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| Adam Davidson |
Some people almost certainly think of that fateful day in 1954, when the U.S. Supreme Court handed down Brown v. Board of Education.
Others likely imagine the signing of the Declaration of Independence, or perhaps when we moved from the Articles of Confederation to the U.S. Constitution we know now.
But for many, the biggest, most important legal event in this country's history is not the first founding, but the second. The passage of the 13th Amendment in 1865 marked the end of the U.S.' time as a slave state and began this country's march toward the inclusion of all people into its social and political life.
At least, it did so partially. While it is true that the 13th Amendment banned slavery and involuntary servitude, it also contained an exception: "except as a punishment for crime whereof the party shall have been duly convicted."
The result of this exception is that in prisons around the country, incarcerated people are forced to work in ways that, in almost any other situation, we would call slavery or involuntary servitude.
While people have fought to curb the use and abuse of this exception since its passage, their victories have been limited. As the battle continues, the legal profession has an increasingly important role to play in ending this enduring problem.
As recognition of this continuing legalized involuntary servitude has grown, some states have taken it upon themselves to prevent it. Amendments to several state constitutions closing this 13th Amendment loophole have swept the nation.
In 2018, Colorado was the first state to pass such an amendment, which stated simply, "There shall never be in this state either slavery or involuntary servitude."[1]
Since then, eight other states have joined it, with Nevada ratifying its ban — "Neither Slavery nor involuntary servitude shall ever be tolerated in this State" — in November 2024.[2]
However, despite what appeared to be monumental constitutional wins at first glance, it quickly became apparent that little had changed on the ground, as evidenced by the quickly dismissed cases of Colorado's early pro se incarcerated litigants. These filings were dismissed due to litigation mistakes, such as filing in the wrong court, failing to allege relevant facts or bringing the wrong legal claim.[3]
But there was a common theme to their pleadings that gets to the heart of the underlying issue: If they didn't work, they were punished.
The extent of this punishment became clear when nonprofit law firm Towards Justice filed Lilgerose v. Polis in the Denver District Court.[4] The plaintiffs in that case, Richard Lilgerose and Harold Mortis, alleged that, as COVID-19 spread throughout the country and their prison in late 2020, they were forced to work in the prison's kitchen for less than $1 per day. If they did not work, they could be put in a higher-security prison; lose earned time, which shortened the amount of time they had to spend in prison; or even be placed in restricted housing, i.e., solitary confinement.
Contrast their treatment with how the 13th Amendment works in the free world. Outside of the criminal system, the 13th Amendment provides someone who dislikes their job with an option totally unavailable to Lilgerose and Mortis: to quit.
Indeed, as Rutgers Law School professor James Gray Pope has said, this "inalienable right to quit" is "the only major, unenumerated constitutional right to win near-universal approval."[5]
How did we get here? Even after the 13th Amendment was ratified, the desire for a system of slavery did not dissipate. Seeing an opportunity in the amendment's "except" clause, Southern states passed black codes and other penal laws that quickly allowed them to recapture many formerly enslaved people and return them to forced labor.
Indeed, the continuity between the pre- and post-13th Amendment systems was so smooth that there continued to be slave auctions. One advertisement posted by the Anne Arundel County sheriff in Maryland purported to "sell at the Court House Door … A Negro man named Richard Harris, for six months, convicted at the October term, 1866 … and sentenced by the court to be sold as a slave."[6]
The U.S. House of Representatives, being presented with this advertisement, as well as testimony about other sales like this one, took up the question of whether these sales were constitutional.[7] A bill was proposed to directly address the problem of convict leasing in response, but Congress never passed it.
Instead, shortly after that bill was tabled, Congress passed the First and Second Reconstruction Acts. Although these acts did not directly ban convict leasing, they represented a significantly more comprehensive attempt at remaking the South.[8]
As the advertisement promised, Harris was sold on the Anne Arundel County courthouse steps. University of California San Diego professor Dennis R. Childs recounted how Harris was one of five convicted Black people who, on that day, "were sold for prices ranging from $27 to $50."[9]
Despite Congress' initial uncertainty, history has confirmed that the 13th Amendment was no barrier to forcing Harris, and others like him, into servitude. Horrific practices like convict leasing, in which convicted people were leased by the state to work for private parties, and chain gangs, in which they were forced to labor on public works in deadly conditions, continued on for decades after the 13th Amendment's passage.
Those practices were often ended not because of constitutional interpretations, but statutory law and political pressure. And as the experiences of Lilgerose and Polis show, remnants of these practices continue to exist today.
Given this history, perhaps it was inevitable that state constitutional amendments have not yet translated into tangible changes in the lives of the people the amendments purport to protect.[10] Changing the constitutional text should, perhaps, be seen as the opening salvo, not the final battle.
But if these amendments are the beginning, not the end, of a legal battle, history also shows us what it takes to make these constitutional changes real. Academic work on the effectiveness of constitutional rights has suggested that organizational rights, like protections for unions or political parties, are effective even when individual rights are not.[11] This is because organizational rights enable the creation of organizations that have the power to push back against later attempts at rights repression.
