California’s ‘slavery loophole’ is about more than prison labor

A student in my “History of the Present” class asked me, “Do Californians really believe slavery is okay?”

She referred to the defeat of California’s Proposition 6, which aimed to remove the so-called “slavery loophole” — the clause that allows forced labor as punishment for a crime — from the state’s constitution. The clause is so often associated with racism in the criminal justice system that it’s been held responsible for creating a new Jim Crow. 

California is not the only state that has considered eliminating its punishment clause. Other states, including Alabama, Oregon, Tennessee and Vermont have successfully abolished free prison labor.

But what should we make of this outcome in supposedly liberal California? For one thing, it is a reminder that California has a history of slavery, too, despite being imagined as a “free state.”

As a legal historian of slavery, I know that there’s more to understanding the failure of Prop 6 than we might think, and certainly more than racism alone can explain. If efforts at prison abolition are to succeed in California, we must contend with a broader history that evolved alongside but not out of slavery.

The punishment clauses in the 13th Amendment and in state constitutions were not particularly controversial when they were enshrined. On the contrary, slavery as punishment for a crime dates to antiquity. In the U.S., almost identical wording appears in the Northwest Ordinance of 1784 and the Missouri Compromise of 1820.

Following emancipation, however, former slave states exploited the clause in new ways, turning to convict-leasing as a means of re-subjugating Black Americans and shoring up white supremacy.

Incarcerated people were put to work in mines, on plantations, and in other private industries where labor was scarce. The practice was also lucrative; in 1898, 73 percent of Alabama’s revenue came from convict-leasing. Unsurprisingly, prison populations in the late 19th and early 20th centuries swelled with disproportionate numbers of non-white people.

Although this history is certainly relevant, the U.S. model for carceral slavery actually predates the Jim Crow era by decades. In the first half of the 19th century, prison reform in northern free states — Pennsylvania and New York in particular — promoted the idea that rehabilitation and penitence should be the goals of imprisonment.

By the early 1800s, some believed that criminality — and even poverty and insanity — could be cured under the right carceral conditions. Imprisonment further provided the opportunity for penitence (hence “penitentiary”). By performing hard labor, the theory went, prisoners would, as one historian describes, submit “to the hard, Christian labor of repenting their sins and repairing their souls.” 

Incarceration held out the possibility of societal improvement and thus became the preferred mode of punishment for crimes over physically violent “sanguinary” or corporal punishments.

Beginning in the mid-1820s, the link between carceral servitude and profit sharpened, as it became clear that the costs of incarceration could be paid by the labor of the prisoners themselves. Private contractors began paying the state for the labor of prisoners, putting them to work in shops within prisons. This form of contracted penal servitude, and the assumption that prisoners should do compulsory labor, were precursors to both the convict-leasing regimes of the late 19th  century and the carceral labor that persists today.

At present, incarcerated workers contribute to prison maintenance, public works projects, state-owned prison industries that produce goods sold to other state agencies, agricultural production and private industry. In California, some prisoners even fight wildfires — an increasingly dangerous job. Seven states do not pay any wages for prison labor; many pay less than $1 an hour.

Crucially, carceral servitude is, like slavery, compulsory. Today, failure or refusal to work could lead to solitary confinement or the denial of parole.

Profit is also still a factor. A 2022 American Civil Liberties Union report notes that carceral servitude generates approximately $11 billion annually. Much of this goes to private corporations, including Kroger, McDonald’s, Whole Foods and Walmart.

The failure of Proposition 6, especially when interpreted alongside the success of the penalty-enhancing, "tough-on-crime" Proposition 36, shows just how persistent historical ideas about incarceration are. Californians clearly believe that incarceration serves important functions — perhaps to deter crime, but also to properly punish people for their actions, force them to repent for their sins and promote penitence and rehabilitation.

The notion that incarcerated people should perform labor, even what is tantamount to slave labor, then, isn’t just about race, even though the effects are racially disproportionate. It is also tied to notions of justice. Hard labor, the reasoning goes, is not only reasonable, but  good  for the incarcerated, who owe it to the societies they have harmed.

Until we fully address this set of deeply rooted assumptions, abolishing carceral slavery through ballot initiatives will remain elusive. 

Giuliana Perrone is an associate professor of History at the University of California Santa Barbara and a fellow of the Op-Ed Project.

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