The 13th Amendment abolished slavery. Most Americans know that. Fewer know the rest of that sentence: “except as a punishment for crime whereof the party shall have been duly convicted.” That clause has governed American prison labor for 160 years, and neither party will debate it honestly. The reasons are straightforward, and neither is constitutional.
Republicans won’t touch it because the exception sits inside a tough-on-crime framework. Democrats won’t touch it because their union coalition has a direct financial interest in keeping prison labor off the competitive market. The AFL-CIO has opposed prison labor expansion for decades, not on moral grounds but on wage grounds. When labor costs drop to $0.03 an hour in Louisiana or zero in Alabama, Arkansas, Georgia, and Texas, prison workers compete directly with union shops. Both parties have institutional reasons for their silence. Neither has a constitutional one.
The exception was weaponized almost immediately. Within months of ratification, Mississippi and South Carolina passed Black Codes that criminalized vagrancy and unemployment broadly enough to sweep up any freedman without a labor contract. The amendment abolished slavery. The Black Codes converted it into a criminal sentence. Convict leasing returned freed people to the same plantations under a different legal theory.
The clause was borrowed from the Northwest Ordinance of 1787. James Ashley of Ohio included it in his original draft in December 1863. Historical records show it received almost no floor debate. The states that had just lost the war understood the opportunity before the drafters had finished writing.
Today, roughly 800,000 of the 1.2 million people in state and federal prisons perform labor, most of it compelled. The federal prison industry program, UNICOR, generated approximately $471 million in revenue in fiscal year 2023 while paying workers between $0.23 and $1.15 per hour. The Defense Department accounted for 56% of those sales. That’s from the Office of Inspector General’s own audit.
The conservative argument for reform is textual, not progressive. The amendment was written to end a specific institution. Certain states immediately converted the exception into a continuation of that institution. Acknowledging that history requires no reparations agenda and no concession to the Left. It requires reading the amendment and being honest about what it does and doesn’t accomplish.
California deployed roughly 1,000 incarcerated workers to fight the Los Angeles wildfires in January 2025. They earned between $5.80 and $10.24 per day. Professional firefighters earn 10 times that. The workers had no meaningful ability to refuse. That November, California voters rejected Proposition 6, which would have ended involuntary prison labor in the state. Nevada’s nearly identical measure, which explicitly used the word “slavery” in its ballot language, passed with 60% of the vote the same night. The framing made the difference.
THE CONSTITUTIONAL SLAVERY EXCEPTION NOBODY TALKS ABOUT
Nine states have removed the exception from their own constitutions, starting with Colorado in 2018. The federal text hasn’t moved. The Fair Wages for Incarcerated Workers Act, reintroduced this year, would extend minimum-wage protections to prison workers without touching the constitutional provision. It stalled in committee. The unions that might support it have mixed incentives. The employers contracting prison labor don’t advertise it.
The exception made narrow sense in 1865 as borrowed practice from an 18th-century territorial ordinance. It was abused almost immediately, has never been adequately reformed, and continues to operate in ways the 38th Congress would not have sanctioned. A conservative making that argument from the text isn’t going soft. The asterisk belongs in a footnote, not in the text.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.