Colorado voters will asked on the Nov. 6 ballot if the state should amend its constitution to abolish slavery.
Slavery and involuntary servitude are illegal in the state already — but not if slavery or servitude are being used as punishment for crime, according to the ACLU. That loophole means “slavery and involuntary servitude may not be fully unconstitutional” in the state, despite the fact that Colorado was never a slave state, writes Nathan Woodliff-Stanley, executive director of the state’s ACLU chapter.
There are a handful of states across the country with a similar slavery exception in their constitutions, including North Carolina, Wisconsin and Tennessee, Governing magazine reports.
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Those state laws echo the 13th amendment, which barred slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”
Just two years ago, Colorado voters had a chance to abolish slavery and involuntary servitude as well, but the amendment failed by a slim margin, according to the ACLU. Amendment A on this year’s ballot seeks to accomplish the same goal.
Jumoke Emery of Abolish Slavery Colorado blamed confusing wording for the outcome of the last vote, and is hopeful this time the amendment will pass, CNN reports.
“I hope that this puts forth the message that our past doesn’t have to be our future, that by and large we as Americans are interested in fixing our mistakes and that there’s hope for our future,” Emery said, according to CNN.
The 2016 measure was titled “End Exception to Involuntary Servitude Prohibition,” while this year’s has the more straightforward title “Prohibit Slavery and Involuntary Servitude in All Circumstances.”
Opponents of the change argue that Colorado already forbids slavery and involuntary servitude, meaning the constitution amendment isn’t necessary, the Denver Post reports. Some say the amendment could also put prisoner work programs in legal jeopardy, Colorado Public Radio reports.
Legal experts say that’s possible.
“I don’t doubt that if it were to pass, some prisoners would invoke the change to try to challenge some conditions in prisons,” said Richard Collins, a law professor at the University of Colorado, Boulder, Governing reports. “What the courts do with that is then another question.”
The ACLU has pushed back on accusations that the constitutional amendment is unneeded.
“It is more than a symbolic measure, because it closes the door on the possibility of future abuses,” Woodliff-Stanley writes. “While of course we would hope our legislature and courts and correctional institutions would never allow it, it would not necessarily violate our constitution for prisoners to be bought and sold for slave labor by public or private prisons, or even put on the auction block and sold as slaves to the highest bidder, as long as it could be defined as a punishment for crime.”
Woodliff-Stanley said that after the Civil War, former slave states abused the criminal punishment exception to the 13th Amendment to arrest freed slaves and return them to what was essentially slavery. It was called “convict leasing,” and in Alabama alone it raised more than 70 percent of the state’s revenue in 1898, according to the ACLU.
State laws and the federal government slowly got rid of convict leasing between the 1920s and 1941, according to the ACLU.
“The constitutional loophole, however, was never removed,” Woodliff-Stanley writes.
The amendment needs backing from 55 percent of voters to pass, the Denver Post reports.