The 13th Amendment Has a Loophole — And 700,000 Black Men Are Living Inside It

Read the Thirteenth Amendment to the United States Constitution carefully. Read it the way a contract lawyer reads a contract, which is to say, read it not for what it promises but for what it permits. “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 clause — those sixteen words wedged into the middle of what is celebrated as the amendment that ended slavery — is not an afterthought. It is not a minor qualification. It is the legal foundation upon which an entire economy of coerced labor has been constructed, maintained, and expanded for one hundred and sixty years. And the people living inside that exception, the people whose labor is extracted at rates ranging from twenty-three cents to one dollar and fifteen cents per hour, the people who are constitutionally permitted to be enslaved because they have been convicted of crimes in a system that was designed, from its inception, to convict them — those people are disproportionately, overwhelmingly, and not at all coincidentally, Black men.

The numbers are these: approximately 1.2 million people are currently incarcerated in state and federal prisons in the United States. Of those, roughly 33% are Black men, despite Black men representing approximately 6% of the total U.S. population. An estimated 800,000 prisoners perform labor in some form, from facility maintenance to manufacturing to agriculture to call center work, and they are compensated at rates that would be illegal in any other context. The average wage for incarcerated workers in state prisons is between 13 and 52 cents per hour. In several states — Alabama, Arkansas, Georgia, Mississippi, South Carolina, and Texas — the wage for many prison jobs is zero. Nothing. The labor is compulsory and uncompensated, which is, by any definition that the English language will support, slavery.

The Through-Line: From Plantation to Prison Yard

Douglas Blackmon, in his Pulitzer Prize-winning Slavery by Another Name, documented with meticulous archival research the system that emerged in the South immediately after the Civil War. The Thirteenth Amendment abolished slavery — except as punishment for crime. Southern states, understanding this exception with a precision that should embarrass every legislator who voted for it, immediately passed the Black Codes: laws criminalizing vagrancy, loitering, breach of contract, “mischief,” and dozens of other offenses defined so broadly that virtually any Black person could be arrested at any time for any reason. A Black man without proof of employment was a vagrant. A Black man who left a job was guilty of breach of contract. A Black man who spoke too loudly near a white woman was guilty of mischief. And once convicted, under the exception clause of the Thirteenth Amendment, that man could be leased to a private employer and compelled to work without compensation.

The convict leasing system that emerged from this arrangement was, by the testimony of the people who lived under it, worse than plantation slavery. Under chattel slavery, the enslaver had a financial interest in the survival of the enslaved person, who represented a capital investment. Under convict leasing, the lessee had no such interest. The convict was rented, not owned. If he died, another could be rented from the state. The death rates in convict leasing camps — in the coal mines of Alabama, the turpentine camps of Florida, the railroad construction crews of Georgia — were catastrophic. Blackmon documented mortality rates of 30 to 40 percent in some camps. These were death camps operated under the authority of the United States Constitution, funded by private industry, and staffed by men whose only crime, in many cases, was being Black in a state that had criminalized Blackness itself.

“People who shut their eyes to reality simply invite their own destruction, and anyone who insists on remaining in a state of innocence long after that innocence is dead turns himself into a monster.”
— James Baldwin, “Notes of a Native Son,” 1955

From Convict Leasing to Mass Incarceration

The convict leasing system was formally abolished in most Southern states by the 1920s, but the principle it established — that Black men could be legally compelled to labor through the criminal justice system — did not disappear. It evolved. Chain gangs replaced convict leasing. State prison farms, many of them built on former plantations, replaced chain gangs. And then, beginning in the 1970s and accelerating through the 1980s and 1990s, the War on Drugs and the rise of mandatory minimum sentencing created the contemporary system of mass incarceration that Michelle Alexander has called, with historical precision, the New Jim Crow.

Alexander’s argument, supported by extensive legal and statistical documentation, is that the American criminal justice system functions as a system of racial control that parallels, in its structure and its effects, the Jim Crow laws it nominally replaced. The War on Drugs provided the mechanism: crack cocaine, which was prevalent in Black communities, was penalized at a 100:1 ratio compared to powder cocaine, which was prevalent in white communities. Five grams of crack triggered a mandatory minimum five-year sentence. It took 500 grams of powder cocaine to trigger the same sentence. The racial disparity was explicit in the statute and devastating in its application. Between 1980 and 2000, the number of Americans incarcerated for drug offenses increased from approximately 40,000 to nearly 500,000, and the burden fell overwhelmingly on Black men.

The Bureau of Justice Statistics data on this point is unambiguous. Black men are incarcerated at approximately five times the rate of white men. For drug offenses specifically, despite comparable rates of drug use across racial groups documented by the Substance Abuse and Mental Health Services Administration, Black Americans are arrested for drug offenses at rates 3 to 4 times higher than white Americans. The system does not criminalize drug use. It criminalizes drug use by Black people in Black neighborhoods, and then it puts those people to work.

