Dear President-Elect Biden: It's Time to Actually Abolish Slavery in America

Today, Senator Jeff Merkley (D-Oregon), announced the Abolition Amendment, to end slavery once and for all in the United States. Legislation like this is long overdue at the state and federal levels.

Slavery was and continues to be a status-based condition in the United States. In its antebellum manifestation, slavery was largely imposed on people of color, despite the indentured servitude of Irish immigrants. Early on, Indigenous peoples suffered brutal conquests of their properties and bodies. In 1637 Pequot Indian boys and men were forcibly exiled into slavery, shipped to the West Indies in a trade for kidnapped and trafficked Black people.

The Pequot women were enslaved in colonies, put to domestic service and also raped. That would not be the last Native American account of enslavement in what is now the United States. However, when Indigenous peoples died off or suffered to the point of no longer being valuable to slavery's insatiable machines, Africans served as effective, expendable substitutes until the ratification of the Thirteenth Amendment.

Or so people think.

Many people believe the Thirteenth Amendment abolished slavery for good in 1865, because that's the story Americans were taught to believe. However, this important amendment has a clever loophole. It permits slavery if a person is convicted of a crime. This was the amendment advocated by southern slaveholders and they won. In essence, they conditioned abolition on perpetuating slavery.

If there is any doubt about their intentions, consider the following. Immediately before ratification, legislatures in Mississippi, Georgia, Alabama, North Carolina, South Carolina and others filled their lawbooks with criminal laws specifically targeting Black people newly freed from bondage. Southern lawmakers made it a crime if more than a couple of Black people stood on a corner, creating laws of vagrancy. If Black farmers sold rice or corn, they could be charged with a crime.

If a Black person remained in a particular town for more than a few days, that too could be a crime. If a Black person purchased or possessed a gun, that also was made a crime. Depending on the state, it was a crime for a Black person to bargain for better wages. The result was just what the Southern legislators planned for. If Black people could not afford the coercive fines—$75, $100, or more, they could be incarcerated and from there rented and leased by the government to plantations, coal mines, railroads, and any other business ready for cheap labor.

Being convicted of a crime could result in being leased out for 20-30 years of hard labor. The gamble paid off for the South. After slavery, plantations in some states actually grew in acreage size in states like Alabama, Georgia, Louisiana, Mississippi, and South Carolina. Irresponsible coalminers in Alabama had an endless supply of young Black children sent into the depths of the earth as convicts, because they had been convicted of a new southern crime. Moreover, Southern lawmakers could now call Black women, children, and men criminals and convicts and the broader white society their victims.

The Punishment Clause was never repealed. Today, federal and state government have preserved slavery even as they have transformed it. It has evolved.

It now manifests in a broken criminal justice system that disproportionately surveills, arrests, charges, and convicts Black and Latinx people. With over 2 million people incarcerated in the United States, there is an ample labor supply. This dynamic is what Reva Siegel describes as "preservation-through-transformation."

That is, even while the cotton fields of old may no longer be populated by Black laborers from the damp dawn to sweaty dusk, other practices reinforcing slavery persist. The incarcerated "convicts" put out dangerous California wildfires for less than two dollars per hour and sew COVID-19 masks, which they are not provided. In New York, they make the hand sanitizer, all for no or barely any pay. In some states they are not paid anything and in others 11 or 17 cents per hour. Fortune 500 companies buy their cheap labor, avoiding paying minimum wages to the workers and also failing to advocate for these individuals when they get out and return to society. And, make no mistake, incarcerated people are expected to pay premium for the basic goods they use while incarcerated, including basic necessities such as toothpaste, toothbrushes, and soap.

This is why Senator Merkley's proposed amendment to the Constitution of the United States to prohibit the use of slavery and involuntary servitude as a punishment for a crime is so important. I applaud him for it. As he knows, slavery was intended to impose a lingering hierarchy in our nation, one that would never be forgotten. It was meant to denigrate, stigmatize, and shame people. It was a badge never to be tossed off.

Chief Justice Taney's infamous opinion in Dred Scott v. Sanford—devised to sustain slavery, not denounce it—is a potent reminder of the social castes, legal barriers, and political obstacles for Blacks forged by a slave economy:

[Black slaves] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.

President-elect, Joe Biden, I hope you and your team are paying attention. Ending slavery in the United States is more than symbolic—it reflects the nation's values and a full commitment to racial equality. Ridding our nation of slavery is a major step toward addressing an ugly past kept alive in our nation's constitution and sadly that manifests in the culture of our society.

Michele Goodwin is the Chancellor's Professor at the University of California, Irvine and Author of Policing The Womb: Women & The Criminalization of Motherhood.

The views expressed in this article are the author's own.