By Nathan Woodliff-Stanley, ACLU of Colorado Executive Director
Would it surprise you to learn that even though Colorado was never a slave state, the Colorado Constitution still leaves a door open for legal slavery in this state? Colorado voters have the opportunity on November 6 to vote yes on Amendment A and close this constitutional loophole, finishing the constitutional abolition of slavery in Colorado. Along with the Abolish Slavery Colorado coalition and a wide array of bipartisan and nonpartisan supporters, the ACLU of Colorado endorses Amendment A to “prohibit slavery and involuntary servitude in all circumstances” in Colorado.
The problem is rooted in the politics surrounding the 13th Amendment to the U.S. Constitution, which abolished slavery after the Civil War. That amendment also abolished “involuntary servitude” to avoid slavery by another name. However, in order to get it approved, the amendment was modified to say, “except as a punishment for crime whereof the party shall have been duly convicted.” While some states do not have language echoing that exception, and some explicitly prohibit slavery with no exceptions, the Colorado Constitution uses the same exception allowing slavery as a punishment for crime.
Slavery is not a Colorado value, and it should not even be a possibility under the Colorado Constitution.
After the Civil War, many states, mostly former slave states, immediately exploited the 13th Amendment loophole allowing slavery and involuntary servitude as a punishment for crime. Many former slaves were arrested and then put back into slave labor conditions through convict leasing, a lucrative practice that generated more than 70% of total state revenues for the state of Alabama in 1898. From the 1920s through 1941, convict leasing was gradually eliminated through state laws and by presidential executive order. The constitutional loophole, however, was never removed.
In states such as Colorado that echo that loophole, as incredible as it may seem, slavery and involuntary servitude may not be fully unconstitutional. 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. We may think that could never happen, but in the context of today’s national politics, it is hard to feel comforted just by an assumption that something will never happen.
Slavery is not a Colorado value, and it should not even be a possibility under the Colorado Constitution. Colorado voters had the opportunity to make this change two years ago through 2016’s Amendment T, but the title and description of that amendment were confusing (“End Exception to Involuntary Servitude Prohibition”—at least a triple negative) and it barely failed by less than one percent of the vote. Surely Colorado voters did not intend to affirm slavery, but we will find out in November, because this time there is no excuse. “Prohibit Slavery and Involuntary Servitude in All Circumstances” is much less confusing, and it should be clear that a Yes vote on Amendment A is a vote to Abolish constitutional slavery in Colorado once and for all.
While some concerns were also raised in 2016 about prison work or service programs, it should be clear that desirable work programs or programs that people convicted of crimes agree to take part in would not be affected because they would not constitute involuntary servitude or slavery. Whatever our corrections system may be, even in areas where there is legitimate debate, we should all agree that it should never consist of actual slavery or involuntary servitude. Amendment A is a truly bipartisan measure that was passed unanimously by all Republicans and all Democrats in the Colorado legislature. It is more than a symbolic measure, because it closes the door on the possibility of future abuses, and it also sends a positive message in a time of great division in our nation. It recognizes the horror and suffering of those who have been enslaved in this nation, and it honors the legacy of Frederick Douglass, Harriet Tubman, William Lloyd Garrison, Silas Soule, Sojourner Truth, and thousands of others who fought and died for the abolition of slavery. Let’s get it right this time—vote Yes on Amendment A.