Think back, to day one of these Trumpian Times, November 5, 2024. California voters faced a critical decision, and I’m not talking about who should become the next president. Rather, Proposition 6: An amendment to the state constitution to prohibit involuntary servitude as punishment for crime. A “YES” vote on this measure would have ended forced prison labor. A “NO” vote would have allowed forced labor to continue, in total compliance with the 13th Amendment of the US constitution! 

Before voting, I read the official materials. Not a single statement was submitted supporting a “NO” vote, while several supported a “YES.” I felt certain it would pass, assuming others saw prison labor as an extension of slavery as I do.  Boy, was I wrong! Voters rejected the proposition, 53% to 47%. Why was my thinking not shared by the majority of voters?

My curiosity aroused, I chose the origins, legacy and impact of prison labor for my eighth club paper, borrowing the title, “Slavery by Another Name,” from Douglas Blackmon’s Pulitzer Prize winning book. This paper examines the historical roots and modern persistence of forced prison labor in the United States, exploring why California voters rejected Proposition 6, and what this reveals about public understanding of involuntary servitude. 

Before examining voter sentiment on this issue, let’s review how prison labor came about in the first place.

The quest for cheap labor has existed since the dawn of civilization. Slavery, the cheapest form of labor, according to many researchers, goes back 11,000 years, coinciding with the agricultural revolution of the Neolithic period. Once tribes evolved into complex civilizations and developed agriculture, slavery soon followed. The Sumerians, Egyptians, Chinese, Romans, Greeks and Babylonians all practiced slavery. 

The oldest known written reference to slavery appears in the Code of Hammurabi, King of Babylon, in 1754 BCE. It outlined the relationship between slave and slave owner, legalizing forced labor as a regulated institution. Slaves were considered property obtained through war, debt repayment or outright purchase.

Closer to home slavery arrived on the shores of what would become the United States, when Europeans began colonizing the Americas. The Spanish explorer Lucas Vazquez de Ayllon brought one hundred slaves with him in his attempt to be the first European settlement in the Americas in 1526. 

Europeans also enslaved Native Americans, but diseases they brought with them decimated the indigenous population. As a result, attention shifted to enslaving Africans who had greater resistance to diseases like malaria and were more experienced with the type of labor required to cultivate cash crops such as sugar cane and tobacco. 

Gradually, slavery became more institutionalized and race-based against Africans and their descendants. In 1640, a black man named John Punch along with two white men escaped the camp where they were working as indentured servants for Hugh Gwyn, a wealthy planter and member of Virginia’s House of Burgesses. Gwyn organized a search party with the sheriff, quickly captured the escaped men, and brought them to trial. The two white men were sentenced to several more years of indentured servitude, but the court gave John Punch slavery for life. The sentencing of John Punch launched the codification of legal lifelong slavery for Africans and their descendants in the English colonies. 

The shift to treat Africans more harshly than European indentured servants quickly gained steam. Virginia lawmakers in 1661 wrote a law saying Africans (but not Europeans) could be held as slaves for life. The next year Virginia doubled down and passed a law giving children the same status as their mother. Overnight, slavery of Africans became hereditary: born to a slave, forever a slave.

By the 1700s slavery was exclusively applied to Africans and never to Europeans. Virginia maintained its leadership in slavery when it passed the Virginia Slave Codes of 1705 explicitly defining enslaved Africans as property. Slave owners could use whatever practices they chose to control their slaves and were never punished, even if their disciplinary tactics killed a slave. The Codes allowed owners to treat slaves as property, on a par with farm animals rather than as persons with legal rights. The Virginia Slave Codes institutionalized slavery, defining it as the expected and accepted way of interacting with Black people.

This racial division affected all legal, economic and social systems from then on, firmly latching a ball and chain around the ankles of African adults and their children, while white Europeans who committed crimes were never enslaved.  

Enslavement of Africans continued steadily into the early nineteenth century despite isolated attempts to abolish it. For example, Samuel Sewell, the first justice of the Massachusetts Superior Court, published the first anti-slavery pamphlet, “The Selling of Joseph,” in 1700. In it, he decried the practice as against God’s wishes. The pamphlet had little impact, until seven decades later, when Vermont abolished slavery in 1777. In 1790, Ben Franklin put his weight behind a petition from the Pennsylvania Society calling on Congress to “devise means for removing the Inconsistency from the Character of the American People” and to “promote mercy and justice toward this distressed Race.” After fierce debate, the petition died in committee.

