As the Nov. 8 general election approaches, advocates from around the country have pointed to Vermont’s Proposal 2 — which, if passed, would explicitly prohibit slavery and indentured servitude in the state constitution — as a potential step forward for criminal justice reform.
Ben Crump, a high-profile civil rights attorney who represented George Floyd’s family in its civil suit against the city of Minneapolis, said via Twitter earlier this month that the passage of various state constitutional amendments, including Vermont’s, would “close a loophole allowing involuntary servitude by prisoners.” The Abolish Slavery National Network, which has advocated for the Vermont amendment’s passage, largely focuses on the impact that similar measures could have on prison labor.
When Proposal 2 made its way through a multi-year legislative approval process, state lawmakers also raised the question of whether the amendment squared with the practice of employing incarcerated people for below minimum wage.
But the Vermont Department of Corrections does not see the language of Proposal 2 contradicting its current practices, and one advocate for Proposal 2 is concerned that rhetoric around the amendment’s potential impact on incarcerated Vermonters distracts from the effort’s broader goals.
In its current form, Article 1 of the Vermont Constitution says that “no person born in this country, or brought from over sea, ought to be holden by law, to serve any person as a servant, slave or apprentice, after arriving to the age of twenty-one years, unless bound by the person's own consent, after arriving to such age, or bound by law for the payment of debts, damages, fines, costs, or the like.”
Proponents of Proposal 2 say that language is ambiguous and offers some exceptions to the prohibition of slavery. Should it pass, Proposal 2 would amend the Constitution to simply state that “slavery and indentured servitude in any form are prohibited.”
Rachel Feldman, a spokesperson for the state Department of Corrections, told VTDigger that the department does “not see any issue with Proposal 2 and our current policies and practices” around employing incarcerated Vermonters. Those workers do earn less per hour than minimum wage, Feldman said, but they are not forced to perform labor, and they apply for their positions at correctional facilities.
“I want to make sure the public understands that this is not people being forced to work, but it's not going to look the way it does if somebody goes and applies for a job as a non-incarcerated citizen,” Feldman said.
To pass a constitutional amendment in Vermont is an arduous, multi-year process that begins in the Statehouse and ends at the ballot box. Former state senator Debbie Ingram shepherded Proposal 2 through the Legislature in its early stages and now advocates for its passage as executive director of Vermont Interfaith Action, which describes itself as “a faith-based, grassroots community organizing group.”
She told VTDigger on Tuesday that questions surrounding Proposal 2’s legal implications for prison labor are not new; lawmakers discussed the question during the legislative process this year and in prior sessions. But she said she has “some concern that it misses the point,” and could confuse or “sideline” voters as they prepare for November.
Asked if abolishing prison labor was part of her intention in pushing for Proposal 2, Ingram said no.
“As far as we’re concerned, that kind of thing is tangential, really, to what we're trying to accomplish right now,” Ingram said. “We just wanted to focus on the moral principle of making the statement that slavery is morally reprehensible, and we want it out of our (state constitution).”
Mark Hughes, the executive director of the Vermont Racial Justice Alliance, has also been a vocal advocate for Proposal 2. He said that “there are probably many” implications to passing the amendment that can’t be foreseen because “we've never been a state without slavery, constitutionally.” Not only may the employment of incarcerated people be called into question, he said, but so could the employment of migrant workers, or enforcement of human trafficking.
“There's a broad range of implications that could be considered, that could be discussed,” Hughes said. “However, the common denominator still remains the fact that slavery is reprehensible. It is an abomination. It is a crime against humanity. And it has no place in Vermont.”
Hughes emphasized the rigorous process proposed constitutional amendments undergo in Vermont, and said the merits and implications of Proposal 2 were discussed over the course of hours in legislative committee rooms and in both chambers.
“None of these conversations that we're having right now are new conversations,” Hughes said. “And of course, everybody should be open to continuing these conversations after Prop 2 is passed because, again, we've never been a state without slavery, constitutionally, and it would make a whole lot of sense that we reconvene in a state that has abolished slavery.”
Sen. Dick McCormack, D-Windsor, was the sole senator to vote ‘no’ on the proposal’s final legislative hurdle in the Senate this past session. On Tuesday, he told VTDigger that he opposed the measure because he found it to be an “underwhelming” gesture in light of calls for racial justice.
“We have heard from spokespersons for Black people that they want reparations. They want greater access to capital. They want greater access to land. They want serious, meaningful police reform. They want a more honest, accurate teaching of U.S. history,” McCormack said. “And what white America has said in response to that basically is, ‘We'll talk about it. But what we are going to do is we're going to put a smiley face on the constitution.’”
McCormack said Proposal 2’s potential implications around prison labor were not the reason for his opposition.
“If your issue is prison labor, then address prison labor. It’s not rocket science,” he said. “I don't know if you would need a constitutional amendment. … Just pass a law against prison labor, right?”
The passage of the 13th Amendment of the U.S. Constitution constitutionally abolished slavery nationwide in 1865. But it, too, provides an exception.
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,” the 13th Amendment reads.
Ingram said that, in the case of a legal challenge to Vermont’s employment of incarcerated people, a court’s interpretation of Proposal 2 and the 13th Amendment remains to be seen.
“The truth of the matter is, doing this could have a variety of different implications and ramifications in different arenas, but we aren't really sure,” she said. “I think even legal experts will tell you that nobody knows what the exact outcomes would be if lawsuits were filed. That's what would have to happen to test it.”
Asked for comment on Tuesday, Lauren Jandl, a spokesperson for the Vermont Attorney General’s Office, said, “The Attorney General's Office will defend Proposition 2 if passed.” The American Civil Liberties Union of Vermont declined an interview request.
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