That 13th Amendment Loophole and Prison Disparities in Black & White

While this amendment was a major step forward for civil rights at one time, it continues being used as a loophole to disproportionately imprison and exploit Black men and women.

Aniyah Laster | a Learn4Life CLMI fellow

The 13th Amendment to the United States Constitution, ratified in 1865, is a cornerstone of American history, as it abolished slavery and involuntary servitude, except as punishment for a crime. While this amendment was a major step forward for civil rights, it has also been used as a loophole to disproportionately imprison and exploit Black men and women. Read the provision and you’ll end up seeing it for yourself …

Section 1

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.

Section 2

Congress shall have power to enforce this article by appropriate legislation.

The “except-as-a-punishment-for-crime” loophole, where forced labor could still be utilized within the criminal justice system, paved the way for the convict-leasing system that disproportionately targeted Black individuals. It subjected them to harsh labor conditions within prisons or prison sentences where they served back on plantations after they thought they’d been freed.

The Jim Crow era then saw the implementation of discriminatory laws that disproportionately criminalized Black individuals. The nation never shook the habit. These laws led to a cycle of poverty and criminalization that has had lasting effects on Black communities, contributing to higher incarceration rates. The large growth of the United States criminal legal system in the late 20th century only served to widen the racial gap in incarceration. By the year 2000, Black people made up almost half of the state prison population while only about 13 percent of the U.S. population. Although a wave of changes to sentencing and corrections policies over the past two decades has helped lessen disparities in federal and state prisons, Black adults still were imprisoned in 2020 at five times the rate for White adults.

An Industry

The prison industrial complex is a system that profits from the incarceration of people, especially Black men. Private prisons, for-profit companies that own and operate prisons, make money by housing prisoners. They lobby for laws that increase the number of people who are incarcerated, and they often receive bonuses for keeping their prisons full. As Politico reported in 2019, private prison lobbying remained brisk, especially when then President Trump received a quarter of a million in campaign contributions and nearly half a million from the lobby at a golf property …

A third private-prison company, the GEO Group, which gave $250,000 to President Donald Trump’s inaugural committee and has held its annual leadership conference at the Trump National Doral Golf Club, spent $370,000 in the first quarter and retains Ballard Partners, Bradley Arant Boult Cummings, Capitol Counsel, the Da Vinci Group, Lionel Aguirre, Mack Strategies and Navigators Global, as well as State Federal Strategies as a subcontractor to Capitol Counsel, according to disclosure filings.

The Center for Responsive Politics Open Secrets project shows how private prison lobbying contributed a record $1.6 million during the 2016 election cycle. That level of contribution, overwhelmingly going towards Republicans, continues …

A much higher amount of contributions have also found their way into state Capitols, with nearly $26 million committed to state-level candidates between 2012-2018 …

Meanwhile, the 13th Amendment has been used to justify the mass incarceration of Black men and it serves as a form of modern enslavement. In 1971, the Supreme Court ruled in the case of Perez v. United States that the 13th Amendment does not prohibit the government from using prison labor. This ruling opened the door to the widespread use of prison labor, a multi-billion dollar industry.

Disparities in incarceration rates show that the incarceration rate for Black men is significantly higher than that of white men. Factors such as racial profiling, biased policing, and disparities in sentencing contribute to these discrepancies. For example, a study by the Sentencing Project found that Black men are 5 times more likely to be incarcerated than white men. The imprisonment rate for Black women (62 per 100,000) was 1.6 times the rate of imprisonment for white women (38 per 100,000).

Prison labor is often used for low-wage jobs, such as manufacturing, food service, and janitorial work. Prisoners are paid very little and are often denied basic rights, such as overtime pay and sick leave. According to the Federal Bureau of Prisons, federal inmates earn 12 cents to 40 cents per hour for jobs serving the prison, and 23 cents to $1.15 per hour in Federal Prison Industries factories. Prisoners are increasingly working for private companies, as well.

As the Prison Policy Initiative notes …

• Total U.S. government expenses on public prisons and jails: $80.7 billion +

• On private prisons and jails: $3.9 billion +

• Growth in justice system expenditures, 1982-2012 (adjusted for inflation): 310% +

• Number of companies that profit from mass incarceration: ~4,000 +

• Annual cost to families of prison phone calls and commissary purchases: $2.9 billion +

• Percent of formerly incarcerated people who are unemployed: 27% +

• Average daily wage of incarcerated workers: $0.86 +

• Average earnings someone loses over their lifetime by being incarcerated: $500,000 +

Assessing the Damage

The prison industrial complex has had a devastating impact on black communities. This mass incarceration has led to high unemployment rates, poverty, and fatherlessness in Black communities.

The 13th Amendment was intended to abolish slavery, but it has been used as a loophole to imprison and exploit a specific group of people, mainly Black people. Clearly, the prison industrial complex is a system that is built on racism and greed, and it is tearing Black communities apart.

In addition to the human toll, the prison industrial complex is also a financial burden on taxpayers. The United States spends more than $80.7 billion per year on prisons. This money could be used to invest in education, healthcare, and other programs that would benefit all Americans.

If it were amended, the 13th Amendment is a powerful tool that could be used to end mass incarceration and the prison industrial complex for good.