Sen. Merkley Co-Sponsors Bill to Close ‘Slavery Loophole’ in 13th Amendment

Oregon’s U.S. Sen. Jeff Merkley and U.S. Rep. William Lacy Clay (D-MO) introduced the Abolition Amendment, which would strike the “punishment clause” of the 13th Amendment and abolish forced prison labor. 

“That amendment is known, when we are in high school, as the amendment that ended slavery in America,” Merkley said during a press conference Monday. ‘The problem with that story is that slavery continued under the (punishment) clause of the 13th Amendment. That clause specifically says that slavery can’t continue ‘except as a punishment for crime whereof the party shall have been duly convicted.’”

Merkley argued that the 14-word exception has allowed the U.S. to replace legal slavery with coerced labor in the prison system, and allowed the government to essentially outlaw being Black in America by disproportionately arresting citizens of color and renting them out as a workforce. 

“We think about the impact of slavery on the financial foundation for families,” Merkley said during a virtual press conference on Monday.

“Obviously a family under slavery built no financial foundation.

"Well, when you broke apart a family and arrested the adults and rented them into slavery, there was no financial foundation there. People lost what they had.”

In Oregon, inmates are paid far below the minimum wage to do work that often puts them at risk, like performing laundry services for hospitals at the height of the COVID-19 pandemic. In September, 150 prisoners fought wildfires alongside professionals. In Texas, inmates have been drafted to work in morgues overwhelmed by victims of COVID-19.

“These laws started to have the state profit directly off slavery because the state governments who rented people back into slavery helped finance their state governments with the money,” Merkley said. “This whole process led to a theme that Black Americans are criminals. It led to dehumanization, it led to unequal treatment under the law.

"It was the first wave of mass incarceration, which continues to this day.”

This is the first effort of its kind to be made at the federal level, although Merkley pointed out three other states have already passed laws striking such exceptional language from their state constitutions: Colorado, Nebraska and Utah. 

“I’m encouraging the Oregon Legislature to send a constitutional referral out to the people during this coming session, so the people of Oregon can vote to take this out of our Oregon Constitution,” Merkley said.

During the press conference, Sen. James Manning (D-Eugene) said the late Sen. Jackie Winters (R-Salem) had introduced such a bill in 2019, but that it was a casualty of the Republican congressional walk-out. 

“I have redrafted that resolution and plan to bring it back,” Manning told Merkley. “I am so happy to hear that you’re doing this, but I want to make sure I mirror the work that you’re doing. Maybe we can tag-team and call it the Merkley-Winters resolution.” 

Merkley admitted that he was first made aware of this form of legalized slavery, and its continuation of systemic racism, by the 2016 Ava DuVernay documentary The 13th, which served as a crash-course of sorts about systems of racial control and ways governments and private prison companies are financially incentivized to create targeted legislation to increase the carceral population, specifically among people of color. 

Following the ratification of the 13th Amendment in 1865, southern jurisdictions arrested Black Americans in large numbers for minor crimes, like loitering or vagrancy, codified in new “Black Codes” which were only applied to Black Americans. The punishment clause was then used by sheriffs to lease out imprisoned individuals to work landowners’ fields, which in some cases included the very same plantations where they had been enslaved. The practice grew in prevalence and scope to the point that, by 1898, 73% of Alabama’s state revenue came from renting out the forced labor of Black Americans.

The Punishment Clause’s facilitating and incentivizing of minor crime convictions continued to drive the over-incarceration of Black Americans throughout the Jim Crow era. Ultimately, by creating a financial incentive for mass incarceration, it also continued to fan the flames of the War on Drugs and the proliferation of “three strike” laws, severe plea deals, and harsh mandatory minimum policies, which have had a disproportionate impact on communities of color in America for generations.

Those policies have driven an $80 billion detention industry. More than two million prisoners reside in the U.S., comprising 20% of the world’s incarcerated population. 

“By making it a choice, it means that there could be more accountability for work programs, because a lot of them absolutely dodge the health and safety provisions,” Merkley said.

“Our Abolition Amendment seeks to finish the job that President Lincoln started by ending the punishment clause in the 13th Amendment to eliminate the dehumanizing and discriminatory forced labor of prisoners for profit and that has been used to drive the over-incarceration of African Americans since the end of the Civil War,” Rep. Clay said in announcing the resolution.

“No American should ever be subject to involuntary servitude, even if they are incarcerated.”

“We want to thank Sen. Merkley and Rep. Clay for their leadership on this important racial justice issue, and for shining a light on something that is not just about a symbol or a vestige of the past, but something that reverberates and has consequences today,” Clint Odom, senior vice president for policy and advocacy at the National Urban League, said. 

The Abolition Amendment is supported by The Sentencing Project, Polaris, the Abolish Slavery National Network, the Constitutional Accountability Center, Amnesty International, the Anti-Recidivism Coalition, Human Rights Watch, Color of Change, the Justice Round Table Coalition, Indivisible, Democracy For America, International CURE, Dream Corps, and Alliance of Families for Justice.

Merkley and Clay were joined in the introduction by U.S. Senators Chris Van Hollen (D-MD), Edward J. Markey (D-MA), and Bernard Sanders (I-VT), and by U.S. Representatives Cedric Richmond (D-LA-2), Katherine Clark (D-MA-5), André Carson (D-IN-7), Danny K. Davis (D-IL-7), Marc Veasey (D-TX-33), Alcee Hastings (D-FL-20), Raúl Grijalva (D-AZ-3), Sylvia Garcia (D-TX-29), Frederica Wilson (D-FL-24), Nanette Diaz Barragán (D-CA-44), David Trone (D-MD-6), Abigail Spanberger (D-VA-7), Deb Haaland (D-NM-1), and Gwen Moore (D-WI-4).

The full text of the legislation is available here. A summary can be found here.