Almost a decade later, in 1799, several free Black men from Philadelphia petitioned Congress to revoke the new fugitive slave law under which Southerners were kidnapping free Black people in the North and selling them into slavery in the South. They also hoped slavery could be abolished, asking Congress to “exert every means in your power to … prepare the way for the oppressed to go free….” 

Anti-slavery sentiment spread across the North, and new states like Ohio, entered the Union with anti-slavery constitutions. Slave owners in Southern states saw the handwriting on the wall. The anti-slavery momentum brought feelings of terror and outrage to slave owners at the possibility of losing their livelihoods and way of life. The inability to expand slavery into neighboring states meant their economic doomsday was coming.

In the mid-1800s, anti-slavery petitions flooded Congress. On July 13, 1836, the Boston Female Anti-Slavery Society implored the women of Massachusetts to unite in opposing slavery. They appealed for abolition in the nation’s capital.

Indiana entered the union in 1816 with a constitution clearly prohibiting slavery and involuntary servitude. Over the next decades, anti-slavery petitions poured into Congress. One petition, from Pennsylvanians in 1844, asked Congress not to admit any new states into the Union if they sanctioned slavery. Iowa, Illinois and our golden state in 1850, all outlawed slavery upon statehood.

The drive to keep slavery from spreading, reached a peak when Kansas decided to join the Union as a free state in 1861. Leaders of slave states became apoplectic fearing the loss of their southern political influence in Congress. Both free and slave states attempted to sway the balance of power toward their interests. Adding a free state without a corresponding slave state threatened southern political influence.

Things really got out of hand in 1861, during Abraham Lincoln’s first year as President. Many southern states seceded from the Union to protect their ability to continue enslaving Africans. South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana and Texas banded together and formed the Confederate States of America.

The Civil War broke out that year at Fort Sumter, South Carolina, which had become a Confederate State. President Lincoln sent a ship to resupply the Fort with non-military provisions, but the Confederates saw it as a threat to their new sovereignty and an act of aggression. Confederate General Beauregard bombarded the Fort for a day and a half. Thus began the Civil War. Lincoln gave anti-slavery movement a huge boost with the Emancipation Proclamation in 1863.

When Confederate General Robert E Lee surrendered to Union General Ulysses S. Grant in April 1865, the Civil War was over. 360,000 Union soldiers and 260,000 Confederate soldiers were dead. The war brought victory to the abolitionist cause and defeat to the fifteen slave states. But did the war end slavery? Not by a long shot.

But it did create momentum. Congress passed the 13th Amendment on January 31,1865. John Wilkes Booth assassinated Lincoln in April 1865, inadvertently creating a martyr for the Union cause. The shock of Lincoln’s death shifted public sentiment ensuring his legacy would be fulfilled. Even Andrew Johnson wanted the Union to be healed, and he pressured Southern states to ratify the 13th Amendment as a condition for rejoining the Union.

Eight months later, 27 of the then 36 states had ratified the 13th Amendment, making it an offical Constitutional Amendment on December 6, 1865. 

Almost immediately, Congress established the Freedmen’s Bureau to help newly freed slaves integrate into society. The Bureau, provided food, housing, education and legal support to the four million Africans who had been held in lifetime bondage. The immensity of this task cannot be overstated: Slaves represented 12.5% of the U.S. population and performed crucial work for owners of mines, railroads and plantations. What were these industries to do without slaves? Well, they turned to the 13th Amendment for help.

Wait, what?? Why would they look to the amendment that abolished slavery?

The 13th Amendment did not in fact end slavery in the US, a fact that shocked me to learn in my 70s and inspired this paper! I missed its significance in college history courses (well, honestly, I missed a whole lot in college), and even in law school!

The 13th Amendment states: 

“Neither slavery nor involuntary servitude shall exist within the United States, or any place subject to their jurisdiction... except as a punishment for crime whereof the party shall have been duly convicted.”

The 13th Amendment did in fact abolish the form of slavery known as chattel slavery, but it specifically allowed-shall we call it-convict slavery. The carve out allowed slavery with the new name of “convict labor” to continue under the guise of criminal punishment-a loophole Southern states swiftly exploited after the Civil War.

