After a few months working in his prison's hot and crowded kitchen, Richard Lilgerose noticed he was having trouble sleeping.
"I was always anxious about having to go to the kitchen and work under these conditions for hours upon hours and not knowing when I was going to be able to go back to my unit to get some rest," he told NPR in a call from prison.
Lilgerose, who has been in prison for 20 years, suffers from PTSD, and says the chaos of the kitchen made it hard to work there. He kept asking for breaks, and eventually the guards stopped making him work. But Lilgerose says they also punished him, moving him to a unit with less access to the outdoors and to phones. He says he also lost "good time," which can determine parole eligibility.
What Lilgerose experienced is common in prisons nationwide.
The 13th Amendment to the U.S. Constitution abolished slavery, but it included an exception: Neither slavery nor involuntary servitude shall exist, it declares, except as punishment for a crime. Prison rights advocates say this exception allows for forced labor in prisons.
The unexpected part of Lilgerose's story isn't so much what he experienced, but where he experienced it. Lilgerose is in prison in Colorado, a state that changed its own constitution to say no one could be forced to work, not even prisoners.
Five years ago this month, Colorado became the first state in modern U.S. history to enact this constitutional change. (Rhode Island banned slavery without exception in 1842.) Since then, there has been a growing movement across the U.S. to get rid of what's become known as the "exception clause." Nebraska, Utah, Alabama, Oregon, Tennessee and Vermont have all changed their constitutions in the past three years. At least nine more have introduced legislation, including Nevada, where residents will vote on this issue in 2024.
But in Colorado, the daily lives of people behind bars haven't changed.
"Unfortunately, here we are five years later, and we have not seen the change happen inside of our prisons. It's been business as usual," says Kym Ray, a community organizer with Together Colorado, a multi-faith community organization. "It was never intended to be a symbolic sort of thing, like we removed it from our constitution with no expectation of change. We actually did, in fact, expect there to be some level of change."
A spokesperson for Colorado's Department Of Corrections declined NPR's request for an interview and declined to comment, because of pending litigation.
Forced prison labor is common across the country
There are more than a million people in state and federal prisons across the country. Most of them work, and three quarters say they're required to, according to the most recent numbers from the federal Bureau of Justice Statistics.
"The reality is that once people enter the prison gates, they lose the right to refuse to work," says Jennifer Turner, a human rights researcher at the ACLU and the lead author on a report released last year on prison labor.
Most prison workers maintain the institutions where they're held. In New York, prisoners also staff DMV call centers. In Michigan, they make license plates. In Louisiana, they serve lawmakers food. In North Carolina, they work on highway crews. In 14 states including California, prisoners fight wildfires. In Texas, some prison farms are located on the same land as former slave plantations.
Colorado used to sell goat cheese to Whole Foods, though the company stopped amid public outcry. In 2020, the state generated more than $6 million selling to around 100 private companies.
Nationwide, prisoners often make less than a dollar an hour, and courts have ruled that laws protecting workers outside of prison, like the Fair Labor Standards Act, do not apply inside.
"They're stripped of every legal right, virtually, that workers outside of prisons and jails have," Turner says.
Andrea Armstrong, a professor of law at Loyola University New Orleans, says penalties for refusing work can vary widely.
"You could get a disciplinary write-up and that might be what we think of as a ticket. Maybe you can't use the commissary service or maybe you can't have visitation for a week or two. And that's one end of the spectrum," she says. "The other end of the spectrum is that you can be sent to solitary confinement and the time that you spend alone in a cell is 23 hours a day."
A fight is ongoing in Colorado
In 2018, Colorado's constitution went from this: "There shall never be in this state either slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted."
To this: "There shall never be in this state either slavery or involuntary servitude." Full stop.
"When it passed, we celebrated, and I don't think it hit me until after the watch party," says Kamau Allen, who helped lead the effort and is a founding member of the Abolish Slavery National Network. "I got in my car and I cried. I cried because I realized that we just made history."
Activists in other states began calling to learn more. Allen had high hopes until he started to hear from community members.
