CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, September 6, 2023

Smith on State Constitutional Prohibitions of Slavery and Involuntary Servitude

Michael L. Smith (St. Mary's University School of Law) has posted State Constitutional Prohibitions of Slavery and Involuntary Servitude (Washington Law Review, Vol. 99, (Forthcoming)) on SSRN. Here is the abstract:
In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, states have begun to take matters into their own hands. Many state constitutions contain provisions prohibiting slavery and involuntary servitude, yet most of these provisions include similar language permitting involuntary servitude to be imposed as punishment for crimes. Starting in 2018, seven states amended their constitution to remove the punishment exemptions—creating a meaningful difference between the scope of state constitutional protection and the limited protection afforded by the Thirteenth Amendment.

This Article examines state-level constitutional prohibitions of slavery and involuntary servitude, and recent trends toward eliminating punishment clause language from these provisions. Several recent amendments fall short of meaningful reform by adding additional qualifications that undo any substantive changes these amendments may have made. Other provisions are limited by other state constitutional requirements that mandate forced labor practices. Despite these shortcomings, Alabama, Colorado, and Nebraska’s constitutions now contain unequivocal bans on slavery and involuntary servitude—provisions that may lend meaningful support to challenges of forced labor regimes. The Article ends by encouraging other states to take up similar amendments, and urges those pursuing mass incarceration reforms to take note of state constitutional provisions.

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