This need for this type of power to push back against the status quo is clear in the history of the 13th Amendment.
Take as an example the end of debt peonage, which, as the Supreme Court wrote in its 1914 decision in U.S. v. Reynolds, kept convicted laborers "chained to an everturning wheel of servitude" through a combination of criminal fines and private contracts with their "employers."[12]
That practice was ended not just by the passage of constitutional text, but through the concerted efforts of a legislature willing to bolster that text with legislation; an executive willing to enforce that law, even if it was unpopular to do so; judges determined to push for the end of what they viewed as an illegal practice; and civil society, which, led by Booker T. Washington and others, pushed these governmental actors to use their legal power to fight for liberty.[13]
While the stereotype of legal change may involve an Atticus Finch-like individual hero standing up for their client, this history makes it clear that often, change takes a variety of actors bringing all of their individual and organizational power to bear on a problem.
It will likely take a similarly determined effort to transform state constitutional amendments like Colorado's from words on a page into the sort of robust protection necessary to defend incarcerated people from forced labor. And in that effort, it is clear the legal profession has a key role to play.
Supporting litigation may be the most obvious step. The knowledge a lawyer brings to a case can mean the difference between the case's dismissal — as happened with the early pro se litigation in Colorado — and success. Indeed, the Lilgerose case has now survived a motion to dismiss and been granted class certification.[14]
But the legal profession also needs to be involved in formulating these amendments before they are ultimately passed into law. That way, they can help organizers avoid the sorts of procedural pitfalls that nonlawyers would not be aware of, but which can doom implementation.
This is the struggle the Center for Constitutional Rights now faces in Alabama. That organization is attempting to effectuate the state constitutional amendment, passed by voters in 2022,[15] in a lawsuit filed on behalf of incarcerated workers, Stanley v. Ivey.
But those efforts have been frustrated by the Montgomery County Circuit Court's determination last August that it "lacks subject-matter jurisdiction due to sovereign immunity and lack of standing."[16] The case is now pending before the Alabama Supreme Court.
Ultimately, it is not the whole story to say that these state constitutional amendments to ban slavery and involuntary servitude have not led to meaningful change. It is more accurate to say that they have not led to meaningful change yet.
Amending a state's constitution is a large, important win. But the fight to end slavery and involuntary servitude in this country has been raging for over 400 years. These amendments are not the end of that battle, but they do help to push us closer to the finish line. They introduce a new and potentially powerful legal tool in the antislavery arsenal.
Now it is incumbent on our profession to use our legal skills and political might to turn these pieces of text into living, effectuated rights.
Adam A. Davidson is an assistant professor of law at the University of Chicago Law School.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Colo. Const. Art. II, § 26.
[2] Nev. Const. Art. I, § 17.
[3] Fletcher v. Williams
, No. 22-1371, 2023 WL 6307494, *3 (10th Cir. Sept. 28, 2023); Lamar v. Williams , No. 21CA0511, 2022 WL 22924244, *3 (Colo. App. Aug. 18, 2022); Griffin v. Polis , No. 22-CV-00240-LTB-GPG, 2022 WL 22856829, *2 (D. Colo. May 6, 2022), report and recommendation adopted, No. 22-CV-00240-LTB-GPG, 2022 WL 22856828 (D. Colo. June 17, 2022).[4] Lilgerose v. Polis, No. 2022CV30421 (D. Ct. Colo. Oct. 27, 2022) (Trellis).
[5] James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude", 119 Yale L.J. 1474, 1491 (2010).
[6] Cong. Globe, 39th Cong., 2d Sess. 153 (1867) (House).
[7] Id.
[8] James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account, 94 N.Y.U. L. Rev. 1465, 1485-90 (2019).
[9] Dennis Childs, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary 58 (2015).
[10] Other historic parallels further suggest that perhaps we should not be surprised that there has been comparatively little change even years after states pass these amendments. Juneteenth, for example, marks June 19, 1865, the day that Major General Gordon Granger effectuated the Emancipation Proclamation in Texas, over two years after it first went into effect. See Michael Davis, National Archives Safeguards Original 'Juneteenth' General Order, National Archive News (June 19, 2020), https://www.archives.gov/news/articles/juneteenth-original-document.
[11] Adam S. Chilton and Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. of Political Sci. 575 (2016), available at https://doi.org/10.1111/ajps.12239.
[12] United States v. Reynolds
, 235 U.S. 133, 146-47 (1914).[13] Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases, 82 Colum. L. Rev. 646 (1982).
[14] Lilgerose, 2022CV30421 (Dec. 17, 2024), available at https://perma.cc/N3GH-TD6U.
[15] Ala. Const. Art. I, § 32 ("That no form of slavery shall exist in this state; and there shall not be any involuntary servitude.").
[16] Stanley v. Ivey
, CV-2024-900649.00 (Cir. Ct. Montgomery Cty., Ala. Aug. 1, 2024), available at https://ccrjustice.org/sites/default/files/attach/2024/10/60%20-%20Order%20on%20MTD.pdf.