A ballot initiative in Tennessee would formally outlaw slavery in the state constitution. It would nullify an exception currently in law that allows “slavery and involuntary servitude” as punishment for a crime. However, the amendment’s text muddies the issue when it comes to incarcerated people, the group who would stand to benefit most.
Amendment 3 will appear on the November election ballot for Tennessee voters, and if passed will revise the state constitution. Article I, Section 33 of the 1870 Tennessee Constitution, reads: “That slavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, are forever prohibited in this State.” Under Amendment 3, the passage would instead read: “Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”
Lawmakers first introduced Amendment 3 back in February 2019. A constitutional amendment in Tennessee must first pass both the House and Senate by a simple majority. Then, because the state has two-year legislative sessions, you have to wait until the next session and pass it again, this time with a two-thirds majority. That happened in May 2021, with the House and Senate approving this amendment the second time and sending it to Governor Bill Lee (R), who signed it. The amendment is then placed on the ballot for the next gubernatorial election, which is this year. Voters actually have to cast a vote for both the amendment itself and for governor, in order for their choice to count.
The Tennessee constitution mirrors the 13th Amendment to the US Constitution, which abolished slavery. Section 1 reads, “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.” That exception, written into the law, enabled states to pass so-called “black codes” that allowed them to incarcerate Black people for minor convictions and force them into unpaid hard labor, among other forms of disenfranchisement. Black codes evolved over time into Jim Crow legal segregation, which was only repealed in 1964 with the passing of the federal Civil Rights Act.
But the state’s Department of Correction requested that lawmakers add, “Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”
In 2016, film director Ava DuVernay—known for work including Selma—made the “exception clause” part of mass consciousness with her Netflix documentary 13th. It focused on the complex relationships between the War on Drugs, mass incarceration, the private prison sector and use of prison labor by private companies. It powerfully made the case that slavery, in a different form, survives. (Many of these ideas had earlier been explored in the 2010 book The New Jim Crow by Michelle Alexander, who also appeared in 13th.)
According to a 2017 Prison Policy Initiative report, incarcerated people earned an average of between 14 to 63 cents per hour for prison-related duties, or between 33 cents to $1.41 per hour for industrial work. That doesn’t account for deductions taken from pay. And within those averages, seven states basically pay nothing for work behind bars. In addition, incarcerated people have to pay wildly inflated prices for basic commissary items like tampons, and even phone calls.
But Tennessee’s Amendment 3 doesn’t explicitly address this issue. On the contrary, the state’s Department of Correction requested that lawmakers add the sentence, “Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.” That clarification arguably enabled it to gain broad bipartisan support, but also makes clear that this amendment does not outlaw prison labor that is mandatory or coerced.
Nationally, four other states are considering similar language on the ballot this fall: Alabama, Louisiana, Oregon and Vermont. And Colorado, Nebraska and Utah have each passed some version of this into law since 2018. But notably, none of those states explicitly changed their prison labor laws. In fact, Colorado’s amendment has sparked two lawsuits. One demanded higher wages for prison labor but was dismissed. Another, currently in litigation, charges Governor Jared Polis (D), the state corrections department and its director with forcing people to work in conditions of involuntary servitude.
While Amendment 3 would be a victory for human rights, it still won’t meaningfully address the working conditions of incarcerated people.
As reported by Pew Trusts, Colorado officials responded in court that prisons don’t force people to work—they merely punish them for not working by depriving them of earned sentence reductions, phone calls, visits or meals, or putting them in solitary confinement for 21 hours (which, remember, is literally torture). It’s an argument as ridiculous as it is disgusting.
So while Amendment 3 in Tennessee would definitely be a victory for human rights, it still won’t meaningfully address the working conditions of incarcerated people.
The American Civil Liberties Union (ACLU) is taking on this fight, and in June released a report detailing the full extent of the injustices facing incarcerated workers, while also offering bold solutions. These include guaranteeing workers a minimum wage, the right to unionize, banning punishment for not working, health and safety standards, job training and education—and, of course, abolishing the exception clause of the 13th Amendment.
Photograph of Tennessee State Capitol in Nashville by wOOglins via Flickr/Creative Commons 2.0.
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