Concurrent resolutions ACR 125 and SCR 125.
These resolutions would allow New Jersey voters to unequivocally condemn slavery and involuntary servitude by voting at the next general election to approve amending the New Jersey state Constitution to add this language:
No person shall be held in slavery or involuntary servitude in this State, including as a penalty for a crime.
Why is this necessary?
The Thirteenth Amendment to the U.S. Constitution abolished slavery and involuntary servitude but contained an exception for “punishment for a crime.” This exception has been understood throughout history to allow prisoners to be treated as slaves or wards of the state”[1] who can be punished if they refuse to work for little or no pay.
Why amend New Jersey’s Constitution if the problem is with the U.S. Constitution?
Currently, New Jersey’s Constitution does not prohibit slavery or involuntary servitude. Therefore, prisoners’ rights are governed by the Thirteenth amendment loophole that legitimizes both slavery and involuntary servitude within our criminal justice system. If New Jersey’s Constitution contained an unequivocal prohibition on slavery or involuntary servitude, prisoners in this state could refuse to work at jobs with grossly inadequate pay or under unsafe conditions without fear of reprisal.
Are prisoners in New Jersey’s prisoner’s really “forced” to work even now? Can’t they just refuse work assignments?
Yes, they can refuse, but our prisons have powerful tools of coercion. While some might say that some prison labor is technically voluntary, this ignores the fact that, for an incarcerated individual, refusing to work can result in the loss of privileges, solitary confinement, or the denial of parole. It also overlooks the notion that simple necessities sold to incarcerated people are often exorbitantly priced when compared to the wages paid.
Would an amendment to New Jersey’s Constitution prohibiting slavery and involuntary servitude mean that prisoners would have to be paid at least the minimum wage for jobs?
No. The Amendment would merely give prisoners the ability to refuse to work at jobs they do not wish to perform without risking sanctions. It would not on its own set a wage standard. However, the amendment would give prisoners the opportunity to argue for better wages and better conditions.
However, if the amendment won’t automatically result in higher pay and better conditions, isn’t this just a symbolic thing?
In the words of Riley Burton who founded the Oregon campaign to end the exception, “If the basis of your system is built on slavery, then it will have an effect. And if it’s not [built on slavery], then it won’t.” https://www.esquire.com/news-politics/a39252495/prison-slavery-13th-ammendment-essay/
But, symbolism is also important. Words matter. Coerced prison labor has historical roots in the use of the criminal legal system to re-enslave Black people in the post-Reconstruction South. So long as the “law” permits correctional employees to call incarcerated people “slaves” or to treat them as “property of the state” dignitary harms are inflicted, harms that are particularly acute for Black prisoners. The dehumanization associated with slavery and involuntary servitude should be erased from our legal system once and for all.
Don’t prisoners “deserve” harsh penal treatment? In addition, isn’t it appropriate that mandatory work—no matter whether for little or no pay—be required as a fair compensation for the crime they committed?
Regarding the value of harsh treatment: Experienced prosecutors and scholars have continually argued that there are no evidence-based studies showing that harsh treatment and long sentences in prison have a deterrent effect on crime. The fact that a prisoner has committed a serious crime, or multiple crimes should not be treated as an excuse to deny that prisoner’s humanity. Two wrongs don’t make a right. Our prisons will be safer if prisoners, regardless of the crime, are treated with dignity, given opportunities for improvement, and even the incentive of better pay for the work that they do. Further, the shift away from rehabilitation and programs that prepare prisoners to return to society as functioning, productive citizen requires prison guards and staff to expend increasing efforts at combatting disruptive behaviors, including violent behaviors, that are stimulated and perpetuated by the conditions of imprisonment.
As for the issue of compensating society for crimes committed: Current sentencing practices and prison work practices simply make no effort to ensure that punishments–—apart from time of incarceration in prison–are proportional to the severity of the crime. To the extent that prison wages are minimal or sometimes non-existent, and prisoners are subjected to exorbitant and often exploitive costs for food, personal products, or phone/internet/video calls, they exit prison and re-enter society impoverished.
Shouldn’t prisoners be forced to compensate their victims for the harms stemming from their crimes?
