The 13th Amendment Loophole: Prison Labor and the Legacy of Slavery

After voting in November of 2024, the state of California did not elect to pass ballot Proposition 6. This measure would have had a tremendous impact on prison law and signified changing national tides on the perception of prison labor, proposing to ban the use of involuntary prison labor in the state via constitutional amendment. An immensely controversial topic in prison policy, the use of involuntary servitude is extremely widespread in California state prisons. Arguments against this labor phenomenon often cite human rights violations and connections between U.S. penal labor and its connection to the history of chattel slavery. Legal scholars and advocates for a ban on involuntary prison labor acknowledge the contemporary use of prison labor as “one of the last remnants” of this dehumanizing system.  However, his ballot loss does not signify a dead end for prison labor reform in California and beyond. Rather, the proposition shone a spotlight on the labor practice. Though embedded into the constitution with the 13th Amendment, contemporary usages of both voluntary and involuntary incarcerated labor problematically persist. Current implementations of prison labor in the United States call the legality of involuntary penal labor into question. Prison labor lingers as a remnant of slavery and has frequently proved exploitative, ethically questionable, and complicit in perpetuating inequalities. 

California’s November ballot proposition sought to end the use of involuntary labor in state prisons and jails. By amending the state’s constitution, it would have ushered in historical transformation to prison law. Labor in correctional facilities has been hotly contested in the field, drawing on long-standing debate over what rights incarcerated people keep or relinquish once behind bars. As used by the state of California and elsewhere, prison labor exists on a spectrum from voluntary paid labor to completely involuntary and unpaid servitude. Only the states of Oregon, Utah, Vermont, and Alabama have explicitly banned the use of involuntary labor in state prisons, meaning that a constitutional amendment in California would have been extremely significant given the state’s notoriety and widespread use of this labor model. Reflecting national law, the California state constitution holds involuntary servitude as illegal, except as punishment for crime. California in particular mandates that tens of thousands of individuals incarcerated in the state system perform labor, paying prisoners as little as 74 cents per hour. However, California voters opted to maintain the state’s use of prison labor, the proposition failing by just over a 3% margin.

California is not an outlier in its continual use of involuntary prison labor. The 13th Amendment’s exception clause enshrines low-paying to unpaid prison labor as legal at the national level. Though widely regarded as a great abolitionist measure, the 1865 amendment’s exception clause effectively hid slavery behind prison walls and allowed for the preservation of an exploitable labor force:

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.

Serving as a partial concession to the perceived loss of human economic resources that a complete abolition of slavery would bring, the exception clause emerged to assuage fears of corporations and enslavers. In turn, it greenlit slavery’s persistence in the form of involuntary prison labor that disproportionately targeted Black individuals. In this way, the 13th Amendment circumnavigated contemporary calls for the abolition of slavery to preserve a cheap labor source, allowing it to continue in a more hidden and publicly justifiable setting. Contemporary arguments for maintaining involuntary prison labor make this motivation plain. They emphasize the cost burdens on corporations and governments that would come with raising prisoner wages or doing away with free and involuntary labor.

Extentening much farther than the system’s roots in chattel slavery, legal and ethical questions arise across the spectrum of prison labor used in the United States. International law born out of the 1926 Slavery Convention defines slavery as illegal in all forms without any explicit exception. Placing the U.S.’ laws within this international framework, the nation’s 19th-century constitutional slavery exception measure is evidently unlawful. This violation would further make the use of involuntary prison labor in the U.S., regardless of economic motivations and justifications, illegal. Furthermore, voluntary prison labor that pays extremely low wages poses a threat to inmates’ 14th-amendment right to equal protections under the law. This provision arguably includes protections against wage discrimination and significantly low pay, one that ought not disappear once an individual becomes incarcerated. Prisoners’ subjection to involuntary labor, unfair compensation, and consistently unsafe conditions reveal a violation of their equal protection rights under the law, breaching prisoner freedoms far beyond the parameters of their punishment.

Despite the violation of essential constitutional and international rights constituted by prison labor, California remains one of the principal implementers of both voluntary and involuntary incarcerated labor. This reality was brought to mainstream discourses during the Los Angeles wildfires of early 2025. During the crisis, the state deployed 1,000 incarcerated people to suppress fires across the city. Although voluntary laborers, incarcerated firefighters earned well below minimum wage — between $5.80 to $10.24 per day in addition to one dollar per hour while responding to emergencies. This disparity is compounded by the extremely dangerous and demanding nature of this labor, which arguably warrants far greater pay and workplace protections. As individuals constrained in the carceral system and beholden to regulations and wills of correctional institutions, prisoners’ labor is easily exploitable. This slew of political and economic factors result in depressingly low wages, even as mandated labor under the state Penal Code, the set of statutes outlining the state’s criminal offenses and their corresponding punishments. With economic motives evidently prioritized, labor exploitation in prisons settings prove to violate both international law and national protections against discrimination. 

Movements away from the use of involuntary and low-wage labor in correctional facilities consistently acknowledge the exploitative nature of prison labor and the system’s linkage to past American slavery. In fact, much involuntary prison labor today eerily replicates the labor dynamics of this historic system of oppression. Both involuntary and voluntary prison labor can pose threats to the constitutionally and internationally protected rights of incarcerated individuals. To remedy these inequities, pay of at least minimum wage for prison laborers would be a starting point in more fair labor standards for inmates. Ballot propositions such as California Prop. 6, which may return to the ballot in 2026, could also assist in raising public awareness and offering the possibility for more just prison labor practices.

Sinclair Harris is a sophomore concentrating in History and International & Public Affairs. She is a blog staff writer for the Brown Undergraduate Law Review. She can be reached at sinclair_harris@brown.edu.

Veronica Dickstein is a junior at Brown University studying International and Public Affairs. She is an editor for the Brown Undergraduate Law Review and can be contacted at veronica_dickstein@brown.edu.