Abolition of the Punishment Exception

The problem

The Thirteenth Amendment abolished slavery in 1865, and in the same sentence authorized it. Its first section prohibits slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”¹ Those fourteen words are the only place in American constitutional law where compelled labor is affirmatively permitted. The Supreme Court has said as much while construing the prohibition: the exception “indicates that the Amendment’s drafters thought that involuntary servitude generally includes situations in which the victim is compelled to work by law.”² The clause expressly permits compelled labor inside an amendment that otherwise prohibits it.

The words were not designed for the purpose they came to serve. They are inherited text, carried forward from the Northwest Ordinance of 1787, which barred servitude in the territory “otherwise than in punishment of crimes whereof the party shall have been duly convicted.”³ What followed ratification is documented history: Southern legislatures criminalized conduct such as vagrancy, and states leased the resulting prisoners to private railways, mines, and plantations under a Thirteenth Amendment that “explicitly exempted those convicted of crime.”⁴

The clause is not a dead letter. Federal regulation provides that every sentenced person able to work “is to be assigned to an institutional, industrial, or commissary work program,”⁵ and a separate disciplinary rule makes “refusing to work or to accept a program assignment” a punishable offense carrying forfeiture of earned good time, disciplinary segregation, and loss of privileges.⁶ Wages for those assignments run from twelve to forty cents an hour.⁷ A 2022 survey of incarcerated workers reported that 76% faced punishment — solitary confinement, denial of sentence reductions, or loss of family visitation — if they declined or were unable to work.⁸

No statute can fix this, and that is what makes it amendment territory rather than legislation. The authorization is constitutional text. Congress cannot repeal a clause of the Constitution, and neither can a court read it away. Every one of the nine states that removed its own version of the exception had to amend its own constitution to do it.⁹ This is the narrowest edit in our pipeline: it creates no institution, grants no new power, and binds no officeholder. It deletes fourteen words.

The principle

Four sections, and the whole article reduces to one sentence: the status is prohibited without exception, and the work is regulated separately by law.

An unqualified prohibition. Section 1 restates the Thirteenth Amendment’s own sentence with the exception removed and nothing else changed. Keeping the original words preserves 160 years of judicial construction, including the settled meaning of “involuntary servitude” as compulsion by physical restraint, injury, or legal process.² It also keeps the word “slavery” in the operative sentence, which the ballot record shows is not a stylistic choice — see below.

Work programs survive on the face of the text. Section 2 states expressly that the article does not prohibit a person confined under lawful sentence from working voluntarily or in a work program authorized by law. This is the drafting choice associated with the highest single-issue ballot result in the set: Tennessee ratified text carrying an express savings sentence and scored 79.53%, with every county voting yes.¹⁰ It answers the objection before it is raised, and it does so where a voter and a court both read — on the face of the instrument.

Compensation goes to legislatures, not into the Constitution. Section 2 routes pay and conditions to “Congress or the States … by law.” No peer democracy sets prison wages in its constitution, and the comparative record shows why: Canada’s inmate pay scale, fixed by a parliamentary committee in 1981 at a top rate of $6.90 a day, has not changed in more than four decades.¹¹ A number written into durable text decays. The principle belongs in the Constitution; the number belongs in statute. The article therefore sets no wage, and we do not claim it raises one.

The operative test is punishment for refusal. Section 2’s second sentence states what separates a work program from servitude: no person may be compelled to labor by the infliction or threat of punishment. Without it, a department can call work voluntary while refusal costs segregation or family visitation — the pattern the survey evidence records and the pattern a Colorado court found unlawful under that state’s amended clause.¹² This is the one clause in the package that goes beyond the literal proposition that has been polled, and we state that plainly rather than let a reader discover it.

The enforcement clause is carried forward unchanged. Section 3 is the Thirteenth Amendment’s existing Section 2, restated verbatim. Its reach has been construed broadly, and it is the authority under which federal anti-trafficking and forced-labor statutes already operate.¹³ Restating it unchanged is the conservative choice: new phrasing would invite an argument that the enforcement power had been narrowed.