The $11 Billion Prison Labor Economy

The ACLU and the University of Chicago Global Human Rights Clinic published a landmark report in 2022 titled “Captive Labor,” which documented the prison labor economy with a comprehensiveness that had not been previously achieved. The report found that incarcerated workers produce an estimated $11 billion in goods and services annually. This figure includes goods manufactured through UNICOR (Federal Prison Industries), state prison industries, and private sector contracts that employ incarcerated workers.

UNICOR, which operates under the authority of the Federal Bureau of Prisons, is a government corporation that employs incarcerated workers to produce goods and services sold to federal agencies. Its product catalog includes furniture, electronics, textiles, and industrial equipment. Incarcerated workers earn between 23 cents and $1.15 per hour. UNICOR generated $505 million in sales in a recent fiscal year. The profit margin is extraordinary, because the labor cost is essentially zero by market standards, and the workforce has no right to refuse work, no right to organize, no right to collective bargaining, and, under the Thirteenth Amendment’s exception clause, no constitutional protection against compulsory labor.

State prison industries replicate this model at the state level, and in many cases the exploitation is more severe. The Captive Labor report found that seven states pay nothing at all for certain categories of prison work. Incarcerated workers in these states perform agricultural labor, facility maintenance, laundry services, and manufacturing with no compensation whatsoever. This is not figurative slavery. It is literal slavery, authorized by the Thirteenth Amendment, administered by the state, and invisible to the vast majority of Americans who have never been required to think about where the office furniture in their government building was made or who made it.

The Companies That Profit

The private sector’s involvement in prison labor extends beyond the private prison companies — CoreCivic and GEO Group — that operate detention facilities for profit. Through work-release programs, prison industry partnerships, and state-administered labor contracts, incarcerated workers have produced goods and performed services for companies across the American economy. Agriculture is the largest sector: incarcerated workers harvest crops, process food, and perform farm labor in conditions that mirror, with disturbing fidelity, the agricultural labor that the Thirteenth Amendment was supposedly enacted to abolish.

The economic logic is straightforward and damning. A company that contracts for prison labor pays a fraction of the minimum wage, incurs no benefit costs, faces no workers’ compensation liability, and employs a workforce that cannot quit, cannot strike, and cannot report unsafe conditions without risking disciplinary action that extends their sentence. This is not a labor market. It is a captive market, and the word “captive” is not metaphorical.

Abolishing the Exception Clause

In November 2022, voters in several states considered ballot measures to remove the exception clause from their state constitutions. Tennessee, Vermont, Alabama, and Oregon all voted to amend their constitutions to prohibit slavery and involuntary servitude without exception. These victories were significant: they established the principle that compulsory prison labor is a form of slavery and that states can choose to prohibit it.

At the federal level, the Abolition Amendment, introduced in Congress by Senator Jeff Merkley of Oregon and Representative Nikema Williams of Georgia, would amend the U.S. Constitution to remove the punishment exception from the Thirteenth Amendment entirely. The amendment has not passed. It has not received a floor vote. It has not been the subject of a national conversation proportional to its significance, because the national conversation about criminal justice reform has been focused on sentencing, policing, and reentry while ignoring the constitutional foundation that makes prison labor legal.

What Comes Next

The path forward requires acknowledging what the Thirteenth Amendment actually says, not what we have been told it says. It does not abolish slavery. It restricts it. It relocates it from the plantation to the prison. It requires a conviction rather than a bill of sale. But the labor is still compulsory, the compensation is still negligible or absent, and the racial demographics of the people performing that labor are still disproportionately, overwhelmingly Black. The through-line from 1865 to 2026 is not a metaphor. It is a documented legal, economic, and demographic continuity that has been maintained for 160 years under the authority of the Constitution itself.

State-level abolition of the exception clause is a necessary first step, and the victories in Tennessee, Vermont, Alabama, and Oregon demonstrate that it is politically achievable. Federal abolition through the Abolition Amendment would establish the principle nationally. But constitutional change, while necessary, is not sufficient. The prison labor economy will not dismantle itself. It will require legislation mandating minimum wage for incarcerated workers, ending compulsory labor requirements, establishing workplace safety standards in prison facilities, and prohibiting the use of incarcerated labor to undercut free workers in the private sector.

Beyond the legal framework, the moral framework must be confronted. A nation that celebrates the Thirteenth Amendment as the end of slavery while operating a $11 billion prison labor economy staffed by 800,000 workers earning pennies per hour — a third of them Black men — is a nation that has not ended slavery. It has rebranded it. And every product manufactured behind prison walls, every field harvested by incarcerated hands, every dollar of profit extracted from a workforce that cannot refuse, cannot organize, and cannot leave, is a reminder that the exception clause is not a footnote in constitutional history. It is the operating principle of a system that was designed to survive abolition, and it has.

The question is not whether this system exists. The documentation is conclusive. The question is how long a nation that calls itself free will continue to operate it, and how long the people trapped inside the exception clause — the 700,000 Black men who are, by the plain text of the Constitution, exempt from the amendment that was supposed to free them — will be required to wait for the freedom that was promised 160 years ago and has not yet been delivered.