In 1866, U.S. Congressmember Thaddeus Stevens, Republican of Pennsylvania, criticized the Punishment Clause of the Thirteenth Amendment, noting that it allowed states to take citizens charged with assault and battery and sell them “into bondage for ninety-nine years.” This practice continues today, 157 years later, and Washington and California remain the last defacto slave states in the West.
Most people view the Thirteenth Amendment as the end of slavery in America. A close read of the statute, however, reveals a sinister truth. Rather than prohibiting all forms of slavery, the Amendment wrote in an exemption for slavery “as a punishment for a crime.”
Because states are permitted to make state constitutions more protective than the federal Constitution, they hold the power to abolish slavery through legislative action. In 2022, voters in four states approved ballot measures to override the Thirteenth Amendment—Alabama, Tennessee, Oregon, and Vermont joined Colorado, Utah, and Nebraska in the new push to prohibit slavery, and Nevada voters will decide the issue in the 2024 election. Yet, similar attempts in Washington and California have failed or are destined to do so in their state legislatures, leaving prisoners in these states to continue being forced to work without pay or earning extremely low wages.
When it comes to slavery, the Washington State Constitution is silent, with no amendments or language on the matter. While the Thirteenth Amendment was ratified on December 6, 1865, Washington State’s constitution was framed some twenty-four years later, in 1889. The silence on slavery makes the Thirteenth Amendment the sole authority on the matter in the state.
If there was ever a case where silence equals violence, it could be made here. Washington has strict and coercive “programming” requirements that compel prisoners to maintain employment or requisite hours of schooling in order to maintain or earn their release dates—a system of unfree labor made possible due to the Thirteenth Amendment.
When it comes to slavery, the Washington State Constitution is silent, with no amendments or language on the matter.
Though considered a progressive state, Washington has a history of regressive policies that include being the first state in the nation to pass a three-strikes law and the first to implement determinate sentencing through the Sentencing Reform Act, a law that explicitly discourages rehabilitation.
While recent decriminalization laws have greatly reduced the number of prisoners in the past five years, Washington State Correctional Industries—the primary institution benefitting from unfree labor in Washington—still generated as much as $70 million dollars in sales in recent years. This money came off the fingers and backs of approximately 2,000 prisoners, making Washington State Correctional Industries the fourth largest unfree labor program in the nation through its production of furniture, janitorial supplies, textiles, and food.
In response, state Representative Tarra Simmons, a Democrat, proposed House Bill 1024—or the “Real Labor, Real Wages Act”— in the 2023 legislative session. As a formerly incarcerated member of the Washington state legislature, Simmons knew the sting of unfree labor from her time behind bars. She regularly speaks about being forced to work graveyard shifts for less than forty-two cents an hour during her incarceration. Her bill would prohibit forced labor in prison and provide minimum wage to those prisoners who choose to work.
Due to financial concerns raised by the budget committee and resistance by proponents of unfree labor, the act didn’t pass. Still, Simmons’s efforts went further in Washington than similar efforts in California.
The fight to end slavery in California failed even before it made the ballot. Constitutional Amendment 8, also known as the “End Slavery In California Act,” would have amended the California Constitution to prohibit all forms of slavery in the Golden State.
The California Constitution first legalized slavery as punishment for crime in 1849.
The state constitution’s stance on slavery was reaffirmed in the new Constitution of 1879, and it was reaffirmed again in a rewrite of the article legalizing slavery in 1974. Given multiple chances to end slavery in California, lawmakers instead allowed division within the Democratic party, as well as fiscal concerns, to tank the legislation, according to the Los Angeles Times.
Amending the State Constitution requires a two-thirds vote by both houses of the legislature. It is unclear whether new attempts to pass Constitutional Amendment 8 will succeed in 2024. But Democratic state Assemblymember Lori D. Wilson, who authored the legislation, appears intent on continuing the fight to end slavery in her state.
The relationship between prison workers and prison industries is reminiscent of a sharecropper dynamic—the worker is forced into a choice between nothing and servitude.
California prisoners also face harsh disciplinary measures when they refuse to work—a coercive policy only made legal by the Thirteenth Amendment. California Prison Industry Authority (CALPIA) conscripts approximately 7,000 prisoners from the California Department of Corrections and Rehabilitation. With this workforce, CALPIA reports just under $250,000 in revenue for the fiscal year 2021-2022. This number comes in significantly lower than the money reported by Washington State Correctional Industries, as CALPIA is not reporting its sales—a metric more indicative of its economic power than revenue alone.
Both California Prison Industry Authority and Washington State Correctional Industries claim that workers employed in their programs work voluntarily. But the power dynamics at play, including coercion by state prison policies, undercut this narrative. The relationship between prison workers and prison industries is reminiscent of a sharecropper dynamic—the worker is forced into a choice between nothing and servitude, and those who own the land own the person who “chooses” to work it.
With California’s shameful exposure for holding prisoners past their release dates to fight fires, lawmakers should take a long look in the mirror and ask themselves if this is the kind of state they want to live in. Members of the Washington states legislature should recognize that their silence on slavery in the Washington Constitution does not abdicate their moral culpability.
Maybe, with the work of legislators like Simmons and Wilson, Washington and California can set budgetary concerns and political bickering aside in 2024 and become as progressive as Alabama.
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