Slavery Is Still Legal in the United States

Prison inmates lay water pipe on a work project outside Oak Glen Conservation Fire Camp #35 in Yucaipa, California, November 6, 2014. States are increasingly turning to inmate labor to raise revenue or offset the cost of imprisonment. Lucy Nicholson/Reuters

This article first appeared on the Cato Institute site.

When most Americans learn about the 13th Amendment in high school, the teacher will cursorily remark that "the 13th Amendment ended slavery in the United States," and move on to the 14th Amendment.

This oversimplification is a fiction. Slavery is still legal in the United States, so long as it is pursuant to a criminal conviction and if it is limited to compulsory uncompensated labor—and indeed that is precisely the system America maintains today.

The 13th Amendment, as enacted, reads "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."

Slavery is neither a cruel nor unusual punishment according to the Supreme Law of the Land, nor historically has it been considered that. In the 1700s and early 1800s, Americans viewed compulsory labor as a way to fight vagrancy and to rehabilitate such idleness.

However, the states began to understand the potential for revenue generation from prisons in the 1800s—compulsory labor and the sale of prison products became a means to offset state costs. To be sure, the Virginia Supreme Court in Ruffin v. Commonwealth (1871) declared that prisoners were the "slaves of the State" within a compulsory labor system.

This "Punishments" clause allowed for the birth of the "convict-lease" system in the South after the war. Many Southern states passed anti-vagrancy "black codes," criminalizing the status of being unemployed. Citing cost reasons, states would then lease out their prisoners to private persons to work under slave-like conditions.

As Frederick Douglass noted, "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."

Since the 1860s, courts have interpreted the 13th Amendment as it plainly reads. "Once individuals have been duly tried, convicted, sentenced, and imprisoned, courts will not find 13th Amendment violations where prison rules require inmates to work."

For example, in Mikeska v. Collins (1990), the 5th Circuit Court of Appeals held that "any unjustified refusal to follow the established work regime is an invitation to sanctions."

The compensation of prison labor today reflects this history. In Georgia and Texas, the maximum wage in dollars per day is $0. In Nevada, prisoners make $0.13 an hour. The average wage is between $0.93 a day and $4.93 a day—less than an hour of work at minimum wage. Conservative estimates put the value of output from prison labor at $2 billion annually.

Indeed, much like the Southern states claimed after the Civil War, "states facing growing budget deficits are increasingly turning to inmate labor to produce additional revenue, or at a minimum, offset the cost of imprisonment." "At least 37 states have legalized the contracting of prison labor by private corporations that mount their operations inside state prisons."

While amending the Constitution to fix a $2 billion a year compulsory labor industry is politically unlikely, Congress may take measures to ensure that rehabilitative compulsory labor is not uncompensated, like compelling the payment of a federal minimum wage. State legislatures also could apply minimum wage rules to prisoners.

Prisoners are often indigent upon release; allowing them to save money for their transition back to society seems only logical if the goal is the reduce recidivism. Paying prisoners fair wages allows them to afford housing and sustenance while transitioning back to being a productive member of society. Additionally, the availability of compulsory, cheap labor to private companies undercuts domestic industry itself.

America must change its practice of not compensating prisoners for their labor. While work has rehabilitative benefits, rehabilitation of the wards of the state should not convert them to the "slaves of the State." Fair wages should follow compelled work.

Randal John Meyer is a legal associate in the Cato Institute's Center for Constitutional Studies.