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University of Chicago Law Review

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2105

Abstract

In the twenty-first century, slavery is still alive in the United States, but thankfully, it is increasingly unwell. States across the country, in places both expected and unexpected, have begun to pass amendments to their state constitutions that seek to finish the job started over 150 years ago by the Thirteenth Amendment. Whereas that amendment included an exception, providing for slavery and involuntary servitude as punishment for a crime, these new state amendments contain total prohibitions. But these prohibitions have thus far proven unable to end the blight of prison slavery merely through their text. This Article asks why and attempts to provide answers to this problem.

This Article describes the history of prison slavery and then, relying on the stories of incarcerated and formerly incarcerated people, describes that institution’s current state. It then builds on existing literature on this phenomenon to survey the state constitutional amendments, litigation, and legislative enactments that are attempting to end that institution. Finally, it interrogates why these amendments have thus far not realized their potential for change and suggests ways thatjudges should interpret the new language they create, and how organizers, politicians, and litigants might both use the text of these amendments and move beyond their text to accomplish their liberatory goals. It argues that to enact and sustain a prohibition on prison slavery, constitutional text must work in tandem with individual litigation, reforms to government structure, and the inevitable political battles that will shape our criminal legal system.

Despite its ambitious scope, this Article ultimately recognizes that it is but one drop in the ocean of history. The state constitutional amendments sweeping the country are only the latest salvo in the four-hundred-year-long battle against slavery in this nation. Knowing this, this Article acknowledges that it does not stand at the beginning, nor at the end, of this fight. It instead is an attempt to push us just a little further toward the day when we will finally be a society with no slavery and no involuntary servitude. No exceptions.

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