Effect is delayed two years, and only for transition. Section 4 gives corrections departments that rely on compelled labor for facility maintenance time to move those programs onto a voluntary footing before the prohibition binds. It grandfathers no one — the article binds no officeholder and confers no partisan advantage — and it is the concession most likely to be asked for during ratification, which we would rather write in the open than trade away under pressure. It is also the hardest clause here to defend, because a delayed effective date on a prohibition of slavery ought to be hard to defend. The Colorado record suggests the transition is manageable without one.¹²

The draft text

Why it can pass

This is the narrowest party gap we have measured on any category. Asked how they would vote on a measure in their own state that “ensures the state constitution doesn’t legalize slavery and involuntary servitude as punishments for crime,” Americans supported it 73% overall:

Two things about that item deserve stating openly. It is a state-measure proxy, not a poll of the federal amendment: no independent national survey with a party breakdown has ever asked about amending the federal Thirteenth Amendment, and a mechanism-specific poll is the first research we will commission on this category. And the Republican shortfall against Democrats is uncertainty rather than opposition — Republican opposition was 11%, against 23% answering “not sure.”¹⁴

The ballot record is strongest in Republican-voting states. Four states — three of them Republican-voting — have passed single-issue removals: Utah at 80.48% (2020), Tennessee at 79.53% (2022), Nebraska at 68.23% (2020), and Nevada at 60.60% (2024).^15101617 A fifth, Alabama, ratified a recompiled constitution at 76.49% that removed the exception among other language, which is corroboration rather than a clean test because it was bundled.¹⁸ Three of the four single-issue results sit above the 66% Republican floor measured nationally. Every one was legislatively referred, which required legislative majorities to vote yes before a voter saw it.

Nevada’s legislative record was unanimous and bipartisan. The four roll calls required to reach the ballot were Assembly 42–0 and 42–0, Senate 21–0 and 21–0, across the 2021 and 2023 sessions. Not one legislator of either party voted no in either session.¹⁷

Wording is a finding here, not a tactic, and it is unusually well measured. On the same night in November 2024, Nevada’s measure — whose ballot question used the word “slavery” — passed at 60.60%, while California’s, whose official title and summary said only “involuntary servitude” and never once said “slavery,” lost at 46.66%.¹⁷¹⁹ Colorado ran the same substance twice: 49.68% in 2016 and 66.21% in 2018.²⁰ Louisiana ran the opposite experiment, with text preserving a carve-out for “the lawful administration of criminal justice,” and lost at 39.15% with its own legislative sponsor urging a no vote.²¹ The lesson we took into the draft is narrow: keep the word “slavery” in the operative sentence, and make the work-programs clause unmistakably about work programs.

The federal record is the one place the pattern breaks, and we state it plainly. A federal abolition amendment drew 193 House cosponsors in the 117th Congress, 11 of them Republicans, and 129 in the 118th, 5 of them Republicans.²²²³ Its Senate companions drew 14 cosponsors in each Congress and no Republican cosponsors in either.²⁴²⁵ It has never received a committee or floor vote, and no reintroduction in the 119th Congress could be located as of August 2026.²⁶ Public support among Republicans sits at 66%; Republican Senate cosponsorship sits at zero. That divergence between voters and officeholders is the evidence, and it is why the work runs through the states first.

Section 1’s object also has a drafted federal precedent. The Abolition Amendment introduced by Senator Merkley and Representative Nikema Williams — “Neither slavery nor involuntary servitude may be imposed as a punishment for a crime” — has been proposed in three consecutive Congresses, most recently in 2023.²⁷ This article tracks that object while answering, in ratified text rather than preamble, the questions its sponsors addressed only in non-binding whereas clauses: the status of voluntary work programs and the timing of the transition.

If it passes: the law today and the day after

What changes when the article takes effect, and what stays. Section 4 delays that day: ratification starts a two-year clock, and the operative rules bind at the end of it. (How ratified amendments interact with existing law in general is covered in After ratification.)

