BP's Deepwater Horizon rig spilled nearly 5 million barrels of oil into the Gulf of Mexico, The Nation reported that the company used a workforce made up almost entirely of Black inmates to clean up the toxic spill, while out-of-work local fishermen struggled to make ends meet. The decision outraged the Gulf community.

Tens of thousands of inmates are used for labor every day, for grunt work and specialized labor. Even now, prisoners — most of whom committed nonviolent offenses — work for companies, often seeing minuscule wages garnished by up to 80%. As National Review noted, these jobs are supposed to reduce recidivism and reward good behavior, but the work is often so menial it can't meaningfully help prisoners afterward.

Victoria's Secret, Microsoft, Walmart, Starbucks, and Whole Foods are among the companies that have been reported to use prison labor somewhere in their supply chains. Prison labor can be productive — but things get murky when incarceration itself is the problem.

It's important for all Americans to learn about racial injustice, and the 13th Amendment is a starting point. As consumers, we can be aware of which companies use prison labor and choose more ethical businesses. And if you haven't watched 13th, do — it's on Netflix and on YouTube.

Originally published August 2020.