Lawmakers will decide today whether to put a constitutional amendment before voters over the state’s requirement that most prisoners work.

Samual Brown was on the front lines of the pandemic, sanitizing and disinfecting prison cells. Diagnosed with asthma, Brown, 45, said he feared contracting the virus. He wanted to quit his prison job.

He couldn’t.

“My supervisor told me … I had to do this job,” Brown said.

Under state law, most California prisoners are required to work. Like many other states, California forbids slavery but allows involuntary servitude to punish someone for a crime. That distinction allows state prisoners and people in jail to work without many of the same protections — minimum wage and benefits — as other California workers.

Brown and some state legislators want to change that through a constitutional amendment that would outlaw involuntary servitude as a punishment for crime.

Today, lawmakers will decide whether to put the constitutional amendment, ACA 3, in front of voters in November — or let the proposal die.

The amendment, passed by the Assembly in March, has turned into a legislative nail-biter.

Crafted by Brown while he was in prison and introduced in 2020 by then-Los Angeles Assemblymember Sydney Kamlager, the “End Slavery in California Act” had been sailing through the Legislature. For about a year, the proposal had no registered opposition or a single no vote in committees or on the Assembly floor.

Last week, though, the amendment faced its first formidable challenge. The California Department of Finance opposed the plan — estimating it would cost $1.5 billion to pay prisoners minimum wage — and some Democrat and Republican lawmakers became wary. The amendment failed to pass the Senate when six lawmakers voted against it June 23 while another 13 did not record a vote.

But the Senate could weigh in again today, as both houses have until midnight to decide whether the proposal becomes a November ballot measure. Constitutional amendments require two-thirds yes votes to clear each floor.

“This amendment rips the Band-Aid off of wounds that have not healed,” Kamlager told CalMatters this week. “We figure out ways to be innovative and aspirational when it comes to women’s rights, immigrant’s rights, environmentalism. Why can’t we use the same muscle when it comes to slavery?”

David A. Carrillo, executive director of Berkeley Law’s California Constitution Center, said in an email that involuntary servitude is akin to slavery. If voters pass such an amendment, he said, the state could be forced to change its regulations.

Currently, all able-bodied prisoners are required to either work or participate in rehabilitative programming, or a combination of the two.

The California Department of Corrections and Rehabilitation declined to comment on the proposal.

However, department spokesperson Dana Simas told CalMatters in an email that declining or refusing to work can lead to discipline. Punishment includes housing changes and write-ups that can affect a person’s parole, among other things.

“They have various ways they force you,” said Brown, who was released this year from California State Prison in Los Angeles County. “This includes stripping you of your phone rights, stripping you of your visitation rights, stripping you of your ability to order personal food.”

Prison workers are often used to help cook and keep facilities clean and operating. They also create license plates, fight wildfires and work for private companies.

According to the bill analysis, most prisoners, apart from firefighters, make between 8 cents and 37 cents an hour.

Democrat Sen. Steve Glazer of Orinda, who voted against the original draft amendment, said he thinks the amendment is too vague. “These amendments provide no clarity on the impact on our prison system,” he told CalMatters.

Glazer said he does not support removing work requirements for prisoners.

“When you commit serious crimes, you do give up your liberties,” he said. “And part of that liberty is that you have to help in the kitchen, preparing food for everyone, and I don’t apologize for that view.”

After twice tweaking the language, Kamlager was still adamant that the amendment remove forced labor from California’s prisons.

“As long as slavery is on the books, then rehabilitation is second.”
Samual Brown, former prisoner who crafted amendment

The effort to remove involuntary servitude as a punishment from California’s Constitution is part of a nationwide trend.

The issue fueled new debate after Ava Duverney’s 2016 Academy Award-winning Netflix documentary, “13th.”

Involuntary servitude as punishment for a crime became legal as the U.S. banned slavery in 1865 with the 13th Amendment. At the time, the law was used to force newly freed Black people — children, women and adults — back into a legalized version of slavery.

“Southern senators knew very well what they were doing, which was basically trying to create a path back into slavery for Black people in a way in which they would not be able to escape,” said Michele Goodwin, a UC Irvine Law Professor who wrote “The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration” for the Cornell Law Review.

More than 150 years later, the same law that permitted involuntary servitude as a criminal punishment is still in the U.S. Constitution and on the books in many states, including California. In November, voters in Alabama, Louisiana, Vermont, Oregon and Tennessee will weigh in on removing involuntary servitude from their state constitutions.

In 2020, Nebraska and Utah voters overwhelmingly decided to remove slavery as a punishment for crime from their state constitutions. Colorado led the way in 2018 when voters abolished slavery and servitude from their constitution. It also has made its way to the U.S. Senate. Oregon Sen. Jeff Merkley introduced an amendment to the 13th Amendment to remove involuntary servitude as a criminal punishment.

“If Utah and Nebraska can do it, certainly California can,” Goodwin said.

While other states changed their constitutions before California, many are still figuring out how those changes will affect their prison population.

In Nebraska, some jails are now paying prisoners who used to work for free. Last year, former and current Colorado prisoners filed a lawsuit against the state after being punished for refusing to work.

Samual Brown, 45, crafted the proposal to remove involuntary servitude from the California Constitution. “What we are fighting for in this bill is a monumental piece of legislation in our generation,” Brown said. Photo by Pablo Unzueta for CalMatters

In California, Samual Brown contends lawmakers are trying to “steal the narrative” by making the amendment about minimum wage.

“Our first and primary goal is to end slavery,” he said. “In a carceral setting, this bill will do that.”

As the Legislature decides the fate of the constitutional amendment, Brown will be watching from his home in Los Angeles.

On June 27 — 186 days after being released from prison and weeks after earning his bachelor’s degree from California State University, Los Angeles — Brown said he hopes his advocacy will give more California prisoners the opportunity to focus on rehabilitation, instead of work.

“This bill is about … plac(ing) rehabilitation and public safety over forced labor,” Brown said. “As long as slavery is on the books, then rehabilitation is second.”

more on prison labor

As wildfire season looms, California adds 900 firefighters to its crews

Fewer inmates are available for hand crews so the state is filling the gap. So far, slightly more acreage has burned this year than last year.

by Rachel Becker
July 9, 2020

New law in 1 minute: California eases hiring of ex-inmate firefighters

As California has faced its most devastating wildfire season on record, nearly a third of the people on the frontlines have been state prisoners. Despite their firsthand experience, many incarcerated people couldn’t become firefighters after being released. A new California law aims to change that and make it easier to hire formerly incarcerated firefighters. Until…

by Nick Roberts and Elizabeth Castillo
December 30, 2020

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