Terrancé Akins worked the entire seven years that he was incarcerated in the Hardeman Correctional Facility, a private prison contracted to imprison people in Tennessee.
“You couldn’t not have a job,” he told The Nation. “We cooked. We cleaned. We washed the clothes. We taught the classes. The whole operation of the facility was dependent on us.” He never earned more than 50 cents an hour.
If he or any of the other incarcerated people refused to work, they would be sent to solitary confinement, where they would spend 23 to 24 hours each day locked in their cell, losing what little movement they had. It was a powerful incentive to work for pennies on the dollar.
“This was modern-day slavery,” Akins, now a restorative justice facilitator, said. “I was in the same situation as my ancestors.”
Amie Little was in her second trimester of pregnancy when she was sent to the Tennessee Prison for Women and assigned to work in the laundry for 34 cents an hour.
“If you refuse to work, you can lose your sentencing credits or go to solitary confinement,” she told The Nation. Losing her sentencing credits might have meant still being incarcerated by the time her due date rolled around. Going to solitary would definitely have meant losing phone calls to her parents. “It was what I had to look forward to. My dad wasn’t in good health.”
Both Akins and Little are out of prison and have been working with Free Hearts, a Tennessee nonprofit by and for incarcerated and formerly incarcerated women, to pass a measure that appeared on ballots Tuesday that would change the state Constitution to prohibit involuntary labor and slavery as punishment for a criminal conviction.
The 13th Amendment of the US Constitution eliminated slavery and involuntary servitude with one exception—“as a punishment for crime whereof the party shall have been duly convicted.” It was an exception that led to the mass criminalization of newly freed Black people throughout Southern states and the rise of convict leasing. More than a century after the Civil War, 20 states still have similar language in their Constitutions.
The American Civil Liberties Union estimates that, across the country, roughly 800,000 incarcerated people are forced to work for minimal or no pay. Their jobs include planting and harvesting vegetables, picking cotton, making license plates, sewing clothing, and doing maintenance for government buildings, including the prisons in which they are confined. During the pandemic, people imprisoned in New York made hand sanitizer for 38 cents an hour.
Imprisoned workers are not protected under the Fair Labor Standards Act nor are they allowed to unionize.
The 2022 midterm elections was not the first time eliminating compulsory prison labor was on the ballot.
In 2018, Colorado voters passed an amendment to their state Constitution removing the clause allowing slavery and involuntary servitude as punishment for a crime. In 2020, Nebraska and Utah voters did the same.
This year, however, the California Senate decided against putting a similar initiative on the state ballot after Governor Gavin Newsom’s administration warned that it could result in paying incarcerated laborers minimum wage ($15 an hour), costing taxpayers billions of dollars. California employs incarcerated people for a variety of jobs, including fighting the wildfires that ravage the state each summer for as little as 37 cents an hour.
The language for each state’s initiatives varies. Alabama’s says, “No form of slavery shall exist in this state; and there shall not be any involuntary servitude,” while Vermont’s removes language allowing an exemption to prohibiting compulsory labor. These seem to be the two most straightforward initiatives.
The others, says Candace Bond-Theriault, director of Racial Justice Policy and Strategy at Columbia Law School’s Center for Gender & Sexuality Law, are less clear. Bond-Theriault examined the language of each of these ballot initiatives, their implications, and the impact on pregnant and postpartum incarcerated people in a November policy brief.
The Tennessee initiative, which Free Hearts has been organizing to pass, states that “slavery and involuntary servitude are forever prohibited.” But the initiative also makes clear that it does not explicitly prohibit a person from working if they have been convicted of a crime.
“It will [give people] the right to choose and not to be forced [to work],” Terrancé Akins explained.
In Oregon, the ballot initiative amends the state’s Constitution to remove language that expressly allows slavery and involuntary servitude as punishment for a crime. However, a court, probation, or parole department can order that a person convicted of a crime “engage in education, counseling, treatment, community service or other alternatives to incarceration, as part of sentencing for the crime.”
In Louisiana, which has the nation’s highest incarceration rate, the language proposed by Amendment 7 states, “Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime,” It also includes a new subsection stating that it “does not apply to the otherwise lawful administration of criminal justice,” a subsection that concerns legal advocates.
“It just changes the exemption itself by making its parameters more vague and confusing,” Bond-Theriault wrote in her issue brief. “This proposed language could potentially expand the compulsory labor exemption by, for example, allowing the state to force people who are arrested and charged with a crime, but not yet convicted of a crime, to perform involuntary labor. This is especially troubling for a state that incarcerates more people before trial than any other state on record.”
The revised language also troubled the amendment’s original sponsor, Democratic State Representative Edmond Jordan, who told The Advocate that the wording had become so confused that he was urging voters to oppose the amendment.
Other advocates, including those who have been forced to work in the state’s punishing prison fields, disagree.
“This is disingenuous at best and intellectually dishonest at worst,” stated Curtis Davis the executive director of Decarcerate Louisiana, at a virtual press conference last month. “If slavery and involuntary servitude are prohibited, period, then the otherwise lawful activity of the criminal justice system would be something other than the two outlawed first parts of our amendment.”
Bond-Theriault’s brief also examines the amendment’s potential effects on incarcerated people, particularly people of color, who are pregnant or postpartum—and are still required to work with little respite or accommodations or risk punishment. (Bond-Theriault acknowledged that not every person incarcerated in a women’s jail or prison identifies as a woman.)
Although no government agency gathers statistics on pregnancies and birth outcomes behind bars, Advocacy and Research on Reproductive Wellness of Incarcerated People, which researches reproductive health care behind bars, collected 12 months of data from 22 state prison systems, the Federal Bureau of Prisons, six jails, and three juvenile justice systems (representing approximately 57 percent of women in prisons and 5 percent of women in jails). They found that approximately 4 percent of people entering state and federal prisons and 3 percent of people entering jails did so while pregnant.
Little was imprisoned five years before ARRWIP asked the Tennessee prison system for its data on pregnancy. She recalled that the hourly 34 cents from her laundry job helped offset the cost of phone calls and medical care, but was nowhere near covering the expenses. Not to mention that prison jobs offer few, if any, accommodations for pregnant workers. Little recalled that, while she was exempted from lifting heavy things, some days her feet were so swollen that it hurt to walk. “There were days that I’d have called out [sick] if I could have called out,” she recalled. In prison, however, there are no sick days and refusing to work could have jeopardized her release date.
Little was released weeks before giving birth, sparing her the indignity of potentially being handcuffed and shackled while in labor. She was able to visit her father, by then in a rehabilitation center, and introduce him to his new granddaughter less than two weeks before he died, a visit that would not have been possible had she refused to work and her release date were postponed.
Still, reflecting on her time in prison—and the hours she was forced to work in the prison’s laundry, Little asked, “How freely can consent be given in these circumstances?”
With the passage of Amendment Three in Tennessee and similar initiatives in three other states, Little hopes that incarcerated workers can fight for greater protections and rights. “Closing the loophole was the first step because it’s difficult to assert your rights in a system that can legally enslave you.”