Let’s distinguish chattel slavery from convict labor. The transatlantic slave trade in the colonization of the Americas beginning in the 15th century was about chattel slavery. Chattel slavery created a legal framework for complete ownership of one person by another. Enslaved people could be bought and sold as property, inherited as property of an estate, used as collateral, and treated as assets in business transactions.

The term "chattel" derives from the Old French and Medieval Latin "capitale," meaning "property". Chattel has the same Latin root as cattle--movable property and livestock.

Convict labor, also known as penal labor, forced labor, and involuntary servitude, is distinct from chattel slavery, originating in medieval Great Britain. Common law allowed a criminal to pay off his debt to society by working as an indentured servant for five to seven years. This forced labor was limited in duration and came with some basic rights: No torture, no lifelong ownership, and no inclusion as property in an estate.

To solve the huge labor shortages during the colonization of the Americas in the 16th and 17th centuries, the British expanded this penal labor policy. Prisoners were forced onto ships for the long journey to the colonies where they would pay off their debts through labor. Between 1718 and 1776, the British shipped about 50,000 convicts to the colonies, thus beginning penal servitude in the US. 

The Freedmen’s Bureau faced severe headwinds, most notably from an 1883 US Supreme Court 14th Amendment case that struck down the Civil Rights Act of 1875. Justice Joseph P. Bradley wrote in his majority opinion that the Fourteenth Amendment only prohibits state-imposed racial discrimination, not discrimination by private individuals, businesses, or public accommodations.

The opinion opened a torrent of racial hatred against Black people.

Industry leaders in Georgia quickly found a way to get around the labor shortage caused by freeing the 4,000,000 slaves. General Thomas Ruger, in May 1868, leased from the local sheriff 100 black convicts to work on the Georgia and Alabama Railroad. Ruger was the first to use the “except as punishment for a crime” loophole in the 13th Amendment. Word quickly spread about this new source of labor, and states swiftly expanded access to convict laborers. Sheriffs, seeing a revenue opportunity, were happy to be complicit.

Local agencies jumped in to help sheriffs by passing laws-called Black Codes, laws enacted across the South to restrict the freedom of African Americans and ensure their continued availability as a cheap labor force. Anti-loitering laws were the most popular. They criminalized everyday behavior, meant to ensnare Black people. For example, Ernest, a young Black farmer resting in town after selling his crop, was charged with loitering-a crime only if you were black. The sheriff arranged a trial, secured a conviction, jailed Ernest, and fined him for court costs, in just 72 hours of his arrest.

Eagerly waiting outside the court was a cotton plantation owner. He bought Ernest to work on his cotton plantation for six months to pay off what he owed the sheriff. Ernest was led to the slave quarters, lived there on slave rations, and endured slave punishments, slave hours, and slave pay. The plantation owner worked Ernest so hard, in such horrible conditions, that he died. The owner forced a crew of Black men to dig a shallow grave for Ernest, then went back to town to buy a replacement prisoner.

County sheriffs went wild helping one another entrap freed Black people. Sheriffs became the biggest “slaves-by-another-name” owners and traders, feeding their prisoners the absolute minimum to keep them alive. Thousands of freed Black people were coerced back into de facto slavery, working in horrendous conditions of forced labor, on plantations, in mines and building railroads. Their masters were free to whip, starve, and even work them to death.

Supplying laborers to the owners of mines, plantations and railroads became institutionalized in every southern state. For example in 1888 the owner of Pratt Mine, a division of Tennessee Coal, Iron and Railroad Company (TCI) in Alabama, entered into a notorious contract with the state to buy at auction all able-bodied male convicts: 30,000 prisoners over 25 years, representing 90% of the entire State prison population.

The working conditions were far worse than under chattel slavery. Antebellum slaves had been somewhat protected from harm by their economic value to their owners, who had an incentive to keep them healthy enough to use as collateral, sold for a profit, and to produce more slaves. 

But convict laborers-“slaves-by-another-name”-were only valuable as long as their physical strength lasted. Overall, plantations, mines and railroads enjoyed inconceivably cheap and replaceable labor from about 150,000 leased convicts. Cheap because they paid them pennies per day and replaceable because when they died from whipping, torture, lack of sleep, or starvation, the owners simply bought another Black convict to take their place.

While there is more fascinating history, I must get to the source of my inquiry - the failure of California’s Prop 6 last November. I’ll end my historical review with this: The Civil Rights Act of 1964 did not address convict labor. Convict leasing, chain gangs and prison labor flourished well into the 21st Century and versions still operate to this day.

