America's Constitution Still Permits Slavery and a Growing Movement Wants That Changed

A 160-Year-Old Loophole That Never Closed

It is 2026, and slavery and involuntary servitude are still legal in the United States. Passed by Congress on January 31, 1865, the 13th Amendment aimed to abolish slavery — but in reality, the amendment allowed slavery to remain legal. That's not a provocative exaggeration. It is the plain text of the Constitution. The "Exception Clause," also known as the Punishment Clause, made it possible for slavery to be used as a method of punishment, allowing the government to legally subject people incarcerated across the United States to forced labor.

Scholars, activists, and prisoners have linked that exception clause to the rise of a prison system that incarcerates Black people at more than five times the rate of white people, and profits off of their unpaid or underpaid labor. The history behind this clause is not abstract. The Punishment Clause was used by sheriffs to lease out imprisoned individuals to work landowners' fields — in some cases the very same plantations where they had been enslaved. The practice grew to the point that, by 1898, 73% of Alabama's state revenue came from renting out the forced labor of Black Americans.

What Forced Labor Looks Like Today

The punishment clause exception has contributed to a profit-driven prison-industrial complex under which private companies and government entities capitalize on cheap or unpaid prison labor. This isn't a relic of a distant era — it is an ongoing, legally protected system. Incarcerated persons exposed to prison slavery or forced prison labor are coerced into working through the loss of privileges, visitations, good time earnings, commissary access, or the threat of solitary confinement and even being tasered, according to one lawsuit.

One University of Chicago law professor describes this as "administrative enslavement" — a system in which incarcerated people are forced to work under harsh conditions and for meager wages, without any explicit designation that their sentence includes enslavement. Incarcerated people do essential and often dangerous work — like firefighters putting their lives on the line against some of California's most devastating wildfires — yet they've too often been met with pennies and no protections.

States Are Acting, But Congress Hasn't

The Punishment Clause is not just a glaring fault in the U.S. Constitution — several state constitutions contain identical language. Beginning with Colorado, Utah, and Nebraska, many states are taking aim at striking the Punishment Clause from their state constitutions. In 2022, Vermont, Alabama, Tennessee, and Oregon, through successful midterm election referenda, introduced amendments to either remove the punishment clause or add language to explicitly outlaw slavery or involuntary servitude as punishment for a crime. In 2024, voters in Nevada struck down forced labor in the state constitution in the general elections.

National lawmakers have also introduced a joint resolution aimed at striking the language from the U.S. Constitution entirely. The resolution would amend the 13th Amendment's ban on chattel enslavement to expressly prohibit involuntary servitude as a punishment for crime. The so-called "Abolition Amendment" would strike that clause from the 13th Amendment and end forced labor among prisoners — though work programs would continue on a voluntary basis.

A Constitutional Climb That Demands Political Will

Constitutional amendments are rare and require approval by two-thirds of the House and Senate, as well as ratification by three-quarters of state legislatures. That is an enormous bar to clear, and skeptics abound. Supporters of keeping current law often cite the role of prison labor in corrections and public works, while critics say the exception fuels racialized exploitation and undercuts labor standards. Some ballot campaigns have also stumbled over legal drafting that could widen, rather than close, the loophole — underscoring that reform requires careful legal and legislative design as well as political will.

Scholars who study this issue see the grassroots movement as a key driver of potential change. "Non-lawyers do have the power to effectuate change — that political power-building is oftentimes what leads to legal change and not the other way around," said one University of Chicago law professor. The question facing the country is simple, even if the answer is politically complicated: should a democracy founded on the principle of human freedom still carry, buried in its Constitution, a clause that says otherwise?