Federal law today

The exception clause is the only federal authorization for compelled labor by convicted persons, and only constitutional text reaches it.¹ Federal regulation assigns every able sentenced person to a work program,⁵ and a separate disciplinary rule makes refusing work a punishable offense carrying good-time forfeiture and segregation.⁶ Federal Prison Industries is chartered by statute, but none of its authorizing sections requires any individual to work.²⁸ Federal law already conditions private-sector prison employment on voluntary participation and locally prevailing wages.²⁹ The forced-labor statute reaches labor obtained by “the abuse or threatened abuse of law or legal process.”³⁰ The Fair Labor Standards Act does not mention prisoners, and courts have read the custodial relationship outside it — an exclusion the amendment leaves untouched.³¹

State law today

Nine states have removed their exception clause and fifteen still carry one: Arkansas, California, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, North Carolina, North Dakota, Ohio, and Wisconsin.⁹ All fifteen would become unenforceable at once when the article takes effect. State work-requirement statutes are a separate layer: Texas, for example, requires the department to assign work to each person capable of it and authorizes an incentive pay scale by rule.³² In the only litigation testing an amended clause in operation, a Denver district judge held in February 2026 that Colorado’s corrections department had violated the state’s clause, and barred it from charging people under the disciplinary code or imposing extended isolation for refusing to work. Prison work continued: the state’s correctional industries kept operating sixteen businesses across eight facilities.¹²

The day after

On the day of ratification nothing binds yet. Section 4 sets the effective date two years out, and the interval is the transition window: corrections departments keep operating under existing law while they move compelled programs onto a voluntary footing, and legislatures have that time to set the compensation and conditions Section 2 routes to them. Ratification is what makes the deadline certain, so the work can begin the day the last state votes rather than the day the clause bites.

Two years later, Sections 1 and 2 state flat rules and bind without further legislation. Any regime compelling labor by the infliction or threat of punishment becomes unlawful, which reaches the federal disciplinary sanction for work refusal and its state equivalents; the regulations and clauses stay in print until repealed or declared void.³³ Voluntary work and programs “authorized by law” stand, as do jury duty, militia service, and conscription, which rest on the meaning of involuntary servitude rather than on the exception.³ Section 2 delegates “compensation and conditions” to Congress or the States by law, so no wage follows from the amendment itself. Section 3 lets Congress define by statute what consequences defeat voluntariness. Courts would decide where an incentive ends and a penalty begins, what makes a work program “authorized by law,” and whether consequences short of formal discipline count.¹²

What we left out

What we considered and set aside, and why:

• A constitutional wage floor. A clause requiring that prison work be paid at a minimum set by law has never been polled in any form, and it would convert a deletion into a fiscal obligation on all fifty states — the material a costs-named survey would test first. Canada’s inmate pay scale, fixed in 1981 and unchanged since, is the argument against writing any number into durable text.¹¹ The exclusion it would override is statutory, and Congress has repeatedly declined to resolve it.³⁴ Path back: independent national polling with party crosstabs clearing a 60% Republican floor on a compensation requirement, a costs-named version that holds, and at least one state adopting a pay standard after a contested campaign.
• A ban on work requirements as such. This is the maximal reading of the amendment, and no ballot measure has asked for it. The United Kingdom, bound by a convention whose prohibition of servitude admits no exception, still requires convicted prisoners to work,³⁵ and European case law has accepted work compensated by sentence reduction rather than money.³⁶ Constitutionalizing a ban on requirements would go beyond both the polled proposition and international practice. Path back: a resolved answer in litigation under the amended state constitutions on where incentive ends and compulsion begins, then polling on that line.
• A prohibition on hiring incarcerated people out to private parties. This targets the exception’s documented historical abuse, and it is the international standard, since the 1930 forced-labour convention permits prison work only under public supervision and never for private hire.³⁷ We set it aside because it is a new substantive rule rather than a deletion, it has never been polled in the United States, and federal law already requires voluntariness and prevailing wages in the certified private-employment channel.²⁹ Path back: national polling with party crosstabs above the 60% Republican floor, plus a state adopting the limit and surviving the operational aftermath.
• Details that belong in statute: wage rates and deduction rules; whether incarcerated workers are covered by federal wage law; sentence-credit structures tied to program participation; the design, staffing, and safety regulation of prison industries; occupational safety and workers’ compensation coverage; and transition funding for corrections departments.

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