Prisoners, in many cases, are required to compensate victims through fines imposed as part of their punishment. On the other hand, research and practical experience in multiple communities are showing that restorative justice practices, which enable victims to face and articulate directly to the individual being charged what they would ask for as “compensation,” produce a more satisfactory outcome for victims as well as the person charged with a crime. Many communities are asking their state legislators and law enforcement officials to fund and develop these restorative justice structures.
What about unintended consequences, such as the effect such a constitutional change might have on sentences requiring community service? Wouldn’t they become illegal?
No. Community service “sentences” do not carry what have been termed the “badges and incidents of slavery.” Community service is an alternative to prison time, which is a penalty which does involve a total loss of liberty. By contrast, those sentenced to community service retain their freedom, including the ability to negotiate life schedules that allow them to fit in their other obligations.
What are the moral and practical harms created by the 13th Amendment’s “exception”–harms that might then outweigh the practical satisfaction or financial benefits of subjecting prisoners to the experience of involuntary servitude?
When viewed morally and politically, involuntary servitude (and, in practice, “debt bondage”) is rightly held to be abominable and unfitting in a modern, humane society. Most modern, liberal-democratic societies apart from the U.S. have agreed to the International Labor Organization’s (ILO) labor standard (Convention No. 29) which makes forced or compulsory labor impermissible in their countries. (Note: despite that Convention making a narrow exception for work or services exacted through a court conviction, the U.S. has not ratified it.) It has also been argued that the U.S. is also violating ILO Convention No. 109 (which it did ratify), which prohibits the use of forced or compulsory labor “as a means of racial, social, national, or religious discrimination.” As the report by Verité (“Work Behind Bars: Analysis of Prison Labor in the United States Based on International Labor Standards”) shows, “the vastly disproportionate incarceration of Black and Latino/a individuals means that, in practice, racial minorities constitute a disproportionate percentage of the prison workforce” —including those subject to the very “forced labor” banned by ILO Conventions No. 29 and 109.
The harms to prisoners and society that result are social, economic, as well as personal and psychological:
Workers in U.S. prisons lack a range of basic protections that U.S. citizens now take for granted in their workplaces: prisoners are not categorized as “employees” according to the Fair Labor Standards Act (which requires a minimum wage and overtime pay) nor even considered workers according to the National Labor Relations Act (which requires that they be paid). They are not covered by the federal Occupational Health and Safety Act (which ensures workers’ safety and recovery from workplace injuries) nor the Americans with Disabilities Act of 1990 (which forbids discrimination on account of disability, whether physical, mental, or psychological). U.S. Senator Cory Booker has recognized the social injustice of these fundamental harms and introduced four bills in February 2023 designed to grant just such basic rights and protections to prison workers.
Reports by groups such as Verité and The Prison Policy Initiative go further and emphasize the long-term economic harms inflicted by incarceration. “[M]ost jobs in prison are low-skilled and fail to provide workers … with the knowledge and skills needed to obtain jobs that allow them to earn a living wage, especially given that previously incarcerated people face a number of challenges in acquiring jobs” (such as being barred from obtaining certain licenses, obtaining housing or drivers’ licenses, or simply the stigma of having a criminal record. When ex-prisoners fall into poverty, that up greatly increasing the likelihood of their recidivism.
Finally, there are the outright personal and psychological harms: involuntary servitude robs prisoners of their very sense of themselves as “persons,” robs them of their ability to experience and envision themselves as self-motivating actors in the world, responsible for what they do. For an extended period of time they often experience trauma and are not given mental and psychological support to overcome all the handicaps arising from that. They are deprived of the opportunity to develop many basic and important life skills and are then returned to society with a greatly decreased ability to function successfully and productively within it. For all these reasons, current practices of penal servitude—the direct legacy of slavery–harm society itself, indirectly creating an economic and social burden on our communities and their taxpayers, not effectively preventing crime, and clearly displaying the moral deficiencies of the purely retributive approach to legal punishment now prevalent in the U.S.
[1] Ruffin v. Commonwealth, 21 Gratt. 790 (1872)(Va. Supreme Court). A prisoner “ has…not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords him. He is for the time being the slave of the state.” Hale v. Arizona 993 F.2d 1387 (9th Cir 193) “Convicted criminals do not have the right freely to sell their labor and are not protected by the Thirteenth Amendment against involuntary servitude.”