"A member of my church came up to me and said, 'You know, we're so happy that this passed. But my nephew, who is serving time right now, wants to know why, after this has passed, he's still forced to work against his will.' And that was one of the moments when the reality kicked in that this is a long, long process," Allen says.
In fact, data obtained by NPR from the Colorado Department of Corrections indicates that more than 14,000 prisoners have been written up for failing to work since 2019, the year after the amendment passed. Hundreds of them were reprimanded, including being assigned more work or losing other privileges.
Lilgerose, the man assigned to his prison's kitchen, and another prisoner filed a lawsuit last year, saying Colorado is violating its newly amended constitution. The state has argued the lawsuit should be dismissed and that taking away privileges is not the same as punishment. The case is now in discovery.
"It is really very simple. It's accountability. There is no accountability," says Abron Arrington, who was in prison in Colorado when the amendment passed. He was granted clemency in 2019.
"Legislators, if you're just like, 'OK, well we passed the bill, we've done our part. DOC can figure out how to do that and work that out.' DOC is not going to work it out."
Prison labor offsets the costs of mass incarceration
In Colorado, skeptics of the change to the state's constitution worried mostly that court-mandated community service and other work programs could inadvertently be affected.
Michael Gibson-Light, an assistant professor of sociology and criminology at the University of Denver, thinks there's another reason why prison labor is difficult to dismantle.
Much of the work of prison maintenance — cooking, cleaning, laundry, grounds keeping — is done by the people being held there, for little and sometimes no pay.
"If that flow of cheap or free labor were to stop, I think the fear is that the entire institution would possibly need to shut down," Gibson-Light says. "It's not an unrealistic fear because speaking to the inertia of this whole system, this has been the way that we've manned these facilities for generations. And so to suddenly stop, it would be a budgetary nightmare."
Prison workers produce at least $11 billion a year in goods and services across the country, according to the ACLU report. That labor offsets the cost of the prison system. Some government officials in states like Florida and California, where measures to ban slavery outright have been introduced, have made this argument.
In Florida, a former county commissioner told The Florida Times-Union: "There's no way we can take care of our facilities, our roads, our ditches, if we didn't have inmate labor. ... We could not tax our citizens enough to replace the value that the inmate labor contributes to our community."
In California, the state's Assembly Appropriations Committee noted in an analysis that if changing its constitution forced the state to pay prisoners minimum wage, it could cost taxpayers billions of dollars per year.
But Allen, the Colorado organizer, says the cost is more than just financial.
"It's also a human cost. We had this conversation back in the 1860s that, oh, abolishing slavery would be too costly for our economy," he says. "I don't think anybody now would disagree that that was a price worth paying."
The conversations around forced labor are highly political
Armstrong, the Loyola professor, says these amendments are important, especially in terms of addressing the harm to human dignity that people suffer while incarcerated.
"It is no small matter to feel like you are a slave," she says. "That being said, so much of the conversation around these amendments has also focused on the political realities of getting them passed and to do so, the ballot language itself has often reaffirmed the ability of a Department of Corrections to force someone to work."
Armstrong pointed to Utah as an example: Voters there removed the exception clause, but the change also included a note that it "does not apply to the otherwise lawful administration of the criminal justice system."
"It's not clear to me that in any state where that amendment was adopted, that the Departments of Corrections actually said, 'Oh, OK, it's our understanding that we will not force anybody to work again,'" she says.
The conversation around constitutional amendments, she says, has to be accompanied by one about fair wages, training and worker protections inside prisons.
"[People in prison] are not looking for a future where they don't work. So many people I've talked to have talked about the value of work that they learned behind bars," Armstrong says. "They want to do work that's meaningful and that they have a choice in. And that is not an extreme request."
In Colorado, the community organizers that led the original campaign are now regrouping.
And other states are paying attention. In New York, for instance, organizers are exploring a different route toward the same goal: Advocating for a statute to be passed by the state legislature, rather than a constitutional amendment. They say this route will create change faster.
"We're trying to be very explicit in the corrections law about what the intent and purpose of this law is," says Brandon Holmes, an organizer at the New York Civil Liberties Union. "We're not leaving room for interpretation."
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