Exactly sixty years after the Civil Rights Act, Californians perpetuated prison slavery once again by voting against Proposition 6. At least three California newspapers opposed to Prop 6 ran editorials with scathing critiques. 

The San Diego Union-Tribune led with the headline, “NO on Flawed, Poorly Crafted Prop. 6,” arguing that it would ban jails and prisons from being able to force inmates to work.

The Pasadena Star News ran an editorial titled “There’s Nothing Wrong with Requiring Prisoners to Work.” The editorial whitewashed Proposition 6 by stating, “But what the proponents of Prop. 6 are calling involuntary servitude is really far more a matter of this: Not allowing prisoners who have been convicted of felonies that were injurious to real people, say, in effect, that they can’t be bothered to hold down a job while they are behind bars for their crimes.” The editorial asserted prisoners should work even at 74 cents/hour. And it concluded with: “When voters see Proposition 6 on the ballot, they must consider the consequences in plain language: Should people convicted of crimes be allowed to refuse work while in prison?”

The Mercury News East Bay Times ran a similar editorial asserting, “Proposition 6 is a sweeping constitutional amendment that potentially enables inmates to legally engage in work stoppages that shut down prison facilities.” This editorial misled readers into thinking Prop 6 was just about prisoners’ work inside the prison and ignored the plight of prisoners contracted to private firms for forced labor!

I was happy to see the San Francisco Chronicle take a pro-Prop 6 stance arguing yes, society may take away freedom as punishment, but it should not treat incarcerated individuals as slaves.

I wanted to know whether racism played a role in Prop 6’s defeat and here’s what I learned: Many factors contributed. One is a shift in popular opinion toward being tougher on repeat offenders and on persistent homelessness and open drug use on city streets. California voters passed Proposition 36 with a vote of 69% to 31%, paving the way for harsher penalties. We’re all tired of thieves robbing retailers by snatching less than $950 of merchandise (does that number include sales tax?). And we’re sick and tired of stepping over the outstretched legs of people shooting up Fentanyl on our way to the Orpheum Theater. The liberal-mindedness of pre-pandemic years, when law enforcement looked for ways to roll back harsh penalties for nonviolent crimes, has faded.

Another factor is prison economics. Prison labor is exceedingly cheap, keeping prison management costs down. No janitorial service can compete with the $3/day prisoners are paid for cleaning toilets and mopping floors! 

Then there’s the revenue generated when prisoners are contracted to work outside their prisons through the California Prison Industry Authority (CALPIA). CAlPIA operates over a hundred agriculture, manufacturing and service businesses generating over a quarter billion dollars (in 2023) and employing 6,000 inmates. With labor costs at $3 per day, profits are extraordinarily high. If a prisoner does not accept a work assignment, they can be severely punished, lawfully, under our state constitution.

Confusion over terminology was another factor. The ballot title and summary from the Attorney General’s office used the term “involuntary servitude” rather than “slavery”. Campaigners for “YES on Prop 6” reported that when they explained "involuntary servitude” is a form of slavery and it impacts minorities far more than white prisoners, voters said they would vote YES. The trouble was, there were far too few resources available to communicate this message widely. 

Examining the voter demographics reveals that white voters tended to vote along economic lines, worrying about the fiscal impact if cheap prison labor was eliminated. The vast majority of black voters supported Prop 6, identifying strongly with their own racial history.

Education level mattered. Voters with a college degree tended to vote in favor of Prop 6, while those without one were more likely to oppose it. Urban locations leaned more favorably toward the proposition than rural areas. No overt racism stood out to me in any demographics -whether by race, location, education or economic standing, which is a relief. 

The defeat of Proposition 6 reflects not only California’s complex relationship with criminal justice but also a widespread lack of historical awareness about the roots of forced prison labor. Voters simply thought: Prisoners don’t deserve the same rights as law abiding citizens. It's disappointing to me that California did not join the other eight states* which have eliminated the slavery loophole in their constitutions.

I’d like to think, if California voters had known the history of involuntary servitude, they would have voted in favor of Prop 6. 

Is there a chance we will see the end of forced prison labor? Not any time soon.

Thank you.

*The other eight states removing forced prison labor from their state’s constitution: Colorado in 2018, Utah and Nebraska in 2020, Alabama, Oregon, Tennessee and Vermont in 2022, and Nevada in 2024.